[Cite as Spaeth v. State Auto Mut. Ins. Co., 2012-Ohio-3813.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97715




                                       PEGGY SPAETH
                                                            PLAINTIFF-APPELLANT

                                                      vs.

              STATE AUTO. MUTUAL INS. CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             REVERSED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CV-753013 and CV-710632

        BEFORE: Rocco, J., Cooney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 23, 2012

                                                      -i-
ATTORNEYS FOR APPELLANT

Robert F. Linton, Jr.
Stephen T. Keefe, Jr.
Linton & Hirshman LLC
Hoyt Block Suite 300
700 West St. Clair Avenue
Cleveland, Ohio 44113

Christian R. Patno
McCarthy, Lebit, Crystal &
Liffman Co., LPA
101 Prospect Avenue, West
1800 Midland Building
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

John G. Farnan
J. Quinn Dorgan
Shawn W. Maestle
Melanie R. Shaerban
Weston Hurd LLP
The Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114-1862
KENNETH A. ROCCO, J.:

       {¶1} Plaintiff-appellant Peggy Spaeth appeals from the trial court’s order granting

summary judgment in favor of defendant-appellee The Cincinnati Insurance Company

(“CIC”) on her claim for an extension of coverage under an umbrella insurance policy

issued by CIC (the “Policy”) to James Schill and his wife, Jean Schill. Spaeth sought to

extend coverage under the Policy to the Schills’ biological son, Robert Schill, against

whom she brought a wrongful death action.

       {¶2} In granting CIC’s motion, the trial court concluded there is no extension of

coverage under an umbrella policy when a relative does not reside both in the named

insured’s household and have the same legal residence of domicile as the named insured,

where the policy’s definition of “insured” requires a “resident relative” to meet both

conditions. The trial court found that James is domiciled in Florida whereas Robert is

domiciled in Ohio.    The Policy did not, therefore, provide coverage to Robert because

Robert and James do not share the same domicile.

       {¶3} Spaeth asserts three assignments of error in which she raises the following

three issues:   whether (1) James is   domiciled in Ohio, at least for purposes of coverage

under the Policy, (2) a genuine issue of material fact remains for litigation regarding the

location of James’s domicile, or (3) Robert is an insured under the Policy regardless of

the location of James’s domicile.
       {¶4} Upon a review of the record, this court answers Spaeth’s first question in the

affirmative.   We, therefore, reverse the trial court’s grant of summary judgment in favor

of CIC, and its denial of Spaeth’s motion for summary judgment.

       {¶5} On August 16, 2008, Spaeth’s husband, Dr. Miles M. Coburn, was riding his

bicycle northbound on State Route 44 in Newbury Township. Robert was at the same

time driving his motor vehicle southbound on Route 44. At the intersection near State

Route 44 and Music Street, Robert crested a hill and struck Coburn, who may have been

attempting a left turn onto Music Street. Coburn died as a result of the collision.

       {¶6} Robert was driving his personally owned vehicle on August 16, 2008.         The

vehicle was covered by an automobile liability insurance policy issued by State

Automobile Insurance Company and State Automobile Mutual Insurance Company

(collectively, “State Auto”).   The policy had a coverage limit of $500,000.

       {¶7} On November 19, 2009, Spaeth filed a wrongful death action against Robert

and State Auto, Cuyahoga C.P. No. CV-710632. After settlement, Spaeth dismissed her

claims against State Auto on July 23, 2010.

       {¶8} On April 11, 2011, Robert filed a declaratory judgment action after CIC

denied him coverage under the Policy, Cuyahoga C.P. No. CV-753013. Robert sought a

declaration that he is an “insured” under the Policy by arguing (1) he is James’s blood

relative, (2) he is a resident of James’s household, and (3) he has the same legal residence

of domicile as James.    CIC countered that James can have only one “legal residence of
domicile” and it is in Florida. Because Robert is domiciled in Ohio, Robert is not

entitled to coverage under the Policy.

       {¶9} After the trial court consolidated the wrongful death and declaratory judgment

actions, all parties filed motions for summary judgment on the issue of James’s domicile.

 The trial court agreed with CIC and granted its motion for summary judgment, and

denied Spaeth’s and Robert’s motions for summary judgment.

       {¶10} The parties entered into a global confidential settlement agreement in which

the sole remaining issue is liability coverage for Robert under the Policy. Although

Robert had separate counsel below, he assigned his claim for coverage under the Policy

to Spaeth as administrator of Coburn’s estate.

       {¶11} Spaeth now appeals and presents the following assignments of error:

       1. The trial court erred in granting summary judgment in favor of
       Defendant-Appellee The Cincinnati Insurance Company (See Journal
       Entries of 11/17/11, 11/18/11, and Nunc Pro Tunc Journal Entry of
       2/28/12).

       2. The trial court erred in denying summary judgment motions of
       Appellant-Assignee Peggy Spaeth and her Assignor, Robert J. Schill (See
       Journal Entries of 11/17/11, 11/18/11, and Nunc Pro Tunc Journal Entry of
       2/28/12).

       3. Alternatively, and at a minimum, if there are genuine issues of disputed
       facts on where an insured is domiciled for purposes of providing liability
       coverage under this umbrella policy, the issue must be resolved by a jury,
       instead of on summary judgment (See Journal Entries of 11/17/11,
       11/18/11, and Nunc Pro Tunc Journal Entry of 2/28/12).

       {¶12} A declaratory judgment action allows a court of record to declare the rights,

status, and other legal relations of the parties. Civ.R. 57 and R.C. Chapter 2721.   Such
an action is an appropriate mechanism for establishing the obligations of an insurer in a

controversy between it and its insured as to the fact or extent of liability under a policy.

Lessak v. Metro. Cas. Ins. Co. of N.Y., 168 Ohio St. 153, 155, 151 N.E.2d 730 (1958).

When a declaratory judgment action is resolved by summary judgment, our review of the

trial court’s resolution of legal issues is de novo. King v. W. Res. Group, 125 Ohio

App.3d 1, 5, 707 N.E.2d 947 (7th Dist.1997). The court applies the following test:

       Pursuant to Civ.R. 56, 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) reasonable minds can come to but one
       conclusion, and that conclusion is adverse to the nonmoving party, said
       party being entitled to have the evidence construed most strongly in his
       favor.

Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d

201.

       {¶13} The party moving for summary judgment bears the initial burden of showing

there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the

moving party satisfies that burden, the nonmoving party “may not rest upon the mere

allegations or denials of the party’s pleadings, but the party’s responses, by affidavit or

otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E).   Identical standards of interpretation are applied to

insurance contracts as are applied to other written contracts. Hybud Equip. Corp. v.

Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665, 597 N.E.2d 1096 (1992). We

examine the insurance contract as a whole and presume that the intent of the parties is
reflected in the policy’s language. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509

N.E.2d 411 (1987), paragraph one of the syllabus.            Interpretation of a clear and

unambiguous insurance contract is a matter of law, subject to de novo review.

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d

684 (1995).

      {¶14} With the foregoing principles in mind, we turn to the language of the Policy

issued to the Schills. We must initially determine whether James and Robert share the

same domicile, or whether there remains a genuine issue of material fact relating to this

determination.

      {¶15} The Policy contains the following definitions:

      Throughout this policy the words “you” and “your” refer to the person
      named in the Declarations as the Named Insured and his or her legally
      recognized spouse, provided his or her spouse’s legal residence of domicile
      is the same as theirs.

      ***

      6.    “Coverage territory” means anywhere.

      ***

      11.     “Insured”:

      a.    Means:

      ***

      (2) For “occurrences” caused by the use of “automobiles”:

      ***
       (c) “Your resident relatives” for any “occurrence”, involving an
       “automobile” they own, lease, rent or use.

       ***

       16.   “Resident relative” means:

       a. A person related to “you” by blood, marriage or adoption that is a
       resident of “your household” and whose legal residence of domicile is the
       same as yours.

       ***

       21. “Underlying insurance” means the policies of insurance listed in

       Schedule A – Schedule of Underlying Insurance and the insurance available

       to the “insured” under all other insurance policies applicable to the

       “occurrence.”      “Underlying insurance” also includes any type of

       self-insurance or alternative method by which the “insured” arranges for

       funding of legal liabilities which would also be insured under this policy.

       {¶16} The Policy does not define “resident” or “household.”        Nor does it define

“domicile” or “legal residence of domicile.”

       {¶17} The Declarations Page of the Policy (Policy No. U02 0260766, effective

August 24, 2007 to August 24, 2008) identified James and Jean Schill as the Named

Insureds.    The address listed on the Policy was “16800 Orange Lane, Burton, OH

44021-9212” (the “Ohio House”).         The policy limits were $5 million. Although the

Schedule of Underlying Insurance specified minimum limits of insurance for bodily

injury and property damage to be maintained by “you and your relatives” during the term

of the Policy, specific insurance policies were not listed in the schedule.
         {¶18} The Schills also maintained an Executive Homeowner policy with CIC,

Policy No. H04 0260766, effective from August 24, 2007 to August 24, 2008. The

Schills were the Named Insureds on this policy, and the address listed was the Burton,

Ohio address listed in the Policy. The policy limits were $500,000.

         {¶19} Finally, the Schills maintained an Executive Homeowner policy with CIC,

Policy No. H02 0260766, effective from October 29, 2007 to October 29, 2008. The

Schills were the Named Insureds on this policy, but the address listed was “4420

Deerwood Ct., Bonita Springs, FL 34134-8763” (the “Florida House”).              The policy

limits were $300,000.

         {¶20} The Policy’s insuring agreement provides, in relevant part, CIC will pay on

behalf of an insured the ultimate net low that the insured is legally obligated to pay as

damages arising out of an occurrence that is in excess of the underlying insurance.

Insured, for purposes of occurrences caused by the use of an automobile, means your

“resident relatives” for any occurrence involving an automobile they own, lease, rent, or

use.     “Resident relative” means a person related to you by blood, marriage, or adoption

that is a resident of your household and whose legal residence of domicile is the same as

yours.

         {¶21} There is no dispute Robert is related to James by blood.   In order to qualify

as a “resident relative” under the Policy, Robert also needs to reside in James’s household

and his legal residence of domicile.    If Robert qualifies as a “resident relative,” meaning

he resides both in James’s household and his legal residence of domicile, he is an
“insured” as defined under provision 11(a)(2)(c) of the Policy.                Under these

circumstances, CIC must pay the ultimate net low that Robert is legally obligated to pay

as damages arising out of the August 16, 2008 accident that is in excess of the underlying

insurance    If he is not an insured under provision 11(a)(2)(c) of the Policy, CIC has no

obligation to provide coverage for any damages as a result of the August 16, 2008

accident.

       {¶22} While it is true the Policy does not define “resident” or “reside,” this case is

distinguishable from the line of cases holding where “resident” or “reside” is not defined,

the terms are ambiguous and thus strictly construed against the insurer and liberally in

favor of the insured.   E.g., Prudential Prop. & Cas. Ins. Co. v. Koby, 124 Ohio App.3d

174, 705 N.E.2d 748 (11th Dist.1997). Here, the Policy also requires a resident relative

to reside in the Named Insured’s “legal residence of domicile.”

       {¶23} It is a fundamental principle of law that a person must have a domicile.

Senn v. Cleveland, 8th Dist. No. 84598, 2005-Ohio-765, ¶38. That domicile, in the

words of Justice Holmes, is a person’s “pre-eminent headquarters.” Williamson v.

Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 58 L.Ed. 758 (1914). It therefore follows

that, while a person may have multiple residences, he may have only one domicile at any

one time. See, e.g., State ex rel. Klink v. Eyrich, 157 Ohio St. 338, 343, 105 N.E.2d 399

(1952).

       {¶24} “The burden of proof of domicile rests upon the party whose right to

affirmative relief depends upon establishing his domicile or the domicile of another in a
given place.” E. Cleveland v. Landingham, 97 Ohio App.3d 385, 391, 646 N.E.2d 897

(8th Dist.1994), citing Indian Hill v. Atkins, 57 Ohio L. Abs. 210, 90 N.E.2d 161 (1st

Dist.1949). In this case, the burden is initially on Spaeth. Evidence was presented to

demonstrate that James was born, raised, married, and worked in Ohio at least up until

1993 when his wife purchased a home in Florida.         This evidence was sufficient for

Spaeth to meet her initial burden of proof.   Landingham.

       {¶25} Once Spaeth established James’s domicile in Ohio, the burden then shifted to

CIC. “The law in this area is well-established: ‘a person is presumed to continue his old

domicile until it is clearly shown that he has acquired a new one.’” Springfield v. Betts,

114 Ohio App.3d 70, 73, 682 N.E.2d 1025 (2d Dist.1996), quoting 36 Ohio Jurisprudence

3d (1982), Domicile, Section 19.       The acquisition of a new domicile requires two

elements: the factum, or residence, and the animus, or an intention to remain.

Landingham, citing Anderson v. May, 91 Ohio App. 557, 107 N.E.2d 358 (7th Dist.1951),

rev’d on other grounds, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953).         See also

Holtz v. Holtz, 2d Dist. No. 2005-CA-43, 2006-Ohio-1812. The Supreme Court of Ohio,

quoting a judgment entry from the Clermont County Probate Court, has consequently

emphasized:

       When a person’s legal residence is once fixed * * * it requires both fact and
       intention to change it. In other words, to effect a change in domicile from
       one locality, country, or state to another, there must be an actual
       abandonment of the first domicile, coupled with an intention not to return to
       it, and there must be a new domicile acquired by actual residence in another
       place, with the intention of making the last acquired residence a permanent
       home. The acts of the person must correspond with such purpose. The
       change of residence must be voluntary; the residence at the place chosen for
       the domicile must be actual and to the fact of residence there must be added
       the animus manendi, which means the mind to remain.

(Emphasis added.) In re Estate of Hutson, 165 Ohio St. 115, 119, 133 N.E.2d 347

(1956).

       {¶26} Pursuant to Hutson, the abandonment of a former domicile and the

acquisition of a new one happens only by the concurrence of both the fact of a new

residence and the intent to remain in that residence. The intention of making the last

acquired residence a permanent home must correspond with the acts of the person. Id.

       {¶27} In support of its position that James changed his domicile from Ohio to

Florida, CIC relied on the Schills’ move to Florida in 1993. Jean Schill owns the Florida

House for which she promptly applied for and obtained a Homestead Exemption.           The

exemption led to a reduced assessment on the Florida House under Florida tax law based

on proof the house was a permanent residence.     While he admitted receiving some bills

at the Ohio House and keeping a car there, James testified during deposition he does not

“reside here.”   James also testified he considers the Florida House his residence, a

“permanent location for all purposes,” including tax purposes.

       {¶28} James is the CEO and Chairman of ChemTechnologies, Ltd. located in

Middlefield, Ohio. He travels to Ohio to work at the business approximately 10 to 15

days per month, and stays at the Ohio House for both cost and convenience.            James

testified he always intends to return to Florida following completion of business in Ohio.

       {¶29} James owns two vehicles.    They are both titled in his name and registered in

Florida even though he garages one car in Ohio for his use and convenience while in
Ohio. James registered in 1993 to vote in Florida; he has not voted in Ohio since 1993.

James also allowed his Ohio driver’s license to expire when he obtained a Florida driver’s

license in 1993.

       {¶30} James maintains a Florida bank account in which he receives his Social

Security benefits by direct deposit. His personal checking and savings accounts are in

Florida. James also receives his personal credit card bills at the Florida House.

       {¶31} James’s family doctor is located in Florida.      All of the Schills’ family

heirlooms, antiques, treasures, and personal property dear to them are also located in

Florida.

       {¶32} Finally, James generally spends less than 160 days in Ohio per year. James,

a CPA who is no longer in practice, is aware of the Ohio statute that specifies the number

of days a person may spend in Ohio without potentially rebutting a presumption that you

are not domiciled in Ohio. According to James, he purposely stays in Ohio under the

statutory limit to avoid questions about his domicile.

       {¶33} Spaeth counters that certain other facts establish James’s intent to be

domiciled in Ohio, not Florida, at least for insurance purposes. In addition to other

evidence, we turn to James’s deposition testimony in considering Spaeth’s position.

       {¶34} James testified with regard to his understanding of the Policy and the Ohio

House homeowner policy:

       Q. Did [the insurance agent] ever indicate to you that Robert would be
       covered under the homeowners insurance for the Orange Lane property?

       A. We just never discussed that one way or other.
      ***
      A. I assumed that any title holder to the property would be. I took it for
      granted that [the insurance agent] would make sure that any title holder was
      protected.

      Q. Under that policy with Cincinnati?

      A. Under that policy, m-hm.

      Q. All right. And that would include Robert as a title holder?

      A. Sure. Yes.

      ***

      Q. Did the umbrella policy provide coverage to you for both Florida and
      Ohio to your knowledge?

      A. It was around the clock coverage wherever.           For wherever and
      whatever.

      Q. For both households, both households, correct?

      A.   Yeah.

      {¶35} With regard to his future intentions about returning to Ohio for a couple of

weeks per month, James testified:

      Q. What was your purpose for moving to Florida in 1993?

      A. Well, we had sold a business in Chardon, Ohio. We had a very small
      condominium down there where my wife liked very much. We thought I
      was going to retire, so we moved to Florida. But I flunked retirement.

      ***

      Q. As you sit here today, do you intend to stop coming back to Ohio for
      the middle two weeks at any point in time?
       A. As long as I’m physically able, I’m trying to beat JCPenney’s record of
       99 years.

       Q. So as long as you can come to Ohio for a couple of weeks every month,
       you will?

       A.    Yes.

       ***

       Q. And are you an active CEO as it relates to ChemTechnologies, aware
       of its day-to-day operation?

       A.    You better believe it.

       ***

       Q. And whenever you come in from Florida for business purposes, it’s
       always your intent to return to the Orange Lane address to stay at nighttime?

       A. Yes.

(Emphasis added.)

       {¶36} With regard to James’s intentions about limiting his time in Ohio, he

testified:

       Q. Have you ever filed a formal declaration with the State of Ohio
       indicating that you are not domiciled in Ohio?

       A. No.

       ***

       Q. Would it be fair – so you’re aware that Ohio has a statute that specifies
       that if you are in Ohio less than a certain amount of days, you are rebuttably
       presumed not to be domiciled in Ohio, correct?

       A. I am aware of that.
       ***
      A. It used to be, it used to be less than 150, no question. From 150 to 180
      you could state your case. Over 180, you’re dead.

      ***

      Q. If you were in Ohio less than 150 days, there was no question that you
      were not domiciled in Ohio, correct?

      ***

      A.   Correct.

      Q. And between 150 and 180 days back then, if you were here * * * you could
      state your case and make the case that you weren’t really a resident of Ohio,
      correct.

      A.   Correct.

      ***

      Q. And at all times you were aware of those parameters and you
      attempted to abide by them, so that there’s no question that you were not a
      resident of Ohio, correct?

      ***

      A.   Correct.

      Q. Have you ever filed what they call an Affidavit of Non-Ohio Domicile
      or a notice of no Ohio income tax liability with the Ohio Department of
      Taxation?

      A.   No.

(Emphasis added.)

      {¶37} As it relates to this line of inquiry, R.C. 5747.24(B)(1) currently provides:

      (B)(1) Except as provided in division (B)(2) of this section, an individual
      who during a taxable year has no more than one hundred eighty-two contact
      periods in this state, which need not be consecutive, and who during the
      entire taxable year has at least one abode outside this state, is presumed to
      be not domiciled in this state during the taxable year if, on or before the
      fifteenth day of the fourth month following the close of the taxable year, the
      individual files with the tax commissioner, on the form prescribed by the
      commissioner, a statement from the individual verifying that the individual
      was not domiciled in this state under the division during the taxable year.

      ***

      The presumption that the individual was not domiciled in this state is
      irrebuttable unless the individual fails to timely file the statement as
      required or makes a false statement. If the individual fails to file the
      statement as required or makes a false statement, the individual is
      presumed under division (C) of this section to have been domiciled in this
      state the entire taxable year.

(Emphasis added.)

      {¶38} We glean from James’s deposition testimony, the following facts and

conclusions:

1)    James was born, raised, and married in Ohio, and worked here his entire career.

      He has no current intention to stop working and stop returning to the Ohio House.

      James intended to “retire” to Florida, but he “flunked retirement.”

2)    James does not own either the Ohio House or Florida House. His wife owns the

      Florida House and two-thirds of the Ohio House. Robert owns the remaining

      one-third of the Ohio House.    Moreover, a purchase of a second home alone is a

      neutral fact that does not meet CIC’s burden of proving that James changed his

      domicile from Ohio to Florida. In other words, the establishment of a Florida

      residence does not lead to the inescapable conclusion that James abandoned his

      domicile in Ohio. Finally, because James is not the legal or titled owner of the
     Florida House, the fact that Jean Schill obtained a Homestead Exemption under

     Florida law is irrelevant. See Florida Statute 196.031(1)(a).

3)   Likewise, it is clear James intended to avoid Ohio state income tax by “moving” to

     Florida. He understands how crucial it is to remain under the statutory limit in

     effect otherwise “you’re dead.”   The mere fact he considers Florida his domicile

     for tax purposes and tracks his time spent in Ohio for these purposes, however,

     does not automatically lead to the conclusion James abandoned his domicile in

     Ohio.

4)   James never filed any documents with the Ohio tax authorities relating to his

     “Florida domicile.” Just because the Ohio tax authorities have not pursued James

     for back taxes based on an Ohio domicile does not automatically make Florida

     James’s domicile.

5)   James pays for the mortgage, taxes, insurance, utilities, and most, if not all,

     operating expenses for the Ohio House. James also often discusses with Robert

     aesthetic and maintenance items to be completed around the Ohio House.

6)   Three of James’s four children reside in Ohio.

7)   While James provides financial support to his other children, he does not pay

     directly the mortgage, taxes, insurance, utilities, and most, if not all, operating

     expenses for their homes.

8)   James purchased from an Ohio agent the homeowners’ and umbrella insurance

     policies for the Ohio House, and he is identified as the Named Insured on both
      policies. Both policies list the Ohio House’s address for the Named Insured.

      The Policy contains Ohio-specific terms and endorsements.       As required by law,

      CIC offered excess uninsured and underinsured coverages to the Schills. Finally,

      the Policy does not specifically exclude Robert.

9)    James, the CEO and Chairman of an Ohio company partially owned by him,

      travels to Ohio for up to 15 days per month to work at the business and oversee its

      day-to-day operations.   While in Ohio, he generally awakens at 4:00 a.m. and

      goes to bed at 7:00 p.m., “working in between,” for seven days a week.

      However, we no longer live in a party-line, land-line world.    James has available

      to him a variety of electronic communication devices that he can use daily, if not

      hourly, to communicate with his Ohio business subordinates from the Florida

      House, providing them with directions and making business decisions.

10)   James lives in the Ohio House when he travels to Ohio. James has a car at the

      house for his use, along with toiletries, food, and clothing.       He sleeps in a

      first-floor bedroom that is not, to the best of his knowledge, used by anyone else at

      any time. Robert has a bedroom on the second floor.

11)   Jean Schill travels to Ohio a couple of times per year and stays mostly at the Ohio

      House for up to five weeks at a time. Jean’s and James’s trips to Ohio sometimes

      overlap.

12)   James has been a general partner of the Schill Family Trust Limited Partnership

      since 1997. It is an Ohio partnership that includes his four children, including
      Robert, as partners. The partnership uses the Ohio House as its mailing address,

      including on its tax filings.     Finally, the partnership owns an interest in

      ChemTechnologies, Ltd.

13)   James’s    accountant, who reviews his personal taxes and those for his Ohio

      business and Ohio family partnership, is located in Ohio. James’s investment

      firm and account manager are located in Ohio.    James’s attorneys who created the

      Ohio family partnership, and handle his estate plan and legal issues involving his

      business, are located in Ohio.

14)   The fact that James votes in Florida is not dispositive evidence that he changed his

      domicile to Florida.

      {¶39} James is not a typical “snowbird” who travels to Florida for the winter.

Because of James’s considerable finances, he created two locations in which he carries on

important parts of his life. Nonetheless, in reviewing the evidence in Spaeth’s favor as

required under Civ.R. 56, reasonable minds can come to but one conclusion about the

location of James’s domicile. Zivich, 82 Ohio St.3d 367, 696 N.E.2d 201. Based on the

foregoing facts and conclusions, we conclude James never abandoned his domicile in

Ohio by virtue of his wife’s purchase of a second home in Florida because he travels here

and stays at the Ohio House for up to a minimum of two weeks every month to operate an

Ohio business as its CEO and Chairman. Through his own admission, James may have

intended to make Florida his domicile, but he “flunked retirement” and his actions after
1993 contradict an intention to make Florida a permanent home. Hutson, 165 Ohio St.

115, 133 N.E.2d 347.

      {¶40} Accordingly, Robert qualifies as a “resident relative” under the Policy

because he resides in both James’s household and his legal residence of domicile.

Robert is an “insured” as defined under provision 11(a)(2)(c) of the Policy, and CIC has

the obligation to provide coverage under the Policy in excess of underlying insurance as a

result of the August 16, 2008 accident.

      {¶41} “Underlying insurance” includes insurance available to the “insured” under

all other insurance policies applicable to the “occurrence.”   “Schedule A – Schedule of

Underlying Insurance” of the Policy provides, “[i]t is agreed by you and your relatives

that the following minimum limits of underlying insurance are in force as of the inception

date of this policy and will be maintained during the term of this policy”: auto liability

with bodily injury limits of $100,000 each person/$300,000 each occurrence, and property

damage limits of $100,000 each occurrence.

      {¶42} There is no dispute Robert is a relative of the Schills, and he has an

automobile insurance policy through State Auto with the required limits of coverage.

Robert’s State Auto policy is, therefore, “underlying insurance” to the Policy.    This is

an interpretation of a clear and unambiguous insurance contract. Kelly, 31 Ohio St.3d

130, 509 N.E.2d 411; Nationwide Mut. Fire Ins. Co., 73 Ohio St.3d 107, 652 N.E.2d 684.

      {¶43} If CIC intended to limit Schedule A to specific insurance policies, including

the Schills’ homeowner and motor vehicle policies, it should have listed those policies in
Schedule A.   If CIC wanted to place certain parameters around the definition of “legal

residence of domicile,” it should have included a definition with those parameters in the

Policy. Finally, CIC did not exclude any resident of the domicile, including Robert,

from coverage.

      {¶44} We, therefore, reverse the trial court’s grant of summary judgment in favor

of CIC, and its denial of summary judgment against Spaeth. Pursuant to App.R. 16(B),

we order final judgment be entered in favor of Spaeth.

      It is ordered that appellant recover from appellee the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_________________________________
KENNETH A. ROCCO, JUDGE

COLLEEN CONWAY COONEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
