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Sheely v Sheely

Case No. 2-10-38 (OH Ct. App., Dist. 3, Jan. 9, 2012)

Plaintiff-appellant, Tabatha Sheely (“Tabatha”), appeals the October 19, 2010 judgment of the Auglaize County Court of Common Pleas denying her motion for partial summary judgment, granting defendant-appellee’s, Lightning Rod Mutual Insurance Company (“Lightning Rod”), motion for summary judgment and declaring that there is no coverage under Lightning Rod’s home and personal liability policy insuring Daniel Sheely (“Dan”) for the wrongful death of Ivy Sheely.

On May 13, 2007, Ivy Sheely, the sixteen-year-old daughter of Tabatha and Dan, died when she consumed a large bottle of Vodka, which Dan purchased for her earlier that evening.

Tabatha and Dan divorced in the mid-nineties. After the divorce, Ivy lived with Tabatha in Findlay. Up until several months before her death, Ivy visited her father at his St. Johns residence in Auglaize County on the weekends and during some school vacations. However, after Ivy reached the age of sixteen and obtained her driver’s license, she made more frequent trips to St. Johns to visit Dan. Some of the trips would last several days. It is during this time that Dan permitted Ivy and her teenage friends to consume alcohol in his home.
 

 

Judge(s): Stephen R. Shaw
Jurisdiction: Ohio Court of Appeals, District 3
Related Categories: Contracts , Insurance
 
Court of Appeals Judge(s)
Vernon Preston
Stephen Shaw
John Willamowski

 
Appellant Lawyer(s) Appellant Law Firm(s)
Clay Balyeat
Andrew Bucher

 
Appellee Lawyer(s) Appellee Law Firm(s)
David Jarrett
Ronald Rispo

 

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Click the maroon box above for a formatted PDF of the decision.
notably, the word "accident" is not defined in the policy. {7} in november of 2009, the parties presented a consent judgment entry one point and when she returned, heather noticed that much of the alcohol in the exclusion, the doctrine of inferred intent applies only in cases in the rule is needed only in a narrow range of cases--those in they arrived to the grieshop's, ivy opened the full bottle of vodka and began to by an "occurrence." having found that ivy's death was not caused by an have tried to--and i think in his way, he wanted to have a alleged of the insured falls within the coverage of the policy." gearing v. to apply the doctrine in other circumstances. (1) that there are no genuine issues of material fact, (2) that the moving party is father to ivy. brittany provided the following testimony in her deposition for this tied to the act of the insured--i.e., the action necessitates the trial court memorialized the consent judgment entry in its november 20, 2009 (lightning rod policy for d. sheely, at 15). identifying the basis for its motion in order to allow the opposing party a period in * * * "bodily injury[.]" (lightning rod policy for d. sheely, at 2). case no. 2-10-38 of a third party, the supplying of the alcohol was expected and earlier that evening, he went out to dinner with ivy, her friend, heather davies, resolve the issue of whether ivy's death was caused by an "occurrence" and is, 5. "occurrence" means an accident, including continuous or house while he was there; something he had allowed on several prior occasions exception of the night that ivy died. heather testified that she and ivy drove from allegedly caused by the homeowner's conduct in knowingly permitting an provisions of the policy, lightning rod is liable for covering bodily injury caused {36} after reviewing the record before us, it is our determination that cause the resulting harm. until recently, the supreme court of ohio had only applied the doctrine in cases 2 party there at the house was any reflection on something he was an occurrence as "an accident, including continuous or repeated exposure to superior spinning & stamping co. (1998), 128 ohio app.3d 360, 363, 714 ivy's death was not caused by an accident. county, the alcohol was consumed by the child at the residence ivy's estate $300,000.00 for the wrongful death and survivorship claims. tabatha any person named above. the policy only covered bodily injury, including death, that is caused as a result of because the intentional act could not have been done without material fact as to whether dan's act of furnishing alcohol to ivy and her death are (supp. complaint apr. 10, 2010 at 2). tabatha asserted that campbell, 128 ohio st.3d at 1097-98. policy to pay the $300,000.00 judgment against dan, as its insured, and judgment for lightning rod through its ronald a. rispo and david l. jarrett for appellee causing harm. thus, an insured's intent to cause injury or he never saw the girls drink straight liquor, but that he permitted them to make judgment in favor of lightning rod, the supreme court of ohio issued its alcohol provided by dan, is an insurable event under lightning rod's policy. our erred in its application of the doctrine of inferred intent when it found that the tabatha and dan, died when she consumed a large bottle of vodka, which dan however, that he did not caution ivy against abusing alcohol. {34} however, just because a parent, who has furnished alcohol to a minor under the policy because it was not the result of an "occurrence" and that the {39} based on the record, we find that there is no genuine issue as to any and went into the house to freshen up their hair and make-up. degree, and of furnishing intoxicating liquor to an underage person, in violation of "meaningful opportunity to respond." mitseff v. wheeler (1988), 38 ohio st.3d evaluate evidence, taking all permissible inferences and resolving questions of alcohol at dan's house. brittany testified that she and ivy made alcoholic mixed accident, as wrongful or tortious acts on part of insureds in providing the minors -8- * * * another person."1 clay w. balyeat and andrew r. bucher for appellant damage may be inferred only when that harm is intrinsically none of the coverage exclusions in the policy applied to this case, and that ivy's in her testimony at dan's criminal trial, heather recalled that we note that, according to tabatha's supplemental complaint, lightning rod had previously refused to street to the grieshop's trailer, where they intended to consume alcohol. once -14- defendants-appellees. general harmful conditions, which results, during the policy period in bodily injury testimony that he would only allow ivy and her underage friends to drink in his conclude that ivy's death was an unexpected, unforeseeable event in these which the insured's testimony on harmful intent is irrelevant which she was drinking the vodka, specifically, that she was "putting it down a home and were not allowed to leave his home with the alcohol. dan recalled that rod's motion for summary judgment because `unintended' or `unexpected' happenings." morner v. giuliano, 167 ohio app.3d a smaller, 40-proof bottle of vodka by the clerk, but ivy objected to purchasing that bottle, expressing she (lightning rod policy for d. sheely, at 1-2) (emphasis added). dan took the girls to a liquor store to purchase alcohol for them. brittany testified it is clear that as applied to an insurance policy's intentional-act * * * * converse with jr grieshop. heather testified that when she went to check on ivy, entitled to judgment as a matter of law, and (3) that reasonable minds can come to harm. limiting the scope of the doctrine is appropriate because judgment and declaring that there is no coverage under lightning rod's home and conviction for child endangering provided evidence that dan's action of supplying -13- meaning of homeowner's policy, where the homeowner reasonably should have {35} under ohio law, when a term in an insurance contract is not defined policy at the time of ivy's death, demanding it pay the $300,000.00 judgment (a) which is expected or intended by the "insured[.]" permitted ivy to consume liquor, he never cautioned her against alcohol abuse. {19} in ruling on a summary judgment motion, a court is not permitted to harm. dan's household at the time of her death. under the terms of the personal liability with alcohol were not accidental). issued by lightning rod. however, lightning rod asserted that ivy's death was lightning rod contended that ivy was a resident of dan's household and that subject to the exclusion from liability, and the exclusion for furthermore, dan does not dispute that, on the night of ivy's death, he purchased a severally liable for ivy's death. -9- if a claim is made or a suit is brought against an "insured" for actions against dan and john grieshop, sr., alleging them to be jointly and judgment de novo, without any deference to the trial court. conley-slowinski v. vodka to the neighbor's house on the night she died. he was adamant in his /jlr parental rights and responsibilities, and therefore the claims are -16- trial court did not err in granting summary judgment in favor of lightning rod and nationwide ins. co., 76 ohio st.3d 34, 36, 665 n.e.2d 1115, 1996-ohio-113. -12- "few times" on previous occasions. (tr. feb. 12, 2008 at 21). on this night, dan demonstrating the absence of a genuine issue of material fact as to an essential {23} in his deposition for this case, dan testified that for several months {30} the trial court found that ivy's death was not an insurable event child on several prior occasions without causing bodily injury or death, might not supplying his daughter with alcohol.3 -19- his home for their use. by his own admission, dan was not present in the room excluded by the terms of the policy and therefore not covered. at this time, case no. 2-10-38 tabatha's second assignment of error is rendered moot and is therefore overruled. recalled that every time they consumed alcohol it was at dan's house, with the application of "inferred intent" analysis to complaint, and accepted liability for ivy's death. dan also consented to award with her on the night she died, explained that in the months preceding ivy's death, -11- drinks in dan's home with his knowledge. she recalled two occasions in which allstate ins. co. v. j.j.m. (2002), 254 mich. app. 418, 657 n.w.2d 181 {37} moreover, even though our review of ohio case law did not reveal a auglaize county judgment creditor" pursuant to r.c. 3929.06, alleging that lightning rod's intentional acts also applies. tabitha sheely, adm. estate when the amount we pay for damages resulting from the including required care, loss of services and death that results." {20} "it is axiomatic that an insurance company is under no obligation to wanted a larger bottle and a higher proof of alcohol. when deposed for this civil case, heather testified determining that there is no coverage for ivy's wrongful death under the insurance section ii- exclusions attempting to do? which the "insured" is legally liable. damages include assignments of error. lightning rod also filed a counterclaim for a declaratory judgment requesting the {1} in her second assignment of error, tabatha argues that the trial court * * * were spending the weekend at dan's home in st. johns. dan purchased a large (b) other persons under the age of 21 and in the care of shaw, j. a: yeah. plaintiff-appellant, case no. 2-10-38 {16} in her first assignment of error, tabatha argues that the trial court case no. 2-10-38 repeated exposure to substantially the same general harmful it was obvious something was seriously wrong. q: when you were down there at dan's house, did you ever see "occurrence" equals our limit of liability. heather explained that she and ivy would stay at dan's overnight for a day or two, that ivy told dan that night that she wanted to get "really, really drunk. that was her obvious intention, she supplying alcohol to his minor child. tabatha claims that dan's conduct of furnishing alcohol to ivy, which led to her involving murder and sexual molestation of a minor, and had not enunciated a clear standard for the courts deliberate act may, as a matter of law, give rise to an inference of intent--i.e., that the insured intended to judgment arguing that lightning rod is required by law and under the terms of the are: incoherent and unable to stand-up. heather recalled that she gave ivy a pillow and that he did not know ivy left his home with the bottle of vodka. dan recalled that case no. 2-10-38 the trial court erred in granting lightning dan. some of the trips would last several days. it is during this time that dan action to recover for injuries subsequently sustained by teenagers in automobile exclusion from coverage under the policy. finally, lightning rod maintained that {18} the party moving for summary judgment bears the initial burden of case no. 2-10-38 -4- -3- n.e.2d 1090, 2010-ohio-6312, which clarifies the application of the doctrine of residence where alcohol was served to minors were not an "occurrence" within personal liability policy insuring daniel sheely ("dan") for the wrongful death of determine there was no "occurrence" under ivy sheely. material fact, that lightning rod is entitled to judgment as a matter of law, and choice, even if the suit is groundless, false or fraudulent. for instance, even on the night in question there are numerous other possibilities [cite as sheely v. sheely, 2012-ohio-43.] -21- deposed, including dan, tabatha and the people present on the night ivy died-- case no. 2-10-38 summary judgment shall be rendered if the pleadings, depositions, answers to testimony given by dan and heather davies at dan's criminal trial were also filed substantially the same general harmful conditions, which results, during the policy {6} on may 4, 2009, tabatha, in her capacity as the administrator and purchased a large bottle, over a liter, of 80-proof vodka, at ivy's request, and a party being entitled to have the evidence construed most strongly in his favor. [sic] cannot be deemed an inherent result of {32} after reviewing its prior cases on the subject, the court in campbell case no. 2-10-38 the intentional act of dan sheely. undisputed that in all those instances dan provided his daughter and her friends r.c. 4301.69(a) and r.c. 4301.99(i), a misdemeanor of the first degree. on may that he usually kept four or five bottles of liquor in the house. coverage e personal liability released prior to the expiration of his sentence. -6- inferred intent to an insurance policy's intentional-act exclusion. lived with tabatha in findlay. up until several months before her death, ivy -2- daughter and her minor friends to consume alcohol in his home. it is also judgment affirmed q: do you think the fact that he allowed you girls to drink and that he warned ivy two or three times that night about the reckless manner in homeowner's policy with lightning rod. fact exists as to whether ivy sheely was a rod mutual insurance company ("lightning rod"), motion for summary case no. 2-10-38 and obtained her driver's license, she made more frequent trips to st. johns to visit its insured, or to others harmed by the actions of an insured, unless the conduct (2) provide a defense at our expense by counsel of our daniel sheely, et al., o p i n i o n partial summary judgment, and declaring that there is no coverage for the {29} john grieshop, sr., the owner of the trailer where ivy died, testified facts. concluded the following: said something to her, ivy would respond to him by saying, "my dad said i could we may investigate and settle any claim or suit that we november of 2006, occurring every "now and again." (davies depo., at 19). grieshop, sr.'s residence, a neighbor of dan's, where a party was taking place. at the very least a genuine issue of material heather provided testimony at dan's criminal trial that, while at the liquor store, dan was initially given this one instance, dan maintained that the girls were only permitted to drink in his admissions, affidavits and transcripts of evidence contained in the record. of conduct over several months in which he permitted his sixteen-year-old- assignment of error no. ii * * * preston, j., concurs. trial court to find that there is no coverage for the wrongful death of ivy under the concluded the following: death, is not subject to the intentional-act exclusion in his homeowner's policy "occurrence" covered by an insurance policy, where an "occurrence" is defined as ivy and dan really interact a whole lot together? his home. dan recalled in his testimony at his criminal trial for child endangering, {21} the policy language at issue provides: intrinsically tied so that the act has necessarily resulted in the case no. 2-10-38 child endangering, in violation of r.c. 2919.22(a)(e)(2)(c), a felony of the third relationship with his daughter in a cool way, and the only cool purchased for her earlier that evening. {11} the case proceeded to the discovery phase. several witnesses were -15- case no. 2-10-38 f. "bodily injury" to you or an "insured" within the meaning 19, 2010 judgment of the auglaize county court of common pleas denying her case: adverse to tabatha, as the non-moving party. accordingly, we conclude that the large bottle of 80-proof vodka, at her request, and that her consumption of the death, dan was insured under a home and personal liability insurance policy a: he wanted to be, i think psychologically, he wanted to be the that he also supplied ivy and her underage friend, brittany brand, with tequila be classified as an accident within the meaning of the insurance policy in this case. specifically, heather davies, john grieshop, sr., john grieshop, jr. ("jr"), and {33} in the instant case, we cannot say that there is no genuine issue of {26} turning back to the night of ivy's death, dan adamantly maintained {27} ivy, heather and dan were in dan's car when they drove to the store little bit too heavy." (grieshop, sr. depo., at 18). he recalled that each time he accident); illinois farmer's ins. co. v. duffy (minn., 2000), 618 n.w.2d 613 expected that giving minors enough alcohol to allow them to pass out would result date of decision: january 9, 2012 (2008), 222 w. va. 797, 671 s.e.2d 802 (holding that "absent policy language to {22} with the policy language in mind, we now turn to the undisputed child was living with [dan], her father, during a period of motion for partial summary judgment, granting defendant-appellee's, lightning without causing bodily injury or death. thus, it cannot be said in this instance that that bodily injury or death is an unexpected or unforeseeable result of such not trigger any duty to defend or indemnify." (supp. complaint apr. 10, 2010). that she was unable to drive. brittany remembered that dan was always in his around fifteen different times. claims by one resident of the household against another resident insured are to mean just that-an unexpected, unforeseeable event." randolf v. grange mut. excluded from liability coverage. lightning rod also argued that dan's felony rod's policy. it is undisputed that dan knowingly engaged in a repeated pattern bottle of vodka, at ivy's request. ivy and heather later took the bottle to john bottle was gone. heather stated that shortly after that point, ivy became extremely attendant risks of harm and/or death), there is no "occurrence" on any issue which that party bears the burden of production at trial. see civ.r. case no. 2-10-38 will: 56(e). the doctrine of inferred intent is based on the principle that the insured's commission of a particular, {8} on november 25, 2009, tabatha's attorney sent a letter to defendant, 1. "bodily injury" means bodily harm, sickness or disease, bedroom when the girls were consuming alcohol. brittany testified that one night wrongful death of ivy sheely under the policy. specifically, the trial court of part a. or b. of "insured" as defined. in harm; the fact that specific harm that occurred was intentional act of rape rather to the trial court in which dan admitted he was negligent as alleged in the cas. co. (1979), 57 ohio st.2d 25, 29, 385 n.e.2d 1305. (1) coverage e-personal liability * * * do(es) not apply to dist. nos. 08 ca 19, 09 ca 4, 09 ca 12, 09 ca 13, 2010-ohio-2938, 49, citing charges, and entered a plea of not guilty. after a jury trial, dan was convicted of * * * q: what was that? notwithstanding our conclusion as to the intentional-act exclusion, we must still common pleas is affirmed. (lightning rod policy for d. sheely, at 16). in her deposition, stating that every time she went to st. johns with ivy, they drank by a resident (through her representative) of the insured the policy definitions as the harm suffered in {13} on september 30, 2010, tabatha filed a motion for partial summary mixed drinks with the alcohol. he admitted that he would not be in the room with besides her death. therefore, based upon the supreme court's enunciation of the 1196, 1995-ohio-286, paragraph three of the syllabus. first assignment of error case no. 2-10-38 judgment affirmed policy at issue. tabatha's first assignment of error is, therefore, overruled. owens-illinois, inc. v. aetna cas. & sur. co. (c.a.6 1993), 990 f.2d 865, 872. the unintended harm resulting from an adult furnishing alcohol to a minor is not an that he recalled heather and ivy coming to the house that night. grieshop stated issued by lightning rod. rather, tabatha maintains that ivy's death is the result during a vacation in florida on new year's eve of 2006. nevertheless, other than (brand depo., at 57). she recalled dan lamenting that he wished he was a better which the insured's intentional act and the harm caused are case no. 2-10-38 -20- case no. 2-10-38 "the ordinary meaning of the term `accident' in an insurance policy refers to with the teenagers while they consumed the alcohol, but rather he remained in the trial court no. 2009 cv 0145 * * * * visitation with him as her non-residential parent pursuant to his {1} plaintiff-appellant, tabatha sheely ("tabatha"), appeals the october third appellate district findlay to dan's house in st. johns to drink alcohol at least a couple times a the alcohol by either purchasing it for them, or by furnishing an array of liquor in began to make some strange noises and told his son, jr, to fetch dan. ivy -22- credibility in favor of the non-moving party. jacobs v. racevskis (1995), 105 ohio app.3d 1, 7, 663 n.e.2d 653. additionally, civ.r.56(c) mandates that that reasonable minds can come to but one conclusion and that conclusion is (finding that the insureds' supplying of alcohol to teenagers at a party was not an -5- case no. 2-10-38 liquor resulted in her dying from acute alcohol toxicity. intentional-act provision in the policy excluded from coverage dan's conduct of agreed to dismiss the claims against john grieshop, sr., without prejudice. the pronounced dead shortly thereafter. accessible and that ivy knew he kept it on the top of the refrigerator. dan recalled conditions, which results, during the policy period in * * * next room for the vast majority of the time. dan also admitted that even though he the alcohol was purchased for the child by [dan] in allen prejudgment interest awarded against the "insured;" and she was talking with dan in his basement and he appeared "slightly drunk." policy. intrinsically tied so as to infer as a matter of law that dan's conduct necessarily insurance policy and therefore subject to the residential exclusion from coverage. best friend, the awesome uncle. and the only way a lot of people a: (witness nodding). i believe so, yes. {10} lightning rod filed an answer admitting that, at the time of ivy's subsequently died from acute alcohol toxicity. -18- the policy, and not within an exception thereto." id. thus, the pertinent inquiry is case no. 2-10-38 (a) "bodily injury[.]" mary sheely, ivy's grandmother. in addition, partial transcripts from the than alcohol poisoning was irrelevant to determination whether occurrence was an conduct within the meaning of an accidental "occurrence" provision. thus, increased in frequency during the months prior to ivy's death in may of 2007. {9} on april 22, 2010, tabatha filed a "supplemental complaint by accordingly, requested the trial court to dismiss lightning rod's counterclaim for review, we have not considered this testimony and instead have relied only on testimony which is supply. dan stated that he regularly kept alcohol in the house for visitors to doctrine of inferred intent in campbell, we cannot conclude that lightning rod's alcohol toxicity as a result of her consuming liquor furnished to her by dan cannot household against another resident of the same household and {12} on september 27, 2010, lightning rod moved for summary weigh evidence or choose among reasonable inferences, rather, the court must by the policy, the term is to be given its ordinary meaning. black v. richards, 5th definitions {2} on may 13, 2007, ivy sheely, the sixteen-year-old daughter of according to the accounts of those who were present, ivy consumed almost the permitted ivy and her teenage friends to consume alcohol in his home. resulted in ivy's death. dan testified that he was unaware ivy took the bottle of {15} tabatha subsequently filed this appeal, asserting the following "resident" of dan sheely's home at the time of {24} in her deposition for this case, heather davies, ivy's friend, who was or property damage,' does not provide coverage where the injury or damage is drink it. heather testified that ivy started drinking the vodka by doing a couple of {5} dan was subsequently charged with child endangering, among other second assignment of error has stated that the word "occurrence" when defined as "an accident" is "intended and during some school vacations. however, after ivy reached the age of sixteen a declaratory judgment. appeal from auglaize county common pleas court made that obvious." (davies depo. at 57). however, dan did not admit to these facts. accordingly, in our stipulations of fact show that there is no genuine issue as to any material fact and "occurrence," we do not need to address whether ivy was a resident under dan's summary judgment, the burden shifts to the non-moving party to produce evidence as a result, ivy's death is not an insurable event as an "occurrence" under dan's intended to permit the child to consume alcohol illegally (with its alcohol to ivy, which resulted in her death, was an intentional act triggering an an "occurrence," which under the policy language means an accident, and that the contrary, a homeowner's insurance policy defining `occurrence' as `an lightning rod mutual insurance company, the insurer on dan's homeowner's {2} for all these reasons, the judgment of the auglaize county court of the next room watching tv. (tr. feb. 12, 2008 at 10). dan also admitted, civ.r. 56(c); see horton v. harwick chem. corp., 73 ohio st.3d 679, 653 n.e.2d -23- be found in a particular case to have intentionally caused a death, does not mean appearances: way would have been that way. {25} heather and ivy's friend, brittany brand, provided similar testimony (je, oct. 19, 2010). entire bottle of vodka in a short amount of time and was later found in the caused by an "occurrence" to which this coverage applies, we case which addressed this precise issue, other jurisdictions have determined that "bodily injury" or "property damage" however, heather admitted the trips to dan's house from findlay gradually case no. 2-10-38 her death. death is an insurable event under the policy. intervene in the pending wrongful death and survivorship case, claiming "the allegations in the lawsuit do {28} heather testified that about ten minutes later they drove down the therefore, covered under the terms of lightning rod's policy. the policy defines 112, 526 n.e.2d 798, syllabus. the moving party also bears the burden of 785, 2006-ohio-2943, 857 n.e.2d 602, 25. moreover, the ohio supreme court as part of the record in this case. case no. 2-10-38 (a) your relatives; or she and ivy left the vodka in the back of the car when they arrived to dan's house -10- emergency medical personnel were called to the scene. however, ivy was erred in granting lightning rod's motion for summary judgment. specifically, 27, 2008, dan was sentenced to serve three years in prison, but was judicially liquor store to purchase a bottle of vodka, at ivy's request. dan explained that the case no. 2-10-38 entered against dan on november 20, 2009. but one conclusion and that conclusion is adverse to the non-moving party, said the trial court erred in granting summary shots and then began to swig it. heather remembered that ivy had left the trailer at q: what, to let her drink and party? usually over the weekend. heather recalled that she drank at dan's house with ivy 1 heather was in the backseat. dan admitted that this was not the first time he 3. "insured" means you and residents of your household who intentional-act exclusion applied. on appeal, tabatha argues that the trial court "occurrence" within meaning of the homeowner's insurance policy, for purposes entitled to judgment as a matter of law. specifically, lightning rod argued that its decide is appropriate. our duty to settle or defend ends {31} we note that since the trial court's decision granting summary (lightning rod policy for d. sheely, at 18). (concluding that injuries to a minor who was raped while at party in homeowner's undisputed in evaluating the trial court's decision to grant summary judgment. accident, including continuous or repeated exposure to substantially the same lightning rod's motion for summary judgment, overruling tabatha's motion for liability for ivy's wrongful death is excluded under the terms of its policy. personal representative of ivy's estate, filed wrongful death and survivorship "coverage is provided if the conduct falls within the scope of coverage defined in to purchase the vodka. ivy was driving, dan was in the front passenger seat and whether ivy's death from acute alcohol toxicity, which resulted from her drinking that the moving party is entitled to judgment as a matter of law. policy. an "accident," as in this case. see e.g., american modern home ins. co. v. corra under the definitions of the policy and applicable case law, the there is no genuine issue of material fact upon which reasonable minds could of an "occurrence," which is covered under the personal liability provisions in the helped her lay down on the floor. heather then went back into the kitchen to n.e.2d 991. a grant of summary judgment will be affirmed only when the vodka was not intended just for ivy's use, but that it was supposed to be the house (brand depo., at 57-58). that there were times at dan's house where she would be intoxicated to the point circumstances, falling within the category of an "occurrence" under lightning case no. 2-10-38 underage adult to consume alcoholic beverages on the homeowner's property"); judgment asserting that there is no genuine issue of material fact and that it is assignment of error no. i {17} initially, we note that an appellate court reviews a grant of summary of determining insurer's obligation to defend or indemnify insureds in negligence much interaction. he'll come out of [his] room sometimes, but decision, allstate insurance company v. campbell, 128 ohio st.3d 186, 942 willamowsk, j., concurs in judgment only. resolution of this case depends upon the policy language applicable to the present damages because of "bodily injury" or "property damage" the girls because "they didn't want to be around [him]," but he would always be in of ivy sheely, deceased, 3 * * * purchased alcohol for the girls to consume at his house, and that he had done so a {38} based on the foregoing, we conclude that ivy's death from acute element of the case. dresher v. burt, 75 ohio st.3d 280, 292, 662 n.e.2d 264, {4} on the night of her death, ivy and her best friend, heather davies, policy covered dan's "conduct which caused bodily injury, including death, to interrogatories, written admissions, affidavits, transcripts of evidence, and written v. (2) coverage e-personal liability, does not apply to: case no. 2-10-38 consume, including ivy and her friends. dan testified that the alcohol was always grieshop residence unconscious, not breathing, with her mouth full of vomit. had passed out on the couch and then fell on the floor. he remembered that she drink." (grieshop, sr. depo., at 18). john, sr., testified that shortly thereafter ivy she and ivy spent a significant amount of time together drinking alcohol. heather -7- -17- intentional-act exclusion is applicable as a matter of law to dan's conduct of in the court of appeals of ohio facts deduced from the pleadings, depositions, answers to interrogatories, written remained a genuine issue of material fact as to whether ivy was a resident of month. specifically, heather recalled that the drinking at dan's began in and his brother and sister-in-law. after dinner, ivy, heather and dan went to a {14} on october 19, 2010, the trial court entered judgment granting 1996-ohio-107. once the moving party demonstrates that he is entitled to prior to ivy's death, he permitted ivy and her teenage friends to drink alcohol in (1) pay up to our limit of liability for the damages for that was pretty much it. {3} tabatha and dan divorced in the mid-nineties. after the divorce, ivy requirements of civ.r. 56(c) are met. this requires the moving party to establish: that could have occurred as a result of dan's conduct of supplying ivy alcohol entry. a: he would take us out to eat, but that's really all that was case no. 2-10-38 erred in granting summary judgment in favor of lightning rod because there visited her father at his st. johns residence in auglaize county on the weekends beer for heather.2 dan's act of furnishing alcohol to ivy necessitated her death as a matter of law.


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