COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72273 PLUMBERS LOCAL UNION NO. 55 : ACCELERATED DOCKET HEALTH & WELFARE FUND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION STATE AUTO INSURANCE COMPANIES : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 13. 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. CV-304777 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ANDREW R. KASLE (#042370) HAZELWOOD & KASLE 1710 Ohio Savings Plaza 1801 East Ninth Street Cleveland, Ohio 44114 For Defendant-Appellant: ROBERT G. HURT (#0020378) 7029 Pearl Road-Suite 310 Middleburg Hts., Ohio 44130 PER CURIAM: Defendant-appellant State Auto Insurance Companies ( appellant ) appeals the judgment of the trial court granting 2 summary judgment in favor of plaintiff-appellee Plumbers Local Union No. 55 Health and Welfare Fund ( appellee ). Appellant assigns the following error for our review: THE TRIAL COURT ERRED IN ITS CONSTRUCTION OF THE SURETY BOND INSTRUMENT AND, THEREFORE, ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO APPELLEE AND DENYING SUMMARY JUDGMENT TO APPELLANT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 12, 1996, appellee filed a two-count complaint in the Cuyahoga County Court of Common Pleas. Count I of appellee's complaint alleged breach of suretyship contract; and Count II of appellee's complaint alleged bad faith. On April 25, 1996, appellant filed its answer and third-party complaint against third- party defendant Ben Eulinberg and Ware Plumbing and Heating Company, Inc. for breach of the bond agreement. On October 23, 1996, third-party defendant Ben Eulinberg was dismissed as a party defendant due to his death. On December 16, 1996, appellee filed a motion for summary judgment. On January 15, 1997, appellant filed its motion in opposition to appellee's motion for summary judgment, as well as its own motion for summary judgment. On May 7, 1997, the trial court granted appellee's motion for summary judgment and denied appellant's motion for summary judgment stating [t]his is a final judgment under 2505.02 of the Ohio Revised Code. Pursuant to Civ.R. 54(B), there is not just reason for delay. (Judgment 3 Entry, May 8, 1997). II. Appellee is an employee benefit plan created pursuant to a collective bargaining agreement between the Plumbers Local Union No. 55 and the Cleveland Plumbing Contractors Association. As a collection agent and clearinghouse for fringe benefit contributions and wage deductions owed pursuant to the collective bargaining agreement, appellee brings the present action on its own behalf. Ware Plumbing and Heating Co. Inc. ( Ware ), a local plumbing contractor which operated in Cuyahoga County, Ohio, was a signatory to the collective bargaining agreement. As such, Ware was responsible for the payment of fringe benefit contributions and wage deductions owed to appellee pursuant to the collective bargaining agreement. In order to ensure payment of the fringe benefit contributions and wage deductions, Ware obtained a suretyship bond with appellant on January 15, 1989. The suretyship bond originally obtained by Ware was for $10,000.00 and the terms of the suretyship bond stated that Ware was the principal, appellant was the surety and appellee was an obligee on the bond. On December 4, 1991, the suretyship bond was increased to $25,000.00. Under the terms of the suretyship bond, appellant agreed to act as surety relative to Ware's obligations to appellee under the collective bargaining agreement for: Wagesdue employee members of Local 55, Health and Welfare Fund payments, Pension Fund payments, Vacation and Holiday Fund payments and Industry and Promotion Fund payments. In August, 1992, Ware defaulted on its monthly fringe benefit 4 payments secured by the bond. As of June 2, 1993, Ware owed unpaid fringe benefit payments for October, November and December, 1992, and March, April and May, 1993, totaling $33,403.83. On April 28, 1993, appellant sent written notice to appellee that the suretyship bond would be canceled as of June 2, 1993. On September 12, 1994, appellee notified appellant that it intended to recover on the suretyship bond for Ware's default. On November 22, 1994, Ware filed for bankruptcy. III. In its sole assignment of error, appellant contends the trial courterred in its construction of the surety bond instrument, and therefore erred as a matter of law in granting summary judgment to appellee. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; 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 conclusion is adverse to that party. Lovsin, et al. V. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In the present case, appellant argues that the trial court erred in finding appellee was an obligee under the bond, but not an 5 obligee bound by the bond's notice provision. In its judgment entry dated May 8, 1997, the trial court specifically held that: The plaintiff [appellee] is not squarely listed or created by the bond instrument as the obligee. It is acknowledged by all parties that the plaintiff is in fact an obligee under this instrument. The language which fails to make the plaintiff the obligee with the responsibility of giving notice to the surety is this language. * * * We, Ware Plumbing & Heating Co., Inc. * * * principal * * * and State Automobile Mutual and Surety Company * * * surety * * * are held and firmly bound into the following: Wages due employee member of Local 55, Health & Welfare Fund payments, Pension Fund Payments, Vacation and Holiday Fund payments and Industry and Promotion Fund payments. (Hereinafter called the Obligee, whether there be one or more)in the full and just sum of TEN THOUSAND DOLLARS * * * to the payment of which said sum of money said principal binds himself * * *; and said surety binds itself * * * jointly and severally by the presents. The contract entered into between Ware and appellant was a suretyship contract. Suretyship is the contractual relation whereby one person, the surety, agrees to answer for the debt, default or miscarriage of another, the principal, with the surety generally being primarily and jointly liable with principal. Solon Family Physicians, Inc. v. Buckles (1994), 96 Ohio App.3d 460, 463- 464 citing Hopkins v. INA Underwriters Ins. Co. (1988), 44 Ohio App.3d 186, 188. The [Suretyship] arrangement is made to induce the creditor to deal with the borrower where there might otherwise be a reluctance to do so. Under this arrangement, the nature, size, and source of possible loss to the creditor is known from the start. In addition, there is no payment from the creditor to the surety or guarantor for this insured payment. Rather, 6 a kind of tripartite relationship is formed. The consideration running from the creditor to the debtor is deemed sufficient to support the surety's promise to make the debt good. In turn, the benefit flowing to the debtor by virtue of the surety's promise places that debtor under an implied legal obligation to make good any loss incurred by any payment the surety must ultimately make to the creditor. 74 Am.Jur.2d Suretyship S171 (1974). Buckles, supraciting United States v. Tilleraas (C.A.6, 1983), 709 F.2d 1088, 1091. When interpreting a contract of surety, any doubtful language in the contract must be construed strongly against the surety, and in favor of indemnity, which the creditor has reasonable ground to expect. Id. In the present case, the contract of surety clearly lists appellee as an obligee on the contract. In particular, the contract states that appellant [the surety] is held firmly bound unto the following: * * * Local 55, Health and Welfare Fund payments, Pension Fund payments, Vacation and Holiday Fund payments and Industry and Promotion Fund payments. Thus, each of the aforementioned groups became an obligee under the contract of surety. However, it was the Local 55 who was the first named obligee. As the first named obligee, the Local 55 was bound by the terms of the contract which state: 1. If more than one Obligee is named in this bond, the Obligee first named shall act for itself and for every other Obligee. 2. The bond shall terminate as to future acts of the Principal upon discovery by the Obligee of any default in wage or funds payment. 7 * * * 6. The Obligee shall in accordance with the terms and conditions of this bond report to the Surety any loss within 60 days from the date of discovery by the Obligee of such default. Based upon the clear and unambiguous terms of the contract stated supra, appellee, Plumbers Local Union No. 55 Health and Welfare Fund, is not bound by the notification requirements set forth in the contract of surety in the event of Ware's default. The contract of surety entered into between Ware and appellant created a guarantee of payment under which appellant became liable to appellee. The record demonstrates that Ware was in default. Further, under Tilleraas no consideration need be demonstrated for a valid contract of surety to exist. Accordingly, we determine that appellant is liable for the debt. Judgment affirmed. x 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. ___________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE ___________________________________ TIMOTHY E. McMONAGLE, JUDGE ____________________________________ LEO M. SPELLACY, JUDGE N.B. This 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(B) 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 .