COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69514 and 70753 [CASE NO. 69514] : MICHAEL LINGO : PLAINTIFF-APPELLANT : v. : STATE FARM FIRE & : CASUALTY COMPANY : DEFENDANT-APPELLEE : JOURNAL ENTRY and : AND [CASE NO. 70753] : OPINION MICHAEL LINGO : PLAINTIFF-APPELLANT : v. : KEVIN MCKEE : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-276442. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Mark L. Wakefield, Esq. Sindell, Lowe & Guidubaldi 610 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1454 For Defendants-Appellees: Harold H. Reader, Esq. Ruth Martin, Esq. Diane Sheehy Sebold, Esq. Ulmer & Berne 900 Bond Court Building 1300 East 9th Street Cleveland, OH 44114-1583 Michael J. Creagan, Esq. Henry A. Hentemann, Esq. Meyers, Hentemann, Schneider & Rea 2100 Superior Building 815 Superior Avenue, N.E. Cleveland, OH 44114 -3- DAVID T. MATIA, J.: Michael Lingo, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting State Farm Fire and Casualty Insurance Company's ("State Farm"), defendant-appellee's, motion for summary judgment. Plaintiff-appellant assigns one error for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On September 6, 1992, Kevin McKee, defendant-appellee, attended a house party on Cooley Road in Cleveland, Ohio. Once there, defendant-appellee met his brother and several other friends. Michael Lingo, plaintiff-appellant, and several of his friends subsequently arrived at the same party. It was early in the evening when one of defendant-appellee's friends went to purchase more beer. In the meantime, defendant- appellee's brother asked plaintiff-appellant and his friends if they could have some of the beer they had brought with them. When the request was refused, harsh words were exchanged between defendant-appellee's brother and one of plaintiff-appellant's friends. Defendant-appellee testified that when he observed plaintiff- appellant and his group of friends following his brother and another male out into the street, he believed there was going to be a fight. Defendant-appellee picked up a board and chased them away. The two groups continued to trade insults. -4- Within approximately ten minutes, plaintiff-appellant and his five friends returned to the house carrying baseball bats. Defendant-appellee, who still had the board in his hand, was in the front yard area with his brother and friend. Defendant-appellee's brother grabbed a board out of the fire and their friend grabbed a metal pipe. Again harsh words were exchanged as the two groups met in the street. At this time, defendant-appellee anticipated there was going to be a fight. Defendant-appellee testified that plaintiff-appellant walked towards him and cocked his baseball bat back to swing it at him. Defendant-appellee quickly struck plaintiff-appellant in the head with his board. Plaintiff-appellant went to the ground and attempted to get back on his feet with the baseball bat still in his hand. Again, defendant-appellee hit him in the head with the board. There was a brief scuffle between defendant-appellee's brother and another male but the two groups eventually backed away from each other. The police arrived shortly thereafter and broke up the party after a neighbor called and reported the incident. Plaintiff-appellant suffered extensive injuries. Defendant-appellee was eventually charged and pled guilty to aggravated assault for hitting plaintiff-appellant with the board. At the time of the incident, Kevin McKee, defendant-appellee, was covered by an insurance policy through State Farm Fire & Casualty Company's ("State Farm"), defendant-appellee. The policy provided coverage for damages because of bodily injury or property damage, -5- but it specifically excluded coverage for bodily injury or property damage which is: 1) either expected or intended by an insured or 2) the result of a willful and malicious act of an insured. On September 6, 1994, plaintiff-appellant filed a personal injury complaint against Kevin McKee, defendant-appellee, alleging: 1) the insured negligently, carelessly and/or recklessly struck plaintiff with a 2 x 4 piece of wood and 2) the insured assaulted plaintiff and as a direct and proximate result of the intentional conduct, plaintiff sustained injuries. The second cause of action also sought punitive damages. On October 13, 1994, plaintiff-appellant filed a complaint for declaratory judgment naming both State Farm and Kevin McKee as defendants. Plaintiff-appellant sought a declaration that the State Farm policy of insurance provides coverage for the negligent acts of the insured. State Farm, defendant-appellee, timely filed an original and amended separate answer, counter-claim and cross- claim. On January 5, 1995, the two cases were consolidated. Then, on May 5, 1995, State Farm, defendant-appellee, filed a motion for summary judgment arguing under the policy at issue it owes no duty to defend the insured or pay judgment against the insured. The motion was granted on August 8, 1995. After the remaining claims were dismissed without prejudice, a timely notice of appeal was filed by Michael Lingo, plaintiff-appellant, on June 4, 1996. -6- II. ASSIGNMENT OF ERROR Michael Lingo, plaintiff-appellant, states as his sole assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT MICHAEL LINGO IN GRANTING DEFENDANT-APPELLANT (SIC) STATE FARM FIRE & CASUALTY'S MOTION FOR SUMMARY JUDGMENT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant argues the trial court erred in granting defendant-appellee's, State Farm's, motion for summary judgment. Specifically, plaintiff-appellant argues when reviewing the totality of the circumstances, reasonable minds could differ as to whether the insured acted in self-defense when he struck plaintiff-appellant with the board. If the insured acted in self-defense, plaintiff-appellant argues State Farm would owe a duty to defend the insured and would be liable for any damages awarded to plaintiff-appellant. Plaintiff-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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 but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that -7- conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc (1977), 50 Ohio St.2d 317. "Upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of material fact exists is on the party moving for the summary judgment." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. After a moving party has established prima facie that it is entitled to summary judgment, a non-moving party may not rest upon the mere allegations or denials of his/her pleadings. Rather, either by response, affidavit or as otherwise provided in Civ.R. 56, the non-moving party must set forth specific facts establishing there exists a genuine issue of material fact for trial. See Stemen v. Shibley (1982), 11 Ohio App.3d 263. With these principles in mind, we turn our attention to the motion for summary judgment and the evidentiary materials filed in the case sub judice. C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. As previously stated, the insurance policy at issue would provide coverage to its insured, Kevin McKee, unless the bodily injury was either expected or intended by the insured or if the bodily injury was the result of a willful and malicious act of the insured. -8- In Preferred Mut. Ins. Co. v. Thompson (1986), 23 Ohio St.3d 78, the Supreme Court of Ohio held in its syllabus: When an insured admits that he intentionally injured a third party and the surrounding circumstances indicate that he acted in self- defense in causing the injury, the insured's insurance company may not refuse to defend the insured from the third party's intentional tort claim on the grounds that the third party's injuries fall within an exclusion from coverage for "bodily injury *** which is either expected or intended from the standpoint of the [i]nsured." While we recognize the self-defense exception to an "intentional injury" exclusion, we find after a review of the record that it is inapplicable to this case. Again, after the insured and his friends chased the other group of males up the street, the insured stayed in the front yard area of the house. The insured, still holding the board, observed the same group of males coming down the street towards them holding baseball bats. Instead of retreating, the insured and his friends (who had armed themselves) walked on to the street and prepared themselves for a fight. By their actions, it is reasonable to assume both plaintiff-appellant and the insured anticipated a conflict. The insured and Michael Lingo then "faced off." The evidence establishes harsh words were exchanged and the insured intentionally struck plaintiff-appellant before plaintiff- appellant could strike him. We would agree with defendant- appellee that the insured's actions do not constitute "self- defense" as envisioned in Preferred Mut. Ins. Co. v. Thompson, supra. Rather we believe reasonable minds could only conclude -9- that this was a mere street fight by two willing participants. See Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34; Farmers Insurance Group v. Garvin (March 28, 1988), Stark App. No. CA-7359, unreported. The fact the insured pled guilty to aggravated assault, while not completely dispositive of this issue, supports our conclusion. See, Grange Mutual Casualty Company v. Thatcher (June 24, 1993), Franklin App. No. 92AP-1588, unreported; Gunter v. Meacham (September 20, 1995), Summit App. No. 17125, unreported. Accordingly, the trial court did not err in granting defendant-appellee's motion for summary judgment. Plaintiff- appellant's sole assignment of error is not well taken. Judgment affirmed. -10- It is ordered that appellees recover of appellant 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. SPELLACY, C.J. and TIMOTHY E. MCMONAGLE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .