concurring in part and dissenting in part.
{¶ 54} I concur with the bulk of the majority opinion. I write separately because I disagree with the majority’s determination that the Stop-Gap Employer’s Liability Coverage (“stopgap policy”) was not in effect, apparently as a matter of law.
{¶ 55} The issue of whether the stopgap policy provides coverage in this case was not decided by the trial court. The trial court apparently presumed that the stopgap policy was in effect and determined as a matter of law that Ramsey’s injury was not covered by the stopgap policy. The court of appeals affirmed that determination, without reaching the issue of whether the stopgap policy was in effect at the time of Ramsey’s injury.
{¶ 56} The parties disagree about which policy was in effect at the time of Ramsey’s injury. The majority states:
{¶ 57} “According to CIC, this CGL [commercial general liability] policy and the liability enhancement endorsement were in effect at the time Mrs. Ramsey was injured.
{¶ 58} “Penn Traffic, however, contends that it had no knowledge of and did not consent to deletion of the stopgap form and issuance of the liability enhancement endorsement.”
{¶ 59} Whether the stopgap policy was in effect at the time of the injury, a question of fact, was not ruled on by the trial court or the court of appeals and *236was neither briefed nor argued to this court. Accordingly, I would remand that issue to the trial court.
Robert P. Rutter; Lamkin, Van Eman, Trimble, Beals & Rourke and Kenneth Blumenthal, for appellants and cross-appellees, Penn Traffic and Virginia S. and Marlin K. Ramsey. Roetzel & Andress, Laura M. Faust, Kevin J. Osterkamp and Alisa Labut Wright, for appellee and cross-appellant Cincinnati Insurance Company. Gallagher, Sharp, Fulton & Norman, D. John Travis and Gary L. Nicholson, for appellee and cross-appellant Federal Insurance Company. Daniel J. Kelso, urging affirmance for amicus curiae Ohio Insurance Institute. Murray & Murray Co., L.P.A., Steven C. Bechtel, W. Patrick Murray and Dennis E. Murray Sr., urging reversal for amicus curiae Ohio Academy of Trial Lawyers.