2013 Ohio 1643
Ohio Ct. App.2013Background
- Thiemens owned a century-old Loudonville building insured by Grange Mutual under a commercial general liability policy.
- Policy includes Collapse Additional Coverage; collapse defined as abrupt falling or caving that prevents occupancy.
- May 29, 2010, the south wall collapsed; prior observations showed outward bowing and visible deterioration.
- Photos and engineer's report attributed collapse to deterioration/decay from long-term maintenance issues, not hidden decay.
- Trial court granted summary judgment to Grange on breach of contract, and dismissed related bad-faith and other claims; appeal followed.
- Appellate decision affirms trial court, holding no coverage under the policy for the May 29, 2010 collapse and rejecting illusory-contract and bad-faith arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collapse coverage was triggered by the May 29, 2010 collapse. | Thiemens argues collapse was covered since deterioration caused the collapse. | Grange contends collapse was not caused by hidden decay; policy requires hidden decay for coverage. | No coverage; collapse not caused by hidden decay under D(2)(b). |
| Whether the policy language renders collapse coverage illusory. | Policy allegedly grants coverage without real effect. | Coverage is not illusory because other covered collapse scenarios exist. | Not illusory; several coverages could trigger collapse coverage. |
| Whether the trial court properly granted summary judgment on the contract/bad-faith claims. | There were genuine issues of material fact about coverage and bad faith. | No coverage existed; no bad-faith result where contract was not breached. | affirmed summary judgment on breach of contract; bad-faith claim moot. |
| Whether the trial court erred in denying/ignoring the Motion to Strike the defense expert’s affidavit. | Richardson’s affidavit should be struck for incomplete subpoena responses and new opinions. | No abuse of discretion; deposition and testimony support admissibility. | No abuse; motion to strike properly denied. |
Key Cases Cited
- Nationwide Mut. Ins. Co. v. Marsh, 15 Ohio St.3d 107 (Ohio 1984) (insurance contracts construed as ordinary contracts)
- Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166 (Ohio 1982) (contract terms construed in favor of insured when ambiguous)
- Olmstead v. Lumbermen's Mut. Ins. Co., 259 N.E.2d 123 (Ohio 1970) (plain and ordinary meaning governs policy language)
- King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (Ohio 1988) (construe ambiguous policy language against insurer)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden-shifting framework for summary judgment)
- Vahila v. Hall, 77 Ohio St.3d 421 (1997) (summary judgment standard and burden shifting)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (Ohio 1987) (summary judgment standard and evidentiary review)
- Nationwide Insurance Company v. Tobler, 80 Ohio App.3d 560 (Ohio App.3d 1992) (interpretation of insurance policy language)
- Zanesville v. Motorists Mut. Ins. Co., 2007-Ohio-6448 (Ohio 5th Dist.) (reported decision cited on collapse interpretation)