[Cite as Williams v. United States Liab. Ins. Group, 2012-Ohio-1288.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STEPHANIE WILLIAMS                                          JUDGES:
                                                            Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellant                                 Hon. John W. Wise, J.
                                                            Hon. Julie A. Edwards, J.
-vs-
                                                            Case No. 2011 CA 00252
UNITED STATES LIABILITY
INSURANCE GROUP

        Defendant-Appellee                                  OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 2011 CV 00744


JUDGMENT:                                              Affirmed



DATE OF JUDGMENT ENTRY:                                 March 19, 2012



APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

JEFFREY V. HAWKINS                                     LARRY C. GREATHOUSE
SLATER & ZURZ                                          RICHARD C. O. REZIE
One Cascade Plaza, Suite 2210                          GALLAGHER SHARP
Suite 2210                                             6th Floor Bulkley Building
Akron, Ohio 44308-1135                                 1501 Euclid Avenue
                                                       Cleveland, Ohio 44115
Stark County, Case No. 2011 CA 00252                                                      2

Wise, J.

       {¶1}   Plaintiff-Appellant Stephanie Williams appeals the decision of the Court of

Common Pleas, Stark County, which overruled her motion for summary judgment and

granted Appellee United States Liability Insurance Group’s (“USLIG”) motion for

summary judgment in appellant’s suit seeking recovery under a commercial insurance

policy. The relevant facts leading to this appeal are as follows.

       {¶2}   On November 10, 2007, appellant was a patron at Smitty’s Pub in Canton,

which was insured by Appellee USLIG under the name “John Abel, dba Smitty’s Pub.”

While appellant was seated at a booth near the dance floor that evening, a couple of

other patrons collided with each other. Some words were exchanged between various

patrons and the pub’s security personnel, and appellant decided it was time to leave.

However, the disc jockey on duty that night had purportedly blocked the nearest exit

with his equipment, causing appellant to head toward another door. As she was on her

way out, she was allegedly struck or landed on by several persons who had become

involved in another altercation on the premises.

       {¶3}   On October 1, 2009, appellant filed a lawsuit in the Stark County Court of

Common Pleas (case no. 2009CV03790), captioned as “Stephanie Williams v. John M.

Abel, d/b/a Smitty’s Pub” and other defendants. In her complaint in that suit, appellant

alleged, in pertinent part, that she had been a business invitee at Smitty’s on or about

November 10, 2007, and that Smitty’s, its agents, servants, and/or employees were

negligent in failing to provide adequate security, failure to warn “as to the propensity for

potential violence,” and failure to allow for appropriate emergency exits. See Exhibit A to

Plaintiff’s Amended Complaint, April 26, 2011.
Stark County, Case No. 2011 CA 00252                                                     3


      {¶4}   The case against Smitty’s ultimately resulted in a consent judgment entry

granting a judgment for $50,000.00 in favor of appellant.

      {¶5}   On March 4, 2011, appellant filed an action against Appellee USLIG in the

Stark County Court of Common Pleas, pursuant to R.C. 2721.02(B), seeking

declaratory judgment and money damages.1 On April 26, 2011, with leave of court,

appellant filed an amended complaint.

      {¶6}   Both sides thereafter filed motions for summary judgment. On October 4,

2011, the trial court issued a judgment entry denying appellant’s motion for summary

judgment and granting appellee’s motion for summary judgment.

      {¶7}   On November 3, 2011, appellant filed a notice of appeal. She herein

raises the following sole Assignment of Error:

      {¶8}   “I.   THE TRIAL COURT ERRED IN OVERRULING THE PLAINTIFF-

APPELLANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING THE

DEFENDANT-APPELLE’S (SIC) MOTION FOR SUMMARY JUDGMENT.”

                                                 I.

      {¶9}   In her sole Assignment of Error, appellant contends the trial court erred in

denying appellant’s motion for summary judgment and granting appellee’s motion for

summary judgment. We disagree.

1
   R.C. 2721.02(B) states as follows: “A plaintiff who is not an insured under a particular
policy of liability insurance may not commence against the insurer that issued the policy
an action or proceeding under this chapter that seeks a declaratory judgment or decree
as to whether the policy's coverage provisions extend to an injury, death, or loss to
person or property that a particular insured under the policy allegedly tortiously caused
the plaintiff to sustain or caused another person for whom the plaintiff is a legal
representative to sustain, until a court of record enters in a distinct civil action for
damages between the plaintiff and that insured as a tortfeasor a final judgment
awarding the plaintiff damages for the injury, death, or loss to person or property
involved.”
Stark County, Case No. 2011 CA 00252                                                       4


       {¶10} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “Summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence in the pending case and written

stipulations of fact, if any, timely filed in the action, show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of

law. * * * A summary judgment shall not be rendered unless it appears from the

evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the

evidence or stipulation construed most strongly in the party's favor.”

       {¶11} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates the non-moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating there is a genuine issue of material fact for
Stark County, Case No. 2011 CA 00252                                                    5

trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v.

Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

       {¶12} It is undisputed that the USLIG policy in question contains an assault or

battery exclusion, which states in pertinent part that coverage is not provided for “[a]ny

claim, demand or ‘suit’ based on ‘assault’ or ‘battery,’ or out of any act or omission in

connection with the prevention or suppression of any ‘assault’ or ‘battery’ *** whether

caused by or at the instigation or direction of an insured, its ‘employees,’ agents,

officers, or directors, patrons or any other person.”

       {¶13} Appellant maintains that Smitty’s disc jockey’s alleged blockage of one of

the fire exits on the evening in question constitutes negligence per se, directing us to

O.A.C. 1301:7-7-10(BB)(5), which requires that a means of egress shall be free from

obstructions that would prevent its use. Appellant also proposes that the “based on

assault or battery” language in the aforesaid USLIG policy exclusion is ambiguous and

must be construed strictly against the insurer.

       {¶14} Appellee USLIG responds with reference to a number of cases which

have addressed similar claims under an “assault and battery” exclusion. For example, in

Sphere Drake Ins. Co. v. Ross (1992), 80 Ohio App.3d 506, the Ninth District Court of

Appeals addressed a tavern insurer’s argument that it had no duty to indemnify under

an assault and battery exclusion, where a patron, Kelly Ross, had been assaulted

during a scuffle with the tavern’s security personnel at an establishment known as

“Froggies.” The Court determined: “Because Ross' injuries resulted directly from an

assault and battery, the exclusion operates to exempt Sphere from any liability under

the policy. Even should Ross prevail in his negligence action against Froggies, it would
Stark County, Case No. 2011 CA 00252                                                      6


not affect this result. The fact that a concurrent cause in negligence may have

contributed to Ross' injury does not change the fact that his injury was the result of an

assault and battery, the very thing the policy excludes from its coverage.” Id. at 510.

         {¶15} Upon review, we reach a similar result in the case sub judice. We find

reasonable minds could only determine that despite appellant’s concurrent claims of

negligence against Smitty’s, the injuries claimed by appellant were “based on” the chain

of events stemming from a physical altercation between other persons in the pub, as

well as alleged omissions by Smitty’s employees in connection with the suppression of

an assault or battery on the premises, thus falling under the USLIG policy exclusion at

issue.

         {¶16} Appellee USLIG also responds, via a cross-assignment of error, that it

was no longer “legally obligated” to indemnify, as per the language of the policy, based

on the agreement between appellant and Smitty’s, in the prior consent judgment, that

appellant would not pursue collection against the pub. However, we find it unnecessary

to reach this issue under the circumstances of the case sub judice.
Stark County, Case No. 2011 CA 00252                                                7


      {¶17} Appellant’s sole Assignment of Error is therefore overruled.

      {¶18} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.



By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0213
Stark County, Case No. 2011 CA 00252                                         8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STEPHANIE WILLIAMS                        :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
UNITED STATES LIABILITY                   :
INSURANCE GROUP                           :
                                          :
       Defendant-Appellee                 :         Case No. 2011 CA 00252




       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 appellant.




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                                          ___________________________________


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                                                             JUDGES
