[Cite as Meyers Lake Sportsman's Club, Inc. v. Auto-Owners (Mut.) Ins. Co., 2013-Ohio-3115.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MEYERS LAKE SPORTSMAN'S CLUB, : JUDGES:
INC., ET Al :
:
: Hon. John W. Wise, P.J.
Plaintiffs - Appellees : Hon. Patricia D. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
-vs- :
:
AUTO-OWNERS (MUTUAL) INSURANCE : Case No. 2012CA00241
COMPANY, ET Al :
:
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2012CV01151
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 15, 2013
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
ALLEN SCHULMAN BRIAN T. WINCHESTER
The Carnegie Building McNeal Schick Archibald & Biro Co., LPA
236 Third Street, S.W. 123 West Prospect Avenue, Suite 250
Canton, OH 44702 Cleveland, OH 44115
Stark County, Case No. 2012CA00241 2
JAMES T. ROBERTSON
WILLIAM S. PIDCOCK
Robertson & Pidcock, LLC
The Carnegie Building
236 Third Street, S.W.
Canton, OH 44702
Stark County, Case No. 2012CA00241 3
Baldwin, J.
{¶1} Defendant-appellants Auto-Owners (Mutual) Insurance Company and
Owners Insurance Company appeal from the December 4, 2012 Judgment Entry of the
Stark County Court of Common Pleas denying their Motion for Judgment on the
Pleadings.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 11, 2012, appellees Meyers Lake Sportsman’s Club, Inc. and
Meyers Lake Fish Dock, Inc. filed a complaint for declaratory judgment, breach of
contract/bad faith and punitive damages against appellants. Appellees, in their
complaint, alleged that appellee Sportsman’s Club had filed a complaint against Meyers
Lake Preserve, Inc. (Case No. 2011 CV 01990) seeking a declaratory judgment,
injunctive relief and damages for breach of contract, tortious interference with contract,
trespass, quiet title and punitive damages. Appellees further alleged that, on or about
September 30, 2011, Meyers Lake Preserve, Inc. had filed an answer and counterclaim
in such case against appellee Sportsman’s Club and a counterclaim against appellee
Fish Dock. Appellees alleged that the counterclaim included claims against appellee
Sportsman’s Club for trespass and ejectment and a claim against appellee Fish Dock
for conversion.
{¶3} Appellees, in their complaint in the case sub judice also asserted that they
immediately notified appellants, through their counsel in Case No. 2011 CV 01990, of
the filing of the counterclaim and that appellants denied coverage under the relevant
polices and refused to defend appellees in Case No. 2011 CV 01990.
Stark County, Case No. 2012CA00241 4
{¶4} On October 24, 2012, appellants filed a Motion for Judgment on the
Pleadings pursuant to Civ.R. 12(C). Appellants, in their motion, sought a declaration
from the trial court that they had no duty to defend and/or indemnify appellees with
respect to the claims asserted against them by Meyers Lake Preserve, Inc. in Case No.
2011 CV 01990. Appellees filed a memorandum in opposition to such motion on
November 7, 2012.
{¶5} Thereafter, on November 21, 2012, a stipulation was filed dismissing the
claims asserted by appellees against appellants for breach of contract and bad faith.
The parties agreed that the only remaining claims were those for declaratory judgment.
{¶6} Pursuant to a Judgment Entry filed on December 4, 2012, the trial court
denied appellants’ Motion for Judgment on the Pleadings. The trial court, in its
Judgment Entry, found that the claims asserted by the Preserve against appellees in
Case No. 2011 CV 01990 were “occurrences” as such term is defined in the subject
policies and that alleged personal injury to the Myers Lake Preserve was sufficient to
trigger appellants’ duty to defend appellees in the underlying case. A defense was late
tendered under a reservation of rights.
{¶7} Appellants now raise the following assignment of error on appeal:
{¶8} THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADING AND FINDING A DUTY TO DEFEND.
I
{¶9} Appellants, in their sole assignment of error, argue that the trial court erred
in denying their Motion for Judgment on the Pleadings and finding a duty to defend. We
disagree.
Stark County, Case No. 2012CA00241 5
{¶10} A motion for judgment on the pleadings presents only questions of law.
Luthy v. Dover, 5th Dist. No.2011AP030011, 2011–Ohio–4604, ¶ 13, citing Dearth v.
Stanley, 2nd Dist. No. 22180, 2008–Ohio–487. In ruling on a motion for judgment on the
pleadings, the trial court must construe the material allegations in the complaint and any
reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can
prove no set of facts entitling plaintiff to relief, the court must sustain a motion for
judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010–
CA–00120, 2011–Ohio–580, ¶ 12, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000–
Ohio–230, 733 N.E.2d 1161. However, the complaint must allege sufficient facts to
support any conclusions, and unsupported conclusions are not presumed to be true. Id.
{¶11} Judgment on the pleadings may be granted where no material factual
issue exists. “However, it is axiomatic that a motion for judgment on the pleadings is
restricted solely to the allegations contained in those pleadings.” Giesberger v. Alliance
Police Department, 5th Dist. No. 2011 CA00070, 2011–Ohio–5940, ¶ 18.
