William Powell Co. v. Onebeacon Ins. Co. , 2016 Ohio 8124 ( 2016 )

[Cite as William Powell Co. v. Onebeacon Ins. Co., 2016-Ohio-8124.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
THE WILLIAM POWELL COMPANY, : APPEAL NO. C-160291
TRIAL NO. A-1109350
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ONEBEACON INSURANCE :
COMPANY,
:
Defendant-Appellant,
:
and
:
FEDERAL INSURANCE COMPANY,
Defendant-Intervenor. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 14, 2016
Vorys, Sater, Seymour, and Pease L.L.P., Daniel J. Buckley and Joseph M. Brunner,
for Plaintiff-Appellee,
Collins Roche Utley & Garner, LLC, Richard M. Garner and Sunny L. Horacek, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a declaratory judgment in an insurance-coverage
dispute involving asbestos-related liabilities. At issue are the terms of multiple
insurance policies dating back to the 1950s. The insurance company appeals, arguing
that the trial court construed the policies too generously.
{¶2} The issues before us include (1) the meaning of an “occurrence” under
the policies, (2) whether the limits of three-year policies should be applied annually or
over the policy term, (3) whether two “stub” policies which extended for irregular
periods of 13 and 14 months should each receive a single limit or two annual limits, (4)
whether the parties had modified two of the policies to provide for higher limits than
stated on the face of the policies and (5) the propriety of attorney fees awarded to the
insured as part of a discovery dispute.
{¶3} We conclude that the trial court got it right except for its construction of
the stub policies as providing for annual limits. We therefore affirm the judgment in
part and reverse in part.
I. Background
{¶4} The William Powell Company (“Powell”) makes industrial valves. Some
valves manufactured before 1987 contained asbestos. In 2001, Powell began receiving
personal-injury claims emanating from asbestos exposures involving its products. The
claims related to exposures that had occurred from the 1940s through the 1980s and
covered a wide geographical area. The circumstances varied. Some claimants had
worked directly on the valves, while others had prepared and packed or installed
replacement gaskets. There were also claimants who had not worked with Powell’s
products at all, but rather had been exposed to asbestos by washing a worker’s clothing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Faced with potentially thousands of claims, Powell sought defense and
indemnification under various insurance policies. At issue in this appeal are policies
that were written by a predecessor to OneBeacon Insurance Company. These policies
consist of ten different primary-liability policies and three excess-liability policies
covering various periods from 1955 to 1977.
{¶6} The policies are what are known as occurrence-based policies—that is,
they provided coverage for any covered incident that “occurs” during the policy period,
regardless of when a claim is filed. Each policy contained a schedule that provided for a
limit of liability for each occurrence and in the aggregate. For example, policy
CG426753, in place from 1965-1968, provided:
LIMITS OF LIABILITY COVERAGES
$1,000,000 each person B. Bodily Injury Liability—Except Automobile
$2,000,000 each occurrence
$2,000,000 aggregate products
{¶7} OneBeacon initially undertook defense and indemnification under the
policies subject to a reservation of rights. As time progressed—and the magnitude of
Powell’s asbestos liabilities increased—OneBeacon adopted a more restrictive reading of
the coverage available. Not surprisingly, Powell disagreed with OneBeacon’s less
generous construction of the policies.
A. Declaratory-Judgment Action
{¶8} Things came to a head in 2011, when Powell filed a declaratory-judgment
action asking the court to resolve certain disputes relating to the policies. In the action,
Powell asserted that OneBeacon had improperly construed six of the primary insurance
policies to provide less coverage than that for which the parties had bargained. It also
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OHIO FIRST DISTRICT COURT OF APPEALS
alleged that, in the event that the primary coverage was exhausted, OneBeacon was
improperly denying to Powell excess coverage. OneBeacon filed a counterclaim seeking
a declaration of the scope of its responsibility under the policies. Both parties ultimately
moved for summary judgment.
{¶9} The primary issues raised by the parties in their complaints and
summary judgment pleadings related to the following:
 Aggregate or Annual Limits for Three-Year Policies: A number of the
policies were issued for three-year terms. Those issued from 1965
onward expressly stated that the policy limits applied annually.
Powell asked for a declaratory judgment that the limits in policies
issued before 1965 also applied annually, while OneBeacon argued
that a single aggregate limit applied to the three-year term of the
policies.
 Stub Periods: Two of the policies were for irregular periods (13 and 14
months), because the policies either had been cancelled early or
extended. Powell sought a declaration that these policies receive
separate annual limits for each year or partial year, while OneBeacon
argued that the policies were entitled to only a single limit.
 Increased Limits: Powell requested a declaratory judgment that the
parties had increased the limits for two of the policies subsequent to
the inception of the policies. OneBeacon argued that the evidence was
insufficient to prove an increase.
 Occurrence: In its motion for summary judgment, OneBeacon asked
the court to declare the meaning of “occurrence” under the policies.
In their initial dealings, the parties had acted under the assumption
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OHIO FIRST DISTRICT COURT OF APPEALS
that each individual’s exposure to a Powell product constituted an
“occurrence.” In its summary judgment papers, however, OneBeacon
argued that the proper meaning of occurrence was not an individual’s
exposure but Powell’s decision to manufacture and sell products
containing asbestos without adequate warnings.
 Allocation: The parties disagreed on the appropriate manner in
which to “allocate” losses where an “occurrence” spanned over
multiple policy periods. Powell sought a declaratory judgment
allowing it to allocate sums expended in relation to any individual
injured party to any single “triggered” insurance policy up to the
policy limits. OneBeacon argued for a pro rata approach where losses
would be proportionally allocated to all insurance policies in effect
based upon the duration of the occurrence.
 Excess Insurance: Powell sought a declaratory judgment that in the
event the underlying policies were triggered, OneBeacon was required
to pay 100 percent of defense costs and 100 percent of settlement
costs under the excess policies. OneBeacon, for its part, sought a
declaration that the excess policies had not been triggered because
Powell had other collectible underlying insurance.
B. The Record: Missing and Incomplete Insurance Policies and a
Stipulation
{¶10} Assembling the insurance policies was a challenge for the parties. A
number of the policies were located during the course of litigation. But three policies—
all issued before 1965—were lost, and one policy—issued in 1960—was incomplete.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} The parties filed a stipulation with the trial court regarding all the
policies. For those issued after 1965, the parties stipulated to the coverage limits and
attached a copy of the policy’s essential provisions. For the three lost policies, Powell
and OneBeacon stipulated to the coverage limits “at [each policy’s] inception.” The
parties also stipulated to the lost policies’ basic coverage forms—for two policies, by
referencing a coverage form issued to another company and for the third, by referencing
a policy issued to Powell in 1965. As to the incomplete policy, the parties stipulated to
coverage limits and attached “the majority” of the policy’s essential provisions. The
stipulation further provided that
[e]ither party may submit additional Civ.R. 56 evidence with respect to
any stipulated fact, including, but not limited to: evidence that the limits,
terms and/or conditions of any particular policy may have changed while
that policy was in effect; evidence that the limits of any particular policy
applied annually or singularly; evidence that that policy period was
extended; and evidence that the policy was canceled.
The insurance policies are set forth in Appendix 1 to this opinion.
C. The Proceedings Below
{¶12} The trial court granted in part Powell’s motion for summary judgment
and denied OneBeacon’s motion. Relying upon our decision in Cincinnati Ins. Co v.
ACE INA Holdings, Inc., 175 Ohio App. 3d 266, 2007-Ohio-5576, 886 N.E.2d 876 (1st
Dist.), it concluded that the pre-1965 insurance policies were ambiguous as to whether
the aggregate limit applied annually or to the entire policy period. It looked to extrinsic
evidence and determined that the limits should apply on an annual basis. The court
then moved to the question of whether an “occurrence” means an individual’s exposure
or the decision to manufacture and sell products containing asbestos. Again guided by
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OHIO FIRST DISTRICT COURT OF APPEALS
our decision in Cincinnati Ins., the court determined that an occurrence was each
individual claimant’s “continued and repeated exposure to [Powell’s] asbestos-
containing product[s].” The William Powell Co. v. OneBeacon Ins. Co., Hamilton C.P.
No. A-1109350, 2013 Ohio Misc. LEXIS 48 (Sept. 12, 2013), quoting LuK Clutch Systems
v. Century Indemn., 805 F. Supp. 2d 370 (N.D.Ohio 2011). As to the allocation issue, the
trial court held that issues of fact precluded summary judgment.
{¶13} OneBeacon appealed. Because the trial court had not decided the
allocation issue, we dismissed the appeal for lack of a final appealable order. See The
William Powell Co. v. OneBeacon Ins. Co., 1st Dist. Hamilton No. C-130681, 2014-Ohio-
3528. After the case’s return, the trial court dismissed Powell’s claims relating to
allocation and the excess insurance for lack of subject-matter jurisidiction, concluding
that they were not ripe for review. It granted summary judgment to Powell on its
remaining claims and dismissed OneBeacon’s claims for lack of subject-matter
jurisdiction. Thus, judgment was granted in favor of Powell with respect to the coverage
limits of the primary policies and the questions of annualization and multiple
occurrences.
{¶14} In the midst of the litigation, a discovery dispute arose between the
parties. The trial court granted a motion filed by Powell to compel the production of
documents and set a hearing on Powell’s request for fees and costs related to its motion.
After the hearing, the court concluded that the request for fees was reasonable and
ordered OneBeacon to pay attorney fees of $34,787.50 to Powell.
{¶15} OneBeacon now appeals, raising two assignments of error. The first
assignment is directed at the court’s decision to grant Powell’s motion for summary
judgment and to deny OneBeacon’s motion. The second takes on the fee award.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. We Uphold the Court’s Summary-Judgment Decisions with One
Modification
{¶16} Within its first assignment of error, OneBeacon challenges the trial
court’s decisions that Powell’s asbestos-exposure liability arose from multiple
occurrences, that the aggregate limits should apply annually and that the aggregate
limits of two of the policies had been increased from their initial amounts. The insurer
also objects to the court’s refusal to declare that the excess policies had not been
triggered.
A. Powell’s Liability Arose from Multiple Occurrences
{¶17} We begin with the application of the policy term “occurrence” to injuries
arising from asbestos exposure. Each policy provided a per-occurrence and an aggregate
limit. Powell takes the position that each individual’s exposure to asbestos constitutes
an occurrence. OneBeacon, on the other hand, argues that Powell’s liability stemmed
from a single occurrence—the decision to manufacture and sell asbestos-containing
products without providing adequate warnings. Who is right presents a threshold
question in the sense that if OneBeacon is correct and there is only one occurrence, the
aggregate limits are never implicated.
{¶18} Ultimately, the issue is one of contract interpretation, so we look to the
language of the policies. The policies issued prior to 1968 did not define occurrence.
Beginning in 1968, however, the policies defined occurrence as “an accident, including
injurious exposure to conditions, which results, during the policy period, in bodily injury
or property damage neither expected nor intended from the standpoint of the insured.”
These policies also contained a clause—called a “deemer clause” because it deems when
an injury occurs—which provided that “all bodily injury and property damage arising out
of continuous or repeated exposure to substantially the same general conditions shall be
considered as arising out of one occurrence.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} We certainly are not the first court to confront the application of
occurrence-based policy language to asbestos exposure. Over the past 30 years, as
asbestos liabilities have reached magnitudes never imagined by insurers or insureds,
courts have struggled with how to count occurrences. See Stempel, Assessing the
Coverage Carnage: Asbestos Liability and Insurance After Three Decades of Dispute,
12 Conn.Ins.L.J. 349 (2005/2006). Courts generally have applied one of three theories
to identify an occurrence: a theory that looks to the underlying “cause” of the accident, a
theory that focuses on the “effect” of the accident, or a theory that looks to the
“triggering event” that caused liability. Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 255
Conn. 295, 313, 765 A.2d 891 (2001).
{¶20} OneBeacon contends that Ohio courts apply the causation theory.
Under this approach, “the number of occurrences is determined by reference to the
cause or causes of the damage or injury, rather than by the number of individual claims.”
Cincinnati Ins., 175 Ohio App. 3d 266, 2007-Ohio-5576, 886 N.E.2d 876, at ¶ 45.
OneBeacon identifies the underlying act that was the proximate cause of injury as
Powell’s decision to sell asbestos-containing products without adequate warnings. It
analogizes the situation to a car accident that causes injuries to multiple people. There,
the occurrence is not the injuries but the car accident itself. In support of its argument,
OneBeacon cites numerous cases that have applied this approach to a variety of tort
claims. See, e.g., Banner v. Raisin Valley, Inc., 31 F. Supp. 2d 591 (N.D.Ohio 1998);
Greater Cincinnati Chamber of Commerce v. Ghanbar, 157 Ohio App. 3d 233, 2004-
Ohio-2724, 810 N.E.2d 455 (1st Dist.); Progressive Preferred Ins. Co. v. Derby, 6th Dist.
Fulton No. F-01-002, 2001 Ohio App. LEXIS 2649 (June 15, 2001).
{¶21} In addressing the issue, we must be guided by our own precedent. In
Cincinnati Ins., the insured was a manufacturer of protective masks that were allegedly
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OHIO FIRST DISTRICT COURT OF APPEALS
defective for not protecting users from asbestos exposures. We found the causation
theory inapplicable to the exposures that caused injury in that case. We noted that the
case did not concern a car accident, but rather “multiple asbestos claims spanning many
years, over a broad geographic area, under a multitude of unrelated circumstances, and
[] injuries [caused] by a plethora of different asbestos-related exposures.” Cincinnati
Ins. at ¶ 47. Rather than the causation theory, we adopted the “triggering-event” theory
discussed in Babcock & Wilcox Co. v. Arkwright-Boston Mfg. Mut. Ins. Co., 53 F.3d 762
(6th Cir.1995). There, the court held that the event that triggered liability was “exposure
to asbestos, not a more remote cause such as Babcock’s decision to use asbestos or its
failure to warn.” Id. at 769.
{¶22} Importantly, 0ur decision in Cincinnati Ins. was anchored in not only
the “triggering-event” theory, but also the policy language. We found the policy
definition of occurrence “most damning” to the insurer. Cincinnati Ins. at ¶ 51. As in
OneBeacon’s policies, the language explicitly defined an occurrence to
include “ ‘injurious exposure to conditions’ that cause bodily injury.” See id. Thus,
“under the explicit terms of the policy, there [were] multiple occurrences because there
[were] multiple injurious exposures to conditions that [caused] bodily injury.” Id.
{¶23} Nonetheless, OneBeacon argues that Cincinnati Ins. is distinguishable.
It cites our statement that the masks were “not intrinsically harmful” but rather “they
failed to protect, and that failure to protect led to a multitude of physically and
temporally distinct injuries under a multitude of differing factual scenarios that did not
constitute the ‘same general conditions’ contemplated under the plain language of the
deemer clause.” Id. at ¶ 54. In contrast, OneBeacon argues that the products
manufactured by Powell were intrinsically harmful so the deemer clause should apply.
We are not convinced. Regardless of whether the products were intrinsically harmful,
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OHIO FIRST DISTRICT COURT OF APPEALS
the deemer clause only applies to exposures to the “same general conditions.” Here, the
exposures were from different products, used in different manners, in different
worksites, in different temporal periods. Just as in Cincinnati Ins., the exposures to
Powell products “under a multitude of differing factual scenarios” did not constitute the
“same general conditions.”
{¶24} We do not believe a different result is warranted for the pre-1968 policies
that did not include a definition of occurrence. The approach taken in Cincinnati Ins.
has been utilized by other courts, even in the absence of a definition for “occurrence.” In
Metro. Life, 255 Conn. 295, 765 A.2d 891, the court was faced with a policy that did not
define “occurrence.” Relying on the triggering-event theory, the court in Metro. Life
rejected an argument that liability stemmed from a failure to warn about asbestos
exposure. Instead, the court concluded that it was “clear * * * that exposure to asbestos
was the immediate event that caused the claimants’ injuries. Indeed, the ‘last link in the
causal chain’ leading to Metropolitan’s liability was the claimants’ exposure to asbestos.”
Id. at 322.
{¶25} Thus, we conclude that Cincinnati Ins. controls. An occurrence
constitutes each individual claimant’s exposure to asbestos.
B. The Question of Annualization
{¶26} Because we have determined that individual asbestos-exposure claims
constitute multiple occurrences, we must address the question of whether policies
purchased prior to 1965 provide for annual aggregate limits.
1. The Pre-1965 Policies are Ambiguous
{¶27} It is undisputed that, beginning in May 1965, the primary policies
provided for annualization of the aggregate limits. Policy CG426753, effective May 4,
1965, stated in part “[a]ggregate limits of liability stated in this policy shall apply
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OHIO FIRST DISTRICT COURT OF APPEALS
separately to each annual period.” Subsequent three-year policies contained similar
language. But, as stipulated by the parties, the basic policy forms for the policies that
were effective before May 1965 did not include annualization language.
{¶28} OneBeacon argues that the pre-1965 language stipulated to by the
parties plainly provides for a single aggregate limit. The policies contained the
following, or similar, language:
[T]he limit of such liability stated in the declarations as applicable to ‘each
occurrence’ is * * * the total limit of the company’s liability for all
damages * * * arising out of bodily injury, sickness or disease, including at
any time resulting therefrom, sustained by two or more persons in any
one occurrence.
The limits of bodily injury liability * * * stated in the declarations as
‘aggregate products’ are respectively the total limits of the company’s
liability for all damages arising out of the product hazard.
OneBeacon reasons that because the policies refer to a “total limit” and there is no
mention of annualization, the pre-1965 policies provide only a single aggregate limit.
{¶29} The position advocated by OneBeacon is not without support in the
caselaw. As one court has explained, allowing extrinsic evidence of annualization of
multi-year limits “would serve only to alter the plain terms of the contract by adding the
word ‘annual’ where it simply does not otherwise exist.” Maryland Cas. Co. v. W.R.
Grace & Co., S.D.N.Y. No. 88 Civ. 2613, 1996 U.S. Dist. LEXIS 4500, * 15 (Apr. 11, 1996).
See Union Carbide Corp. v. Affiliated FM Ins. Co., 68 A.D.3d 534, 535, 891 N.Y.S.2d 347
(2009).
{¶30} But in deciding this issue, we must be guided by our own precedent. In
Cincinnati Ins., 175 Ohio App. 3d 266, 2007-Ohio-5576, 886 N.E.2d 876, at ¶ 26, we
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OHIO FIRST DISTRICT COURT OF APPEALS
were likewise presented with multi-year insurance policies that provided for an
aggregate limit. As in our case, full copies of the insurance policies were not available.
We held that “aggregate” as used in the partial multi-year policies “was ambiguous and
that extrinsic evidence had to be used to deciper the contracting parties’ intent.” Id. at ¶
27. We explained that “[i]n multi-year insurance policies where the policies are
incomplete, the very absence of a limiting modifier is precisely what makes the word
‘aggregate’ ambiguous as to how the limits should be applied.” Id. at ¶ 28. Thus, we
looked to extrinsic evidence and determined that the aggregate amount applied
annually. Id. at ¶ 60.
{¶31} As in Cincinnati Ins., each of the four multi-year policies issued before
1965 is missing or incomplete. And in our view, the doctrine of stare decisis dictates that
we adhere to our holding in Cincinnati Ins. Stare decisis “provides continuity and
predictability in our legal system, * * * thwart[s] the arbitrary administration of justice
[and] provide[s] a clear rule of law by which the citizenry can organize their affairs.”
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶
43. We find no compelling reason to depart from the doctrine in this case. Thus, finding
Cincinnati Ins. to be controlling, we conclude that the word “aggregate” in the
incomplete pre-1965 policies is ambiguous and that we must look to extrinsic evidence
to resolve the ambiguity.
2. Resolving the Ambiguity
{¶32} In Cincinnati Ins., we looked to three categories of evidence to resolve
the ambiguity: (1) performance after formation, (2) insurance industry norms and (3)
premiums paid for the policies. Cincinnati Ins. at ¶ 32. The record here contains the
same types of evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
a. Performance After Formation
{¶33} Perhaps the strongest evidence for annualization is that from the time of
Powell’s first claim in 2001 up until 2009, OneBeacon treated the policies as providing
for annual limits. Even post-contract formation conduct has been said to be relevant in
construing ambiguous contractual language. Thus, where terms are reasonably
susceptible to more than one interpretation and “the parties to such contract have by
their acts and conduct in the performance of the contract over a reasonable period of
time mutually adopted one of those interpretations, the interpretation so adopted will be
given to those words.” State ex rel. Burgess & Niple v. Linzell, 153 Ohio St. 545, 93
N.E.2d 9 (1950), syllabus. See Cincinnati Ins. at ¶ 33. OneBeacon protests that we
should not consider evidence of the parties’ conduct because the policies specifically
prohibited revisions unless made in writing. But we are not determining whether
revisions to the policies were made; we are construing the language initially agreed upon
by the parties. And here, evidence of the parties’ performance supports annualized
aggregate limits.
{¶34} Greg Waymon, an account manager for OneBeacon, was responsible for
overseeing the Powell claims from 2002 to 2005. He testified by affidavit that the
purpose of the multi-year policies was to secure coverage for three one-year periods. As
a result, when he set up the initial defense of Powell’s asbestos claims, he interpreted the
policies as having separate annual limits of liability. According to Waymon, during the
time he oversaw Powell’s asbestos claims, no one contested that the multi-year policies
were subject to annual limits. The treatment of the pre-1965 aggregate limits as
annualized continued after Waymon left OneBeacon. A subsequent account manager,
Darilyn Michaud, recorded annual limits of liability for each of the post-1960 policies in
an exhaustion chart provided to Powell in March 2009.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Notwithstanding Waymon’s and Michaud’s treatment of the aggregate
limits as annualized, OneBeacon maintains that the reservation-of-rights letter indicated
that OneBeacon considered the aggregate limits to apply per term. The letter provided
in part:
[OneBeacon] policies explicitly provide for specific limits of liability for
each occurrence and in the aggregate during a particular policy period. In
no event is Powell entitled to coverage under a [OneBeacon] policy for
any amount in excess of the specified limits of liability.
Unlike OneBeacon, we do not read this language as addressing whether the aggregate
limits were to be applied annually. Notably, OneBeacon continued to treat the limits as
annualized after it sent the reservation-of-rights letter in 2002. We conclude that the
parties’ past performance supports a construction that allows for the annualization of
the aggregate limits.
b. Insurance Industry Norms
{¶36} The customs and practices of the insurance industry also support an
annualized aggregate limit construction. As Waymon explained in his affidavit:
It was [the] custom and practice [of the three insurance companies
who were predecessors to OneBeacon] to treat multiyear policies [as]
having separate annual limits of liability, rather than having a single
non-annualized per policy period limit. In my experience as a claims
manager, the purpose of a multiyear policy was to lock in coverage for
three one year periods.
This view was echoed by Powell’s expert, Douglas Talley, who stated that insurance
industry custom was to apply aggregate limits on an annual basis.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} OneBeacon claims that it rebutted Talley’s view with the testimony of its
own expert, James Robertson. But nothing in Robertson’s expert disclosure or
deposition addressed industry practice as to the aggregate policy limits for the multi-
year pre-1965 policies. The undisputed evidence showed the custom of the insurance
industry was to apply aggregate limits annually.
c. Premiums
{¶38} The final piece of evidence that we looked to in Cincinnati Ins. was
insurance premiums, though in doing so we were “mindful that courts should be
cautious when comparing insurance premiums to ascertain the contracting parties’
intent.” Cincinnati Ins., 175 Ohio App. 3d 266, 2007-Ohio-5576, 886 N.E.2d 876, at ¶ 40.
In Cincinnati Ins., policies that explicitly provided for the annualization of aggregate
limits cost almost an identical amount as those multi-year policies that did not. Id. We
explained that “‘common sense seems to dictate” that the insured would not have paid
approximately the same amount for a policy that provided one-third of the coverage. Id.
Here, Powell submitted evidence that the pre-1965 policies calculated premiums using
the same or similar rates and sales figures as the 1965 policy, which clearly provided for
annualized aggregate limits. Powell was paying an almost identical yearly premium rate
for the pre-1965 policies and the 1965 policy. Despite OneBeacon’s protest that the
similarity in premiums is merely a reflection of accounting principles, we find the
premium evidence to be probative of the annualization question.
{¶39} Thus, after considering the extrinsic evidence, we conclude that the trial
court did not err when it determined that the pre-1965 policies provided for annual
aggregate limits.
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OHIO FIRST DISTRICT COURT OF APPEALS
C. Stub Periods
{¶40} In addition to the four multi-year policies addressed above, Powell
sought a declaration that aggregate limits applied on an annual basis for two policies
that covered periods of 13 and 14 months.1 The parties refer to these periods as “stub
periods.”
{¶41} Policy GLA3716075 was issued as a three-year policy effective May 4,
1968, to May 4, 1971. But Powell signed a notice of cancellation effective on June 24,
1969, which effectively shortened the term of the policy from three years to 14 months.
The policy provides “[i]f this policy is issued for a period of three years, the limits of the
company liability shall apply separately to each consecutive annual period thereof.”
(Emphasis added.) Although the policy was issued for three years, there were no
consecutive annual periods. Rather, there was a one-year period followed by a two-
month period. Because there was not a consecutive annual period, annualization did not
apply.
{¶42} The second policy with a stub period—GLA4345057—was issued for one
year and then extended by endorsement for 32 days. The policy contains the following
provision: “[i]f this policy is issued for a period of three years any limit of the company’s
liability stated in this policy as ‘aggregate’ shall apply separately to each consecutive
annual period thereof.” Annualization does not apply for two reasons: it was not issued
as a three-year policy, and there were no consecutive annual periods. The trial court
erred when it determined that the aggregate limits applied annually for GLA3716075
and GLA4345057. Rather, each policy should receive a single aggregate limit.
1 The parties also discuss GLA4271741, a primary policy, and X10362, an excess policy. But the
trial court did not make a declaration as to GLA4271741. And the court’s dismissal of Powell’s
claim regarding the excess policy limits was not appealed. Thus, neither policy is before us for
determination.
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OHIO FIRST DISTRICT COURT OF APPEALS
D. Increased Policy Limits
{¶43} The parties also disagree about whether the aggregate limits of two
policies—CG249982 and CG304557— were increased after the inception of the policies.
The parties stipulated to initial aggregate limits of $300,000 for CG249982 and
$500,000 for CG304557. But Powell introduced evidence that the limits of both policies
had been increased. See Sharonville v. Am. Emps. Ins. Co., 109 Ohio St. 3d 186, 2006-
Ohio-2180, 846 N.E.2d 833, ¶ 19. OneBeacon contends that the evidence was
insufficient to show that the limits for the two policies had increased.
{¶44} Before delving into the evidence, we must determine the appropriate
standard of proof. “In civil cases, the general rule is that issues of fact are to be
determined by the preponderance—the greater weight—of the evidence.” Tupler v.
Tupler, 1st Dist. Hamilton Nos. C-920852 and C-920887, 1994 Ohio App. LEXIS 18, *3-
4 (Jan. 12, 1994). OneBeacon, however, maintains that Powell needed to prove any
changes in the initial limits by clear and convincing evidence. In support, it cites an 1875
Ohio Supreme Court case requiring a plaintiff alleging the existence of a deed to “clearly
and satisfactorily” prove the deed. Gillmore v. Fitzgerald, 26 Ohio St. 171 (1875),
syllabus. Notwithstanding this authority, we see no reason to depart from the ordinary
preponderance-of-the-evidence standard employed in civil cases. Indeed, the Sixth
Circuit Court of Appeals, applying Ohio law, has rejected the use of a clear-and-
convincing standard for proof of the existence and terms of an insurance policy. See
Lincoln Elec. Co. v. St. Paul Fire & Marine Ins., 210 F.3d 672 (6th Cir.2000). In that
case, the court noted that while there was “no dispositive statute or Ohio Supreme Court
case on point,” the preponderance standard “appears to represent the majority rule, and
can be said to reasonably anticipate the Ohio Supreme Court’s position.” Id. at 688. We
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agree and conclude that Powell needed to prove the increased limits by a preponderance
of the evidence.
{¶45} To prove the revision of the initial limits, Powell presented
correspondence with its insurance broker confirming an increase in aggregate limits for
CG249982 from $300,000 to $500,000 and for CG304557 from $500,000 to
$1,000,000. OneBeacon presented no evidence to the contrary. Given the undisputed
evidence, there remained no question of fact that the policy limits had been raised. The
court properly granted judgment on the issue in favor of Powell.
E. Whether the Excess Policies were Triggered was Not Ripe for Review
{¶46} In its final order, the trial court dismissed the parties’ claims for a
declaration of their rights under the excess policies. OneBeacon now argues that the
court should have declared that its obligations under the excess policies were not
triggered until all other collectible insurance has been exhausted. Powell did not appeal
the trial court’s dismissal of its claim regarding the excess policies.
{¶47} Even as to proceedings seeking declaratory judgments, there must be a
genuine controversy “between parties having adverse legal interests, of sufficient
immediacy and reality.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273,
61 S. Ct. 510, 85 L. Ed. 826 (1941). “For a cause to be justiciable, there must exist a real
controversy presenting issues that are ripe for judicial resolution and which will have a
direct and immediate effect on the parties.” Cristino v. Ohio Bur. of Workers’ Comp.,
10th Dist. Franklin No. 13AP-772, 2014-Ohio-1383, ¶ 22. See Burger Brewing Co. v.
Liquor Control Comm., 34 Ohio St. 2d 93, 97, 296 N.E.2d 261 (1973). To be ripe, a
declaratory judgment cannot be dependent on the occurrence or nonoccurrence of
future events. Keller v. Columbus, 100 Ohio St. 3d 192, 2003-Ohio-5599, 797 N.E.2d
964, ¶ 26. We apply an abuse-of-discretion standard when reviewing a trial court’s
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dismissal of a declaratory-judgment claim as not justiciable. Arnott v. Arnott, 132 Ohio
St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13.
{¶48} OneBeacon asked for a declaration that its excess policies were not
presently triggered “if there is additional collectible, unscheduled, underlying insurance
issued by any insurer.” OneBeacon argues that there is at least one other collectible,
underlying policy issued by National Union. Powell counters that the National Union
policy is an excess—not primary—policy, which would not trigger the other excess
policies. The disagreement was never before the trial court for resolution. OneBeacon
claimed that it was “not necessary for [the trial court] to make a final determination that
the National Union Policy provides coverage [before deciding the summary judgment
motion]—only to issue declaratory relief that OneBeacon’s defense obligations under its
excess policies are not triggered if there is other triggered primary insurance.” But
absent a determination as to the existence of other primary insurance, the excess-
insurance question is largely hypothetical. We conclude that the court did not abuse its
discretion in finding the issue not ripe for review.
{¶49} Thus, we sustain the first assignment of error with respect to the
annualization of the aggregate limit for the stub periods in policies GLA3716075 and
GLA4345057. In all other respects, we overrule the first assignment of error.
III. The Second Assignment of Error is Overruled
{¶50} OneBeacon’s second assignment of error challenges the attorney fees
awarded for Powell’s motion to compel. OneBeacon does not question whether attorney
fees were appropriate. Rather, it protests that the record does not support the amount
awarded.
{¶51} In support of its fee request, Powell submitted an invoice that indicated
106.5 hours had been spent on the motion. OneBeacon protests that the ten-page
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OHIO FIRST DISTRICT COURT OF APPEALS
motion filed by Powell did not justify 106.5 hours in attorney time. Apparently much of
the attorney time was spent reviewing the documents produced—something OneBeacon
says Powell would have had to do anyway. Powell counters that in response to its
discovery requests, OneBeacon produced over 20,000 pages of documents, 14,000
pages of which were unresponsive and unrequested. Review of these documents was
necessary to prepare the motion to compel, says Powell, because it needed to determine
which documents were responsive and which requests remained outstanding.
{¶52} Ordinarily we would tend to agree that the simple review of documents—
something that a party would have to do anyway—would not properly be chargeable as
attorney fees for a motion to compel the production of additional documents. But this
case is a little different. The trial court apparently accepted Powell’s argument that
OneBeacon’s production was so unwieldy that in order to file the motion to compel,
Powell was required to expend unusual amounts of attorney time to determine the
extent of OneBeacon’s compliance with the discovery requests. Discovery is an area
where we give particular deference to the trial judge who is familiar with the ins and outs
of the parties’ conduct in the case. McCulley v. P.J. Knittel Engraving Co., 1st Dist.
Hamilton No. C-910644, 1993 Ohio App. LEXIS 506, *6 (Jan. 29, 1993). For this
reason, we review fee awards such as this one under the deferential abuse-of-discretion
standard. Berger v. Berger, 1st Dist. Hamilton No. C-030631, 2004-Ohio-5614, ¶ 8. We
find no abuse of that discretion here. The second assignment of error is overruled.
IV. Conclusion
{¶53} The first assignment of error is sustained with respect to policies
GLA3716075 and GLA345057 and overruled in all other respects. The second
assignment of error is overruled. We reverse the trial court’s judgment with respect to
GLA3716075 and GLA345057 and remand the case for the trial court to enter judgment
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OHIO FIRST DISTRICT COURT OF APPEALS
consistent with this opinion. In all other respects, the judgment of the trial court is
affirmed.
Judgment affirmed in part, reversed in part, and cause remanded.
F ISCHER , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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Appendix 1
Years Policy Number Amount per occurrence/aggregate
5/4/55-5/4/58 CG249982* $300,000/$300,000***
5/4/58-5/4/60 CG304557* $500,000/$500,000***
5/4/60-5/4/63 CG348800** $1 million/$1 million
5/4/63-5/4/65 CG372862* $2 million/$2 million
5/4/65-5/4/68 CF426753 $2 million/$2 million
5/4/68-6/24/69 GLA3716075 $2 million/$2 million
6/24/69-6/24/72 GLA3807927 $500,000/$500,000
6/24/69-6/24/72 XC5424 $5 million/$5 million
6/24/72-6/24/75 GLA4014464 $500,000/$500,000
6/24/72-6/24/75 XC6867 $5 million/$5 million
6/24/75-7/26/76 GLA4345057 $500,000/$500,000
6/24/75-8/26/76 XC10362 $5 million/$5 million
7/26/76-7/26/77 GLA4271741 $1 million/$1 million
* Lost policy.
** Incomplete policy.
*** Powell argued that the initial aggregate limits of CG249982 and CG304557 were
increased to $500,000 and $1 million, respectively.
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