[Cite as OTARMA v. Miami Twp., 2023-Ohio-733.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

OTARMA, et al. 

 Appellees

v. 

MIAMI TOWNSHIP, OHIO, et al.

 Appellants

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C.A. No. 29570

Trial Court Case No. 2017 CV 04749

(Civil Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on March 10, 2023

. . . . . . . . . . . 

ROBERT J. GEHRING, BRIAN R. REDDEN, SABA ALAM, and EDDIE MCHALE, 

Attorneys for Appellees

 

TERENCE L. FAGUE and ZACHARY B. WHITE, Attorneys for Appellant

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} Miami Township appeals from the trial court’s entry of summary judgment in 

favor of plaintiff-appellee OTARMA and from the trial court’s overruling of Miami 

Township’s cross motion in this declaratory-judgment action resolving OTARMA’s duty to 
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defend and indemnify in a federal lawsuit arising under 42 U.S.C. 1983.1

{¶ 2} Miami Township contends the trial court erred in holding that OTARMA had

no duty to defend or indemnify in the federal lawsuit. Miami Township also claims the trial 

court erred in overruling a motion to compel discovery. 

{¶ 3} For the reasons set forth below, we conclude that OTARMA had no duty to 

defend Miami Township on eight of the nine causes of action alleged in the underlying 

lawsuit. However, the lawsuit included a cause of action for infliction of emotional distress

that potentially or arguably fell within the scope of coverage provided by OTARMA. 

Therefore, OTARMA had a duty to defend until the emotional-distress claim was 

dismissed from the federal lawsuit in September 2020. After that point, OTARMA had no 

remaining duty to defend or indemnify. Finally, we see no abuse of discretion in the trial 

court’s overruling of the motion to compel discovery. Accordingly, the trial court’s 

judgment will be affirmed in part and reversed in part. 

I. Background

{¶ 4} OTARMA is a political-subdivision risk pool providing liability coverage to 

Ohio townships. In 2013, Roger Gillispie sued Miami Township in federal district court. 

His lawsuit included claims under 42 U.S.C. 1983 and state law. Gillispie alleged that he 

had been wrongfully arrested, prosecuted, and convicted in 1991 for a series of sexual 

assaults. He filed the lawsuit after his release from prison following a successful petition 

1 The defendants-appellants are Miami Township, the Miami Township Board of 

Trustees, and Miami Township employees or former employees Matthew Scott Moore, 

Tim Wilson, Marvin Scothorn, John DiPetro, and Stephen Gray (deceased). For ease of 

reference and except when necessary to do otherwise, we will refer to the defendantsappellants collectively in the singular as “Miami Township.” 
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for a writ of habeas corpus. Miami Township tendered defense of the federal litigation to 

OTARMA, which accepted the defense under a reservation of rights.

{¶ 5} While the federal lawsuit remained pending, OTARMA filed this declaratoryjudgment action in October 2017. OTARMA sought a determination that it had no duty to 

defend or indemnify Miami Township. In May 2022, OTARMA filed a renewed motion for 

summary judgment on its complaint. Following briefing, the trial court sustained 

OTARMA’s motion and overruled a competing summary-judgment motion filed by Miami 

Township. In a July 2022 decision and entry, the trial court noted that the remaining claims 

and parties in the federal lawsuit had been narrowed substantially. At the time of the trial 

court’s ruling, the only remaining claims were counts one through five, which alleged 

violations of 42 U.S.C. 1983 by former Miami Township detective Matthew Scott Moore. 

Count one alleged that Moore had suppressed exculpatory evidence. Count two alleged 

that he had participated in a suggestive eyewitness identification. Count three alleged 

that he had fabricated evidence. Count four alleged malicious prosecution. Count five 

alleged destruction of exculpatory evidence. The trial court noted that all other claims and 

parties had been dismissed. 

{¶ 6} With regard to the five remaining claims under 42 U.S.C. 1983, the trial court

reviewed the OTARMA policy and found that it was “occurrence” based, meaning that 

Gillispie’s claims accrued when Moore’s allegedly wrongful acts took place. The trial court 

determined that “[a]ll of the acts constituting the critical elements” of the section 1983 

claims “took place prior to Gillispie’s conviction in 1991,” and certainly “sometime before 

1994[.]” Therefore, the trial court held that OTARMA’s contract with Miami Township was 
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not applicable, and OTARMA had no duty to defend or indemnify in the federal litigation. 

Shortly after the trial court’s decision, it filed a separate entry and order adding Civ.R. 

54(B) certification. This appeal by Miami Township followed. 

