Bosserman Aviation Equipment, Inc. v. United States Liability Insurance , 183 Ohio App. 3d 29 ( 2009 )

[Cite as Bosserman Aviation Equip., Inc. v. U.S. Liab. Ins. Co., 183 Ohio App. 3d 29, 2009-Ohio-2526.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
BOSSERMAN AVIATION
EQUIPMENT, INC.,
APPELLEE,
CASE NO. 5-09-05
v.
UNITED STATES LIABILITY
INSURANCE COMPANY,
APPELLANT;
OPINION
WILLIAMS,
APPELLEE.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2008 CV 217
Judgment Affirmed
Date of Decision: June 1, 2009
APPEARANCES:
Steven C. Betts, for appellee Bosserman Aviation Equipment, Inc.
Emily W. Newman, for appellant.
Bernard Bauer, for appellee Benjamin Williams.
Case No. 5-09-05
ROGERS, Judge.
{¶1} Defendant-appellant, United States Liability Insurance Co. (“U.S.
Liability”), appeals the judgment of the Hancock County Court of Common Pleas
denying its motion for summary judgment and granting summary judgment in
favor of Bosserman Aviation Equipment, Inc. (“Bosserman”). On appeal, U.S.
Liability argues that the trial court erred in denying its motion for summary
judgment and granting Bosserman’s summary-judgment motion, as the pollution-
exclusion clause contained within its insurance policy with Bosserman clearly and
unambiguously precludes coverage for an employee who sustained bodily injuries
as a result of a discharge or escape of pollutants caused by the insured. Based on
the following, we affirm the judgment of the trial court.
{¶2} In March 2008, Bosserman filed a declaratory-judgment action
against U.S. Liability, demanding that U.S. Liability provide insurance coverage
and legal defense pursuant to the parties’ insurance policy for an intentional-tort
claim brought against it by Benjamin Williams, a former employee of Bosserman.1
The intentional-tort claim asserted by Williams alleged that during the course and
within the scope of his employment with Bosserman, he was exposed to benzine
and other harmful chemical agents contained in aircraft fuel while reconditioning
and repairing aircraft-refueling equipment, causing him to develop aplastic
1
We note that Williams was also named as a defendant in the declaratory judgment action by Bosserman,
as he also had an interest in enforcing the insurance policy.
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anemia. Williams further asserted that due to Bosserman’s knowledge of the
potential harm of regular and continuous exposure to these contaminants, and its
failure to provide adequate training and warnings regarding the exposure to the
contaminants and proper safety equipment to protect against the harmful effects of
the contaminants, Bosserman was liable for his lost wages and medical expenses
in excess of $25,000.
{¶3} Subsequently, Williams filed a cross-claim against U.S. Liability,
asserting that he is entitled to coverage under the insurance policy between U.S.
Liability and Bosserman.
{¶4} In August 2008, U.S. Liability filed a motion for summary judgment
against both Bosserman and Williams, stating that Bosserman is not entitled to
coverage for Williams’s claim pursuant to the language of the policy, which
excludes coverage for bodily injury arising from the discharge, dispersal, seepage,
migration, release, or escape of pollutants at or on the premises owned by
Bosserman, and that Williams lacks standing to bring a cross-claim, as Ohio law
precludes an injured party from directly suing the insurer of a tortfeasor because
the injured party is not deemed to be a third-party beneficiary to the liability-
insurance contract. Attached to the summary-judgment motion was a copy of the
insurance contact, which provided the following:
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2. Exclusions
This insurance does not cover:
***
F. “bodily injury” arising from the actual, alleged, or threatened
discharge, dispersal, seepage, migration, release, or escape of
pollutants:
(1) at or from any premises, site or location that is or was at any
time owned or occupied by or rented or loaned to any insured;
(2) at or from any premises, site or location that is or was at any
time used by or for any insured or others for the handling, storage,
disposal, processing or treatment of waste or pollutants;
(3) which are or were at any time transported, handled, stored,
treated, disposed of or processed as waste or pollutants by or for any
insured or any person or organization for whom the “named insured”
may be legally responsible; or
(4) at or from any premises, site or location on which any insured
or any contractor or subcontractor working directly or indirectly on
any insured’s behalf in performing operations:
(a) if the pollutants are brought to the premises, site or
location in connection with such operations by the insured,
contractor or subcontractor, or
(b) if the operations are to test for, monitor, clean up,
remove, contain, treat, detoxify or neutralize or in any way
respond to or assess the effects of pollutants.
***
Pollutants means any solid, liquid, gaseous, or thermal irritant
contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
chemicals and waste (which includes materials to be recycled,
reconditioned or reclaimed) * * *
{¶5} In September 2008, the trial court ordered the filing of Williams’s
deposition taken during the litigation for his intentional-tort claim against
Bosserman. In his deposition, Williams stated that his job at Bosserman consisted
of repairing tanks and parts of vehicles that were used to provide fuel to aircrafts;
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that while working on the vehicles, he was exposed to aircraft fuel on several
occasions when it was drained out of hoses or tanks and into drain pans, including
when it sometimes spilled on the floor; that he could smell the aircraft fuel when it
was in the drain pans if he was in the proximity of the pans; that the smell of
aircraft fuel did not permeate the building, and he would have to walk within five
or eight feet of the fuel to smell it; that he was also required to go inside fuel tanks
and drill various holes and mount fittings; that while he was in the tanks, there
would sometimes be aircraft fuel residue at the bottom, which would get on his
boots, clothes, and hands; that he spent anywhere from fifteen minutes to an hour
and a half inside the tanks on each occasion, and that there were around ten
occasions when he was inside a tank that contained aircraft fuel; and that the only
other chemicals he came in contact with while employed at Bosserman were
aluminum cleaner, airplane paint stripper, and a chemical called Brake Clean, all
of which he used to perform various job tasks.
{¶6} In February 2009, the trial court denied U.S. Liability’s motion for
summary judgment against Bosserman, granted U.S. Liability’s motion for
summary judgment against Williams’s cross-claim on the basis that Williams
lacked standing, and granted Bosserman’s motion for summary judgment. The
trial court stated the following in its judgment entry:
The issue before the Court is whether the pollution exclusion
language precludes coverage, as a matter of law, for the alleged
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injuries suffered by Williams. Based on the terminology used in the
exclusion, and its interpretations by other courts, this Court
concludes that, as a matter of law, the policy exclusion does not
exclude coverage for injury resulting from exposure to fuel fumes in
a confined area in the workplace.
***
The language at issue in this case is commonly referred to as an
“absolute pollution exclusion.” See Selm v. Am. States Ins. Co. (1st
Dist. Sept. 21, 2001), Hamilton County No. C-10057, 2001 WL
1103509, *3 * * *. The Supreme Court of Ohio considered the
pollution exclusion in the context of carbon monoxide from a faulty
residential heater. See Andersen [v. Highland House Co. (2001),] 93
Ohio St. 3d 547, * * * 757 N.E.2d 329. The “genesis” of the
exclusion was to exclude intentional polluters from protection from
the results of their improper or illegal conduct. * * * The Andersen
Court then noted that, based on the purpose and history of that
exclusion, the insured could reasonably believe that residential
situations would not be excluded unless the insurer specified the
exclusion. * * *
***
The Andersen syllabus states: “Carbon monoxide emitted from a
residential heater is not a ‘pollutant’ under the pollution exclusion of
a commercial general liability insurance policy unless specifically
enumerated as such.” Andersen, 93 Ohio St. 3d at 547. * * *
The pollution exclusion clause has been interpreted “to be clear and
unambiguous in precluding coverage for claims arising from
pollution.” Selm, 2001 WL 1103509, at *3. The question remains in
each of the cases whether the language is unambiguous as to the
circumstances of the alleged injury. * * *
In the first case cited by Bosserman, the court addressed the issue of
interpreting the terms of the pollution exclusion that required a
“discharge, dispersal, release or escape” of the pollutant.
Lumbermens Mut. Cas. Co. v. S-W Industries Inc. (6th Cir. 1994) 39
F.3d 1324, 1336 (applying Ohio law). * * * [T]he Lumbermens
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court analyzed the “dispersal” language: “It strains the plain
meaning, and obvious intent, of the language to suggest that these
fumes, as they went from the container to [the injured party’s] lungs,
had somehow been ‘discharged, dispersed, released or escaped.” Id.
at 1336. The Lumbermens court defined each of the similar terms,
i.e., “discharge, dispersal, release or escape,” to conclude that the
confinement of the fumes in the immediate work area did not fit
those definitions, even if the injurious product was a “pollutant.” Id.
Defendant U.S. Liability argues that the “atmosphere” clause
contained in the Lumbermens policy, which is not included in the
policy at issue in the present case, makes that case distinguishable
from the case before this Court. That distinction has been addressed
by the Lumbermens court in a later decision, on which Bosserman
also relies. See Meridian Mut. Ins. Co. v. Kellman, (6th Cir. 1999),
197 F.3d 1178, 1184.
* * * The Meridian court concluded “that the total pollution
exclusion clause at bar does not shield the insurer from liability for
injuries caused by toxic substances that are still confined within the
general area of their intended use.” Id. * * * [T]hat panel, like the
Lumbermens court, determined that the “localized injury” did not
amount to a “discharge, dispersal, seepage, migration, release or
escape of pollutants” under the exclusion language. Id. at 1185.
* * * Given the Andersen decision, U.S. Liability cannot establish
that its interpretation “ ‘is the only one that can be fairly placed on
the language in question.’ ” Id. at 549 (citation omitted). The Court
therefore concludes that aircraft fuel fumes that are confined to the
tanker during repairs, as alleged in this action, are not “pollutants”
under the exclusion clause.
The Court further concludes, as an additional and alternative basis
for its decision, that there is no allegation of the “discharge,
dispersal, seepage, migration, release or escape” of the aircraft fuel
or its fumes. * * * “A ‘discharge’ is defined as a ‘flowing or issuing
out.’ To ‘disperse’ is defined as ‘to cause to breakup and go in
different ways’; ‘to cause to become spread widely.’ A ‘release’ is
defined as ‘the act of liberating or freeing: discharge from restraint.’
An ‘escape’ is defined as an ‘evasion of or deliverance from what
confines, limits, or holds.’” Lumbermens, 39 F.3d at 1336, quoting
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Webster’s Third New Internat’l Dictionary (1986), 644, 653, 1917,
774. * * * Like the localized injury in the Meridian case, Williams’
alleged injury resulted from his presence in the immediate area of
the fumes, in a confined space where the fuel was retained in its
proper site. Thus, the Court can only conclude that the aircraft fuel
and/or fumes were not discharged, dispersed, or released, nor did
they seep or migrate to a place where they did not belong or where
they were not intended to be.
***
Based on the foregoing analysis, the Court concludes that reasonable
minds could come to only one conclusion and that conclusion is
adverse to U.S. Liability on the issue of the application of the
pollution exclusion clause. The Court therefore concludes that, as a
matter of law, Bosserman is entitled to summary judgment in its
favor.
{¶7} It is from this judgment that U.S. Liability appeals, presenting the
following assignment of error for our review:
The trial court erred in denying appellant’s motion for summary
judgment in part, and instead granting summary judgement [sic] in
favor of appellee Bosserman Aviation Equipment, Inc. As it relates
to the “pollution exclusion clause” in the applicable insurance
policy.
{¶8} In its sole assignment of error, U.S. Liability argues that the trial
court erred in denying its motion for summary judgment and granting summary
judgment to Bosserman. Specifically, U.S. Liability asserts that the clear and
unambiguous language of the pollution-exclusion clause in the insurance contract
precludes coverage for the injuries suffered by Williams, as his injuries arose as
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the result of exposure to aircraft fuel through fuel spills and his work on tanks
containing a residual amount of fuel. We disagree.
{¶9} An appellate court reviews a summary-judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App. 3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.
Co., 148 Ohio App. 3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St. 3d 217, 222. Summary
judgment is appropriate when, looking at the evidence as a whole: (1) there is no
genuine issue as to any material fact, (2) 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, and, therefore, (3) the moving party is entitled to
judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp.
(1995), 73 Ohio St. 3d 679, 686-687. If any doubts exist, the issue must be
resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65
Ohio St. 3d 356, 358-359.
{¶10} The party moving for summary judgment has the initial burden of
producing some evidence that demonstrates the lack of a genuine issue of material
fact. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293. In doing so, the moving
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party is not required to produce any affirmative evidence, but must identify those
portions of the record that affirmatively support his argument. Id. at 292. The
nonmoving party must then rebut with specific facts showing the existence of a
genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings. Id.; Civ.R. 56(E).
{¶11} “A policy of insurance is a contract and like any other contract is to
be given a reasonable construction in conformity with the intention of the parties
as gathered from the ordinary and commonly understood meaning of the language
employed.” Dealers Dairy Prods. Co. v. Royal Ins. Co. (1960), 170 Ohio St. 336,
paragraph one of the syllabus. Courts are not permitted to rewrite the language of
a contract when the intent of the parties is evident through the clear and
unambiguous contractual provisions. Hybud Equip. Corp. v. Sphere Drake Ins.
Co. Ltd. (1992), 64 Ohio St. 3d 657, 665. Additionally, “ ‘[w]here exceptions * * *
are introduced into an insurance contract, a general presumption arises to the
effect that that which is not clearly excluded from the operation of such contract is
included in the operation thereof.’ ” Andersen v. Highland House Co. (2001), 93
Ohio St. 3d 547, 549, quoting Home Indemn. Co. of New York v. Plymouth (1945),
146 Ohio St. 96, paragraph two of the syllabus. Accordingly, in order for an
insurer to defeat coverage through a clause in the insurance contract, it must
demonstrate that the clause in the policy is capable of the construction it seeks to
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give it, and that such construction is the only one that can be fairly placed upon the
language. Id. at 549. “ ‘The insurer, being the one who selects the language in the
contract, must be specific in its use; an exclusion from liability must be clear and
exact in order to be given effect.’ ” Beaverdam Contracting v. Erie Ins. Co., 3d
Dist. No. 1-08-17, 2008-Ohio-4953, ¶18, quoting Lane v. Grange Mut. Cos.
(1989), 45 Ohio St. 3d 63, 65.
{¶12} Furthermore, when an insurance policy contains ambiguous
language, it is interpreted against the insurer and in favor of the insured unless
such an interpretation results in an unreasonable construction of the policy.
United Farm Family Mut. Ins. Co. v. Pearce, 3d Dist. No. 2-08-07, 2008-Ohio-
5405, ¶11, citing Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St. 3d 306,
2007-Ohio-4917, ¶ 7.
{¶13} The party seeking to recover under an insurance policy bears the
burden of proof to demonstrate that the policy provides coverage for the particular
loss. Chicago Title Ins. Co. v. Huntington Natl. Bank (1999), 87 Ohio St. 3d 270,
273. However, “when an insurer denies liability coverage based upon a policy
exclusion, the insurer bears the burden of demonstrating the applicability of the
exclusion.” Beaverdam Contracting, 2008-Ohio-4953, at ¶19, citing Continental
Ins. Co. v. Louis Marx & Co., Inc. (1980), 64 Ohio St. 2d 399, syllabus.
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{¶14} In the case at bar, U.S. Liability contends that the injuries Williams
suffered when exposed to aircraft fuel while employed at Bosserman are exempted
from coverage under the insurance policy because the absolute pollution-exclusion
provision contained within the policy excludes coverage for bodily injury “arising
from the actual, alleged, or threatened discharge, dispersal, seepage, migration,
release, or escape of pollutants.”
{¶15} An absolute pollution-exclusion clause similar to the clause in this
case was discussed and interpreted by the Supreme Court of Ohio in Andersen, 93
Ohio St. 3d 547. In Andersen, a landlord and apartment manager brought a
declaratory-judgment action against the insurance company seeking coverage
under the policy for the accidental death and injury of two apartment residents due
to carbon monoxide emitted from a faulty heater. The insurance company claimed
that coverage was excluded under the policy due to an absolute pollution-
exclusion clause that provided that the insurance policy did not cover “ ‘[b]odily
injury’ or ‘property damage’ arising out of the actual, alleged or threatened
discharge, dispersal, seepage, migration, release or escape of pollutants * * * [a]t
or from any premises, site or location which is or was at any time owned or
occupied by, or rented or loaned to, any insured.” Id. at 548. In concluding that
the pollution-exclusion clause failed to affirmatively and unambiguously exclude
coverage for carbon-monoxide-related injuries and death and that carbon
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monoxide was not a “pollutant” within the ambit of the exclusion, the court found
that the history and purpose of these pollution-exclusion clauses promoted a
reasonable belief on the part of the landlord and apartment manager that the policy
would not exclude coverage for carbon-monoxide poisoning:
Furthermore, the genesis of the pollution exclusion does not support
the notion that it was created to preclude the kind of claim involved
in this case. In June 1970, the insurance industry “went on record as
being ‘against’ intentional polluters and promulgated the qualified
pollution exclusion for insertion in all comprehensive general
liability (CGL) insurance policies.” (Footnotes omitted.) Reiter,
Strasser & Pohlman, supra, 59 U.Cin.L.Rev. at 1168. The insurance
industry explained that “[a]ccidental pollution continued to be
insured under a CGL policy, but deliberate polluters would remain
uncovered, unable to use insurance to avoid the financial
consequences of their acts. On the basis of these representations,
nearly every state, including Ohio, allowed the introduction of this
new, qualified pollution exclusion.” (Footnotes omitted.) Id.
The exclusion disputed in the case at bar, the absolute pollution
exclusion, “was drafted during the early 1980s and was incorporated
into the standard form CGL [policies] in 1986.” Stempel, Reason
and Pollution: Correctly Construing the “Absolute” Exclusion in
Context and in Accord With Its Purpose and Party Expectations
(1998), 34 Tort & Ins.L.J. 1, 5. * * * Further, “[t]he absolute
exclusion was designed to bar coverage for gradual environmental
degradation of any type and to preclude coverage responsibility for
government-mandated cleanup[s].” Id.
Id. at 549-550. Furthermore, the court stated:
“We would be remiss * * * if we were to simply look to the bare
words of the exclusion, ignore its raison d'etre, and apply it to
situations which do not remotely resemble traditional environmental
contamination.”
Id. at 552, quoting Am. States Ins. Co. v. Koloms (1997), 177 Ill. 2d 473, 492-493.
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{¶16} Additionally, in Lumbermens Mut. Cas. Co. v. S-W Industries, Inc.
(C.A. 6, 1994), 39 F.3d 1324, the Sixth Circuit Court of Appeals applied Ohio law
to determine that a pollution-exclusion clause did not preclude coverage for an
employee’s intentional-tort claim against his employer for injuries he sustained
when exposed to toxic chemicals and dust while working in the employer’s
factory. In Lumbermens, the employee contracted a severe lung disease as the
result of working around toxic cements, solvents, and dust while employed to
cement strips of rubber onto rotating drums in a factory. The pollution-exclusion
clause contained within the insurance contract between the employer and the
insurer provided as follows:
It is agreed that the insurance does not apply to bodily injury or
property damage arising out of the discharge, dispersal, release, or
escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals,
liquids or gasses, waste materials or other irritants, contaminants or
pollutants, into or upon land, the atmosphere, or any watercourse or
body of water;
Id. at 1336.
{¶17} In analyzing the clause, the court set out the definitions of discharge,
dispersal, release, and escape to determine whether the employee’s exposure to
toxic chemicals while working in the factory arose through one of those means in
order for the exclusion to apply.
A “discharge” is defined as “a flowing or issuing out.” To
“disperse” is defined as “to cause to breakup and go in different
ways”; “to cause to become spread widely.” A “release” is defined
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as “the act of liberating or freeing: discharge from restraint.” An
“escape” is defined as an “evasion of or deliverance from what
confines, limits, or holds.”
Id., citing Webster's Third New International Dictionary (1986) 644, 653, 1917,
774.
{¶18} Applying the facts to these definitions, the court concluded that the
pollution-exclusion clause did not preclude coverage for the employee’s injuries,
as the fumes and dust to which he was exposed were confined to the portion of the
plant in which the employee worked and had not been “discharged, dispersed,
released or escaped” as provided in the exclusion. The court reasoned that “this
exclusion is intended to shield the insurer from the liabilities of the insured to
outsiders, either neighboring landowners or governmental entities enforcing
environmental laws, rather than injuries caused by toxic substances that are still
confined within the area of their intended use.” Id.
{¶19} In analyzing the facts of this case to the law set forth under Andersen
and Lumbermens, we conclude that the pollution-exclusion clause did not clearly
and unambiguously exclude coverage for the injuries sustained by Williams. First,
we find dispositive the Supreme Court of Ohio’s discussion of the history of
pollution-exclusion clauses and their intended purpose, namely, to preclude
coverage for traditional environmental contamination. Although the court in
Andersen found that carbon monoxide did not amount to a pollutant under the
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exclusion, the basis for that conclusion was a concern about precluding coverage
for factual situations outside the reasonable expectation of the exclusion. See
Southside River-Rail Terminal, Inc. v. Crum & Forster Underwriters of Ohio, 157
Ohio App. 3d 325, 2004-Ohio-2723, ¶ 38-41 (stating that Andersen stands for the
idea that injuries resulting from an event that does not resemble traditional
environmental contamination do not fall within the protection of a pollution-
exclusion clause and that Andersen does not stand for the proposition that these
pollution-exclusion clauses are too broad to be enforceable). Although it is clear
that aircraft fuel would fall within the traditional definition of a pollutant for
purposes of this exclusion, it is equally clear that Williams’s exposure to the fuel
while conducting tasks within the normal course of his job duties in the confines
of his workplace was outside the reasonable expectation of the exclusion, as such
exposure is not analogous to the traditional environmental contamination to which
the clause was intended to apply.
{¶20} Second, we find to be persuasive Lumbermens’ conclusion that a
pollution-exclusion clause of this nature does not apply to an exposure to toxic
chemicals confined within an employee’s work area, as there is no discharge,
dispersal, release, or escape of pollutants. Here, the evidence demonstrated that
Williams was exposed to aircraft fuel and its fumes over a period of several
months while working in fuel tanks and when occasionally encountering fuel that
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had been drained out of tanks or hoses and into drain pans. The evidence also
establishes that any exposure to fumes was limited to certain confined areas where
Williams worked, namely, in fuel tanks and around drain pans, as he testified that
the smell of fuel did not permeate the building and that he could not smell the fuel
unless he was within five to eight feet of it. Accordingly, we find that Williams’s
extended exposure to pollutants, namely aircraft fuel, was not the result of any
“discharge, dispersal, seepage, migration, release, or escape” as provided in the
clause. It would strain the logical and reasonable interpretation of those words for
us to find otherwise.
{¶21} Finally, we note that U.S. Liability argues that there were occasions
when Williams was exposed to fuel due to spills, and, as such, that this constitutes
a discharge or release of pollutants that brings Williams’s injuries within the
exception to coverage contained within clause. However, the evidence establishes
that these spills were not a regular occurrence and were only minor spills from a
drain pan onto the floor that did not rise to the level of a “discharge, dispersal,
seepage, migration, release, or escape.”
{¶22} Because we find that this pollution-exclusion clause did not clearly
and unambiguously exclude coverage for injuries sustained as the result of
prolonged exposure to aircraft fuel within the normal course of an employee’s
performance of his job duties and within the limited confines of an employee’s
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work area, we find that U.S. Liability has failed to meet its burden to show the
clear application of the exclusion, and, therefore, we must interpret the contract in
favor of Bosserman as providing coverage for Williams’s injury.
{¶23} Accordingly, we find that the trial court did not err in denying U.S.
Liability’s summary-judgment motion and granting summary judgment to
Bosserman. Consequently, we overrule U.S. Liability’s assignment of error.
{¶24} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
PRESTON, P.J. and SHAW, J., concur.
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