2012 Ohio 2393
Ohio Ct. App.2012Background
- Third Wing, Inc. operates a Buffalo Wild Wings franchise and signed an indemnity clause agreeing to hold BWWI harmless for claims and costs, including attorneys’ fees.
- Third Wing carried a liquor liability insurance policy with Columbia Casualty Co.
- In Glasney v. Third Wing, a Dram Shop Act suit was filed against Third Wing and BWWI; Columbia defended Third Wing but did not defend BWWI.
- Glasney settled; Columbia paid $300,000 on Third Wing’s behalf; BWWI paid $7,500.
- BWWI demanded indemnification from Third Wing for the $7,500 plus $2,740 in expert fees and $64,732 in its attorney fees; Third Wing paid according to demand.
- Third Wing filed a declaratory judgment action seeking a ruling that BWWI’s attorney fees are “damages” covered by Columbia’s liquor liability policy; trial court granted summary judgment for Columbia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are BWWI’s attorney fees damages covered by Columbia policy? | Third Wing argues fees are damages under policy per Neal-Pettit. | Columbia contends indemnity fees are contractual, not an injury-based damages under the policy. | No; fees were not injuries under policy. |
| Does the indemnity-based claim arise from contractual terms rather than policy-covered injury? | Third Wing relies on expansive damages interpretation to include attorney fees. | Indemnity costs arise from franchise agreement, not from selling/serving alcohol; not within coverage. | Indemnity claim not within liquor policy coverage; upheld summary judgment. |
Key Cases Cited
- Neal-Pettit v. Lahman, 125 Ohio St.3d 327 (Ohio 2010) (attorney fees may be damages under an insurance policy when injury and coverage align)
- Erie Ins. Co. v. Grange Mut. Cas. Co., 176 Ohio App.3d 7 (6th Dist. 2008) (claims arising from contract are not within insurance coverage)
- Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (Ohio 1978) (insurance policy interpreted as plain language; ambiguity resolved in insured's favor)
- Dairyland Ins. Co. v. Finch, 32 Ohio St.3d 360 (Ohio 1987) (definition of insurance terms and damages governs coverage scope)
- Hacker v. Dickman, 75 Ohio St.3d 118 (Ohio 1996) (ambiguous policy terms resolved in favor of insured when reasonable)