[Cite as Premier Health Partners v. NBBJ, L.L.C., 2015-Ohio-128.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

PREMIER HEALTH PARTNERS, et al.                        :

        Plaintiffs-Appellees                           :            C.A. CASE NO.    26143

v.                                                     :            T.C. NO.   13CV3874

NBBJ, LLC, et al.                                      :             (Civil appeal from
                                                                      Common Pleas Court)
        Defendants-Appellants                          :

                                                       :

                                             ..........

                                             OPINION

             Rendered on the          16th       day of             January     , 2015.

                                             ..........

NEIL F. FREUND, Atty. Reg. No. 0012183 and SHANNON K. BOCKELMAN, Atty. Reg.
No. 0082590, 1 South Main Street, Suite 1800, Dayton, Ohio 45402
       Attorneys for Plaintiffs-Appellees

LUTHER L. LIGGETT, JR., Atty. Reg. No. 0004683 and DAVID M. SCOTT, Atty. Reg.
No. 0068110, 10 West Broad Street, #1320, Columbus, Ohio 43215
       Attorneys for Defendant-Appellant NBBJ, LLC

KIMBERLY A. KYLE, Atty. Reg. No. 0072574, 201 E. Fifth Street, Suite 800, Cincinnati,
Ohio 45202
      Attorney for Cincinnati Insurance Company


                                             ..........

DONOVAN, J.
                                                                                            2

         {¶ 1}   This matter is before the Court on the Notice of Appeal of NBBJ, LLC

(“NBBJ”), filed March 25, 2014. NBBJ appeals from the March 18, 2014 decision of the

trial court that granted summary judgment in favor of Premier Health Partners (“PHP”) and

Miami Valley Hospital (“MVH”) (together, “Plaintiffs”) on Plaintiffs’ “Complaint for

Declaratory Judgment and Breach of Contract.” We hereby affirm the judgment of the trial

court.

         {¶ 2}   Plaintiffs filed their complaint against NBBJ on June 28, 2013.          The

complaint alleges that NBBJ and “[PHP], dba [MVH],” entered into a Contract, effective

May 29, 2007, for the construction of the “Heart Patient Tower,” a “440,000 square foot

inpatient facility on the existing [MVH] downtown campus,” (“the Project”). According to

the complaint, the “Project consisted of both demolition and building new construction.”

Pursuant to the Contract, the Plaintiffs alleged, NBBJ “was to, inter alia, develop the design

of the Project and create drawings and specifications for the construction of the Project.”

The complaint further alleges the following facts:

                 ***

                 9. Under the Contract, NBBJ was also to administer the contract

         construction, keep [PHP], dba [MVH] * * * informed as to the progress and

         quality of the construction work performed, endeavor to guard [MVH] from

         defects and deficiencies, and determine if the construction work was being

         performed in accordance with the construction documents, including

         drawings and specifications.

                 10. Pursuant to Section 12.10.1 of the Contract, NBBJ was also
                                                                                 3

required to maintain a policy of commercial general liability insurance with

policy limits not less than $1,000,000 each occurrence and $2,000,000

aggregate for bodily injury and damage to property.

       11. Pursuant to Section 12.10.1 of the Contract, [MVH] was to be

included under NBBJ’s commercial general liability insurance policy as an

additional insured to the extent of contractual liability assumed by NBBJ.

The policy was required to contain a severability of interests provision in

favor of [MVH].

       12. Upon information and belief, NBBJ failed to include [MVH] as

an additional insured under its commercial general liability insurance policy

and/or failed to obtain an insurance policy sufficient to comply with the

Contract.

       13. Pursuant to Section 12.9.1 of the Contract, NBBJ is obligated to

hold [MVH] and its officers, employees, and successors harmless from and

against all damages, losses, and judgments, including reasonable attorney fees

and expenses to the extent they arise from NBBJ’s negligent acts or

omissions in the performance of its services.

       14.   In early 2011, an outbreak of Legionella occurred on the

premises of the newly constructed Heart Patient Tower. By 2012, multiple

lawsuits were filed against [PHP], [MVH], and other defendants (including

NBBJ) alleging personal injury claims.          These lawsuits have been

consolidated in this Court under Case No. 2012 CV 01016, styled as Evelyn
                                                                                             4

       Amos, et al. v. [MVH] (the “Legionella litigation”).

               15. On multiple occasions, [MVH] tendered its defense of the

       Legionella litigation to NBBJ. NBBJ refused to respond to [MVH’s] tender

       and, therefore has effectively rejected the same.

               16. In addition, Zurich American Insurance Company (“Zurich”), on

       behalf of [MVH] as Zurich’s additional insured, tendered the defense of

       [MVH] to NBBJ. NBBJ expressly rejected Zurich’s tender.

               17. To date, NBBJ refuses to provide a defense to [MVH] in the

       Legionella litigation. NBBJ has not come forward with any insurance policy

       on which [MVH] was included as an additional insured and which covers the

       alleged damages of the personal injury claims pled in the Legionella

       litigation.

Plaintiffs asserted that “NBBJ failed to obtain a commercial general liability policy for

bodily injury sufficient to meet the requirements of the Contract and therefore, is in breach

of contract,” and that “NBBJ failed to include [MVH] as an additional insured under its

commercial general liability policy in breach of the Contract.” According to Plaintiffs, “a

dispute has arisen between Plaintiffs and Defendant regarding their rights, duties, obligations

and compensation * * * requiring a declaration by this Court for its resolution.” Plaintiffs

also asserted that the “actions and/or conduct of NBBJ as pled herein, including but not

limited to, NBBJ’s failure to obtain an insurance policy which meets the requirements of the

Contract, constitute the complete and/or partial failure to perform the obligations under the

Contract in consideration for [MVH’s] complete performance.” Finally, Plaintiffs asserted
                                                                                              5

an alternative claim for breach of contract against NBBJ as follows:

               The actions and/or conduct of NBBJ as pled herein, including but not

       limited to, its failure to include [MVH] as an additional insured under its

       commercial general liability insurance policy and/or its failure to provide a

       defense to [MVH] in the Legionella litigation and/or its failure to indemnify

       and hold harmless [MVH], constitute the complete and/or partial failure to

       perform the obligations under the Contract in consideration for [MVH’s]

       complete performance.

A copy of the Contract is attached to the complaint.

       {¶ 3}    On July 11, 2013, the Cincinnati Insurance Company (“CIC”) filed a Motion

to Intervene. According to the motion, “TP Mechanical was a subcontractor of the general

contractor with regard to the construction of the Heart Tower at MVH. Pursuant to its

contract with the general contractor, TP Mechanical was obligated to provide specified

insurance coverage to MVH as an additional insured. * * * MVH claims that CIC owes it a

duty to defend and indemnify under this Policy.” CIC asserted that “intervention is sought

to allow CIC to file an Intervening Complaint: (1) against NBBJ seeking a declaration that

NBBJ is obligated to defend (and potentially indemnify) CIC’s additional insured [MVH]

and (2) seeking a declaration as to the extent, if any, of CIC’s obligation to defend and/or

indemnify MVH and [PHP] in the underlying Legionella Litigation.” On July 25, 2013,

NBBJ filed a memorandum contra to the motion to intervene, asserting that intervention “as

to the Legionella Litigation is res judicata,” that “CIC’s action is solely in contract law, not

in tort or negligence,” and that CIC “lacks privity of contract with NBBJ, and therefore
                                                                                            6

CIC’s proposed pleadings fail to state a claim as a matter of law * * *.” On August 1, 2013,

CIC filed a reply in support of its motion, and on August 5, 2013, Plaintiffs filed a reply in

support of CIC’s motion.

       {¶ 4}        On July 24, 2013, NBBJ filed an answer and counterclaim, asserting a

claim of breach of contract against “[PHP] dba [MVH]”. On August 6, 2013, NBBJ filed a

response to Plaintiffs’ reply in support of CIC’s motion to intervene. On August 12, 2013,

the trial court sustained CIC’s motion to intervene, and on August 15, 2013, CIC filed its

intervening complaint.

       {¶ 5}    Plaintiffs filed their motion for summary judgment on November 26, 2013.

Attached to the motion is a copy of the Contract (Exhibit 1), the affidavit of Dale Creech

(Exhibit 2), “NBBJ’s Responses to [Plaintiffs’] Requests for Admissions Directed to

Defendant NBBJ, LLC,” (Exhibit 3), and “NBBJ’s Response to [Plaintiffs’] First Set of

Interrogatories and First Requests for the Production of Documents Directed to Defendant

NBBJ, LLC” (Exhibit 4). Additional Exhibits to the motion were filed under seal. Creech’s

affidavit provides in part as follows:

               1.     I am an adult of sound mind and body and have personal

       knowledge of the facts set forth in this affidavit.

               2. I am Vice President and Chief Legal Officer of Premier Health,

       fka Premier Health Partners, and have been involved in the creation,

       organization and operation of Premier Health since its inception in 1995. As

       such, I have independent, personal knowledge of Premier Heath, as well as its

       co-corporate relationship with Miami Valley Hospital (MVH).
                                                                                    7

       3. Premier Health functions solely as a business operating company

for MVH. Premier Health is a non-voting, co-corporate member of MVH

for business functions such as budgets, capital spending, managed care

contracts, strategic planning, and the like.

       4. A true and accurate copy of the May 29, 2007 Contract between

Premier Health Partners dba Miami Valley Hospital and NBBJ, LLC is

attached as Exhibit 1 to Plaintiffs’ Motion for Summary Judgment in this case

(the “Contract”).

       5. In the context of the Contract, Premier Health was doing business

for MVH when it entered into the Contract. The Contract involved services

NBBJ was to provide, as Architect, relative to new construction located on

MVH’s main campus known as the Heart Patient Tower.

       6. * * * NBBJ hired Korda/Nemeth Engineering and Korda/Nemeth

Engineering designed the plumbing of the Heart Patient Tower.

       ***

       8. In February 2011, MVH became aware that there were several

patients admitted to the Heart Patient Tower that had Legionnaire’s disease

and later, MVH confirmed Legionella was present in the Heart Patient Tower.

       ***

       10. MVH tendered its defense of the Legionella Litigation to the

entities it hired to provide design, construction, and contract services relative

to the Tower, including the general contractor (Skanska-Shook, JV), the
                                                                                            8

       plumbing subcontractor (TP Mechanical Contractors) and the architect

       (NBBJ) involved in the design and construction.

               11. The same or similar “additional insured” provision at issue in

       this case also existed in the contracts with Skanska-Shook and TP

       Mechanical. The insurers of Skanska-Shook and TP Mechanical, Cincinnati

       Insurance Company and Zurich Insurance, along with the hospital are

       currently sharing in the cost of the hospital’s defense of the Legionella

       Litigation. These entities have also contributed towards settlements. NBBJ

       has refused to pay for a portion of MVH’s defense, or to indemnify MVH, or

       to even contribute to settlements.

       {¶ 6}    Exhibit 4 reflects that NBBJ responded in part to Plaintiffs’ first set of

interrogatories and requests for the production of documents in relevant part as follows:

               ***

             9. Identify all insurance policies you obtained to provide coverage to
       NBBJ relative to the Heart Tower Project on [MVH’s] campus.

                    ANSWER: Chubb & Son a division of Federal Insurance
       Company, Policy No. 3538-97-83 / 04

               10. For each policy identified above, please state:

               ***
               g) the named insureds on this insurance policy.

                       ANSWER: See Document Request production, including the

       letter of January 11, 2013 with attached Endorsement, and the electronic copy

       of the Policy itself.

       {¶ 7}     Plaintiffs asserted that NBBJ was obligated to obtain sufficient insurance to
                                                                                             9

meet the requirements of section 12.10.1 of the Contract and failed to do so. The motion

provides that it “is anticipated NBBJ will argue that it did obtain a commercial general

liability policy which included MVH as an additional insured, but the policy contains an

exclusion for bodily injury caused by a biological agent or bacteria and therefore, there is no

coverage for the Legionella litigation. Section 12.10.1 of the Contract provision provides

no words of limitation regarding bodily injury.” Plaintiffs asserted that “the insurance

obtained by NBBJ which includes the exclusion for injury caused by bacteria does not meet

the requirements of Section 12.10.1 of the Contract. MVH is entitled to insurance for

bodily injury, yet, NBBJ has failed to provide that insurance as promised.” The motion

further provides that “Plaintiffs anticipate NBBJ will argue that whether or not MVH is

entitled to a defense and indemnity depends on a determination of negligence. This is

incorrect. The insurance coverage was to be provided regardless of negligence and there is

no requirement that NBBJ or MVH’s alleged negligence be determined before Section

12.10.1 of the Contract applies.” Finally, Plaintiffs asserted that NBBJ’s refusal to provide

a defense and indemnity to MVH “is a breach of contract,” and that the trial court “should

enforce the Contract between the parties and NBBJ should be ordered to pay MVH’s defense

costs, as well as indemnification, in the underlying matter.”

       {¶ 8}    On January 24, 2014, “Defendant NBBJ’s Cross-Motion for Summary

Judgment and Memo Contra Plaintiffs’ Motion for Summary Judgment” was filed.            NBBJ

asserted therein that “NBBJ’s contract with [PHP] expressly excepts liability for the

underlying Legionella causes,” and that “NBBJ did not enter into a contract with Plaintiff

[MVH].” NBBJ further asserted that it is “not liable to insure the negligence of Plaintiffs’
                                                                                       10

construction contractors.”   NBBJ asserted that it is entitled to PHP’s indemnification.

NBBJ attached multiple exhibits to it cross-motion that were filed under seal.

       {¶ 9}    On February 7, 2014, Plaintiffs responded to NBBJ’s cross-motion for

summary judgment, also filing, under seal, an authenticated copy of the Chubb Policy that

NBBJ produced in discovery. On February 18, 2014, NBBJ filed a reply.

       {¶ 10} On March 7, 2014, the “Motion of Zurich American Insurance Company to

Intervene and to Amend Scheduling Order” was filed, Plaintiffs responded on March 14,

2014, and a Reply was filed on March 20, 2014.

       {¶ 11}    In sustaining Plaintiffs’ motion for summary judgment, the trial court

determined in part as follows:

       ***

                The Court finds that there is a real justiciable controversy between

       Plaintiffs and NBBJ based upon the Contract. Plaintiffs assert that they are

       incurring and continuing to incur defense costs in the Legionella Litigation

       and seek speedy relief for the determination of their rights. Thus, this

       declaratory judgment action is appropriately before the Court.

       ***

                At the outset, NBBJ asserts that it did not enter in a contract with

       MVH but with PHP only. The Court rejects this proposition. Effective May

       29, 2007, PHP dba MVH, identified as “Owner” entered into a contract with

       NBBJ, identified as “Architect” relating to the project known as the Heart

       Patient Tower. In support of their Motion for Summary Judgment, Plaintiffs
                                                                                 11

provided the affidavit of Dale Creech, Vice President and Chief Legal Officer

of PHP, who stated that PHP was doing business for MVH when it entered

into the Contract with NBBJ. Creech Aff. ¶5.                 Moreover, NBBJ

acknowledged that it entered into a contract with MVH and was contractually

obligated to name MVH as an additional insured. * * * Plaintiffs’ Ex. 7

contains a series of letters including a letter dated January 11, 2013 from

counsel for NBBJ to counsel for Plaintiffs. This letter indicates that NBBJ

contracted with MVH and that it met its contractual requirement to name

MVH as a named insured. The fact that MVH was an additional insured on

the Chubb Policy shows NBBJ knew they were entering into a contract with

MVH. Thus, NBBJ entered into a contract with PHP and MVH.

       Article 12.9 of the Contract states that “[NBBJ] shall indemnify and

hold Owner and its officers, employees and successors harmless from and

against all damages, losses, and judgments, including reasonable attorneys’

fees and expenses to the extent they arise from [NBBJ’s] negligent acts or

omissions in the performance of its services and for patent, copyright or

trademark infringement attributable to [NBBJ’s] services.”

       Article 12.10.1 states that throughout the entire period of performance

by Architect, Architect shall maintain, the following minimum insurance:

              Comprehensive General Liability - Architect shall

       maintain a policy of commercial general liability insurance

       with Policy limits not less than $1,000,000 each occurrence
                                                                                 12

       and $2,000,000 aggregate for bodily injury and damage to

       property.   Owner is to be included under such policy as

       additional insured to the extent of contractual liability assumed

       by Architect.     The policy shall contain a severability of

       interest provision in favor of the additional insureds.

Plaintiffs assert that although NBBJ obtained a commercial general liability

policy which included MVH as an additional insured, the policy contained an

exclusion for bodily injury caused by biological agents or bacteria and thus,

NBBJ is in breach of contract for not providing a comprehensive insurance

policy. NBBJ argues that the insurance policy it procured which excludes

the effects of “biological agents” was consistent with a “pollution” exclusion

in the Contract and relies on Article 9.8 to support its position. The Article

states: “Unless otherwise provided in this Agreement, the Architect and

Architect’s consultants shall have no responsibility for the discovery,

presence, handling, removal or disposal of or exposure of persons to

hazardous materials or toxic substances in any form at the Project site.”

       The Court finds that NBBJ was required to provide MVH a

commercial general liability policy for bodily injury and damage to property

arising from the negligence of NBBJ.          The Court concludes that the

“Pollution” exclusion in the Contract does not permit NBBJ to procure an

insurance policy covering its negligence with an exclusion for “Biological

Agents.” The Chubb Policy’s “Biological Agents” exclusion provides that
                                                                                    13

“this insurance does not apply to any damages, loss, cost or expense arising

out of the actual, alleged or threatened contaminative, pathogenic, toxic or

other hazardous properties of biological agents.” * * * “Biological agents”

means “any bacteria, mildew, mold or other fungi, other microorganisms, or

mycotoxins, spores, or other by-products of any of the foregoing, viruses or

other pathogens, or colony or group of any of the foregoing.” * * *

        The Contract does not define the terms “hazardous materials” or

“toxic waste” as used in Article 9.8, the “Pollution” exclusion. The Court

will only apply the plain and ordinary meaning of these terms.

        “Hazardous materials” commonly known as “hazmat” is defined as “a

material that would be a danger to life or to the environment if released

without         precautions.”         Merriam-Webster’s               Dictionary,

www.merriam-webster.com/dictionary/hazmat (accessed March 14, 2014.)

        “Toxic waste” is defined as “industrial or chemical waste products

that are harmful to the environment.” MacMillan Dictionary, toxic waste

definition,

www.macmillandictionary.com/us/dictionary/american/toxic-waste (accessed

March 14, 2014.)

        The Court concludes that the “Pollution” exclusion in the Contract is

separate and distinct from the “Biological Agents” exclusion found in the

Chubb Policy.      NBBJ contracted with PHP and MVH and promised to

provide a commercial general liability insurance policy for bodily injury to
                                                                                        14

       the extent NBBJ would be liable for the injury. Bodily injury caused by

       “Biological Agents” as defined in the Chubb Policy is within the scope of

       insurance coverage that NBBJ promised to provide Plaintiffs in the Contract.

       Only bodily injury resulting from hazardous materials or toxic waste as

       provided in Article 9.8 of the Contract was outside the requirement of NBBJ

       procuring insurance coverage.

              Chubb, the insurance provider NBBJ enlisted to provide insurance

       coverage as required under the Contract refused to provide a defense and

       indemnification    based    upon    the   “Biological   Agents”   exclusion.

       Interestingly, the Chubb Policy provides an exclusion for pollution which is

       separate from the “Biological Agents” exclusion. * * * Had NBBJ fulfilled its

       obligation under the Contract to provide Plaintiffs with a compressive (sic)

       general liability policy, Plaintiffs would have the benefit of a defense and

       potential indemnification from Chubb for claims arising from the negligence

       of NBBJ. NBBJ failed to provide this insurance and is in breach of Contract.

       Therefore, the Court finds NBBJ is in breach of contract for its failure to

       provide comprehensive insurance coverage to Plaintiffs for claims of bodily

       injury occasioned by NBBJ’s negligence pursuant to Article 12.10.1 of the

       Contract.

