holding that where a suit is brought against an insured alleging facts within policy coverage, an insurer may proceed to demonstrate that the facts alleged differ from the actual facts ascertained by the insurer, and that the actual facts remove the insured's conduct from coverage
How later courts described this case
- holding that where a suit is brought against an insured alleging facts within policy coverage, an insurer may proceed to demonstrate that the facts alleged differ from the actual facts ascertained by the insurer, and that the actual facts remove the insured's conduct from coverage
- holding that an “insurer may maintain a declaratory judgment action under R.C. Chapter 2721 for purposes of establishing its rights and obligations under a contract of insurance”
- finding that the insurance company “established beyond dispute” that the insured’s acts were intentional and that the plaintiffs claims of negligence were groundless
- in declaratory judgment action on duty to defend and/or indemnify, insurer may proceed to demonstrate that the facts alleged in the underlying tort complaint differ from the actual facts and that the actual facts removed the insured’s conduct from coverage
Written by the judges who cited it.
Later courts went against this
Limited by Cincinnati Insurance v. Colelli & Associates, Inc., 95 Ohio St. 3d 325 (2002)
Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118, is limited to its facts.
Limited by Erie Ins. Exchange v. Lansberry, 07 Co 6 (3-10-2008), 2008 Ohio 1553 (2008)
The parties dispute whether this principle is still good law in Ohio because the Ohio Supreme Court, in a later, one-sentence opinion, stated that Gill was "limited to its facts," Cincinnati Ins.
Distinguished
Distinguished by Nationwide Mut. Fire Ins. v. Casarez, 2 Ohio App. Unrep. 143 (1990)
In their appeal, filed jointly by the administratrix and Casarez, they assign error of the trial court in granting plaintiffs motion for summary judgment (1) as a genuine issue of material fact exists as to whether the insurance policy provided coverage for the death of Kent E. Farison, Jr., (2) because the court relied on Preferred Risk Insurance Company v. Gill(1987), 30 Ohio St. 3d 108, which case is clearly disti…
The opinion
Holmes, J.,
concurring. I applaud the pronouncements within the majority opinion to the effect that under the circumstances presented here, and in Transamerica Ins. Co. v. Taylor (1986), 28 Ohio St. 3d 312 , 28 OBR 381, 504 N.E. 2d 15 , a declaratory judgment action pursuant to R.C. Chapter 2721 does lie seeking a declaration of the insurance company’s rights and duties under the insurance contract and, more particularly, any duty it may have pursuant to such an agreement to defend a lawsuit brought against the insured. Pointing out that the duty to defend should not be entirely dependent upon the allegations of the complaint, I stated in my dissent in Transamerica that: “Since the complaint’s wording is fully within the control of plaintiff’s counsel, it is a simple matter to frame the complaint to include an allegation which would fit within the policy of insurance. The majority would have the insurer defend regardless of facts — an expensive and unfair burden.” Transamerica, supra, at 315 , 28 OBR at 384, 504 N.E. 2d at 18 .
As supportive of the rule pronounced herein, I also noted in my dissent in Transamerica that: “* * * the insurer, faced with the prospect of such financial losses, now indisputably is burdened with a motive to settle the case early, regardless of the merits of plaintiff’s suit under the terms of the policy.* * * He He
“It is, therefore, my view that an exception should be made in accordance with these cases. There is a better rule which would protect both the insurer and the insured, avoid fraud under the present-day rules of pleading, and would reduce unnecessary litigation. Courts should, in cir *117 cumstances such as those we now confront, allow the insurer to assert facts which it has ascertained from a reasonable investigation, in a declaratory judgment action brought to determine the insurer’s duty to defend.” Id. at 315-317 , 28 OBR at 384-386, 504 N.E. 2d at 18-19 .
Based upon my commentary in Transamerica and the additional supportive reasoning in the majority opinion herein, I strongly concur in the syllabus law, the opinion, and the judgment.