595 N.E.2d 418 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *762 The defendants-appellants, John P. Wissel and his father, James E. Wissel, appeal the trial court's order granting summary judgment to the United States Fire Insurance Company ("U.S. Fire") on its complaint for declaratory judgment. The trial court found that an insurance policy issued by U.S. Fire to the Ohio High School Athletic Association did not cover injuries suffered by John Wissel in a high school football game. The Wissels assert that the trial court erred. We disagree and affirm.
On October 13, 1988, U.S. Fire brought a separate action for declaratory judgment against OHSAA. The complaint averred that the insurance policy issued by U.S. Fire to OHSAA excluded coverage for John Wissel's injuries by operation of the following clause:
On April 7, 1989, U.S. Fire amended its complaint to include the Wissels as party-defendants. Although correspondence of record makes clear that counsel for the Wissels had been notified earlier, U.S. Fire did not formally request written service of the amended complaint on the Wissels until July 10, 1989.2 Eight days later, on July 18, 1989, the trial court entered an order granting default judgment against OHSAA based upon its failure to appear at two hearings scheduled on U.S. Fire's motion to compel discovery. On July 19, 1989, U.S. Fire moved for summary judgment.
On August 8, 1989, the Wissels filed their answer, requesting that the court declare coverage in favor of OHSAA and require U.S. Fire to defend and provide coverage for any judgment in the Wissels' favor. On August 17, 1989, the Wissels moved the trial court to vacate the default judgment entered against OHSAA. On August 22, 1989, the Wissels filed a memorandum in opposition to U.S. Fire's motion for summary judgment.
Finally, on December 26, 1989, the trial court journalized its entry granting U.S. Fire's motion for summary judgment. Specifically, the trial court found that the "athletic participants exclusion" clause, quoted earlier, excluded insurance coverage for any damages awarded to John Wissel as a result of the injuries he sustained on the football field.3
Second, the Wissels assert that the trial court erred by concluding that the "athletic participants clause" excluded coverage. They contend that, although John Wissel's injuries occurred on the football field, the negligent conduct for which they are suing OHSAA did not. They claim that the acts for which they are suing OHSAA arose antecedent to Wissel's injury on the field, and were not committed by athletic participants, so that OHSAA's potential *764 liability does not, in the language of the exclusion clause, "arise from the activities [of any person] engaged in any game or contest * * *."
The words in a policy must be afforded their plain and ordinary meaning, "and only where a contract of insurance is ambiguous and therefore susceptible to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks coverage." Burris v. Grange Mut. Cos. (1989),
In the case sub judice, our review of the insurance policy in question leads us to conclude that the exclusionary language is not ambiguous but is, rather, quite clear. The plain meaning of the language is to exclude from coverage liability incurred by OHSAA as a result of a person's participation in an athletic contest. The Wissels' argument that OHSAA's liability arises from negligent conduct off the field by others cannot overcome the fact that John Wissel's injury occurred on the field — as a direct result of his participation in an athletic contest. It is, moreover, John Wissel's injury and resulting damages which give rise to OHSAA's potential liability, not OHSAA's alleged antecedent negligence. This conclusion follows from the principle that negligent conduct without injury is not actionable, and is further demonstrated by the fact that the statute of limitations does not begin to run against a negligence action for personal injury until some damage has occurred or has been discovered. See R.C.
We conclude, therefore, that the trial court correctly concluded that there was no coverage. Moreover, we are not persuaded by the Wissels' argument that the early departure of OHSAA deprived them, as necessary parties, of a right to co-defend alongside OHSAA. The Wissels have not demonstrated any prejudice caused by OHSAA's early departure by default. In fact, the record indicates that the trial court considered all relevant issues pertinent to the controversy upon the Wissels' entry into the case. Given our *765 resolution of the substantive issue and OHSAA's manifest failure to defend its own interests, we are convinced that OHSAA's presence as a co-defendant would not have changed the ultimate result herein.4
Accordingly, the judgment below is affirmed.
Judgment affirmed.
SHANNON, P.J., KLUSMEIER and GORMAN, JJ., concur.