       {¶ 12} Finally, the court concluded that the “amount of damages resulting from

NBBJ’s duty to provide Plaintiffs with a defense and duty to indemnify Plaintiffs cannot be

determined until the underlying Legionella Litigation is completed.”
                                                                                           15

       {¶ 13} We note that the court’s docket reflects that the trial court sustained Zurich

American Insurance Company’s Motion to Intervene on March 26, 2014, and that on

September 2, 2014, the court stayed the matter below pending this Court’s decision herein.

       {¶ 14}    NBBJ asserts one assignment of error herein as follows:

                THE TRIAL COURT ERRED PROCEDURALLY BY WEIGHING

       NBBJ’S EVIDENCE IN SUPPORT OF AFFIRMATIVE DEFENSES,

       WITHOUT TESTING AT TRIAL GENUINE ISSUES OF MATERIAL

       FACT ON PLAINTIFFS’ CLAIMS IN THE FIRST INSTANCE, AND IN

       THE ABSENCE OF REBUTTAL EVIDENCE TO NBBJ’S PROVEN

       AFFIRMATIVE DEFENSES.

       {¶ 15} Plaintiffs respond that “[t]his is a straightforward breach of contract and

declaratory judgment action where the material facts are not disputed. The terms of the

contract are clear and unambiguous, making this case appropriate for summary judgment.”

We agree with Plaintiffs.

       {¶ 16}    “A declaratory judgment action provides a means by which parties can

eliminate uncertainty regarding their legal rights and obligations. * * * .” Mid-American

Fire & Casualty Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8.

R.C. 2721.03 governs declaratory judgment actions. This statute provides in part:

                Subject to division (B) of section 2721.02 of the Revised Code, any

       person interested under a deed, will, written contract, or other writing

       constituting a contract or any person whose rights, status, or other legal

       relations are affected by a constitutional provision, statute, rule as defined in
                                                                                           16

       section 119.01 of the Revised Code, municipal ordinance, township

       resolution, contract, or franchise may have determined any question of

       construction or validity arising under the instrument, constitutional provision,

       statute, rule, ordinance, resolution, contract, or franchise and obtain a

       declaration of rights, status, or other legal relations under it.

       {¶ 17}    R.C. 2721.12(A) further provides: “* * * [W]hen declaratory relief is

sought under this chapter in an action or proceeding, all persons who have or claim any

interest that would be affected by the declaration shall be made parties to the action or

proceeding.” “This section and its predecessor have been interpreted as requiring that ‘a real

justiciable controversy exists between adverse parties, and speedy relief is necessary to the

preservation of rights which may otherwise be impaired or lost.’” (Citation omitted).

Cincinnati Ins. Co. v. Consol. Equip. Co., 2d Dist. No. 19390, 2003-Ohio-47, ¶ 9.

       {¶ 18}    As this Court recently noted:

                When reviewing a summary judgment, an appellate court conducts a

       de novo review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

       105, 671 N.E.2d 241 (1996). “De Novo review means that this court uses

       the same standard that the trial court should have used, and we examine the

       evidence to determine whether as a matter of law no genuine issues exist for

       trial.”Harris v. Dayton Power & Light Co., 2d Dist. Montgomery No.

       25636, 2013-Ohio-5234, ¶ 11 (quoting Brewer v. Cleveland City Schools Bd.

       Of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997) (citing

       Dupler v. Mansfield Journal Co ., 64 Ohio St.2d 116, 413 N.E.2d 1187
                                                                                          17

      (1980)). Therefore, the trial court's decision is not granted any deference by

      the reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio

      App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

             Civ. R. 56 defines the standard to be applied when determining

      whether a summary judgment should be granted. Todd Dev. Co., Inc. v.

      Morgan, 116 Ohio St.3d 461, 463, 880 N.E.2d 88 (2008). Summary judgment

      is proper when the trial court finds: “(1) that there is no genuine issue as to

      any material fact; (2) that the moving party is entitled to judgment as a matter

      of law; and (3) that reasonable minds can come to but one conclusion, and

      that conclusion is adverse to the party against whom the Motion for Summary

      Judgment is made, who is entitled to have the evidence construed most

      strongly in his favor.” Fortune v. Fortune, 2d Dist. Greene No. 90-CA-96,

      1991 WL 70721, *1 (May 3, 1991) (quoting Harless v. Willis Day Warehouse

      Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 45 (1978)). The initial burden is on the

      moving party to show that there is no genuine issue of material fact. Dresher

      v. Burt, 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264 (1996). Once a moving

      party satisfies its burden, the nonmoving party may not rest upon the mere

      allegations or denials of the party's pleadings. Dotson v. Freight Rite, Inc., 2d

      Dist. Montgomery No. 25495, 2013-Ohio-3272, ¶ 41 (citation omitted).

Cincinnati Ins. Co. v. Greenmont Mut. Hous. Corp., 2d Dist. Montgomery No. 25830,

2014-Ohio-1973, ¶ 17-18.

      {¶ 19} “Generally, a breach of contract action is pleaded by stating (1) the terms of
                                                                                             18

the contract, (2) the performance by the plaintiff of his obligations, (3) the breach by the

defendant, (4) damages, and (5) consideration. * * *.” Am. Sales, Inc. v. Boffo, 71 Ohio App.

3d 168, 175, 593 N.E.2d 316 (2d Dist.1991). As the Supreme Court of Ohio has noted:

              When confronted with an issue of contract interpretation, our role is to

       give effect to the intent of the parties. We will examine the contract as a

       whole and presume that the intent of the parties is reflected in the language of

       the contract. In addition, we will look to the plain and ordinary meaning of

       the language used in the contract unless another meaning is clearly apparent

       from the contents of the agreement. When the language of a written contract

       is clear, a court may look no further than the writing itself to find the intent of

       the parties. “As a matter of law, a contract is unambiguous if it can be given a

       definite legal meaning.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

       2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11.

Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St. 3d 397, 2011-Ohio-2720, 953

N.E.2d 285, ¶ 37.

       {¶ 20} In its brief, NBBJ initially asserts, “Who are parties to the NBBJ Agreement

constitutes a significant material issue for trial.”     The Contract expressly provides as

follows:

       AGREEMENT * * * effective as of the 29th day of May in the year 2007
       ***
       BETWEEN the Architect’s client identified as the Owner:
       ***
       Premier Health Partners, dba
       Miami Valley Hospital
       40 West 4th Street
       Dayton, Ohio 45402
                                                                                          19


       and the Architect:
       ***
       NBBJ LLC
       1555 Lake Shore Drive
       Columbus, Ohio 43204

       {¶ 21} The Contract is signed, on behalf of the Owner, by “Eloise P. Broner,

FACHE.” NBBJ asserts that the Contract is “signed only by a representative of Premier,

working at Premier’s office street address, the address stated in the Contract.” NBBJ

further directs our attention to Paragraph 9.7 of the Contract, which provides that “Nothing

contained in this Agreement shall create a contractual relationship with or a cause of action

in favor of a third party against either Owner or Architect.” According to NBBJ, this

“provision expressly excludes [MVH].” NBBJ asserts that each “corporation appears as a

separate Plaintiff in the Complaint against NBBJ,” and that it “had no notice of two parties

to the Contract.”

       {¶ 22} NBBJ further asserts as follows:

               Not satisfied with the defense by two insurers, [PHP] and [MVH]

       sought for NBBJ to defend them also, notwithstanding the absence of a

       malpractice claim, no colorable liability for the underlying construction, nor

       any language “to defend” in the NBBJ Agreement.

               The duty to defend arises purely as a contractual term, absent in this

       case. Nothing in Premier’s agreement with NBBJ requires defense against

       claims as part of indemnification. Premier and MVH “Admit that nothing in

       the Contract expressly uses the word ‘defend’ in reference to either parties’

       duties.”
                                                                                            20

               An important distinction is the difference in the NBBJ Agreement

       between the two types of coverage, Professional Liability (design

       malpractice,) and Comprehensive General Liability (non-malpractice.)

       Neither Premier nor [MVH] filed any liability claim against NBBJ, either for

       professional design malpractice or for negligence. Therefore, Professional

       Liability (design malpractice) insurance, indemnification, or defense are not

       at issue.

Finally, NBBJ asserts that it “procurred CGL insurance as required by its contract.”

       {¶ 23} We note that the trial court initially determined that NBBJ entered into a

contract with both MVH and PHP, in reliance in part on the affidavit of Dale Creech, the

Vice President and Chief Legal Officer of Premier Health, fka PHP, who attested to the

Plaintiffs’ “co-corporate relationship.”   The January 11, 2013 correspondence between

counsel for NBBJ and counsel for Plaintiffs, upon which the trial court additionally relied, is

before us, and we have examined it. Having done so, we agree with the trial court’s

conclusion that “NBBJ acknowledged that it entered into a contract with MVH and was

contractually obligated to name MVH as an additional insured.”           We note that NBBJ

specifically cited the January 11, 2013 correspondence in its response to Plaintiffs’

interrogatory, quoted above, which in part requested that NBBJ identify the named insureds

on the Chubb Policy. We further agree with the trial court that the “fact that MVH was an

additional insured on the Chubb Policy shows that NBBJ knew they were entering into a

contract with MVH, thus, NBBJ entered into a contract with PHP and MVH.”

       {¶ 24} Having concluded that MVH is a party to the Contract, we must next
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determine if genuine issues of material fact exist regarding whether or not NBBJ breached

its contractual obligation to provide comprehensive general liability insurance . We agree

with the trial court’s determination that “[b]odily injury caused by ‘Biological Agents’ as

defined in the Chubb Policy is within the scope of insurance coverage that NBBJ promised

to provide Plaintiffs in the Contract. Only bodily injury resulting from hazardous materials

or toxic waste as provided in Article 9.8 of the Contract was outside the requirement of

NBBJ procuring insurance coverage.” As the trial court noted, and pursuant to Article

12.10.1, NBBJ was required to provide comprehensive general liability insurance “for bodily

injury * * * to the extent of contractual liability assumed by [NBBJ].” Article 9.8 of the

Contract provides that NBBJ “shall have no responsibility for the discovery, presence,

handling, removal or disposal of or exposure of persons to hazardous materials or toxic

substances in any form at the Project site.” While the trial court defined “toxic waste,” as

opposed to “toxic substances,” in the course of its analysis, we agree with the court’s

conclusion that Article 9.8 “does not permit NBBJ to procure an insurance policy covering

its negligence with an exclusion for ‘Biological Agents.’” While the Contract anticipates

“hazardous materials and toxic substances” at the Project site, we agree with the trial court

that Article 9.8 is “separate and distinct” from the “Biological Agents” exclusion in the

Chubb Policy. In other words, the “Biological Agents” exclusion is inconsistent with the

terms of the Contract and accordingly in breach thereof; the Contract is silent regarding

biological agents and their effects. In our view, the “hazardous materials and toxic

substances” in Article 9.8 constitute materials and substances of a non-biological nature.

The “Biological Agents” exclusion encompasses an organic type of agent, such as bacteria,
                                                                                             22

and its effects. The plain meaning of “biological” is “of or relating to biology or to life and

living               processes.”                 Merriam-Webster’s                   Dictionary,

http://www.merriam-webster.com/dictionary/biological (Accessed Dec. 5, 2014). We agree

with Plaintiffs that MVH did not contract for insurance coverage for bodily injury, with the

exclusion of injuries caused by biological agents, and that the “Biological Agents” exclusion

in the policy modified the coverage NBBJ contracted to provide in Article 12.10.1 of the

Contract. For the foregoing reasons, we conclude that the effect of biological agents at the

Project site was within the scope of contractual liability assumed by NBBJ. We further

conclude that NBBJ is in breach of contract for procuring a policy with the “Biological

Agents” exclusion.     Accordingly, we conclude that no genuine issue of material fact

remains, and that Plaintiffs are entitled to summary judgment as a matter of law. NBBJ’s

sole assigned error is overruled, and the judgment of the trial court is affirmed.

                                          ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Neil F. Freund
Shannon K. Bockelman
Luther L. Liggett, Jr.
David M. Scott
Kimberly A. Kyle
Hon. Michael W. Krumholtz
