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Reed v. Davis

Court of Appeals of Ohio, Tenth District

August 29, 2013

Alex Reed, Plaintiff-Appellant,
v.
Kyle Davis et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas, No. 12CV 007455

The Law Firm of Frank E. Todaro Co., L.PA., and Frank E. Todaro, for appellant.

Joyce V. Kimbler, for appellee Nationwide Property and Casualty Insurance Company.

DECISION

DORRIAN, J.

(¶ 1} Plaintiff-appellant, Alex Reed ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas, wherein the trial court entered summary judgment in favor of defendant-appellee Nationwide Property & Casualty Insurance Co. ("Nationwide"). The court found that Nationwide was not contractually obligated to defend and indemnify its insured, defendant-appellee Kyle E. Davis ("Davis"), for any damages that might be awarded in a tort action filed against Davis by appellant. In our de novo review of the record, however, we find that the parties' arguments concern the interpretation of policy language that appears nowhere in the record before us. In view of this circumstance, we reverse the summary judgment entered in Nationwide's favor and remand the case for further proceedings.

(¶ 2} The facts in this case are straightforward and undisputed. Appellant and Davis were college roommates who shared a house with several other individuals. At approximately 1:00 a.m. on March 30, 2012, the two men were together with other acquaintances in a bar and began arguing. In deposition testimony, Davis described their conversation as being about "stupid things and just stupid stuff that guys argue about * * * something about who lifts more and [whose] girlfriend is better looking; * * * [i]t was just me being drunk, horseplay." (Davis depo., 10.) The exchange continued, however, and appellant began pinching or grabbing Davis in the stomach while commenting about Davis's physique. Davis acknowledged that he then hit appellant; they exchanged a few more words; Davis left the bar with his girlfriend; and they went home in a cab. Davis further testified that he "had no idea how hard [he] hit [appellant]" at the time and did not know whether appellant had suffered any injury. (Davis depo., 11.) Davis acknowledged being intoxicated and stated that he threw only one punch. He did not recall whether appellant had fallen to the floor but did remember him "kind of bending over and covering his face." (Davis depo., 18.) Davis also acknowledged that he had overreacted in striking appellant. He testified that he had no intention of harming appellant to the point that appellant would need medical care.

(¶ 3} Appellant filed suit against Davis in the Franklin County Court of Common Pleas and asserted that Davis had struck him one time in the face causing serious injuries and past and future medical expenses. On June 29, 2012, Davis filed an answer to the complaint.

(¶ 4} On August 3, 2012, Nationwide moved the court for leave to intervene in the action and proffered an intervening complaint. Nationwide asserted in the complaint that it had issued a liability policy to Davis and had a substantial interest in the litigation. Nationwide sought, inter alia, a declaration concerning the respective rights, responsibilities, and obligations of all the parties to the proceeding.

(¶ 5} Nationwide attached to the proferred complaint as Exhibit A numerous pages of a tenant's insurance policy, which it claimed to have issued to Davis. The policy pages were submitted under cover of a one-page "certification" signed by an individual who identified herself as a "duly authorized Nationwide Insurance staff member entrusted with oversight of the system of record from which this copy was produced." The certification, although purportedly made upon information and belief rather than personal knowledge and "under the penalty of perjury, " was signed and dated but was not notarized or acknowledged by any other individual. The certification further stated that the "attached copy of policy number 92 34 HP 887096 was made at or near the time of certification, as part of regularly conducted business activities, and is a true and accurate copy of the official record kept as part of regular business activities." (Aug. 3, 2012 Intervening Complaint, Exhibit A.)

(¶ 6} Appellant supported Nationwide's intervention, and the trial court granted its motion to intervene. Nationwide thereafter filed a motion for summary judgment. It attached to its motion relevant excerpts from the transcript of Davis's deposition and several printouts of appellate decisions. It did not, however, attach an affidavit or any other evidence to prove its allegation that it had issued a tenant's liability policy to Davis, or the content of any such policy. In fact, Nationwide attached no affidavits to its motion for summary judgment

(¶ 7} The trial court, with very little discussion and no reference to the exact language considered, granted Nationwide summary judgment, finding that Nationwide had no obligation to provide Davis liability coverage. The trial court included in an amended entry of summary judgment its conclusion that there was no just reason for delay. Neither Nationwide nor appellant disputes that the entry of summary judgment in favor of Nationwide was a final and appealable judgment. See Civ.R. 54(B).

(¶ 8} Appellant has timely appealed and has presented three assignments of error, as follows:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT BY APPLYING THE INFERRED INTENT DOCTRINE IN THE INSTANT CASE WHEN APPELLANT'S ACT DOES NOT NECESSARILY RESULT IN HARM.
II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT BY FINDING THAT THE EXCLUSIONARY LANGUAGE CONTAINED WITHIN APPELLEE'S POLICY ENTITLES APPELLEE TO JUDGMENT AS A MATTER OF LAW ON THE INTENT OF ITS ...

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