COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73575 SONIA M. NOVOSEL, ET AL. : : Plaintiffs-appellees : : : -vs- : JOURNAL ENTRY : AND : OPINION GUSTO, INC., dba EUCLID TAVERN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : DECEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-323,054 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Michael R. Kube, Esq.` 1650 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 For defendant-appellant: Alexander Jurczenko, Esq. 1750 Standard Bldg. 1370 Ontario Street Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Third-party plaintiff-appellant, Gusto Inc., et al., appeals the decision of the Cuyahoga County Court of Common Pleas to -2- granted summary judgment in favor of third-party defendant- appellee, Owners Insurance Company. Two errors were raised for review. This court, finding no error, affirms the decision of the trial court. On January 14, 1997, plaintiffs, Sonia Novosel, et al., filed this action against Gusto, Inc. Plaintiffs claimed Gusto, Inc., who operated a business known as the Euclid Tavern which, negligently allowed admission to Vincent Lombardo and Adam Godec who were minors on November 11, 1995. Plaintiffs claimed Gusto, Inc. served the two minors alcoholic beverages. It was plaintiffs' contention that as a proximate result, Adam Godec operated a vehicle in an intoxicated condition and became involved in an automobile accident in which Vincent Lombardo was severely injured. Gusto, Inc. (hereinafter plaintiff-appellant ) filed a third party complaint on June 30, 1997 against its insurance carrier Owners Insurance Company (hereinafter defendant-appellee ). Plaintiff-appellant argued under its policy defendant-appellee is or may be liable to plaintiffs for all or part of plaintiff's claim and that it owed a duty to investigate, settle and/or defend plaintiff-appellant in the cause of action. On July 29, 1997, the trial court conducted a pre-trial and scheduled a settlement conference for October 15, 1997. On September 5, 1997, defendant-appellee filed a motion for summary judgment. On October 3, 1997, plaintiffs, Sonia Novosel, et al., filed a brief in opposition to the motion for summary judgment. Defendant-appellee replied to said brief in opposition on October -3- 8, 1997. On October 24, 1997, the trial court granted defendant- appellee's motion for summary judgment. On October 29, 1997, plaintiff-appellant filedits brief in opposition to the motion for summary judgment. Plaintiff-appellant then timely filed this appeal. Plaintiff-appellant states as its first assignment of error: I. THE TRIAL COURT ERRED IN FAILING TO GIVE FOURTEEN (14) DAYS ADVANCE NOTICE OF A HEARING DATE ON THE THIRD PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, WHICH WAS FILED WITHOUT LEAVE OF COURT. Plaintiff-appellant argues it was entitled to notice of fourteen (14) days in advance of the hearing date on the motion for summary judgment. Since the court did not give notice of a hearing date, plaintiff-appellant argues its brief in opposition was timely. Moreover, plaintiff-appellant argues the motion for summary judgment should not have even been considered since it was filed without leave of court. We disagree. Initially, we note that plaintiff-appellant's failure to timely raise this matter at the trial court level, by way of motion to strike or by way of abjection raised in a brief in opposition timely filed, waives any error in the consideration of the trial court's action. See Roger v. McDonald's Restaurants (1982), 8 Ohio App.3d 256, 258; Walker v. Sims Bros. Buick (Dec. 7, 1995), Cuyahoga App. No. 68777, unreported; Wilkerson v. Eaton Corp. (Mar. 10, 1994), Cuyahoga App. No. 65812, unreported; Hines v. Aetna casualty & Surety Co. (Jan. 9, 1992), Cuyahoga App. No. 59600, unreported. -4- Moreover, if we were to consider said issue, this Court has consistently held that a trial court's granting a motion for summary judgment filed without leave indicates its implicit granting of leave. Juergens v. Strang, Klubnik & Assoc., Inc. (1994), 96 Ohio App.3d 223, 234; Habeeb v. Stanley Magic Door, Inc. (Dec. 14, 1995), Cuyahoga App. No. 68793, unreported. See, also, Smith v. Cincinnati Gas & Elec. Co. (1991), 75 Ohio App.3d 567, 572; Lucas v. Automanage, Inc. (April 6, 1992), Butler App. No. CA-91-05-100, unreported; Bade v. General Motors Corp. (Dec. 20, 1991), Geauga App. No. 90-G-1599, unreported. Therefore, if this issue were ripe for appeal, by the trial court's own action, leave was implicitly given to file said motion for summary judgement. Plaintiff-appellant's contention that its brief in opposition was timely because it did not receive notice of a hearing fourteen (14) days in advance of the court's ruling on the motion for summary judgment is similarly untenable. As we stated in Higgins v. McDonnel (1995), 105 Ohio App.3d 199: Civ.R. 56(C) specifically states that a motion shall be served at least fourteen days before the time fixed for a hearing. The Supreme Court has set a minimum time limitation by which courts and counsel alike must abide, but does not preclude a court from exercising discretion and allowing the litigants additional time. Loc.R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division, allows an adverse party thirty days after the service of the motion in which to file a brief in opposition. Since the local rule does not shorten the time set by the Supreme Court, there is no inconsistency which would require invalidation of the local rule. Id. at 202. Loc.R. 11.1 specifically provides: -5- Unless otherwise ordered by the court motions for summary judgment shall be heard on briefs and other materials authorized by civil rule 56(C) without oral arguments. The adverse party may file a brief in opposition with accompanying materials, within thirty days after service of the motion. Accordingly, is clear that an adverse party has thirty (30) days in which to respond with a brief in opposition. In this case, defendant-appellee filed its motion for summary judgment on September 5, 1997. After allowing three additional days for mail service pursuant to Civ.R. 6(E), plaintiff-appellant had until October 8, 1997 to file its brief in opposition. Plaintiff- appellant's October 29th filing of its brief in opposition was therefore untimely. Higgens, supra. Similarly, pursuant to plain language of the local rules, since the trial court did not schedule a hearing on the pending motion for summary judgment, a trial court does not err in ruling upon said motion without a hearing after giving the parties the appropriate time in which to file its responsive briefs. See Francis E. Gaul v. Sterling Plate Glass & Paint, Co., et al. (Aug. 25, 1994), Cuyahoga App. No. 64842, unreported. For all these reasons, plaintiff-appellant's brief in opposition was not timely filed and the trial court did not err in granted said motion without a hearing. Additionally, plaintiff- appellant failed to preserve any perceived error on appeal concerning the consideration of said motion without the necessary leave of court. Plaintiff-appellant's first assignment of error is not well taken. Plaintiff-appellant states as its second assignment of error: -6- II. THE TRIAL COURT ERRED IN GRANTING THIRD PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SINCE THERE ARE GENUINE ISSUES OF MATERIAL FACTS AND THIRD PARTY DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Plaintiff-appellant argues the trial court erred in granting summary judgment since the policy at issue excludes coverage for only bodily injury caused by contributing to the intoxication to any person. Plaintiff-appellant argues that the original claim asserted liability on two grounds: 1) serving alcoholic beverages and 2) negligently allowing minors into establishment. Since the second claim would not be covered by the exclusionary provision, plaintiff-appellant argues defendant-appellee had a duty to defendant plaintiff-appellant concerning this cause of action. Civ.R. 56 provides that 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 conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio App.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts -7- must be resolved in favor of the non-moving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio State Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Medina, Ltd. of Texas (1991), 59 Ohio St.3d 108. Under Dresher, *** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim. Id. at 296. The non- moving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The non-moving party must set forth specific facts by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id. It is axiomatic that the interpretation of a contract provision in an issue of law which is properly adjudicated through summary judgment. When reviewing the language of the contract provision, we are mindful that "[w]ords and phrases used in an insurance policy must be given their natural and commonly accepted meaning, where they in fact possess such meaning, to the end that a reasonable interpretation of the insurance contract consistent with the apparent object and plain intent of the parties may be determined. [Citations omitted]. The insurer, having prepared the policy, must also be prepared to accept any reasonable interpretation, consistent with the foregoing, in favor of the -8- insured." Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168. See, also, Weiker v. Motorist Mut. Ins. Co. (1998), 82 Ohio St.3d 182 In this case, the pertinent provisions of the Commercial General Liability Coverage Form are as follows: I(A)(1)(a) Insuring Agreement. We 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. We will have the right and duty to defend any suit seeking those damages. We may at our discretion investigate any occurrence and settle any claim of suit that may result ***. * * * I(A)(2) Exclusions. This insurance does not apply to: * * * c. Bodily injury or property damage for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcohol beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance, or regulation relating to the sale, gift, distribution, or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving, or furnishing alcoholic beverages. An insurer has no duty to defend where the acts alleged of an insured fall outside the scope of policy coverage. Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108. However, in Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, the Supreme Court held: -9- "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." See, also, Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582. Initially, we note that contrary to plaintiff-appellant's assertions, by the clear and unambiguous language of the insurance agreement, defendant-appellee has the discretion to investigate a potential claim under the policy. There is no duty to investigate claims. More importantly however, we find no ambiguity in the exclusionary provision of the insurance contract. Its plain meaning is that the policy does not insure bodily injuries caused by the insureds causing or contributing to the intoxication of any person and/or the insureds furnishing alcoholic beverages to a person under the legal age. The initial complaint alleges the insured negligently allowed minors into the establishment and sold them alcoholic beverages. As a proximate result, the minor subsequently ran off the road into a tree as a result of his intoxication causing severe injuries to his passenger. This clearly falls under the above mentioned exclusionary provisions. Plaintiff-appellant's argument that permitting a minor into the establishment is a separate cause of action outside the scope of the exclusionary provision is un unreasonable construction of both the initial complaint and the insurance policy. The trial court did not err in granting summary -10- judgment in favor of defendant-appellee. Plaintiff-appellant's second assignment of error is not well taken. Judgment affirmed. -11- 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 Cuyahoga County 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 M. PORTER, P.J. AND DIANE KARPINSKI, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .