[Cite as Meyers Lake Sportsman's Club, Inc. v. Auto-Owners (Mut.) Ins. Co., 2013-Ohio-3115.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MEYERS LAKE SPORTSMAN'S CLUB,  :                              JUDGES:
INC., ET Al                    :
                               :
                               :                              Hon. John W. Wise, P.J.
     Plaintiffs - Appellees    :                              Hon. Patricia D. Delaney, J.
                               :                              Hon. Craig R. Baldwin, J.
                               :
                               :
-vs-                           :
                               :
AUTO-OWNERS (MUTUAL) INSURANCE :                              Case No. 2012CA00241
COMPANY, ET Al                 :
                               :
                               :
     Defendants - Appellants   :                              OPINION



CHARACTER OF PROCEEDING:                                      Appeal from the Stark County Court
                                                              of Common Pleas, Case No.
                                                              2012CV01151




JUDGMENT:                                                     Affirmed



DATE OF JUDGMENT:                                             July 15, 2013



APPEARANCES:

For Plaintiffs-Appellees                                    For Defendants-Appellants

ALLEN SCHULMAN                                              BRIAN T. WINCHESTER
The Carnegie Building                                       McNeal Schick Archibald & Biro Co., LPA
236 Third Street, S.W.                                      123 West Prospect Avenue, Suite 250
Canton, OH 44702                                            Cleveland, OH 44115
Stark County, Case No. 2012CA00241   2


JAMES T. ROBERTSON
WILLIAM S. PIDCOCK
Robertson & Pidcock, LLC
The Carnegie Building
236 Third Street, S.W.
Canton, OH 44702
Stark County, Case No. 2012CA00241                                                      3

Baldwin, J.

      {¶1}    Defendant-appellants Auto-Owners (Mutual) Insurance Company and

Owners Insurance Company appeal from the December 4, 2012 Judgment Entry of the

Stark County Court of Common Pleas denying their Motion for Judgment on the

Pleadings.


                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On April 11, 2012, appellees Meyers Lake Sportsman’s Club, Inc. and

Meyers Lake Fish Dock, Inc. filed a complaint for declaratory judgment, breach of

contract/bad faith and punitive damages against appellants. Appellees, in their

complaint, alleged that appellee Sportsman’s Club had filed a complaint against Meyers

Lake Preserve, Inc. (Case No. 2011 CV 01990) seeking a declaratory judgment,

injunctive relief and damages for breach of contract, tortious interference with contract,

trespass, quiet title and punitive damages. Appellees further alleged that, on or about

September 30, 2011, Meyers Lake Preserve, Inc. had filed an answer and counterclaim

in such case against appellee Sportsman’s Club and a counterclaim against appellee

Fish Dock. Appellees alleged that the counterclaim included claims against appellee

Sportsman’s Club for trespass and ejectment and a claim against appellee Fish Dock

for conversion.

      {¶3}    Appellees, in their complaint in the case sub judice also asserted that they

immediately notified appellants, through their counsel in Case No. 2011 CV 01990, of

the filing of the counterclaim and that appellants denied coverage under the relevant

polices and refused to defend appellees in Case No. 2011 CV 01990.
Stark County, Case No. 2012CA00241                                                        4


      {¶4}   On October 24, 2012, appellants filed a Motion for Judgment on the

Pleadings pursuant to Civ.R. 12(C). Appellants, in their motion, sought a declaration

from the trial court that they had no duty to defend and/or indemnify appellees with

respect to the claims asserted against them by Meyers Lake Preserve, Inc. in Case No.

2011 CV 01990. Appellees filed a memorandum in opposition to such motion on

November 7, 2012.

      {¶5}   Thereafter, on November 21, 2012, a stipulation was filed dismissing the

claims asserted by appellees against appellants for breach of contract and bad faith.

The parties agreed that the only remaining claims were those for declaratory judgment.

      {¶6}   Pursuant to a Judgment Entry filed on December 4, 2012, the trial court

denied appellants’ Motion for Judgment on the Pleadings. The trial court, in its

Judgment Entry, found that the claims asserted by the Preserve against appellees in

Case No. 2011 CV 01990 were “occurrences” as such term is defined in the subject

policies and that alleged personal injury to the Myers Lake Preserve was sufficient to

trigger appellants’ duty to defend appellees in the underlying case. A defense was late

tendered under a reservation of rights.

      {¶7}   Appellants now raise the following assignment of error on appeal:

      {¶8}   THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR

JUDGMENT ON THE PLEADING AND FINDING A DUTY TO DEFEND.

                                                I

      {¶9}   Appellants, in their sole assignment of error, argue that the trial court erred

in denying their Motion for Judgment on the Pleadings and finding a duty to defend. We

disagree.
Stark County, Case No. 2012CA00241                                                      5


      {¶10}   A motion for judgment on the pleadings presents only questions of law.

Luthy v. Dover, 5th Dist. No.2011AP030011, 2011–Ohio–4604, ¶ 13, citing Dearth v.

Stanley, 2nd Dist. No. 22180, 2008–Ohio–487. In ruling on a motion for judgment on the

pleadings, the trial court must construe the material allegations in the complaint and any

reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can

prove no set of facts entitling plaintiff to relief, the court must sustain a motion for

judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010–

CA–00120, 2011–Ohio–580, ¶ 12, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000–

Ohio–230, 733 N.E.2d 1161. However, the complaint must allege sufficient facts to

support any conclusions, and unsupported conclusions are not presumed to be true. Id.

      {¶11}   Judgment on the pleadings may be granted where no material factual

issue exists. “However, it is axiomatic that a motion for judgment on the pleadings is

restricted solely to the allegations contained in those pleadings.” Giesberger v. Alliance

Police Department, 5th Dist. No. 2011 CA00070, 2011–Ohio–5940, ¶ 18.

      {¶12}   Our review of the trial court's decision granting judgment on the pleadings

is de novo. See, Hignite v. Glick, Layman & Assoc., Inc., 8th Dist. No. 95782, 2011–

Ohio–1698. When reviewing a matter de novo, this Court does not give deference to the

trial court's decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-

829- 809 N.E.2d 1161, ¶ 11 (9th Dist.). “Under Civ.R. 12(C), dismissal is appropriate

where a court (1) construes the material allegations in the complaint, with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds

beyond doubt, that the plaintiff could prove no set of facts in support of his claim that
Stark County, Case No. 2012CA00241                                                      6

would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio

St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931.

      {¶13}   At issue in the case sub judice is whether or not appellants had a duty to

defend appellees in Case No. 2011 CV 01990. Appellants contend that the claims

asserted by Meyers Lake Preserve against appellees in such case for trespass,

ejectment, and/or conversion are subject to the intentional acts exclusions of the

polices, that such claims do not constitute “occurrences” under the policies, and that

such claims were not for personal injury or property damage.

      {¶14}   “To determine when the duty to defend arises, one must look to the

allegations in the complaint and the insurance policy to ascertain whether the insured's

actions were within the coverage of the policy.” Snowden v. Hastings Mut. Ins. Co., 177

Ohio App.3d 209, 2008-Ohio-1540, 894 N.E.2d 336, ¶ 10 (7th Dist), citing Preferred

Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78, 80, 491 N.E.2d 688 (1986).

      {¶15}   “The scope of the allegations in the complaint against the insured

determines whether an insurance company has a duty to defend the insured. The

insurer must defend the insured in an action when the allegations state a claim that

potentially or arguably falls within the liability insurance coverage. However, an insurer

need not defend any action or claims within the complaint when all the claims are

clearly and indisputably outside the contracted coverage.” (Citations omitted.) Ohio

Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d

1155, ¶ 19.
Stark County, Case No. 2012CA00241                                                       7


      {¶16}   An insurer's duty to defend need not arise solely from the allegations in

the complaint, but may arise at a point subsequent to the filing of the complaint. See

Willoughby Hills v. Cincinnati, 9 Ohio St. 3d 177, 179, 459 N.E.2d 555 (1984).

      {¶17}   The Commercial General Liability (CGL) policies issued by appellants to

appellees in the case sub judice state, in relevant part, as follows:

      SECTION I-COVERAGES

      COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY

      1. Insuring Agreement.

      We will pay those sums that the insured becomes legally obligated to pay as

      damages because of “bodily injury” or “property damage” to which this insurance

      applies. We will have the right and duty to defend the insured against any “suit”

      seeking those damages. * * *

      “***

      b. This insurance applies to “bodily injury” and “property damage” only if:

      (1) The “bodily injury” or “property damage” is caused by an “occurrence” that

      takes place in the “coverage territory”; and

      (2) The “bodily injury”’ or “property damage”’ occurs during the policy period.…

      2. Exclusions

      This insurance does not apply to:

      a. Expected or Intended Injury

      “Bodily injury” or “property damage” expected or intended from the standpoint of

      the insured. This exclusion does not apply to “bodily injury” resulting from the use

      of reasonable force to protect persons or property.
Stark County, Case No. 2012CA00241                                                        8


      {¶18}   “Occurrence” is defined in Section V-Definitions of the CGL policies as,

“an accident, including continuous or repeated exposure to substantially the same

general harmful conditions.” “Property damage” is defined as meaning, “a. [p]hysical

injury to tangible property, including all resulting loss of use of that property. All such

loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. [l]oss of use of tangible property that is not physically injured. All such loss shall be

deemed to occur at the time of the ‘occurrence’ that caused it.” Moreover, “Personal

Injury” is defined in paragraph 15 of Section V, in relevant part, as meaning injury “other

than ‘bodily injury’ arising out of one or more the following offenses:…c. The wrongful

eviction from, wrongful entry into, or invasion of the tight of private occupancy of a room,

dwelling or premises that a person occupies, committed by or on behalf of its owner,

landlord or lessor.”

      {¶19}   The umbrella policy issued by appellant Auto-Owners to appellee

Sportsman’s Club provide coverage for personal injury or property damage that is

caused by an incident. The policy contains the following definitions:

      I. Incident means either an occurrence or an offense, whichever is the basis of

      coverage, then:

      1. When coverage applies on the occurrence basis, incident means an accident

      with respect to;

      a. Bodily injury, including damages claimed by any person or organization for

      care, loss of services or death resulting at any time for the bodily injury; or

      b. Property damage
Stark County, Case No. 2012CA00241                                                       9


      Including continuous or repeated exposure to substantially the same harmful

      conditions. Continuous or repeated exposure to substantially the same general

      harmful conditions constitutes one incident.

      2. When coverage applies on an offense basis, incident means an offense

      committed by the insured resulting in personal injury or advertising injury,

      including all such injury sustained by any one person or organization.”

      {¶20}   In turn, the umbrella policy defines “personal injury”, in relevant part, as

meaning “injury, other than bodily injury, arising out of one or more the following

offenses:… 3. The wrongful eviction from, wrongful entry into, or invasion of the right of

private occupancy of a room, dwelling or premises that a person occupies, committed

by or on behalf of its owner, landlord or lessor.” “Property Damage’ is defined as

meaning.”1. [p]hysical injury to tangible property, including all resulting loss of use of

that property. All such loss of use shall be deemed to occur at the time of the physical

injury that caused the loss of use. 2. [l]oss of use of tangible property that is not

physically injured. All such loss shall be deemed to occur at the time of the incident that

caused the loss of use.”

      {¶21}   The umbrella policy further contains an exclusion for “Bodily injury or

property damage’ expected or intended from the standpoint of the insured.”

      {¶22}   The trial court, in its December 4, 2012 Judgment Entry, found that the

claims asserted in Case No. 2011 CV 01990 by Meyers Lake Preserve against

appellees for trespass, ejectment and/or conversion constituted “occurrences” under the

insurance policies issued by appellant to appellee and were not excluded an intentional

torts and that appellants had a duty to defend appellees with respect to such claims.
Stark County, Case No. 2012CA00241                                                      10


The trial court further found that Meyers Lake Preserve suffered from an alleged

personal injury sufficient to trigger the duty to defend.

      {¶23}   Appellants initially argue that the trial court erred in denying their Motion

for Judgment on the Pleadings and finding a duty to defend because the claims for

trespass, ejectment and/or conversion are intentional torts excluded under the subject

polices. Appellants note that the policies exclude coverage for bodily injury or property

damage that is expected or intended from the standpoint of the insured. Appellants

specifically maintain that the claims for trespass, ejectment and conversion sound in

intentional tort. However, in order for an exclusion for intentional acts to apply, the

insurer must show not only that insured intended act, but also that insured intended to

cause harm or injury. Physicians Ins. Co. of Ohio v. Swanson, 58 Ohio St.3d 189, 569

N.E.2d 906 (1991).

      {¶24}   We concur with the trial court that, based upon the language contained in

the relevant policies, the claims for trespass, ejectment and conversion asserted by the

Meyers Lake Preserve against appellees in Case No. 2011 CV 01990 were occurrences

and that such claims are not excluded as intentional acts. As noted by the trial court,

when an insured intentionally performs an act which causes unintended damage, the

event is an “occurrence” under a CGL policy. See Holub Iron & Steel Co. v. Machinery

Equipment & Salvage Co., 9th Dist. No. 12304, 1986 WL 7762 (July 2, 1986).

      {¶25}   In the underlying case, appellee Sportsman’s Club filed a complaint

against Meyers Lake Preserve, alleging that such appellee’s members had an implied

easement to use Meyers Lake and such appellee’s own property for swimming, boating

and fishing. Appellee Sportsman’s Club further alleged that Meyers Lake Preserve was
Stark County, Case No. 2012CA00241                                                        11


depriving appellee and its members from their property rights. In response, Meyers

Lake Preserve filed a counterclaim against appellee Sportsman’s Club and appellee

Fish Dock. The counterclaim included claims against appellee Sportsman’s Club for

trespass and ejectment and a claim against appellee Fish Dock for conversion. As

noted by the trial court, appellee Sportsman’s Club’s use of Meyers Lake was not

intended to cause damage to the Preserve. Rather, as set forth in the complaint in the

underlying case, appellee Sportsman’s Club believed that it has an implied easement

that gave it the right to use the lake. We agree with the trial court that the “expected or

intended injury” exclusion does not apply so as to preclude appellants from having a

duty to defend appellees under the subject policies.

      {¶26}   Appellants also argue that claims for trespass, ejectment and/or

conversion do not constitute claims for personal injury or property damage under the

subject policies and that, therefore, there was no duty to defend the claims asserted by

Meyers Lake Preserve against appellees in the underlying case.

      {¶27}   As is stated above, the term “personal injury” is defined in the subject

policies as meaning other than “bodily injury” arising out of one or more of the following

offenses:

      c. The wrongful eviction from, wrongful entry into, or invasion of the right of private

      occupancy of a room, dwelling or premises that a person occupies, committed by

      or on behalf of its owner, landlord or lessor.

      {¶28}   As noted by appellees, “[b]ecause the Sportsman’s Club has an implied

easement to use Meyer’s Lake, and the Preserve likewise has a right of occupancy of

Meyer’s Lake, the alleged personal injury suffered by the Preserve was in fact an
Stark County, Case No. 2012CA00241                                                    12


alleged invasion of the Preserve’s property right of private occupancy which was

committed by the Appellees.” Moreover, the asserted loss of use of the premises that

allegedly was caused by appellees constitutes property damage. We agree with the trial

court that the alleged personal injury to the Preserve was sufficient to trigger duty on

behalf of appellants to defend appellees in the underlying case.

      {¶29}   Based on the foregoing, we find that the trial court did not err in denying

appellants’ Motion for Judgment on the Pleadings. We cannot find, beyond doubt, that

appellees could prove no set of facts that would entitle them to relief.

      {¶30}   Appellants’ sole assignment of error is, therefore, overruled.

      {¶31}   Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.


By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.




                                         HON. CRAIG R. BALDWIN



                                         HON. JOHN W. WISE



                                         HON. PATRICIA A. DELANEY



CRB/dr
[Cite as Meyers Lake Sportsman's Club, Inc. v. Auto-Owners (Mut.) Ins. Co., 2013-Ohio-3115.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


MEYERS LAKE SPORTSMAN'S CLUB,  :
INC., ET. AL.                  :
                               :
     Plaintiff -Appellee       :
                               :
-vs-                           :                                   JUDGMENT ENTRY
                               :
AUTO-OWNERS (MUTUAL) INSURANCE :
COMPANY, ET. Al.
                               :
     Defendant - Appellant     :                                   CASE NO. 2012CA00241


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellants.




                                                 HON. CRAIG R. BALDWIN



                                                 HON. JOHN W. WISE



                                                 HON. PATRICIA A. DELANEY
