Case Information
*1
[Cite as
Helfrich v. Allstate Ins. Co.
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Jаmes C. Helfrich, :
Plaintiff-Appellant, : v. : No. 12AP-559
(C.P.C. No. 11CVH-06-7724) Allstate Insurance Company, :
(REGULAR CALENDAR) Defendant-Appellee. :
D E C I S I O N Rendered on September 30, 2013 Christopher M. Corrigan , for appellant.
Crabbe, Brown & James LLP , and Daniel J. Hurley , for appellee.
APPEAL from the Franklin County Court of Common Pleas CONNOR, J.
Plaintiff-appellant, James C. Helfrich ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, Allstate Insurance Company ("appellee"). For the following reasons, we affirm. I. FACTS AND PROCEDURAL HISTORY The underlying facts of this case began in 2007, when appellant commenced
a civil action against various defendants in the Licking County Court of Common Pleas. In April 2007, the Licking County defendants filed a counterclaim against appellant seeking a declaration that appellant was a vexatious litigator pursuant to R.C. 2323.52. Appellant forwarded a copy of the counterclaim to appellee seeking coverage under twо separate policies of insurance. Appellee denied coverage and refused to provide appellant with a defense in the Licking County action. On March 4, 2011, the trial court entered judgment against appellant on the
counterclaim and declared him to be a vexatious litigator as defined in R.C. 2323.52(A)(3). In its judgment entry, the trial court expressly retained jurisdiction of Licking County defendants motion for frivolous conduct. Appellant subsequently dismissed his complaint pursuant to Civ.R. 41(A). On August 19, 2011, the trial court ruled that appellant had engaged in frivolous conduct and ordered appellant to pay the Licking County defendants' attorney fees in the amount of $118,451.08. Appellant subsequently brought the instant action against appellee in the
Franklin County Court of Common Pleas, seeking a deсlaration that appellee had a contractual duty to indemnify and defend him in the Licking County action, pursuant to a policy of insurance. Appellant also asserts claims for damages sounding in breach of contract and bad faith. The facts of the case being undisputed, the parties filed cross-motions for
summary judgment. The trial court granted summary judgment in favor of appellee and denied appellant's motion for summary judgment. In so doing, the trial court determined that appellee did not owe a duty to provide either a defense or indemnification to appellant in the Licking County litigation. The trial court also determined that the denial of coverage was consistent with the policy terms and not in bad faith.
II. ASSIGNMENTS OF ERROR Appellant appealed to this court frоm the judgment of the Franklin County
Court of Common Pleas. Inasmuch as the two assignments of error present a single issue for review, we will consider them together. Appellant presents the following assignments of error for our review:
I. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
III. STANDARD OF REVIEW Appellate review of summary judgment motions is de novo. Helton v.
Scioto Cty. Bd. of Commrs
.,
judgment demonstrates that (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter оf law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C);
State ex rel. Grady v. State Emp.
Relations Bd.
,
Ward v. United Foundries, Inc.,
129 Ohio St.3d 292,
Landlord Package policy, and a Personal Umbrella Package policy. The relevant provisions of the two policies differ materially. Accordingly, we will consider them separately: The Landlord Package poliсy reads in relevant part as follows:
Losses We Cover Under Coverage X: Subject to the terms, conditions and limitations of this policy, Allstate will pay compensatory damages which an insured person becomes legally obligated to pay because of * * * personal injury * * * arising from a covered occurrence . * * *
" Personal injury "—means damages resulting from: * * *
c) libel; slander; humiliation; defamation of character; invasion of rights of privacy.
(Emphasis sic.) Appellant concedes that the counterclaim in the Licking County action does not include a prayer for monetary relief. Appellant argues, however, that appellee is required to provide a defense, even if there are no damages alleged, where the insured is sued as a result of a "personal injury," even if damages are not alleged. Appellee argues that, the counterclaim does not state a claim that falls potentially or arguably within policy coverage and, hence, it had no duty to defend appellant. An insurer's duty to defend is broader than and distinct from its duty to
indemnify.
Ohio Govt. Risk Mgt. Plan v. Harrison,
brought pursuant to the vexаtious litigator statute. In distinguishing remedies available
under the vexatious litigator statute from those available under the frivolous conduct
statute, this court noted that R.C. 2323.51 (frivolous conduct) and R.C. 2323.52 (vexatious
litigator) offer complementary remedies, but the remedies are not the same.
See Roo v.
Sain
, 10th Dist No. 04AP-881,
policy is satisfied by the attorney fees leveled against him for frivolous conduct, the court
of appeals in
Siemientkowski v. State Auto. Mut. Ins. Co.,
8th Dist. No. 87299, 2006-
Ohio-4122, held that the award of costs and attorney fees imposed against insured's for
frivolous conduct in a prior litigation do not constitute an "injury" covered by the
insured's homeowner's insurance policy.
Id
. at ¶ 6.
See also Tejada-Hercules v. State
Auto. Ins. Co.
, 10th Dist. No. 08AP-150,
DEFENSE; SETTLEMENT; SUPPLEMENTARY PAYMENTS
Coverage - When We Pay
Allstate will pay when an insured becomes legally obligated to pay for personal injury, property damage or bodily injury caused by an occurrence .
Allstate will defend an insured if sued as the result of an occurrence covered by this policy even if the suit is groundless, false or fraudulent.
" Occurrence " - means * * * [a]n occurrence includes personal injury, property damage and bodily injury caused by an insured while trying to protect persons or property from injury or damage
" Personal injury " - means:
* * *
b) libel; slander; misrepresentation; humiliation; defamation of character; and invasion of rights of privacy.
(Emphasis sic.) Appellant argues that the counterclaim filed against him in the Licking Cоunty action states a claim for defamation which falls within the definition of "personal injury." Appellant relies on the following paragraphs of the counterclaim in support of that argument:
6. James Helfrich ("Helfrich") is a resident of Licking County, Ohio, who also owns the real property commonly known as 185 Isaac Tharp Street, Pataskala, Ohio (the"Property"). * * *
8. On February 9, 2004, Helfrich initiated a lаwsuit against Strickland, Garner, and Coldwell Banker King Thompson in the Licking County Municipal Court, Case No. 04-CVF-00225 ... pertaining to Helfrich's alleged "excessive damage and repair costs" to the Property.
* * *
12. On January 27, 2005 Helfrich initiated a lawsuit against Strickland, Garner, and Coldwell Banker King Thompson in the Licking County Court of Common Pleas Court, Case No. 05-CV-0120 ... also pertaining to Helfrich's alleged "excessive damage and repair costs" to the Property.
* * *
16. In blatant contravention of Ohio Civ.R. 11 and in violation of O.R.C. 2323.52, Plaintiff's pleadings in the Municipal Litigation and the Common Pleas Litigation have contained "scandalous and indecent material" and Helfrich has engaged in conduct that obviously serves to harass or maliciously injure another party, ...
* * *
36. On January 3, 2007, Helfrich filed a document in Licking County Common Pleas Court Casе No. 05-CV-0018, which he allegedly faxed "to the Judges of Licking County" ... that contains at least the following "scandalous and indecent matter":
a. While I could go on and on with examples, all of you know that attorney's professions are built on lies, and/or misleading facts. You operate in a court system where there is no civil repercussion for person who lie under oath, or attorney's who can be proven that they encourage thеir client to lie cannot be sued civilly. b. Most recently, I have been involved in litigation with one attorney for more than two years, the docket is filled full of twisted facts or blatant lies .
* * * *
37. Helfrich did not send a copy of the January 3, 2007, letter to Madison even though such letter not-so-indiscreetly references the Common Pleas Litigation and false accusations about Madison. * * * *
39. A cursory review of James Helfrich v. Sherri Mellon ... demonstrates Helfrich ( sic ) disrespect for the judicial system and his inclusion of "scandalous and indecent materiаl" in his pleadings: . . .
* * * *
42. Helfrich's conduct throughout the Municipal Litigation, the Common Pleas Litigation, the case sub judice , and other litigation serves merely to harass or maliciously injure Counterclaimants and other parties in violation of O.R.C. 2323.52.
(Emphasis sic.) (Appellant's brief, 1-3.) Unlike the Landlord Package policy, the Personal Umbrella Package policy does not specifically state "personаl injury means damages." However, as noted above, the duty to defend arises only when the pleading filed against the insured potentially or arguably falls within the liability insurance coverage . Harrison; Trainor. The Personal Umbrella Package policy employs the phrase "when we pay" in defining the limits of liability insurance coverage. Accordingly, liability insurance coverage is tied inextricably to instances where the insured mаy be legally required to pay damages. The policy employs the phrase " occurrence covered by this policy" in defining the limits of appellee's duty to defend. Thus, the duty to defend is also tied inextricably to instances where the insured may be legally required to pay damages. Appellant contends that the duty to defend arises whenever the insured is
sued for a "personal injury," even though the pleading does not seek payment. In other words, appellant believes that the duty to defend arises even though the alleged personal injury does not invoke liability insurance coverage. Such a reading ignores the plain language of the policy limiting appellee's duty to defend to an "occurrence covered by this policy." Thus, the court finds that, in the absence of a prayеr for damages, the
counterclaim filed in the Licking County action did not state a claim against appellant that arguably or potentially fell within the coverage provided by the Personal Umbrella Package policy. Accordingly, appellee did not owe appellant a duty to defend him in the Licking County action. Moreover, even if the court were to acceрt appellant's argument that the
duty to defend under the Personal Umbrella Package policy arises whenever the insured is sued for a personal injury, the court finds that the counterclaim filed in Licking County does not allege a personal injury. There is no question that the counterclaim alleged a meritorious claim
under the vexatious litigator statute. Indeed, the court of appeаls affirmed the trial court
judgment against appellant on the counterclaim.
See Helfrich v. Madison
, 5th Dist. No. 11
CA 26,
allegations state a claim that potentially or arguably falls within the liability insurance
coverage.
Harrison; Trainor.
In undertaking the analysis, this court will not stretch the
allegations beyond reason in order to impose a duty on the insurer.
Hahn's Elec. Co. v.
Cochran
, 1oth Dist. No. 01AP-1391,
is clear. It seeks to prevent abuse of the system by those persons who persistently and
habitually file lawsuits without reasonable grounds and/or otherwise engage in frivolous
conduct in the trial сourts of this state. Such conduct clogs the court dockets, results in
increased costs, and oftentimes is a waste of judicial resources-resources that are
supported by the taxpayers of this state. The unreasonable burden placed upon courts by
such baseless litigation prevents the speedy consideration of proper litigation." ' "
Id.
at
¶ 6, quoting,
Mayer v. Bristow,
91 Ohio St.3d 4, 13 (2000), quoting
Cent. Ohio Transit
Auth. v. Timson,
we set forth the elements of a claim for defamation:
(a) a false and defamatоry statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
(Citations omitted.) Id. at ¶ 26 The vexatious litigator statue vindicates the right of the courts and the tаxpayers of this state to be free from the delay and expense associated with baseless litigation, whereas common-law defamation vindicates an individual's right to be free from false statements that injure the individual's character or reputation. See id. The two claims are nothing alike. [1] Moreover, to the extent that the counterclaim attributes any "statements" to
appellant, such statements pertain largеly to lawyers and judges who were not parties in the Licking County action. With the single exception of the statements about "Madison" referenced in paragraph 37 of the counterclaim, it is impossible to tell from the counterclaim what the "scandalous and indecent material" consists of and whether any of it pertains to parties in that action. Similarly, there is no detail provided аbout the alleged "false accusations about Madison" referenced in paragraph 37. It is only by innuendo that one can deduce that Madison is a target of the allegations of dishonesty made in paragraph 36. Under Ohio law, when a complaint alleges defamation per se, damages are
presumed, but when a complaint alleges defamation per quod, the complaint must allege
special damages.
Williams v. Gannett Satellite Information Network, Inc.,
162 Ohio
App.3d 596,
5489, ¶ 13, we were required to determine whether a pleading stated a claim sounding in
negligence or a claim sounding in defamation for purposes of the statute of limitations.
This court relied on the following guiding principle in making the determination:
" ' "[C]ourts must look to the actual nature or subject matter of the case, rather than to the
form in which the action is pleaded. The grounds for bringing the action are the
determinative factors, the form is immaterial." ' "
Id.
, quoting
Love v. Port Clinton
, 37
Ohio St.3d 98, 99 (1988), quoting
Hambleton v. R.G. Barry Corp.
,
phrases that might also appear in a pleading alleging defamation, the actual nature and subject matter of the counterclaim is the vexatious litigator statute. The counterclaim clearly and unambiguously seeks a declaration that appellant is a vexatious litigator pursuant to R.C. 2323.52. The counterclaim does not allege defamation. The context in which the allegations of the counterclaim are framed, including the prayer for dеclaratory relief and the absence of a prayer for damages, the court can come to no other conclusion. We will not stretch the allegations of the counterclaim beyond reason to impose a duty on appellant in this case. See Hahn's Elec. Co . Based on the foregoing, we find that appellee was justified in denying
coverage under the Personal Umbrella Packаge policy and in refusing to defend appellant.
Having determined that appellee was justified in refusing to defend or indemnify appellant
under either of the policies at issue, appellee is entitled to judgment as a matter of law on
appellant's claims for breach of contract and bad faith.
See Zoppo v. Homestead Ins. Co.
,
summary judgment and by denying appellant's motion for summary judgment. Therefore, appellant's first and second assignments of error are overruled.
IV. DISPOSITION Having overruled each of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed. SADLER and DORRIAN, JJ., concur. _________________
Notes
[1]
Compare Siemientkowski
at ¶ 6 (frivolous conduct "is not akin to * * * defamation," for purposes of
liability coverage);
William J. Templeman Co. v. Liberty Mut. Ins. Co.
.,