DocketNumber: No. 87359.
Citation Numbers: 2006 Ohio 5434
Judges: MICHAEL J. CORRIGAN, J.:
Filed Date: 10/19/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} The parties filed cross-motions for summary judgment. In doing so, they expressly acknowledged the absence of any genuine issues of material fact as a predicate for judgment under Civ.R. 56. We address the issues as matters of law.
{¶ 3} Plaintiff-judgment creditor Kenneth Sesko worked for defendant-judgment debtor Hutchins Caw, Inc. During his employment, Sesko participated in a long-term disability plan which would pay him 60 percent of his salary in the event he became totally disabled. It appears that Hutchins deducted money from Sesko's salary as his contribution to the plan, but through negligence did not pay the premium on the disability policy. When Sesko became totally disabled, Hutchins had no long-term insurance. Sesko lost out on $180,000 in benefits and suffered losses of $70,000 when liquidating personal assets.
{¶ 4} Sesko brought suit against Hutchins alleging that Hutchins negligently failed to fund the disability plan. Hutchins did not answer the complaint or otherwise appear in the action. The court entered a default judgment for Sesko in the amount of $270,729.13, plus statutory interest, these damages being the result of Hutchins' failure to fund the disability plan.1
{¶ 5} Hutchins filed a motion for relief from judgment pursuant to Civ.R. 60(B). Its president represented that he did not receive notice of Sesko's action. He further represented that Hutchins purchased the business in 2001. It did not continue the same disability insurance program but offered a different insurance plan. This new plan allegedly rejected Sesko's application for disability coverage. He did acknowledge, however, that Hutchins erroneously continued to make deductions from Sesko's salary. The court denied the motion for relief from judgment and Hutchins did not appeal.
{¶ 6} Sesko then filed this supplemental action against supplemental defendant Vigilant Insurance Company, the company providing long-term disability insurance to Hutchins at the time of Sesko's disability.
{¶ 7} Vigilant filed a motion for summary judgment in which it maintained that (1) Sesko's claims were not made for the first time during the defined policy period, (2) it did not receive timely notice of the underlying action as required by its policy and that this failure constituted a noncompliance with the terms of the policy, and (3) the policy specifically excluded from coverage loss on account of any claim based on disability benefits.
{¶ 8} Sesko's motion for summary judgment argued that Vigilant's alleged lack of timely notice was nonprejudicial. He also maintained that public policy favored payment of the benefits. The court granted summary judgment to Vigilant without opinion.
{¶ 10} Insurance policies are contracts, and we construe them according to established laws of contract construction without giving any deference to the trial court's interpretation.Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995),
{¶ 12} "No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy."
{¶ 13} Section 2 of the policy states:
{¶ 14} "The Company shall pay on behalf of an Insured allLoss which Insured becomes legally obligated to pay on account of any Fiduciary Claim first made against suchInsured during the Policy Period * * *." (Emphasis sic.).
{¶ 15} The Vigilant policy is a "claims made" policy. This means that it provides coverage for claims made within the policy period, regardless of when the occurrence giving rise to the claim arose. This is in contrast to an "occurrence" policy in which coverage exists only for occurrences that happen during the policy period. The "policy period" is defined on the declarations page as April 22, 2003 to April 22, 2004. A "claim" is defined, in this context, as a "fiduciary" claim which constitutes a "written demand for monetary damages." Hence, any written demand for monetary damages made within the policy period is considered a "claim" under the policy.
{¶ 16} Sesko's attorney wrote Hutchins a letter dated February 18, 2002. In that letter, the attorney asked Hutchins to provide her with documentation on Sesko's short and long-term disability benefits. The attorney also stated, "[w]hile this matter is being reviewed, please note that Mr. Sesko does hereby give notice that he is applying for long-term disability benefits * * *."
{¶ 17} We agree with Sesko that this letter did not assert a "claim" as that term is defined in the policy. The "notice" referred to in the letter did not encompass any "written demand for monetary damages." It simply placed Hutchins on notice that Sesko was seeking short and long-term disability benefits. The policy admits no other reasonable interpretation.
{¶ 18} Our conclusion is buttressed by Vigilant's claim examiner, who testified in deposition that Vigilant first received notice of the claim on December 2, 2003, within the policy period. The claims examiner said that he received on that date a telefax which included the amended complaint filed in the underlying action. This amended complaint conformed to the terms of the policy since it included a demand for monetary damages. Unlike the notice letter which asserted a claim for benefits with no demand for monetary damages, the December 2, 2003 telefax included a complaint which did make a specific demand for monetary damages. We therefore conclude that Sesko did make a claim within the policy period.
{¶ 20} In Ormet Primary Aluminum Corp. v. Employers Ins. ofWassau,
{¶ 21} "Notice provisions in insurance contracts serve many purposes. Notice provisions allow the insurer to become aware of occurrences early enough that it can have a meaningful opportunity to investigate. Ruby v. Midwestern Indemn. Co.
(1988),
{¶ 22} When a denial of benefits is premised on a breach of the notice provisions of a policy, "* * * the insurer is relieved of the obligation to provide coverage if it is prejudiced by the insured's unreasonable delay in giving notice. An insured's unreasonable delay in giving notice is presumed prejudicial to the insurer absent evidence to the contrary." Ferrando v.Auto-Owners Mut. Ins. Co.,
{¶ 23} Vigilant argued that its December 2003 notice of the claim came after the court entered a default judgment in Sesko's favor. We have no doubt that Sesko's failure to give timely notice to Vigilant of his action prejudiced Vigilant. By the time Vigilant learned of Sesko's action, default judgment had been entered. The time to appeal had passed, leaving Vigilant with only one option: filing a motion for relief from judgment on Hutchins' behalf.
{¶ 24} Sesko counters this presumption of prejudice by pointing to the court's refusal to grant Hutchins relief from judgment. He maintains that the court's denial of relief from judgment showed that Hutchins did not have any viable defenses.
{¶ 25} We reject Sesko's argument. The court did not specify any reason for denying the motion for relief from judgment, so we have no way of determining the basis for the court's ruling. It would be irresponsible for us to assume that the court concluded there were no viable or adequate defenses to the default judgment.
{¶ 26} Decisions either granting or denying relief from judgment are vested solely within the court's discretion. We cannot review such decisions to determine the correctness of the judgments from which relief is sought. Fifth Third Bank v.Labate, Stark App. No. 2005CA00180,
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sweeney, P.J., and Gallagher, J., concur.