COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59351 CLARENCE D. HARBAUGH : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : STATE FARM INSURANCE : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 137153 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DANIEL J. RYAN 2000 STANDARD BUILDING CLEVELAND, OHIO 44113 For Defendant-Appellee: HENRY A. HENTEMANN PATRICK F. ROCHE 2121 THE SUPERIOR BUILDING CLEVELAND, OHIO 44114 -2- SPELLACY, J.: Plaintiff-appellant Clarence D. Harbaugh ("appellant") appeals from the trial court's judgment denying his motion for summary judgment and granting summary judgment in favor of defendant-appellee State Farm Insurance Co. ("appellee"). The facts giving rise to the instant appeal are as follows: Between August 10, 1984 and August 10, 1985, appellant was a named insured with appellee for his personal car, a 1973 Dodge Monaco. Included in his insurance policy was a provision that provided appellant with coverage for a temporarily loaned vehicle, which was used as a substitute for his disabled insured vehicle. On January 28, 1985, appellant was operating a van owned by his employer, Schweizer-Dipple, Inc. Appellant was returning home from picking up a pizza. At approximately 9:05 P.M., appellant violently collided with Kimberly Stiles, a pedestrian. Kimberly Stiles died as a result of the injuries she sustained from the accident. Apparently, appellant had been drinking after he left work at 4:30 P.M. He admitted that after work, he went to a bar for two and one-half hours and consumed beer and some shots. Appellant subsequently pleaded guilty to aggravated vehicular homicide in connection with the accident in question. After the accident, appellant executed a Request for Claim Service and Non-Waiver of Rights, in order to put appellee on notice of the accident and to obtain insurance coverage. On -3- March 25, 1985, appellee sent appellant a letter informing appellant that no coverage for liability protection would be extended to him. Appellee stated in the letter that although the van was available to him for regular or frequent use, at the time of the accident, he was beyond the scope of permission granted to him by his employer. On April 24, 1985, Kimberly Stiles' mother, Karen A. Stiles, filed a complaint against appellant and his employer, Schweizer- Dipple, Inc. Appellee refused to defend appellant, thus, appellant was forced to retain his own counsel. Karen A. Stiles settled the action with appellant and his employer's insurance company, Continental Insurance. As a result of the settlement, appellant became obligated to Karen A. Stiles for $3,600 and he also incurred $12,480 in attorney fees. On August 7, 1987, appellant's counsel submitted a bill to appellee regarding attorney fees for services he rendered on behalf of appellant. In a letter dated October 1, 1987, appellee informed appellant's counsel that appellant was not entitled to coverage, thus, it was not obligated to pay any attorney fees he incurred. On October 2, 1987, appellant filed a complaint for declaratory judgment against appellee. Appellant requested the trial court to declare that appellee did owe a defense to him under the policy in question and that it was responsible to pay his portion of the settlement and his attorney fees. Appellant sought $16,080 in compensatory damages. -4- On January 17, 1988, appellant filed a motion for summary judgment. In his motion for summary judgment, appellant argued that appellee had the duty to insure him and to provide him with counsel for claims arising out of the accident which took place on January 28, 1985. Appellant contended that his insured vehicle with appellee was not in working order on January 28, 1985, thus, he was operating his employer's van as a "temporary substitute automobile". Appellant also asserted that he was using the van for personal, non-work purpose with his employer's permission. In support of his motion for summary judgment, appellant attached several documents, his affidavit, and appellee's answers to interrogatories. On February 24, 1989, appellee filed a motion for summary judgment and a brief in opposition to appellant's motion for summary judgment. Appellee argued that the van driven by appellant was owned by Schweizer-Dipple, Inc. and insured by Continental Insurance. Appellee claimed that Continental Insurance agreed to defend appellant and also agreed to pay the settlement against him. Thus, appellee asserted that pursuant to R.C. 3937.21, it had no obligation to defend appellant, even if the vehicle was a "temporary substitute automobile". Appellee further argued, in its motion for summary judgment and brief in opposition, that it was not obligated to cover appellant, because he was not driving a "temporary substitute automobile". According to appellee, appellant's use of the van -5- was neither temporary nor necessitated by the breakdown of his personal car. Apparently, appellant had been using the van for a couple of months and he had unlimited use of it. Finally, appellee asserted that it was not obligated to reimburse appellant for the $3,600 he paid toward the settlement. Appellee claimed that the $3,600 represented a punitive damage assessment, therefore, pursuant to R.C. 3937.182, it did not have to provide coverage for it. In support of its motion for summary judgment and brief in opposition, appellee attached the deposition of appellant and other documents. On February 5, 1990, the trial court granted appellee's motion for summary judgment and denied appellant's motion for summary judgment. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED ON BEHALF OF THE APPELLEE-DEFENDANT STATE FARM INSURANCE IN THAT THERE WAS A FACTUAL DISPUTE WHICH COULD ONLY BE RESOLVED BY A JURY TRIAL. II. WHEN THE DEFENDANT HAS A CONTRACTUAL DUTY PURSUANT TO AN AUTOMOBILE POLICY OF INSURANCE TO DEFEND THE PLAINTIFF IN A LAWSUIT BROUGHT BASED ON AN AUTOMOBILE ACCIDENT AND FURTHER THE PLAINTIFF HAS BECOME LEGALLY OBLIGATED TO PAY DAMAGES AS A RESULT OF SUCH ACCIDENT, IT IS ERROR FOR THE COURT NOT TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF DIRECTING THE INSURANCE COMPANY TO PAY THE ATTORNEY FEE AND THE SETTLEMENT FOR SUCH DAMAGES. -6- Appellant's assignments of error will be discussed together since they both pertain to the trial court's order granting appellee's motion for summary judgment and denying appellant's motion for summary judgment. A motion for summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). The motion for summary judgment should not be granted unless reasonable minds could reach but one conclusion. In reviewing a motion for summary judgment, the inferences from the underlying facts are construed in the light most favorable to the nonmoving party. Civ. R. 56(C); Hounshell v. American States Ins. Co. (1981), 67 Ohio St. 2d 427, 433. Further, a reviewing court, upon an appeal from a summary judgment, should look at the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1974), 37 Ohio St. 2d 150. The primary issue in the present case is whether appellant's insurance policy with appellee covered him on January 28, 1985, when appellant was involved in the accident in question while driving his employer's van. On the one hand, appellant claims that the "temporary substitute automobile" provision of his insurance policy with appellee applied. On the other hand, appellee argues that said provision did not apply and that appellant's employer's insurance policy with Continental Insurance applied. -7- Appellant's insurance policy with appellee provided insurance coverage for "temporary substitute automobiles". The insurance policy defined such a vehicle as follows: Temporary Substitute Automobile--means an automobile not owned by the named insured or his spouse while temporarily used with the permission of the owner as a substitute for the described motor vehicle when withdrawn from normal use because of its breakdown, repair, servicing, loss of destruction. The evidence in this case demonstrated that for about two and one-half years, appellant received several vans from Schweizer-Dipple, Inc. for his personal use. Appellant testified, at his deposition, that the van he was driving when he was involved in the accident that killed Kimberly Stiles was given to him two months before the accident. Whenever he drove one of the company's vans, he was permitted to use it for work and for personal reasons. During the two and one-half years in which appellant received vans from Schweizer-Dipple, Inc., appellant also drove his 1973 Monaco. Usually, he would drive the 1973 Monaco for personal errands. Appellant testified that for approximately two weeks prior to the accident, the 1973 Monaco was inoperative. However, he made no attempts to get it fixed. Upon a careful review of the evidence, in a light most favorable to appellant, we find that the van involved in this accident did not constitute a "temporary substitute automobile", as defined in appellant's insurance policy with appellee. Clearly, appellant did not receive the van from Schweizer-Dipple, -8- Inc. as a substitute for his 1973 Monaco. Appellant claimed that his personal car was inoperative for only two weeks before the accident, but he had been using the company's vans, without restrictions, for approximately two and one-half years. The insurance policy explicitly stated that the vehicle must be used as a substitute for a broken down insured automobile. That was not the case herein. We conclude that appellee met its burden of establishing the nonexistence of any material fact pertaining to the issue of whether the van in question constituted a "temporary substitute automobile". Moreover, we find that appellant was not obligated to defend appellant pursuant to R.C. 3937.21. R.C. 3937.21 provides in relevant part, as follows: Duties of common insurers. No insurance company issuing a policy of automobile or motor vehicle liability insurance shall be relieved of its con- tractual obligation to defend its insured against any claim on the basis of coverage for such claim being provided by any other policy, unless the insurer of such other policy has assumed and is performing the obligation to provide such defense. (Emphasis added). In the instant case, appellant testified, at his deposition, that Continental Insurance's attorney informed him that he was being represented by Continental Insurance in the action brought by Karen A. Stiles. Appellant met with Continental Insurance's attorney and was also accompanied by him to a deposition. However, appellant was not happy with that attorney and chose to -9- hire his personal attorney, who represented him in the criminal case. We find that Continental Insurance assumed appellant's defense of the claims brought by Karen A. Stiles. Accordingly, we conclude that under R.C. 3937.21, appellee was relieved from defending appellant against any claim in connection with this accident. For the foregoing reasons, we find that appellee was entitled to a judgment as a matter of law. Thus, we conclude that the trial court did not err in granting appellee's motion for summary judgment and denying appellant's motion for summary judgment. Appellant's assignments of error are without merit and are overruled. Trial court judgment is affirmed. -10- It is ordered that appellee recover of appellant its 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. DAVID T. MATIA, P.J., and HARPER, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .