COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68186 KANSA GENERAL INTERNATIONAL : INS. CO. : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION WESTON, HURD, FALLON, : PAISLEY & HOWLEY : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-239090 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ANTHONY J. HARTMAN (#0021226) ROMNEY B. CULLERS (#0053668) JAY H. SALAMON (#0029192) HERMANN, CAHN & SCHNEIDER 1301 EAST NINTH STREET - SUITE 500 CLEVELAND, OHIO 44114 For Defendant-Appellee: MARVIN L. KARP (#0021944) ULMER & BERNE 900 BOND COURT BUILDING 1300 EAST NINTH STREET CLEVELAND, OHIO 44114-1583 - 2 - 2 SPELLACY, J.: Kansa General International Insurance Company Ltd. appeals from a jury verdict for Weston, Hurd, Fallon, Paisley & Howley. Kansa raises five assignments of error: 1. THE TRIAL COURT ERRED IN DIRECTING A VERDICT AGAINST KANSA ON THE ISSUE OF WHETHER NEGLI- GENCE BY WESTON HURD IN PRESENTING THE DEFENSE OF MUTUAL MISTAKE WAS A PROXIMATE CAUSE OF DAMAGE TO KANSA. 2. THE TRIAL COURT ERRED TO PLAINTIFF'S PREJUDICE BY INSTRUCTING THE JURY TO DECIDE WHETHER CRUCIAL POLICY PROVISIONS WERE AMBIGUOUS, THEREBY ABDICATING THE COURT'S ROLE AS TRIER- OF-LAW AND DELEGATING THAT FUNCTION TO THE JURY. 3. THE TRIAL COURT ERRED TO PLAINTIFF'S PREJUDICE IN PERMITTING DEFENDANT TO ARGUE, AND THE JURY TO DECIDE, WHETHER THE VENDORS WOULD HAVE USED OTHER LEGAL MEANS TO REACH KANSA'S INSURANCE COVERAGE IN THE EVENT KANSA HAD WON THE DE- CLARATORY JUDGMENT ACTION. 4. THE TRIAL COURT ERRED TO PLAINTIFF'S PREJUDICE IN ALLOWING THE EXPERT TESTIMONY OF HARRY F. BROOKS FOR THE PURPOSE OF EXPLAINING AND CON- STRUING THE POLICY. 5. THE TRIAL COURT ERRED TO PLAINTIFF'S PREJUDICE IN PERMITTING DEFENDANT TO PRESENT TESTIMONY THAT GRIFFIN PRODUCTS, INC. WAS A SUCCESSOR- IN-INTEREST TO GRIFFIN CORPORATION AND IN SUBSEQUENTLY INSTRUCTING THE JURY TO DECIDE THE ISSUE OF SUCCESSORSHIP AS A POTENTIAL DEFENSE. I. Kansa brought this action for legal malpractice and breach of contract alleging that Weston Hurd mishandled defenses concerning mutual mistake, a vendors-liability endorsement, and an other- insurance clause while representing it in a declaratory judgment - 3 - 3 action. The trial court directed a verdict against Kansa on the claim that Weston Hurd mishandled the defense concerning mutual mistake. The jury returned a verdict for Weston Hurd on Kansa's claims that Weston Hurd mishandled the defenses concerning the vendors-liability endorsement and the other-insurance clause. Answering interrogatories, the jury found no negligence. As a consequence, the jury did not reach interrogatories concerning proximate cause. II. The following evidence was adduced at trial: In 1976 Griffin Products Inc. ("GPI"), a Canadian manufacturer of helmets and car racks, formed a wholly-owned subsidiary named Griffin Corporation ("Griffin USA"). Griffin USA then purchased the helmet division of a company in Kansas and manufactured helmets there from 1977 until entering bankruptcy in 1981. In late 1981, GPI contacted Ronald Roidi, an account manager at Reed Stenhouse, a Canadian insurance brokerage, seeking insurance for sales in the United States. After Roidi informed Mark Halliday, a casualty marketer at Reed Stenhouse, of the need for insurance, Halliday contacted Joachim Menezes, an underwriter at Jevco Insurance Management, Kansa's general agent in Canada. On February 23, 1982, Kansa issued policy 260062 listing GPI and Griffin USA as the named insureds. After Price WaterHouse, the accounting firm, was named receiver for GPI in March 1982, Roidi informed Halliday of the need - 4 - 4 to incorporate Price Waterhouse into policy 260062 and Halliday asked Menezes to make the change. Kansa then amended policy 260062 to include Price Waterhouse as receiver for GPI. On April 23, 1982, Maurice Pinsonneault, as the trustee for an unformed corporation that was to become 115132 Canada, Inc. and eventually Griffin (1982) Ltd., purchased GPI's helmet division. On April 26, 1982, Roidi sent Halliday a memo stating that "115132 Canadian Inc. [and/or] Mr. Pinsonneault [and/or] Griffin Products Inc." had purchased the helmet division of GPI and that the helmet division was to be split from policy 260062. On April 30, 1982, Price Waterhouse sent Roidi a letter confirming an earlier conversation in which they requested the cancellation of all GPI product liability coverage effective April 27, 1982. Policy 260062 was cancelled in July 1982 effective April 27, 1982. Halliday informed Menezes of the purchase and sent him a cover-note, dated May 5, 1982, listing the named insureds as "Mr. Maurice Pinsonneault operating as 115132 Canada, Inc. and Griffin Products Inc." The cover-note indicated that the coverage was from April 23, 1982, to February 20, 1983. On May 18, 1982, Kansa issued policy 2000184 covering April 23, 1982, until February 20, 1983, and listing as the named insureds "Mr. Maurice Pinsonneault operating as 115132 Canada, Inc. and Griffin Products Inc." - 5 - 5 On November 3, 1982, endorsement number ten was added to policy 2000184 deleting GPI as a named insured effective September 24, 1982. Pinsonneault testified that, under the purchase agreement with Price Waterhouse, neither he nor any entities he was creating were to be liable for previous helmet sales and that he had never intended to insure GPI. Pinsonneault further testified it was likely that he would have been the one who dealt with Reed Stenhouse. Roidi testified that he never spoke with Pinsonneault. He was unable to recall who told him to obtain the new insurance or why GPI was included as a named insured. Halliday testified that he never spoke with Pinsonneault and that he obtained all his information from Roidi. Menezes testified that he would not have issued policy 2000184 if he had realized that GPI was in receiver- ship. Menezes further testified that he intended to insure what- ever his broker wanted to insure. Menezes went on to testify that he would not have issued policy 2000184 if he had realized that Pinsonneault and his entities had not wanted to insure GPI. No one could recall why endorsement number ten deleted GPI only as of September 24, 1982, instead of April 23, 1982. In July 1984, Sharon Chace, as guardian for her husband Ross Chace, brought an action for products liability against Dorcy International, Fuqua Industries, J.C. Penney Co., Inc., Griffin USA, GPI, and Griffin (1982). The action arose out of an August 1982 motorcycle accident in which Ross Chace was severely injured - 6 - 6 while wearing a helmet manufactured by Griffin USA. Dorcy, Fuqua, and J.C. Penney, vendors of the helmet, sought coverage from Kansa under policy 2000184, but Kansa refused. On December 3, 1986, Dorcy, Fuqua, and J.C. Penney brought a declaratory judgment action seeking coverage. In mid-December 1986, Jean Trembly, Kansa's attorney from Montreal, Canada, retained Weston Hurd to defend Kansa in the declaratory judgment action. During litigation in the trial court, Weston Hurd never met with Pinsonneault and Menezes and did not question Roidi and Halliday about mutual mistake issues. On June 5, 1989, the trial court ruled that Dorcy, Fiqua, and J.C. Penney, all of whom had settled with Chace, were insureds and awarded them a monetary judgment for indemnity. The trial court's decision was affirmed on appeal. The appellate court, relying on endorsement number ten, found no mutual mistake. The appellate court further found that, even if a mutual mistake had existed, reformation of policy 2000184 was unavailable because Dorcy, Fuqua, and J.C. Penney had already relied on it. The Ohio Supreme Court declined to hear the case. III. In its first assignment of error, Kansa contends the trial court erred when it directed a verdict on the claim concerning the defense of mutual mistake. We review the entry of a directed verdict independently and without deference to the trial court's determination. Keeton v. - 7 - 7 Telemedia Co. of S. Ohio (1994), 98 Ohio App.3d 405, 409; Tulloh v. Goodyear Atomic Corp. (1994), 93 Ohio App.3d 740, 747. A trial court should enter a directed verdict when, after viewing the evidence most strongly for the nonmoving party, it concludes that reasonable minds could only find for the moving party. Civ.R. 50(A)(4); Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 437-438; The Limited Stores, Inc. V. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73. Legal malpractice contains three elements: an attorney-client relationship creating a duty, breach of that duty, and damages proximately caused by the breach of duty. Krahn v. Kinney (1989), 43 Ohio St.3d 103, 105. No legal malpractice exists unless the client can show it would have been successful but for the legal negligence. Montgomery v. Everett (1991), 74 Ohio App.3d 616, 620. Even construing the evidence most strongly for Kansa, we conclude that reasonable minds could only find that the attempted reformation of policy 2000184 through mutual mistake would have been unsuccessful even with the additional evidence that Kansa maintains Weston Hurd failed to discover. "Ohio contract law provides that reformation of a contract based on mutual mistake is allowed only where there is clear proof that the parties made the same mistake and that both parties understood the contract as the complaint alleges it ought to have been." Merrill v. Hamilton (1982), 9 Ohio App.3d 111, 112. A party seeking reformation of an insurance policy through mutual - 8 - 8 mistake must demonstrate the mistake by clear and convincing evidence. Snedegar v. Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64, 69. Clear and convincing evidence is that evidence necessary to "produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. Kansa argues that the standard of proof cannot be considered when ruling on a motion for a directed verdict. We disagree. Rulings on motions for summary judgment, directed verdict, and judgment notwithstanding the verdict all, by necessity, take the standard of proof into account. See, Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 252-255; Condit v. Clermont Cty. Review (1994), 93 Ohio App.3d 166, 172. Even construing the evidence most strongly for Kansa, reason- able minds could only find that Kansa has failed to demonstrate the existence of a mutual mistake by clear and convincing evidence. No mutual mistake exists even if it is assumed that Pinsonneault and his entities did not realize that GPI was a named insured on policy 2000184. Menezes knew GPI was a named insured. Consequently, Menezes's testimony concerning his erroneous assumptions that GPI was not in receivership and that Pinsonneault and his entities desired insurance for GPI does not demonstrate a mutual mistake. Accordingly, Kansa's first assignment of error is not well taken. - 9 - 9 IV. We address Kansa's remaining assignments of error together. In its second assignment of error, Kansa contends the trial court erred by instructing the jury to determine whether policy 2000184 was ambiguous. In its third assignment of error, Kansa contends the trial court erred by allowing the jury to consider whether Dorcy, Fuqua, and J.C. Penney would have been able to obtain coverage from Kansa by some other means even if Kansa had prevailed in the declaratory judgment action. In its fourth assignment of error, Kansa contends the trial court erred when it admitted expert testimony concerning whether the other-insurance clause in policy 2000184 was ambiguous. In its fifth assignment of error, Kansa contends the trial court erred in admitting evidence concerning GPI's status as a successor-in-interest to Griffin USA and in instructing the jury to consider successorship as a potential defense. The jury's determination that Weston Hurd was not negligent renders the errors alleged in these assignments of error harmless because they all relate to proximate cause. See, Seeley v. Rahe (1985), 16 Ohio St.3d 25, 26-27 (Erroneous application of contri- butory negligence instead of comparative negligence harmless where jury found no negligence); Sech v. Rogers (1983), 6 Ohio St.3d 462, 466 (Erroneous jury instruction on assumption of risk harmless where jury interrogatory showed jury found no negligence); Schulz v. Sullivan (1993), 92 Ohio App.3d 205, 211-212 (Any error in - 10 - admitting evidence concerning fair market value of property harmless where disposition of case resulted in rescission of contract to purchase the property); Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 536 (Erroneous exclusion of evidence concerning damages harmless where jury found defendant not negligent); Joseph v. Ohio Power Co. (1988), 46 Ohio App.3d 170, 174 (Any defect in interrogatory concerning proximate cause harmless where a separate jury interrogatory showed jury found no negligence); Hager v. Griesse (1985), 29 Ohio App.3d 329, 332-333 (Erroneous application of assumption of risk and contributory negligence harmless where defendant owed no duty to plaintiff); and Yacobucci v. Sazima (Dec. 14, 1989), Cuyahoga App. No. 55892, unreported (Any error in jury instruction on proximate cause harmless where jury found defendant not negligent). Accordingly, Kansa's second, third, fourth, and fifth assignments of error are not well taken. Judgment affirmed. - 11 - 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. JOHN T. PATTON, C.J. and DIANE KARPINSKI, 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 .