insured claim in Ohio

2022“When the language of a contract is clear, we may look no further than the writing itself to find the intent of the parties.” Id., citing Galatis. {¶19} “Under Ohio Law, an insurer’s duty to defend against an insured claim is significantly broader than the duty to indemnify.” Metro.

2007Co. v. Galatis, 100 Ohio St.3d 216 , 2003-Ohio-5849 , 797 N.E.2d 1256 , and (2) what the appropriate standard of review is for a trial court’s dismissal of such an action. {¶ 2} We have accepted a discretionary appeal and certification of a conflict and have consolidated them.

2005Co. (1984), 9 Ohio St.3d 177 .

1995Co. (1984), 9 Ohio St.3d 177 , 9 OBR 463, 459 N.E.2d 555 , syllabus; Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, 585-586 , 635 N.E.2d 19, 22-23 .

1999The holdings of Socony at issue here, are as follows: “A liability insurance company breaches its contract to defend by making to the insured such a claim of nonliability for indemnification as to render it impossible for such company, in making defense, to protect both its own interests and those of the insured. «* * * when there is such a breach of contract, accompanied by an invitation to insured to employ its own counsel to participate in the defense for its own protection, the insured, protesting against such action, may employ counsel with notice to the insurance company that it must bea

1992Co. v. Trainor (1973), 33 Ohio St.2d 41 , 62 O.O.2d 402 , 294 N.E.2d 874 , syllabus, the Supreme Court recognized that the scope of the allegations of the complaint in the action against the insured provide the test of whether the insurer is required to defend, with the ultimate outcome of the action or the insurer’s liability to the insured having no effect upon that duty.

1999Various incarnations of the case have been winding their way through the legal system since then—one aspect was decided by this court in Leber v. Smith (1994), 70 Ohio St.3d 548 , 639 N.E.2d 1159 (“Leber II”), which more fully sets forth the underlying facts.

1999Various incarnations of the case have been winding their way through the legal system since then—one aspect was decided by this court in Leber v. Smith (1994), 70 Ohio St.3d 548 , 639 N.E.2d 1159 (“Leber II”), which more fully sets forth the underlying facts.

2023In order to “trigger the duty to indemnify, the insured must have a claim asserted against the title by a third party because an ‘indemnity is a * * * collateral promise to make good a loss or injury suffered by a policyholder in consequence of the act of a third party.” Schwartz, 134 Ohio App.3d at 614 , 731 N.E.2d 1159 , quoting B.

2023In order to “trigger the duty to indemnify, the insured must have a claim asserted against the title by a third party because an ‘indemnity is a * * * collateral promise to make good a loss or injury suffered by a policyholder in consequence of the act of a third party.” Schwartz, 134 Ohio App.3d at 614 , 731 N.E.2d 1159 , quoting B.

2021Id. at syllabus. 32 {¶122} The court has further held that an insurer’s failure to defend relieves the insured of the duty to seek the insurer’s assent to and participation in a proposed settlement.

2012Although there is an exception to this rule where the insured provides a defense without reserving its rights, id., this exception is inapplicable herein.

2011See, also, Currier v. Penn-Ohio Logistics, 187 Ohio App.3d 32 , 2010-Ohio-198 , ¶60-73 (companion case to Currier, 186 Ohio App.3d 249 , where Currier appealed the grant of summary judgment for Erie Insurance); Buckeye Union -7- v. Zavarella (1997), 121 Ohio App.3d 147 (addressing an additional insured clause in a construction contract). ¶{31} We find the Eleventh Appellate District’s decision to be sound persuasive authority for finding that the policy language only extends coverage to American for its vicarious liability, not for independent acts of negligence.

2004Specifically, the exclusion stated that the insurer would not be liable under the following condition: {¶ 71} “ ‘[W]here all or part of such claim is, directly or indirectly, based on, attributable to, arising out of, resulting from or in any manner related to the Insured’s Wrongful Act(s) concerning: {¶ 72} “ ‘(1) the actual, alleged or threatened discharge, release or escape of Pollutants into or on real or personal property, water or the atmosphere. {¶ 73} “ ‘(2) any Loss or expense arising out of any direction or request that the Insured test for, monitor, clean up, remove, contain, treat,

2004Specifically, the exclusion stated that the insurer would not be liable under the following condition: {¶ 71} “ ‘[W]here all or part of such claim is, directly or indirectly, based on, attributable to, arising out of, resulting from or in any manner related to the Insured’s Wrongful Act(s) concerning: {¶ 72} “ ‘(1) the actual, alleged or threatened discharge, release or escape of Pollutants into or on real or personal property, water or the atmosphere. {¶ 73} “ ‘(2) any Loss or expense arising out of any direction or request that the Insured test for, monitor, clean up, remove, contain, treat,

2003The court was asked in Kemper v. Michigan Millers Mutual Insurance Co. (2002), 98 Ohio St.3d 162 , "Are the requirements of Linko * * * relative to an offer of UM/UIM coverage, applicable to a policy of insurance written after the enactment of [1997] H.B. 261 and before [2001] S.B. 97?" Id. at ¶ 2.

1999Appleman, Insurance Law and Practice (1981), Section 5201, at 2; United States v. Flint (E.D.Mich.1972), 346 F.Supp. 1282, 1285 . *614 To trigger the duty to indemnify, the insured must have a claim asserted against the title by a third party because an “indemnity is a * * * collateral promise to make good a loss or injury suffered by a policyholder in consequence of the act of a third party.” Burke, supra, Section 2.1.1, at 2:4-2:5.

