COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69444 PANZICA CONSTRUCTION COMPANY, : ET AL. : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION THE OHIO CASUALTY INSURANCE : CO., ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-223397 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: CHRISTOPHER M. BECHHOLD (#0014192) JACK F. FUCHS (#0014197) DONALD P. SCREEN (#0044070) JEFFREY R. APPELBAUM (#0013898) Thompson, Hine and Flory 3900 Society Center 127 Public Square Cleveland, Ohio 44114-1216 For Defendants-Appellants: RONALD A. RISPO (#0017494) WILLIAM H. BAUGHMAN, JR. (#0017485) JOHN G. FARNAN (#0038558) Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, Ohio 44113-2241 SPELLACY, C.J.: Defendants-appellants Ohio Casualty Insurance Company and West American Insurance Company ("appellants") appeal the grant of summary judgment in favor of plaintiffs-appellees Panzica Construction Company ("Panzica") and Commercial Union Insurance Company ("Commercial Union") in a dispute over appellants' duty to defend pursuant to Comprehensive General Liability policies. Appellants assign the following errors for review: 1. THE TRIAL COURT ERRED IN HOLDING THAT THE "NAMED INSURED'S PRODUCTS" EXCLUSION IN THE 1975-1976 WEST AMERICAN/OHIO CASUALTY POLICIES OPERATED TO PRECLUDE COVERAGE OR A DEFENSE FOR A GENERAL CONTRACTOR BUT THAT THE 1977-1980 OHIO CASUALTY POLICIES CONTAINING THE SAME EXCLUSION GAVE RISE TO A DUTY TO DEFEND THE SAME GENERAL CONTRACTOR. 2. THE TRIAL COURT ERRED IN NOT FINDING THAT THE COMPLETED OPERATIONS EXCLUSION IN THE BFPD ENDORSEMENT IN THE 1977-1980 OHIO CASUALTY POLICIES PRECLUDED ANY COVERAGE FOR PANZICA AND/OR INDEMNITY TO COMMERCIAL UNION FOR PANZI- CA'S COMPLETED OPERATIONS BECAUSE PANZICA WAS A GENERAL CONTRACTOR AND NOT A SUBCONTRACTOR. 3. THE TRIAL COURT ERRED IN NOT FINDING THAT THE 1977-1980 OHIO CASUALTY POLICIES PRECLUDED ANY COVERAGE FOR PANZICA AND/OR INDEMNITY TO COMMERCIAL UNION FOR THE BREACH OF CONTRACT ALLEGATIONS DIRECTED TO PANZICA DURING THOSE TIME PERIODS. 4. THE TRIAL COURT ERRED IN FINDING THAT OHIO CASUALTY HAD A DUTY TO DEFEND PANZICA IN THE 1977-1980 POLICY YEARS. 5. THE TRIAL COURT ERRED IN NOT FINDING THAT THE DATES OF OCCURRENCE FOR EACH OF THE SCHOOL BUILDINGS OCCURRED BEFORE OR DURING THE TIME OF THE 1975-1976 WEST AMERICAN/OHIO CASUALTY POLICIES. - 3 - 6. THE TRIAL COURT ERRED IN NOT FINDING THAT COMMERCIAL UNION WAS A "VOLUNTEER" AND, THEREFORE, THAT IT IS NOT ENTITLED TO CONTRIBUTION OR INDEMNIFICATION FROM OHIO CASUALTY. 7. THE TRIAL COURT ERRED IN DENYING OHIO CASUALTY SUMMARY JUDGMENT ON THE COVERAGE CLAIMS ARISING OUT OF THE GALLAGHER HIGH SCHOOL SINCE PANZICA DELAYED IN NOTIFYING OHIO CASUALTY OF THE CLAIM AGAINST PANZICA UNTIL MORE THAN 3-1/2 YEARS AFTER PANZICA HAD BEEN SUED AND UNTIL AFTER PANZICA HAD SETTLED THAT CASE. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. I. In the early 1970s, Panzica contracted with the Cleveland Board of Education to construct four school buildings: Aviation High School, Case Elementary School, John Gallagher Junior High School, and the School of Science. Panzica was the general contractor for the projects and performed some carpentry work at each of the buildings. The bulk of the work was done by subcontractors. Construction was complete in 1977. From January 10, 1975, through January 10, 1976, Panzica had a comprehensive general liability insurance policy with West American, one of the Ohio Casualty Insurance Companies. From January 10, 1976, through January 10, 1977, the same coverage was provided under an insurance policy provided by Ohio Casualty. The policy was modified in January of 1977 to include a Broad Form Property Damage ("BFPD") endorsement. The BFPD endorsement provided additional coverage to the insured by narrowing the - 4 - application of certain exclusions. It was part of a Master Pak extension which was sold as a package for an additional twenty percent premium. Ohio Casualty automatically added the Master Pak to a comprehensive general liability policy from the early 1970s unless definitely instructed not to do so by the agent. Panzica was insured by policies from Ohio Casualty containing the BFPD endorsement until January 10, 1981. After that, Panzica was insured by Commercial Union until January 10, 1987. On December 24, 1980, the Cleveland Board of Education sued Panzica and its subcontractors and suppliers for property damage to Gallagher Junior High School. The complaint alleged negligence, strict liability, breach of implied warranties, breach of contract, and breach of express warranties. Ohio Casualty was named a defendant as it had issued Panzica a performance bond. The case was dismissed after a settlement was entered into by the parties. Panzica submitted a notice of loss to Ohio Casualty pursuant to its policy on July 9, 1984. On August 26, 1985, the Cleveland Board of Education filed complaints against Panzica for the other three school buildings. The suits alleged negligent workmanship, negligent supervision, strict liability, breach of express and implied warranties, and breach of contract. The complaints did not allege dates of occurrences of when the property damage took place. Ohio Casualty and West American denied Panzica a defense in the actions, stating the allegations in the complaints were not - 5 - covered by their policies. Commercial Union provided Panzica with a defense until the trial court directed a verdict dismissing the tort claims in the litigation over Case Elementary School. As the only remaining claims were uncovered contractual causes of action, Commercial Union withdrew its defense. Based on information discovered during the litigation, Commercial Union determined the dates of occurrences for the remaining cases were prior to its policy periods and withdrew its defense of Panzica entirely. On December 12, 1991, Panzica and Commercial Union filed a complaint against Ohio Casualty and West American. The plaintiffs alleged Ohio Casualty and West American had a duty to defend Panzica in the Cleveland Board of Education lawsuits. The plaintiffs sought defense costs and fees, settlement monies, and prejudgment interest. Panzica and Commercial Union filed a motion for partial summary judgment on Ohio Casualty's duty to defend Panzica. Ohio Casualty and West American filed a combined motion to strike, brief in opposition, and a cross-motion for summary judgment. The trial court granted Ohio Casualty and West American's motion for the period of time Panzica was covered by the policies without the BFPD endorsement or from 1975 to 1977. The trial court found exclusions in the policy excluded coverage for Panzica so there was no duty to defend. The trial court found Ohio Casualty and West American did owe Panzica a duty to defend under the policies with the BFPD - 6 - endorsement. Panzica and Commercial Union's motion for summary judgment was granted with respect to those years. II. The first issue to be addressed is whether the appeal is a final order. The trial court determined the rights of the parties under the insurance policies. Damages were not determined. Summary judgment on the issue of liability only without resolving the question of damages usually is considered to be interlocutory in nature and not appealable. See Summit Petroleum, Inc. v. K.S.T. Oil & Gas Co., Inc. (1990), 69 Ohio App.3d 468. In determining whether an order is final under R.C. 2505.02, one must first inquire whether it was recognized in equity, at common law, or established by special legislation. Polikoff v. Adam (1993), 67 Ohio St.3d 100, 107. If known in equity or at common law, the order is not final unless the second part of Polikoff is satisfied. Next, the nature of the relief sought is examined. A special proceeding occurs where a party either files a special petition seeking a remedy conferred upon that party by an Ohio statute or in a proceeding which is essentially an independent judicial inquiry. Id. A declaratory judgment action is a special proceeding pursuant to R.C. 2505.02. It is an order which affects a substantial right and is a final, appealable order. General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17, paragraph two of the syllabus. The within action was to determine whether - 7 - appellants owed Panzica a duty to defend under the insurance policies. The only other issue was that of damages. Therefore, this is a declaratory judgment action and is a final, appealable order even without a determination of damages. Cf. Indiana Ins. Co. v. Carnegie Constr. Co. (1993), 91 Ohio App.3d 286. III. In their first assignment of error, appellants contend the trial court erred in finding that the named insured's products exclusion did not apply for the 1977-1980 Ohio Casualty policies, thereby giving rise to a duty to defend Panzica. The trial court did find this exclusion precluded coverage for the policies without the BFPD endorsement. Appellants argue the BFPD endorsement does not affect the application of the named insured's products exclusion. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to - 8 - try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The policy in issue states in part: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend against any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ***. Exclusion (n) provides the insurance does not apply: "to property damage to the named insured's products arising out of such products or any part of such products." "Named insured's products" is defined in the policy to mean: "goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but "named insured's products" shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold." Appellant's position is that the completed school buildings were Panzica's product and excluded from coverage. Appellants rely on Zanco, Inc. v. Michigan Mut. Ins. Co. (1984), 11 Ohio St.3d 114, - 9 - to support their position they had no duty to defend Panzica because of the application of the named insured's products exclusion. Zanco was a builder and real estate developer who constructed a condominium complex. After construction, the complex was transferred to an association of unit owners. Zanco was insured by comprehensive general liability insurance policies which contained "work performed" and "product" exclusions. The court found both exclusions to be applicable. The court stated the policies were never intended to insure the integrity or quality of Zanco's product. Id. at 116. Panzica argues Zanco is distinguishable from the within case as Zanco both built and sold the complex while Panzica was hired to perform a service. In Commerce Ins. v. Betty Caplette Builders, 647 N.E.2d 1211 (Mass. 1995), the court drew this distinction in interpreting a policy containing the same language as found in the Ohio Casualty policy. In Commerce, the insured was both the builder and the vendor of the buildings in question. The court found the houses to be "products" because the definition of the term "named insured's products" included the word "sold" and the insured had constructed and sold the houses. Therefore, the "named insured's products" exclusion did apply. Appellants are correct in arguing the "named insured's products" exclusion is not affected by the BFPD endorsement. The question to be resolved is whether the exclusion applies to a - 10 - building constructed by a general contractor insured by a commercial general liability policy when the general contractor also did not convey the building. There is a split among the jurisdictions which have addressed the issue. Those courts finding the building not to be a product have pointed out that to hold otherwise would disregard to distinction between the "products" and "work performed" exclusion. The "work performed" exclusion in a policy without a BFPD endorsement excludes coverage for damage to any part of the property due to work performed by or on behalf of the named insured. Under appellants' interpretation of the products exclusion, there essentially would be no difference between the two exclusions. See Maryland Cas. Co. v. Reeder (1990), 221 Cal. App.3d 961. Appellants' own definition of "products" does not support its position that the completed buildings were a product. The build- ings were not manufactured, sold, handled, or distributed by Panzica. Unlike Zanco, Panzica was not a builder-vendor of the schools. Panzica performed a service for the Cleveland Board of Education. The school buildings were not Panzica's product. Exclusion "n" is not applicable in the instant case. Appellants' first assignment of error lacks merit. IV. In their second assignment of error, appellants assert the trial court erred in finding the completed operations hazard exclusion in the BFPD endorsement did not exclude coverage for the - 11 - work performed by Panzica's subcontractors. Appellants argue the exclusion is applicable as any work performed by the subcontractors was considered to be Panzica's work by the end of the project. The BFPD endorsement expands coverage to an insured by limiting certain exclusions. The exclusion in dispute in the comprehensive general liability policy without the BFPD excludes property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith. The BFPD endorsement replaces this exclusion and excludes any property damage to work performed by the named insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith. Therefore, the difference between the two exclusions is the deletion of the words "or on behalf of" in the BFPD endorsement. In Fireguard Sprinkler Sys. v. Scottsdale Ins. Co. (1988), 864 F.2d 648, the court addressed the question of whether work performed by subcontractors is excluded under the same exclusion as at issue in the instant case. The court noted that a completed operations hazard provision insures a general contractor against certain risks which occur after completion of a construction project. Damage resulting from a contractor's own work usually is excluded as liability insurance should not be a warranty or performance bond for general contractors. This is to discourage careless work by making general contractors pay for any losses - 12 - caused by their own work. The dispute is over whether the subcontractors' work becomes part of the general contractor's work and is excluded or if the subcontractors' work is a separate insurable risk. Id. at 649-650. The court noted the phrase "or on behalf of" referred to the work performed by the subcontractors. Id. at 650. Because the phrase is omitted in the BFPD endorsement, the exclusion is limited to the insured's own work. We conclude that Fireguard's interpretation of the policy is the correct one. The language of the completed operations hazard exclusion in the endorsement, as opposed to that in the basic policy, does not exclude from coverage the work performed by subcontractors. We cannot conclude that omission of the phrase "or on behalf of" in section VI(A)(3) of the endorsement has no significance. Because this phrase was deliberately deleted in one paragraph and retained in the immediately preceding paragraphs, we are persuaded that the exclusion in the endorsement applies only to work performed by the named insured. If Scottsdale wanted to exclude work performed by subcontractors in the endorsement of this carefully drafted policy, it need only have inserted "or on behalf of" in section VI(A)(3) to make its intent crystal clear. "Words deleted from a contract may be the strongest evidence of the intention of the parties." Royal Indemn. Co. v. John F. Cawrse Lumber Co., 245 F. Supp. 707, 711 (D. Or. 1965). Id. at 651. Fireguard's interpretation of the completed operations hazard in a BFPD endorsement is persuasive. The deliberate deletion of the words "or on behalf of" cannot be ignored. The insurer, being the one who selects the language in the contract, must be specific in its use, and an exclusion from liability must be clear and exact in order to be given effect. - 13 - Beacon Ins. Co. of Am. v. Kleoudis (1995), 100 Ohio App.3d 79, 88. The BFPD endorsement states it is replacing the completed opera- tions hazard exclusion, which is found in the general policy, with its own language. The only difference between the wording of the two exclusions is the omission of the phrase "or on behalf of." Under appellants' interpretation, there is no difference between the two exclusions. There would be no reason for the BFPD endorsement to replace the exclusion if the result is the same. Further, where provisions of an insurance contract are reasonably susceptible to more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured. King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, syllabus. The interpretation favoring Panzica is that the work of the subcon- tractors is covered under the BFPD endorsement. Also, Panzica paid an additional premium for the BFPD coverage. Appellants essentially are arguing Panzica gained no additional coverage by paying extra for the BFPD endorsement. Appellants stated during deposition that the BFPD provided no additional benefit to a general contractor such as Panzica. Appellants' argument results in no extra benefit to Panzica even though an additional premium is paid. See Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d 173. As the court in Green Constr. Co. v. National Union Fire Ins. Co. (1991), 771 F.Supp. 1000, pointed out, the advantage of having BFPD coverage is that it covers damage resulting from a subcontractor's work. If a - 14 - contractor does not anticipate using subcontractors, the value of purchasing a BFPD endorsement with completed operations is questionable in view of the additional premium paid for it. Id. at 1006. Panzica paid an additional premium for additional coverage. The deliberate deletion of the phrase "or on behalf of" extends coverage to damage caused by the work of subcontractors. The completed operations hazard exclusion under a BFPD endorsement excludes only the damage to the work performed by the named insured. The work provided by Panzica's subcontractors is covered. Appellants' second assignment of error is overruled. V. Appellants' third, fourth, and fifth assignments of error will be addressed together as the issue of whether appellants owed Panzica a duty to defend is determinative of all. Appellants argue they had no duty to defend Panzica because policy exclusions precluded liability coverage. Further, court rulings on the school building cases established dates of occurrence prior to the period covered by the policies with the BFPD endorsement. In Motorists Mutual Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41, paragraph two of the syllabus, the court held: The test of the duty to defend of an insurance company, under a policy of liability insur- ance, to defend an action against an insured, is the scope of the allegations of the com- plaint in the action against the insured, and where the complaint brings the action within the coverage of the policy the insurer is required to make defense, regardless of the - 15 - ultimate outcome of the action or its lia- bility to the insured. Later, in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, the court considered an insured's duty to defend where the complaint does not clearly bring the matter within the coverage of the policy. The court held: Where the insurer's duty to defend is not apparent from the pleadings in the action against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim. Id., syllabus. Where a complaint states a claim which is partially or arguably within policy coverage, the insurer has an absolute duty to assume the defense of the action. Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582, paragraph one of the syllabus. The obligation to defend continues until the claim is confined to a theory of recovery that the policy does not cover. Great Am. Ins. Co. v. Hartford Ins. Co. (1993), 85 Ohio App.3d 815. Only if there is no possibility of coverage under the policy based on the allega- tions in the complaint will the insurer not have a duty to defend the action. Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 Ohio St.3d 65. The complaints filed by the Cleveland Board of Education alleged negligent workmanship, negligent supervision, strict liability, breach of express and implied warranties, and breach of contract. Appellants argue the breach of contract claim was - 16 - excluded under its policy and, because this exclusion applies, it owed no duty to defend the complaints. However, appellants' argument ignores the negligence allegations which arguably did fall within the policies' coverage. An insurer must provide a defense to all claims based upon the same occurrence if some of the claims are within the coverage of the insured's policy. See Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78. Therefore, even if the contract claims were excluded, appellants still owed Panzica a duty to defend the negligence claims. That duty continued until it was determined no coverable claims remained. Appellants also argue the rulings in the school building cases establish the dates of occurrences were either before or during the 1975-1976 policies for which the trial court found no coverage. Appellants assert the court rulings establish the law of the case as to the dates of occurrences so there was no coverage and, therefore, no duty to defend. Appellants are focusing on the wrong point in the school buildings litigation. The duty to defend arises at the inception of the lawsuit, not at its resolution. The duty of an insurance company to defend an action brought against its insured is determined from the plaintiff's petition and, when that pleading on its face discloses a case within the coverage of the policy, the insurer is required to make defense regardless of its "ultimate liability" to the insured. Socony-Vacuum Oil Co. v. Continental Casualty Co. (1945), 144 Ohio St. 382, 392-393. Appellants are arguing their ultimate liability - 17 - to Panzica instead of whether the claims found in the Cleveland Board of Education's complaints were either partially or arguably covered by its policies. The subsequent rulings in these cases do not determine whether appellants owed Panzica a defense. Because the complaints did allege claims which at least were arguably covered by appellants' policies, appellants owed Panzica a defense. Appellants' third, fourth and fifth assignments of error lack merit. VI. In their sixth assignment of error, appellants contend Commercial Union was a volunteer and not entitled to any contribution or indemnification. The basis of appellants' argument is that Commercial Union made an erroneous decision to defend Panzica while appellants correctly chose not to do so. Appellants' contention is that the BFPD endorsement in both Ohio Casualty's and Commercial Union's policies did not provide coverage to Panzica. In Farm Bur. Mut. Auto. Ins. Co. v. Buckeye Union Cas. Co. (1946), 147 Ohio St. 79, the court held in paragraphs five, six, and seven of the syllabus: 5. The doctrine of contribution rests upon principles of equity. 6. One who, with knowledge of the facts and without legal liability, makes a payment of money, thereby becomes a volunteer. 7. Equity will not aid a volunteer. - 18 - There is no cause of action for contribution for any sum paid beyond a legal obligation to pay. Amerisure Cos. v. Statesman Ins. Co. (1991), 77 Ohio App.3d 239. Commercial Union's coverage of Panzica began in January of 1981. The lawsuits filed by the Cleveland Board of Education did not identify dates of losses and alleged claims which could have been covered by Commercial Union's Policy. Commercial Union undertook its defense of Panzica but issued a reservation of rights letter. During the trial of the Case Elementary lawsuit, the trial court directed a verdict dismissing all of the tortious counts and leaving only uncovered contractual claims. Commercial Union then informed Panzica it was withdrawing its defense in that suit as soon as the trial ended. Further, based upon information obtained in defending the Case Elementary suit, Commercial Union determined the dates of loss in the other three lawsuits all occurred prior to 1981. Commercial Union also withdrew from its defense of those claims. It already has been determined that appellants owed Panzica a duty to defend the Cleveland Board of Education's lawsuits. Commercial Union met its duty to Panzica by providing a defense until any coverable claims were dismissed in one suit and information was obtained showing dates of loss prior to its coverage period in the other cases. Commercial Union then withdrew its defense of Panzica. Therefore, Commercial Union properly - 19 - defended Panzica while appellants did not. Commercial Union was not a volunteer as it provided Panzica with a defense until its legal liabilities to Panzica were established. Appellants' sixth assignment of error lacks merit. VII. In their seventh assignment of error, appellants assert Panzica did not submit timely notice of loss on the Gallagher Junior High suit. The Cleveland Board of Education filed its complaint on December 24, 1980. Panzica submitted a notice of loss for Gallagher Junior High on July 9, 1984. Appellants' policy states that in the event of an occurrence, written notice shall be given as soon as practicable. If a claim or suit is brought against the insured, the insured shall immediately forward to the insurance company every demand, notice, summons or other process received by him. Panzica incurred $20,000 in legal fees and paid a $40,000 settlement before submitting its claim. Appellants argue prejudice is presumed with such late notice. Appellants contend the delay between the filing of the Gallagher complaint and written notice by Panzica voids any coverage. A requirement of immediate notice in an insurance contract means notice within a reasonable time under the circumstances of the case. Zurich Ins. Co. v. Valley Steel Erectors, Inc. (1968), 13 Ohio App.2d 41. Such notice is a condition precedent to an insured's right to recover. It is the insured's burden to establish compliance with any provision of an insurance policy - 20 - which is precedent to his right to recover. Walker v. Buck (1993), 86 Ohio App.3d 846. Prejudice to an insurer is presumed if a delay in notice is unreasonable in the absence of evidence to the contrary. Ruby v. Midwestern Indemn. Co. (1988), 40 Ohio St.3d 159. The insured bears the burden of producing evidence sufficient to rebut the presumption of prejudice. Sanborn Plastics Corp. v. St. Paul Fire & Marine Ins. Co. (1993), 84 Ohio App.3d 302. Generally, it is for the trier of fact to determine the weight and sufficiency of such evidence. Therefore, the issue is not one readily determined by summary judgment. Id. One of the purposes of a notice requirement is to provide the insurer with an opportunity to participate in the defense of the insured. Walker, supra, at 849. Appellants have steadfastly refused to defend Panzica in any of the four lawsuits filed by the Cleveland Board of Education. From the beginning, appellants' stance has been that it owed Panzica no duty to defend based on appellants' interpretation of their policies' exclusions. Even if Panzica had provided appellants with timely notice of the Gallagher Junior High suit, appellants would not have participated in Panzica's defense. This fact is not in dispute and, therefore, the issue is one which may be resolved by summary judgment. Because appellants would not have defended Panzica, they were not prejudiced by Panzica's late notice. Appellants' seventh assignment of error is overruled. Judgment affirmed. - 21 - 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 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. JAMES D. SWEENEY, J. and JAMES M. PORTER, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .