715 N.E.2d 208 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *398
The Browns' allegations of liability against Chemstress were that it had caused Mr. Brown's injuries by: (1) causing the water to spew from the quench tank; (2) failing to coordinate its work around him; and (3) failing to provide him with a scaffold to work from. One of the other Illinois defendants filed a counterclaim against Chemstress that alleged similar bases of liability.
Cincinnati Insurance, with whom Chemstress held a commercial general liability insurance policy and a commercial umbrella insurance policy, refused to defend or indemnify Chemstress. Chemstress brought this declaratory judgment action against Cincinnati Insurance, seeking a declaration that the insurer had a duty to defend and indemnify it against the Illinois claims.2
Both parties moved the trial court for summary judgment. The focus of the parties' dispute was whether the claims pending in Illinois fell within the "professional liability" exclusion of both insurance policies, precluding the duty of Cincinnati Insurance to defend or indemnify Chemstress. It was the position of Cincinnati Insurance that the Illinois plaintiffs had stated claims based solely on the professional liability of Chemstress and that, therefore, it had no duty to defend or indemnify it. Chemstress, on the other hand, asserted that the complaint of the Illinois plaintiffs had stated general negligence claims as well. The trial court agreed with Chemstress that the Illinois suit had arguably stated general negligence claims that qualified for coverage under both policies. The trial court, therefore, held that Cincinnati Insurance had a duty to defend Chemstress and, "if the Illinois plaintiffs are successful, a duty to indemnify." The trial court granted Chemstress summary judgment. Cincinnati Insurance timely appealed to this Court. *400
The duty to defend "may arise solely from the allegations of the underlying complaint, regardless of the true facts as they are known to the insurer" when, as here, the insurer has agreed to defend even groundless, false, and fraudulent claims. PreferredRisk Ins. Co. v. Gill (1987),
Because the policy does not define "Professional Liability or Malpractice," this Court must construe it according to its ordinary meaning. Foster Wheeler Enviresponse, Inc. v. FranklinCty. Convention Facilities Auth. (1997),
This issue has received little attention from Ohio appellate courts. This Court does find guidance from courts in other jurisdictions that have interpreted similar exclusions within the context of the insurer's broad duty to defend. Although exclusions from general liability insurance policies for "professional" services or liability have evaded precise definition, courts have repeatedly found that claims based on workplace safety do not fall within the exclusion. See, e.g., In re Complaint of StonePetroleum Corp. (C.A. 5, 1992),
Chemstress presented evidence, through the affidavit of Steve Clark, that it was not responsible for safety at the job site. According to Mr. Clark, "the job responsibilities of Chemstress and myself did not include matters involving the safety of employees of other contractors at the Caterpillar site, supervision of other contractors' employees, [or] coordination of the work of other contractors * * *." Cincinnati Insurance did not present any evidence to contradict this statement.
By at least one of their claims, the Browns alleged that Chemstress breached its duty to ensure the safety of other workers at the job site, a duty that was, according to Mr. Clark's affidavit testimony, outside of the professional duties of Chemstress. The Browns alleged that Chemstress "negligently and carelessly failed to coordinate [its] work so that the Plaintiff would not be working above the quench tank as it was being worked on by the Defendant." The counterclaimant made similar allegations against Chemstress. Because the Browns and the counterclaimant alleged at least one claim against Chemstress for general negligence that was arguably within the coverage of the umbrella policy, Cincinnati Insurance had a duty to defend Chemstress against all the Illinois claims. Cincinnati Insurance's first assignment of error is overruled.
In reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard that a trial court is required to apply in the first instance: whether there were any genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. Parenti v. GoodyearTire Rubber Co. (1990),
An insurer's duty to indemnify is separate and distinct from its duty to defend. Riverside Ins. Co. v. Wiland (1984),
Because Chemstress failed to present any evidence that there is, in fact, any liability under either insurance policy, it failed to demonstrate any right to indemnity from Cincinnati Insurance. Its position was simply that there might be liability under the policy because the Browns had arguably stated a claim within policy coverage. As Louisiana's Third Circuit Court of Appeals noted, when addressing the same issue:
Whether plaintiffs are liable to the personal injury and wrongful death claimants on the basis of professional or nonprofessional acts or omissions, or indeed, whether plaintiffs are liable at all, are matters to be resolved in other proceedings. We cannot foresee all theories of liability that might be advanced in the underlying tort suit, and even less can we predict which theories (if any) might carry the day for the personal injury and wrongful death claimants. Furthermore, we will not explore the language of all the insurance policies issued to plaintiffs in an attempt to set forth, in advance, under which outcomes at trial *403 [the insurer] would be obligated to provide indemnification. * * *.
CBM Engineers, Inc. v. Transcontinental Ins. Co. (1984),
This Court is persuaded by this reasoning and it likewise will not speculate as to the true facts, nor can it issue an advisory opinion. The trial court had insufficient evidence before it to support summary judgment for Chemstress on its claim that Cincinnati Insurance has a duty to indemnify it. The second assignment of error of Cincinnati Insurance is sustained.
Judgment affirmed in part and reversed in part, andthe cause remanded.
SLABY, P. J. and BAIRD, J., CONCUR