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Westfield Insurance v. Barnett11/17/2003
scovery, Westfield moved for summary judgment, claiming that the altercation between Cobb and the Barnetts was not an "occurrence" as defined by the policy, so their actions were not covered by the policy. It also argued that the Barnetts' actions were intentional, so they could not claim coverage under the policy. The Barnetts responded, claiming the altercation was an occurrence under the policy since the event was "unforeseen, unexpected, unusual, extraordinary, or phenomenal." In addition, they argue that their claims do not fall under the intentional acts exclusion since Westfield cannot show that the Barnetts expected or intended the injuries that Cobb suffered. The trial court granted Westfield's motion for summary judgment.
. When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court and, therefore, engages in a de novo review. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829. Under Civ.R. 56, summary judgment is only proper when the movant demonstrates that, viewing the evidence most strongly in favor of the non-movant, reasonable minds must conclude no genuine issue as to any material fact remains to be litigated and the moving party is entitled to judgment as a matter of law. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390. A fact is material when it affects the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304.
. In a motion for summary judgment, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 296. The nonmoving party has the reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293.
Duty to Defend
. In their first assignment of error, the Barnetts allege:
. "The trial court erred by granting summary judgment in favor of Appellee and by overruling Appellants' motion for partial summary judgment."
. The Barnetts argue that the Cobbs' complaint contains claims which arguably or potentially fall within the scope of the policy's coverage. Accordingly, the Barnetts contend that Westfield has the duty to defend them from the Cobb's suit. In response, Westfield argues it does not have the duty to defend since the Barnetts' actions would not constitute an "occurrence" under the policy and since the Cobbs' complaint only alleges claims for intentional torts and the policy does not cover injuries intended by the insureds.
. The parties agree that an insurer's duty to defend is separate and distinct from its duty to indemnify and that the duty to defend is broader than the duty to indemnify. Socony -Vacuum Oil Co. V. Continental Cas. Co. (1945), 144 Ohio St. 382, paragraph one of the syllabus; Erie Ins. Exchange v. Colony Dev. Corp. (1999), 136 Ohio App.3d 406, 412; Red Head Brass, Inc. v. Buckeye Union Ins. Co. (1999), 135 Ohio App.3d 616, 625. "As long as the complaint contains some claim which is arguably within the scope of the policy coverage, the insurer is obliged to defend the insured." Red Head Brass at 625, citing Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, paragraph one of the syllabus. Once it is determined there is no possibility of coverage under the policy based on the allegations in the complaint, an insurer no longer has the duty to defend the insured. Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 O
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