Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Gallagher Sharp, L.L.P., Richard CO. Rezie, and Theresa A.
Richthammer, for appellant.
D. Schwartz, pro se.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, J.
1} Plaintiff-appellant Gallagher Sharp L.L.P.
("Gallagher") appeals from the trial court's
order denying Gallagher's motion for summary judgment
against defendant-appellee Robert D. Schwartz
("Schwartz") because the claims against Schwartz
were moot For the reasons that follow, we affirm,
albeit on other grounds.
of the Facts
2} Schwartz was "of counsel" with the law
firm Miller Goler Faeges Lapine
("MGFL"). As part of his employment package, MGFL
provided professional liability insurance to Schwartz.
3} During his employment with MGFL, Quirino DiPaolo
("DiPaolo") was a client of Schwartz. In February
2009, DiPaolo brought suit against Schwartz and a
"Doe" legal firm alleging legal malpractice,
subsequently amending the complaint in April 2010 to identify
MGFL as the "Doe" legal firm. MGFL held
professional liability insurance with Chubb Group of
Insurance Companies ("Chubb") and Schwartz was an
insured under the Chubb policy. Pursuant to the terms of the
insurance policy, Chubb retained Gallagher to defend Schwartz
in the legal malpractice claim while MGFL opted to provide
its own defense. Gallagher's legal services to Schwartz
resulted in a bill totaling $39, 117. To date, Schwartz has
not paid the bill.
4} On September 26, 2016, Gallagher filed suit under
breach of contract and unjust enrichment seeking compensation
from Schwartz and MGFL. Following discovery, Gallagher and
MGFL filed motions for summary judgment. The trial court
granted Gallagher's motion for summary judgment against
MGFL on breach of contract. The trial court denied
Gallagher's motion for summary judgment against Schwartz
because Schwartz was not the policyholder, but only an
included insured under the Chubb policy, and the issue was
rendered moot when summary judgment was granted against MGFL.
5} Gallagher filed this timely appeal on July 30,
2018. MGFL also appealed the granting of Gallagher's
motion for summary judgment against MGFL. On August 1, 2018,
this court sua sponte ordered that the appeals filed by
Gallagher against Schwartz and MGFL be treated as companion
appeals. Specifically, the court ordered that the cases share
the trial court record, but be briefed, argued, and disposed
of separately by the same merit panel.
6} For the following reasons, we affirm the decision
of the trial court.
7} Gallagher appeals the trial court's decision
denying its motion for summary judgment against Schwartz and
finding all issues moot based upon the court's granting
summary judgment against MGFL. Appellate review of summary
judgments is de novo. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment
is appropriate "when (1) there is no genuine issue of
material fact, (2) the moving party is entitled to judgment
as a matter of law, and, (3) viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion and that conclusion is adverse
to the nonmoving party." Marusa v. Erie Ins.
Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232,
¶ 7. The party moving for summary judgment bears the
burden of showing that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996). Doubts must be resolved in favor of the
nonmoving party. Murphy v. Reynoldsburg, 65 Ohio
St.3d 356, 359, 604 N.E.2d 138 (1992).
8} Gallagher filed a complaint against MGFL and
Schwartz seeking to recover their costs for the legal
services provided by Gallagher to Schwartz. This appeal
considers only the action against Schwartz; the action
against MGFL has been decided in our companion case. Chubb
retained Gallagher to provide legal services for Schwartz in
the DiPaolo legal malpractice case. Gallagher now argues that
Schwartz is responsible for its outstanding legal fees
incurred while defending Schwartz. We must look to the
insurance policy to determine whether Schwartz is responsible
for payment of Gallagher's invoice.
9} The interpretation of an insurance policy is a
question of law appropriate for summary judgment. If the
insurance policy is clear and unambiguous, it should be given
its plain and ordinary meaning. Sarmiento v. Grange Mut.
Cas. Co.,106 Ohio St.3d 403, 2005-Ohio-5410, 835 N.E.2d
692, ¶ 9, citing Gomolka v. State Auto Mut. Ins.
Co., 70 ...