COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68464 STEVENS PAINTON CORPORATION : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION AETNA CASUALTY AND SURETY : COMPANY : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-247487 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RONALD A. RISPO (#0017494) WILLIAM H. BAUGHMAN, JR. (#0017485) PATRICK M. DUKES (#0052069) WESTON, HURD, FALLON, PAISLEY & HOWLEY 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 For Defendant-Appellee, Witco Corporation: OF COUNSEL: MICHAEL H. DIAMANT (#0000119) KAHN, KLEINMAN, YANOWITZ & ARNSON 2600 Tower at Erieview Cleveland, Ohio 44114-1824 C. RICHTER TAYLOR, JR. (PA ID 01395) TITUS & McCONOMY Four Gateway Center - 20th Floor Pittsburgh, PA 15222 -ii- For Defendant-Appellee, First State Insurance Company: CHRISTOPHER M. BECHHOLD (#0014192) DEBORAH S. BRENNEMAN (#0062113) THOMPSON, HINE AND FLORY 312 Walnut Street - Suite 1400 Cincinnati, Ohio 45202-4029 For Defendant-Appellee, Aetna Casualty & Surety Company: JACK R. BAKER (#0019225) JAMES F. MATHEWS (#0040206) BAKER, MEEKISON & DUBLIKAR 205 Mellett Building 115 DeWalt Avenue N.W. Canton, Ohio 44702 - 2 - 2 SPELLACY, P.J.: Stevens Painton Corporation appeals from a declaratory judgment and raises two assignments of error: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO DECIDE WHETHER THE DEFINITION OF ADDITIONAL INSURED IN THE UMBRELLA LIABILITY INSURANCE PORTION OF THE FIRST STATE INSURANCE COMPANY POLICY INCLUDED WITCO CORPORATION FOR PURPOSES OF THE BODILY INJURY CLAIM ASSERTED AGAINST THAT CORPORATION BY KENNETH BAPTIST. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY CONCLUDING THAT NO COVERAGE EXISTED UNDER THE COMPREHENSIVE GENERAL LIABILITY POLICY ISSUED BY AETNA CASUALTY & SURETY COMPANY OR UNDER THE EXCESS LIABILITY INSURANCE PORTION OF THE FIRST STATE INSURANCE COMPANY POLICY FOR THE BODILY INJURY CLAIM ASSERTED BY KENNETH BAPTISTE AGAINST WITCO CORPORATION ON THE GROUND THAT SUCH CLAIM WAS NOT CAUSED BY AN OCCURRENCE AS DEFINED BY THOSE POLICIES. I. Stevens Painton and Witco Corporation entered into a construction contract under which Stevens Painton was to renovate a pumphouse at Witco's plant in Petrolia, Pennsylvania. The construction contract required Stevens Painton to indemnify Witco and to name Witco as an additional insured in a general liability insurance policy. Stevens Painton, however, failed to name Witco as an additional insured in a general liability insurance policy. During renovation of the pumphouse, a Stevens Painton employee was injured. The employee then brought an action against Witco in Pennsylvania. Witco joined Stevens Painton and brought an action against it for breach of contract based on the indemnity provisions in the construction contract and Stevens Painton's failure to name - 3 - 3 Witco as an additional insured in a general liability insurance policy as required by the construction contract. Stevens Painton brought this declaratory judgment action seeking coverage under a commercial general liability insurance policy with Aetna Casualty & Surety Company and an insurance policy containing excess-coverage and umbrella-coverage provisions with First State Insurance for both the employee's action against Witco and Witco's action against it. Stevens Painton also sought a ruling on Witco's action for breach of contract. All claims in the Pennsylvania case have now been dismissed except for Witco's action against Stevens Painton for breach of contract based on Stevens Painton's failure to name Witco as an additional insured in a general liability insurance policy. Stevens Painton, Witco, Aetna, and First State moved for summary judgment; the trial court granted Aetna's and First State's motions and denied Stevens Painton's and Witco's motions. The trial court found that the only unresolved claim concerned Witco's action against Stevens Painton for breach of contract for failing to name Witco as an additional insured on a general liability insurance policy. The trial court declared no coverage existed because Stevens Painton's failure to name Witco as an additional insured on a general liability insurance policy was not an "occurrence." The trial court declined to rule on the breach of contract action itself. II. - 4 - 4 In its first assignment of error, Stevens Painton contends the trial court erred when it declared that no coverage existed under the umbrella-coverage provision of the First State insurance policy. Stevens Painton argues that under the umbrella-coverage provision of the First State insurance policy Witco is an additional insured and entitled to coverage. The trial court, as a result of the dismissal of claims and its decision to not rule on the merits of the breach of contract action, limited itself to determining whether coverage existed for Witco's action against Stevens Painton for breach of contract based on Stevens Painton's failure to name Witco as an additional insured in a general liability insurance policy. The umbrella-coverage provision of the First State insurance policy concerns only the employee's action against Witco. Consequently, it was unnecessary for the trial court to determine whether coverage would have existed under the umbrella-coverage provision of the First State insurance policy. Accordingly, Stevens Painton's first assignment of error is not well taken. III. In its second assignment of error, Stevens Painton contends the trial court erred when it found no coverage under the Aetna commercial general liability insurance policy and the excess- coverage provision of the First State insurance policy. - 5 - 5 We review the entry of summary judgment independently and without deference to the trial court's determination. Stewart v. B.F. Goodrich Co. (1983), 89 Ohio App.3d 35, 39. Summary judgment is proper when, even after viewing the evidence most strongly for the nonmovant, no genuine material issue fact of exists and the movant is entitled to judgment as a matter of law. Civ.R. 56; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The Aetna commercial general liability insurance policy provides: [Aetna] will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. *** The "bodily injury" or "property damage" must be caused by an "occurrence." The policy defines an "occurrence" as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions." The excess-coverage provision of the First State insurance policy is based on coverage under the Aetna insurance policy. Stevens Painton argues that coverage exists for Witco's action for breach of contract against it because the injury to the employee satisfies the "occurrence" requirement. Stevens Painton relies on Spalding v. Aetna Casualty & Surety Co. (Oct. 11, 1994), Stark App. No. CA-9424, unreported. In Spalding, buyers of real estate brought an action against the seller, who was the insured, after they discovered the real estate was contaminated. The action alledged "fraudulent concealment, fraudulent representations, - 6 - 6 mutual mistake of fact, negligent failure to discover contamina- tion, etc." The Spalding court found coverage existed because the contamination was an "occurrence" that resulted in property damage for which relief had been sought from the insured. We find Spalding distinguisble from this case. In Spalding the buyers' action against the insured was founded on property damage they had suffered as the result of an "occurence." Here, although the action brought against Witco by the employee resulted from an "occurrence," Witco's action against Stevens Painton is based on Stevens Painton's failure to name Witco as an additional insured in a general liability insurance policy. An action for breach of contract grounded on the failure to name a party as an additional insured is not an "occurrence." See Pace Constr. Co. v. United States Fid. and Guar. Ins. Co. (C.A. 8, 1991), 934 F.2d 177, 179; Motor Vehicle Cas. Co. v. GSF Energy, Inc. (Ill. 1989), 549 N.E.2d 884; Reliance Ins. Co. v. Wyatt, Inc. (Ala. 1988), 540 So.2d 688. Stevens Painton also argues that the trial court erroneously ignored the indemnity claim arising under the construction contract. The indemnity claim, however, has been resolved. Accordingly, Stevens Painton's second assignment of error is not well taken. Judgment affirmed. - 7 - 7 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. PATRICIA BLACKMON, J. and JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY PRESIDING 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 .