{¶12} Our review of the trial court's decision granting judgment on the pleadings
is de novo. See, Hignite v. Glick, Layman & Assoc., Inc., 8th Dist. No. 95782, 2011–
Ohio–1698. When reviewing a matter de novo, this Court does not give deference to the
trial court's decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-
829- 809 N.E.2d 1161, ¶ 11 (9th Dist.). “Under Civ.R. 12(C), dismissal is appropriate
where a court (1) construes the material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds
beyond doubt, that the plaintiff could prove no set of facts in support of his claim that
Stark County, Case No. 2012CA00241 6
would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931.
{¶13} At issue in the case sub judice is whether or not appellants had a duty to
defend appellees in Case No. 2011 CV 01990. Appellants contend that the claims
asserted by Meyers Lake Preserve against appellees in such case for trespass,
ejectment, and/or conversion are subject to the intentional acts exclusions of the
polices, that such claims do not constitute “occurrences” under the policies, and that
such claims were not for personal injury or property damage.
{¶14} “To determine when the duty to defend arises, one must look to the
allegations in the complaint and the insurance policy to ascertain whether the insured's
actions were within the coverage of the policy.” Snowden v. Hastings Mut. Ins. Co., 177
Ohio App.3d 209, 2008-Ohio-1540, 894 N.E.2d 336, ¶ 10 (7th Dist), citing Preferred
Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78, 80, 491 N.E.2d 688 (1986).
{¶15} “The scope of the allegations in the complaint against the insured
determines whether an insurance company has a duty to defend the insured. The
insurer must defend the insured in an action when the allegations state a claim that
potentially or arguably falls within the liability insurance coverage. However, an insurer
need not defend any action or claims within the complaint when all the claims are
clearly and indisputably outside the contracted coverage.” (Citations omitted.) Ohio
Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d
1155, ¶ 19.
Stark County, Case No. 2012CA00241 7
{¶16} An insurer's duty to defend need not arise solely from the allegations in
the complaint, but may arise at a point subsequent to the filing of the complaint. See
Willoughby Hills v. Cincinnati, 9 Ohio St. 3d 177, 179, 459 N.E.2d 555 (1984).
{¶17} The Commercial General Liability (CGL) policies issued by appellants to
appellees in the case sub judice state, in relevant part, as follows:
SECTION I-COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement.
We will pay those sums that the insured becomes legally obligated to pay as
damages because of “bodily injury” or “property damage” to which this insurance
applies. We will have the right and duty to defend the insured against any “suit”
seeking those damages. * * *
“***
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that
takes place in the “coverage territory”; and
(2) The “bodily injury”’ or “property damage”’ occurs during the policy period.…
2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury
“Bodily injury” or “property damage” expected or intended from the standpoint of
the insured. This exclusion does not apply to “bodily injury” resulting from the use
of reasonable force to protect persons or property.
Stark County, Case No. 2012CA00241 8
{¶18} “Occurrence” is defined in Section V-Definitions of the CGL policies as,
“an accident, including continuous or repeated exposure to substantially the same
general harmful conditions.” “Property damage” is defined as meaning, “a. [p]hysical
injury to tangible property, including all resulting loss of use of that property. All such
loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. [l]oss of use of tangible property that is not physically injured. All such loss shall be
deemed to occur at the time of the ‘occurrence’ that caused it.” Moreover, “Personal
Injury” is defined in paragraph 15 of Section V, in relevant part, as meaning injury “other
than ‘bodily injury’ arising out of one or more the following offenses:…c. The wrongful
eviction from, wrongful entry into, or invasion of the tight of private occupancy of a room,
dwelling or premises that a person occupies, committed by or on behalf of its owner,
landlord or lessor.”
{¶19} The umbrella policy issued by appellant Auto-Owners to appellee
Sportsman’s Club provide coverage for personal injury or property damage that is
caused by an incident. The policy contains the following definitions:
I. Incident means either an occurrence or an offense, whichever is the basis of
coverage, then:
1. When coverage applies on the occurrence basis, incident means an accident
with respect to;
a. Bodily injury, including damages claimed by any person or organization for
care, loss of services or death resulting at any time for the bodily injury; or
b. Property damage
Stark County, Case No. 2012CA00241 9
Including continuous or repeated exposure to substantially the same harmful
conditions. Continuous or repeated exposure to substantially the same general
harmful conditions constitutes one incident.
2. When coverage applies on an offense basis, incident means an offense
committed by the insured resulting in personal injury or advertising injury,
including all such injury sustained by any one person or organization.”
{¶20} In turn, the umbrella policy defines “personal injury”, in relevant part, as
meaning “injury, other than bodily injury, arising out of one or more the following
offenses:… 3. The wrongful eviction from, wrongful entry into, or invasion of the right of
private occupancy of a room, dwelling or premises that a person occupies, committed
by or on behalf of its owner, landlord or lessor.” “Property Damage’ is defined as
meaning.”1. [p]hysical injury to tangible property, including all resulting loss of use of
that property. All such loss of use shall be deemed to occur at the time of the physical
injury that caused the loss of use. 2. [l]oss of use of tangible property that is not
physically injured. All such loss shall be deemed to occur at the time of the incident that
caused the loss of use.”
