COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67998 CHARITA THOMAS, ET AL. : ACCELERATED DOCKET : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION MAUREEN QUERCIOLI, ET AL. : : Defendant-apppellees : : PER CURIAM DATE OF ANNOUNCEMENT : MAY 11, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-200711 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: JOSEPH L. COTICCHIA, ESQ. RICHARD B. GEMPERLINE, ESQ. 1640 Standard Bldg. Suite 410 Cleveland, OH 44113 323 Lakeside Avenue, W. Cleveland, OH 44113 - 2 - PER CURIAM: Plaintiff-appellant, Charita Thomas, ("Thomas") appeals the trial court's decision granting defendant-appellee, Nationwide Insurance Company's ("Nationwide") motion for summary judgment. Thomas was involved in an automobile accident with Maureen Quercioli. At the time of the accident Quercioli was insured with Nationwide, however Quercioli did not notify Nationwide of the lawsuit filed against her. Nationwide was notified of the law suit by Thomas' counsel. Nationwide and its legal counsel attempted to solicit the cooperation of Quercioli in the participation of her defense on several occasions over a six month period but were unsuccessful. Based upon Quercioli's failure to cooperate, Nationwide withdrew both coverage and defense of the claim against Quercioli. Thomas then proceeded to arbitrate the claim and received an award of $10,687.13 against Quercioli. When no recovery was had after 30 days of the judgment Thomas filed a supplemental complaint pursuant to R.C. 3929.06 seeking payment of the award from Nationwide. Nationwide filed a motion for summary judgment asserting that coverage was forfeited and voided by Quercioli's failure to assist and cooperate in the defense of the underlying claim as required by the insurance policy. The trial court granted Nationwide's motion for summary judgment. Thomas' sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT NATIONWIDE INSURANCE - 3 - COMPANY BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED [SIC] WHETHER OR NOT NATIONWIDE INSURANCE COMPANY'S INTEREST[S] WERE PREJUDICE[D]. Thomas asserts that the trial court erred when it granted Nationwide's motion for summary judgment because genuine issues of material fact exist with respect to the issue of whether or not Nationwide's interests were prejudiced. Specifically, Thomas claims that Nationwide has failed to prove that Quercioli "failed to cooperate" and therefore as a matter of law Nationwide was not responsible to pay the judgment against Quercioli. Quercioli's insurance policy with Nationwide states in relevant part: WE, you, and anyone insured by this policy must do certain things in order for the provisions of the policy to apply. The following are policy conditions: 1. INSURED PERSONS' DUTIES The insured will: a) give us or our agent prompt notice of all losses and provide written proof of claim if required. b) notify the police of all theft losses as soon as practicable. c) promptly deliver to us all papers dealing with any claims or suits. d) submit to examination under oath as often as reasonably requested by us. e) assist us with any claim or suit. Nationwide Century II Auto Policy, pp. 16-17, (emphasis omitted). We stated in Gabor v. State Farm Mut. Auto Ins. (1990), 66 - 4 - Ohio App.3d 141, 143, that in order for insurance companies to protect themselves, insurers frequently include clauses in their policies which mandate cooperation by the insured with the investigation of a claim. When such cooperation is a policy condition, and an insured fails to comply, the insurer may be relieved of further obligation. Id. In order for the insurer to use the insured's lack of cooperation as a defense to liability, the lack of cooperation must result in material and substantial prejudice to the insurance company. Gabor, supra, at 144. Furthermore, whether an insured has violated the cooperation clause of her policy is an issue of law when the facts are undisputed. Id. Nationwide presented undisputed evidence to the trial court that Quercioli would not assist with the lawsuit filed against her. In fact, Nationwide presented affidavits from its legal counsel and its claims adjuster that several attempts were made to contact Quercioli over a six month period. Nationwide sent letters, both by regular mail and certified mail, to Quercioli requesting her assistance with the defense of the law suit. Nationwide was aware that Quercioli did not have a telephone so it contacted her neighbors and family members in hopes of getting a message to Quercioli. Quercioli never responded. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. - 5 - Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to Thomas, we conclude there does not exist a genuine issue of material fact. It is undisputed that Nationwide attempted to contact Quercioli on several occasions over a six month period. In addition, the insurance policy is clear that Quercioli had a duty to cooperate with Nationwide and her failure to do so cancelled the insurance policy. Moreover, Thomas' assertion that Nationwide did not prove that Quercioli's lack of cooperation resulted in a material and - 6 - substantial prejudice is unfounded. It is clear that Nationwide could not properly defend Quercioli without her cooperation. Therefore, Nationwide would have suffered material and substantial prejudice if it was forced to defend Quercioli without her cooperation. Accordingly, Thomas' assignment of error is overruled. Judgment affirmed. - 7 - This cause is affirmed. It is ordered that appellees recover of appellants 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 Court of Common Pleas 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. CHIEF JUSTICE JOHN T. PATTON JUDGE DONALD C. NUGENT JUDGE DIANE KARPINSKI N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .