COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71126 & 71423 RAEVERN P. DICKENS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION GENERAL ACCIDENT INSURANCE : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 291576 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOSEPH R. COMPOLI, JR., ESQ. JAMES L. GLOWACKI, ESQ. 652 East 185th Street CHRISTOPHER R. CLAFLIN, ESQ. Cleveland, Ohio 44119 GLOWACKI & ASSOCIATES 510 Leader Building JAMES R. GOODLUCK, ESQ. 526 Superior Avenue East 1836 Euclid Avenue, #311 Cleveland, Ohio 44114 Cleveland, Ohio 44115 - 2 - DYKE, J.: Appellant prevailed in her wrongful discharge suit against Metropolitan Cablevision wherein she claimed that her employer's conduct caused her to suffer nausea, stomach pains, headaches, anxiety, mental torment, body pain and other adverse health effects. Appellant filed this declaratory action against Metropolitan Cablevision's insurance carrier, appellee General Accident Insurance, to determine whether appellant's insurance coverage extends to the bodily injury she suffered. If the insurance policy covered her bodily injury, appellant could recover the $20,000.00 judgment against Metropolitan Cable from appellee. Appellee filed a motion for summary judgment which was granted by the trial court. Appellant filed this timely appeal from the granting of appellee's motion for summary judgment, asserting one assignment of error. Appellant filed a separate appeal from the trial court's denial of his motion for sanctions against appellee's attorney. The appeal from the summary judgment and the appeal from the denial of sanctions are consolidated for our review. I THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT-APPELLEE. Appellant argues that her declaratory judgment action should have been granted, ruling that appellee is liable for the judgment under the insurance policy provided to Metropolitan Cable. Appellant's argument is not well taken. - 3 - Appellee and Metropolitan Cablevision entered into an agreement whereby appellee would provide coverage to pay for any sums Metropolitan Cablevision became legally obligated to pay as damages because of "bodily injury." The policy defines "bodily injury" as "bodily injury, sickness or disease sustained by a person." The trial court found that appellant's claimed physical injuries stemmed from emotional distress, not from any external accident or occurrence. We agree with the trial court that Ohio law does not extend insurance coverage to injuries stemming from emotional distress where bodily injury is the term interpreted by the courts in the policy provisions. The trial court relied upon two cases, one of which is binding precedent upon this Court. The Ohio Supreme Court determined that an automobile liability policy which provided coverage for bodily injury did not extend coverage under that provision to a spouse under a loss of consortium claim. The Ohio Supreme Court held that: The words `bodily injury' are commonly and ordinarily used to designate an injury caused by external violence * * *." Burns v. Employers' Liability Assurance Corp. Ltd. (1938), 134 Ohio St. 222, 233, 12 O.O. 18, 23, 16 N.E. 2d 316, 321. Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 14. While the present cause of action can be distinguished from a loss of consortium claim, where no physical symptoms are claimed, Tomlinson is instructive for the purpose of interpreting the common meaning of bodily injury. The Hamilton County Court of Appeals - 4 - followed the interpretation of "bodily injury" set forth by the Ohio Supreme Court when it held: Based on the commonly accepted definitions of "bodily injury," "sickness" and "disease," the judicial trend to exclude non-physical harms such as emotional distress from the term "bodily injury" and the coverage anticipated by the parties in an automobile liability policy, we hold that the Bowmans' claim for negligent infliction of emotional distress is not a separate "bodily injury" under the Auto-Owners policy. Bowman v. Holcomb (1992), 83 Ohio App.3d 216, 220. We find Bowman v. Holcomb, supra, to be persuasive authority for our decision in the present case. The provision in the policy issued by appellee to Metropolitan Cablevision where coverage is offered for bodily injuries does not cover the type of physical symptoms stemming from the emotional distress caused by a wrongful discharge. Appellee is not liable for the payment of the $20,000.00 judgment against its insured. Appellant's first assignment of error is overruled. II THE LOWER COURT ERRED IN OVERRULING PLAINTIFF- APPELLANT'S MOTIONS FOR FRIVOLOUS CONDUCT SANCTIONS. Appellant argues that his motions presented triable issues, pursuant to R.C. 2323.51 and should have been ruled on subsequent to a hearing before the trial court. Appellant's argument is not well taken. Appellant's motions claimed that appellee's counsel were asserting defenses which were not warranted under existing law. Appellant was particularly troubled by appellee's assertion that an - 5 - exclusionary clause existed in the policy to preclude liability for payment on appellant's judgment. The provision cited by appellant had been deleted and replaced by an addendum to the policy, providing different exclusionary language which was, as applied to appellant, essentially the same as the deleted language. We can not find that the trial court abused its discretion in failing to hold a hearing as to these motions for sanctions. A motion for attorney fees under R.C. 2323.51 can be denied without a hearing when the trial court finds no basis for imposing sanctions. Pisani v. Pisani (1995), 101 Ohio App.3d 83 and Sheridan v. Harbison (1995), 101 Ohio App.3d 206. We find no abuse of discretion in the trial court's determination that a basis for imposing sanctions did not exist where appellee cited to an irrelevant portion of the policy for support of an argument which could have been supported just as well by the relevant provision. Appellant filed a motion for sanctions against appellee's appellate counsel with this Court, arguing the same point as was argued in appellant's motions filed with the trial court. We do not find merit in appellant's motion for sanctions. Although appellee's counsel is obviously not reading the policy thoroughly, a basis for the defense exists elsewhere in the policy. We do not find frivolous conduct in asserting the defense itself. Appellant's second assignment of error is overruled. The trial court's denial of appellant's motion for sanctions is affirmed. Appellant's motion for sanctions filed on appeal is - 6 - denied. The trial court's decision to grant appellee's motion for summary judgment is affirmed. - 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. DAVID T. MATIA, P.J., AND *PRYATEL, J., CONCUR ANN DYKE JUDGE *Sitting By Assignment: Judge August Pryatel, Retired, of the Eighth District Court of Appeals. 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 of decision by the .