{¶21} The umbrella policy further contains an exclusion for “Bodily injury or
property damage’ expected or intended from the standpoint of the insured.”
{¶22} The trial court, in its December 4, 2012 Judgment Entry, found that the
claims asserted in Case No. 2011 CV 01990 by Meyers Lake Preserve against
appellees for trespass, ejectment and/or conversion constituted “occurrences” under the
insurance policies issued by appellant to appellee and were not excluded an intentional
torts and that appellants had a duty to defend appellees with respect to such claims.
Stark County, Case No. 2012CA00241 10
The trial court further found that Meyers Lake Preserve suffered from an alleged
personal injury sufficient to trigger the duty to defend.
{¶23} Appellants initially argue that the trial court erred in denying their Motion
for Judgment on the Pleadings and finding a duty to defend because the claims for
trespass, ejectment and/or conversion are intentional torts excluded under the subject
polices. Appellants note that the policies exclude coverage for bodily injury or property
damage that is expected or intended from the standpoint of the insured. Appellants
specifically maintain that the claims for trespass, ejectment and conversion sound in
intentional tort. However, in order for an exclusion for intentional acts to apply, the
insurer must show not only that insured intended act, but also that insured intended to
cause harm or injury. Physicians Ins. Co. of Ohio v. Swanson, 58 Ohio St.3d 189, 569
N.E.2d 906 (1991).
{¶24} We concur with the trial court that, based upon the language contained in
the relevant policies, the claims for trespass, ejectment and conversion asserted by the
Meyers Lake Preserve against appellees in Case No. 2011 CV 01990 were occurrences
and that such claims are not excluded as intentional acts. As noted by the trial court,
when an insured intentionally performs an act which causes unintended damage, the
event is an “occurrence” under a CGL policy. See Holub Iron & Steel Co. v. Machinery
Equipment & Salvage Co., 9th Dist. No. 12304, 1986 WL 7762 (July 2, 1986).
{¶25} In the underlying case, appellee Sportsman’s Club filed a complaint
against Meyers Lake Preserve, alleging that such appellee’s members had an implied
easement to use Meyers Lake and such appellee’s own property for swimming, boating
and fishing. Appellee Sportsman’s Club further alleged that Meyers Lake Preserve was
Stark County, Case No. 2012CA00241 11
depriving appellee and its members from their property rights. In response, Meyers
Lake Preserve filed a counterclaim against appellee Sportsman’s Club and appellee
Fish Dock. The counterclaim included claims against appellee Sportsman’s Club for
trespass and ejectment and a claim against appellee Fish Dock for conversion. As
noted by the trial court, appellee Sportsman’s Club’s use of Meyers Lake was not
intended to cause damage to the Preserve. Rather, as set forth in the complaint in the
underlying case, appellee Sportsman’s Club believed that it has an implied easement
that gave it the right to use the lake. We agree with the trial court that the “expected or
intended injury” exclusion does not apply so as to preclude appellants from having a
duty to defend appellees under the subject policies.
{¶26} Appellants also argue that claims for trespass, ejectment and/or
conversion do not constitute claims for personal injury or property damage under the
subject policies and that, therefore, there was no duty to defend the claims asserted by
Meyers Lake Preserve against appellees in the underlying case.
{¶27} As is stated above, the term “personal injury” is defined in the subject
policies as meaning other than “bodily injury” arising out of one or more of the following
offenses:
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private
occupancy of a room, dwelling or premises that a person occupies, committed by
or on behalf of its owner, landlord or lessor.
{¶28} As noted by appellees, “[b]ecause the Sportsman’s Club has an implied
easement to use Meyer’s Lake, and the Preserve likewise has a right of occupancy of
Meyer’s Lake, the alleged personal injury suffered by the Preserve was in fact an
Stark County, Case No. 2012CA00241 12
alleged invasion of the Preserve’s property right of private occupancy which was
committed by the Appellees.” Moreover, the asserted loss of use of the premises that
allegedly was caused by appellees constitutes property damage. We agree with the trial
court that the alleged personal injury to the Preserve was sufficient to trigger duty on
behalf of appellants to defend appellees in the underlying case.
{¶29} Based on the foregoing, we find that the trial court did not err in denying
appellants’ Motion for Judgment on the Pleadings. We cannot find, beyond doubt, that
appellees could prove no set of facts that would entitle them to relief.
{¶30} Appellants’ sole assignment of error is, therefore, overruled.
{¶31} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
CRB/dr
[Cite as Meyers Lake Sportsman's Club, Inc. v. Auto-Owners (Mut.) Ins. Co., 2013-Ohio-3115.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MEYERS LAKE SPORTSMAN'S CLUB, :
INC., ET. AL. :
:
Plaintiff -Appellee :
:
-vs- : JUDGMENT ENTRY
:
AUTO-OWNERS (MUTUAL) INSURANCE :
COMPANY, ET. Al.
:
Defendant - Appellant : CASE NO. 2012CA00241
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs
assessed to appellants.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY