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Gallagher Sharp, L.L.P. v. Miller Goler Faeges Lapine L.L.P.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 29, 2019

GALLAGHER SHARP, L.L.P., Plaintiff-Appellant,
v.
MILLER GOLER FAEGES LAPINE L.L.P., ET AL., Defendants-Appellees.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-869606

         JUDGMENT AFFIRMED

          Gallagher Sharp, L.L.P., Richard CO. Rezie, and Theresa A. Richthammer, for appellant.

          Robert 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[1] For the reasons that follow, we affirm, albeit on other grounds.

         Statement of the Facts

         {¶ 2} Schwartz was "of counsel" with the law firm Miller Goler Faeges Lapine ("MGFL").[2] 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.[3]

         {¶ 6} For the following reasons, we affirm the decision of the trial court.

         Law and Analysis

         {¶ 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 ...


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