1999The holdings of Socony at issue here, are as follows: “A liability insurance company breaches its contract to defend by making to the insured such a claim of nonliability for indemnification as to render it impossible for such company, in making defense, to protect both its own interests and those of the insured. «* * * when there is such a breach of contract, accompanied by an invitation to insured to employ its own counsel to participate in the defense for its own protection, the insured, protesting against such action, may employ counsel with notice to the insurance company that it must bea

1999The holdings of Socony at issue here, are as follows: “A liability insurance company breaches its contract to defend by making to the insured such a claim of nonliability for indemnification as to render it impossible for such company, in making defense, to protect both its own interests and those of the insured. «* * * when there is such a breach of contract, accompanied by an invitation to insured to employ its own counsel to participate in the defense for its own protection, the insured, protesting against such action, may employ counsel with notice to the insurance company that it must bea

1995Co. (1984), 9 Ohio St.3d 177 , 9 OBR 463, 459 N.E.2d 555 , syllabus; Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, 585-586 , 635 N.E.2d 19, 22-23 .

1995Co. (1984), 9 Ohio St.3d 177 , 9 OBR 463, 459 N.E.2d 555 , syllabus; Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, 585-586 , 635 N.E.2d 19, 22-23 .

1963Co., 48 Cal. (2d), 31, at page 39, 307 P. (2d), 359 , at page 364, appear these statements: “* * * We are of the opinion that for an insurer to issue a policy of insurance which does not cover an accident which occurs when a person, other than the insured, is driving with the permission and consent of the insured is a violation of the public policy of this state as set forth in sections 402 and 415 of the Vehicle Code.” Also: “Inasmuch as sections 402 and 415 of the Vehicle Code set forth the public policy of this state such laws must be considered a part of every policy of liability insurance

1951(Oetting, Gdn., v. Sparks, 109 Ohio St., 94 , second proposition of syllabus, approved and followed.) ’’ The following quotation, from the opinion of Judge Zimmerman, in support of the holding of the court in the above-quoted syllabus is pertinent: “A majority of the cases hold that if a life insurance policy reserves to the insured the right to change the beneficiary, the beneficiary first designated does not take a vested interest, but has only an expectancy during the life of the insured, contingent upon being the beneficiary at the time of the insured’s death. 7 Cooley’s Briefs on Insuranc

1951(Oetting, Gdn. v. Sparks, 109 Ohio St. 94 , 143 N.E. 184 , second proposition of syllabus, approved and followed.)" The following quotation, from the opinion of Judge Zimmerman, in support of the holding of the court in the above-quoted syllabus is pertinent: "A majority of the cases hold that if a life insurance policy reserves to the insured the right to change the beneficiary, the beneficiary first designated does not take a vested interest, but has only an expectancy during the life of the insured, contingent upon being the beneficiary at the time of the insured's death. 7 Cooley's Briefs

1951The right of a beneficiary to the proceeds of a life insurance policy upon the death of the insured has heretofore been considered by this court in the case of Katz v. Ohio National Bank, Exr., 127 Ohio St., 531 , 191 N. E., 782 , In that case this court held in paragraph one of the syllabus: “A life insurance policy, which reserves to the insured the privilege of changing the beneficiary therein, gives the named beneficiary only an expectancy during the life of the insured, which does not become a vested right until the insured’s death.

1951The right of a beneficiary to the proceeds of a life insurance policy upon the death of the insured has heretofore been considered by this court in the case of Katz v. Ohio National Bank, Exr., 127 Ohio St., 531 , 191 N. E., 782 , In that case this court held in paragraph one of the syllabus: “A life insurance policy, which reserves to the insured the privilege of changing the beneficiary therein, gives the named beneficiary only an expectancy during the life of the insured, which does not become a vested right until the insured’s death.

1945When there is such a breach of contract, accompanied by an invitation to insured to employ its own counsel to participate in the defense for its own protection, the insured, protesting against such action, may employ counsel with notice to the insurance company that it must bear the expense, and the company will be liable for reasonable attorney fees and proper expenses incurred .in making defense.” Referring to the quotation from the bill of particulars of the Liberty Mutual Insurance Company, it will be noted that the plaintiff in the action against this plaintiff stated “the said automobile

1942“Of course, if tbe one so responsible had paid the full extent of the loss, the insured should not claim both sums, and the insurer-then might well assert its claim to subrogation, but, that is not the situation before us.” The case of Blair, Supt. of Banks, v. Bd. of Edn., 38 Ohio App., 303 , 176 N. E., 99 , was one considered by this court; opinion by Judge Kunkle, concurred in by Judges Hornbeck and Allread, announced April 11,, 1930, and is of interest in the determination of the-present controversy.

1942“Of course, if tbe one so responsible had paid the full extent of the loss, the insured should not claim both sums, and the insurer-then might well assert its claim to subrogation, but, that is not the situation before us.” The case of Blair, Supt. of Banks, v. Bd. of Edn., 38 Ohio App., 303 , 176 N. E., 99 , was one considered by this court; opinion by Judge Kunkle, concurred in by Judges Hornbeck and Allread, announced April 11,, 1930, and is of interest in the determination of the-present controversy.