II. Analysis

{¶ 7} Under Civ.R. 56(C), summary judgment may be granted when the moving 

party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party 

is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio 

St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment is de 

novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841 

(4th Dist.1997). “We review the judgment independently and without deference to the trial 

court's decision.” (Citation omitted.) Id.

A. OTARMA’s Duty to Defend and Indemnify

{¶ 8} In the first of two assignments of error, Miami Township contends the trial 

court erred in sustaining OTARMA’s renewed summary-judgment motion, overruling its 

cross motion, and finding that OTARMA had no duty to defend or indemnify in the federal 

litigation. Miami Township raises three related issues. It contends the trial court erred in 

finding no genuine issue of material fact as to whether probable cause for Gillispie’s 

continued incarceration dissolved while an OTARMA policy was in effect. Miami Township 

also claims the trial court erred in interpreting plain policy language to find no coverage. 

Finally, Miami Township contends the trial court erred in failing to find that repeated or 
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continuing misconduct “may constitute multiple and/or continuous coverage triggers.” 

{¶ 9} We begin our analysis with a review of the OTARMA policy language and the 

allegations in Gillispie’s federal lawsuit. “The scope of the allegations in the complaint 

against the insured determines whether an insurance company has a duty to defend the 

insured.” Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 

874 N.E.2d 1155, ¶ 19. “The insurer must defend the insured in an action when the 

allegations state a claim that potentially or arguably falls within the liability insurance 

coverage.” No duty to defend exists “[w]hen all the claims are clearly and indisputably 

outside the contracted coverage.” Id. In other words, “the insurer need not provide a 

defense if there is no set of facts alleged in the complaint that, if proved true, would invoke 

coverage for any claim.” Granger v. Auto-Owners Ins., 144 Ohio St.3d 57, 2015-Ohio3279, 40 N.E.3d 1110, ¶ 21. Given that an insurer’s duty to defend is broader than its 

duty to indemnify, the absence of a duty to defend necessarily means there is no duty to 

indemnify. AIX Specialty Ins. Co. v. Big Limo, Inc., 547 F.Supp.3d 757, 762 (S.D. Ohio 

2021).

{¶ 10} Two OTARMA liability-coverage policies are at issue here. One is identified 

as the “Governmental Liability Coverage” (GLC) agreement, and the other is identified as 

the Legal Defense and Claim Payment Agreement (“LDCPA”). The GLC policy was in 

effect from July 24, 1996, to July 24, 1998. The LDCPA policy was in effect from July 24, 

1998, through the filing of Gillispie’s federal lawsuit. 

{¶ 11} On appeal, Miami Township cites the GLC policy’s “Law Enforcement 

Liability Coverage Part.” Among other things, it provided coverage for damages resulting 
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from “personal injury” caused by an “occurrence” that took place during the policy period. 

The Law Enforcement Liability Coverage Part defined “personal injury” to include nonbodily injury arising out of, inter alia, improper detention, false arrest, malicious 

prosecution, and violations of rights protected by civil-rights statutes. It defined an 

“occurrence” as “an incident brought about by law enforcement action committed or 

alleged to have been committed by the ‘Member’ or by anyone acting under the 

‘Member’s’ direction or control.” 

{¶ 12} Miami Township also relies on the LDCPA policy, which similarly provided 

coverage for damages resulting from an “injury” caused by an “occurrence” that took 

place during the policy period. The LDCPA policy defined “injury” to include harm arising 

out of, inter alia, improper detention, false arrest, malicious prosecution, and violations of 

rights protected by civil-rights statutes. The LDCPA policy defined an “occurrence” as “an 

accident including continuous or repeated exposure to substantially the same general 

harmful conditions, event, happening or a commission of a wrongful act.” The policy 

defined a “wrongful act” as “any actual or alleged error, misstatement, act of omission, 

neglect or breach of duty, including malfeasance, misfeasance or nonfeasance, but 

excluding willful misconduct, criminal conduct, fraud or malicious acts.” 

{¶ 13} Having identified the controlling language in the GLC and LDCPA policies, 

we turn now to the allegations in Roger Gillispie’s amended complaint in federal court.2

The amended complaint included detailed factual allegations about Miami Township 

2 The relevant allegations are found in Gillispie’s first amended complaint, which was filed 

in the United States District Court for the Southern District of Ohio on January 17, 2014 

in case number 3:13-cv-416.
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employees and others engaging in conduct that resulted in Gillispie’s 1991 wrongful 

conviction and imprisonment for raping three women. Although the majority of the factual 

allegations involved acts that predated Gillispie’s conviction, paragraph 73 of the 

amended complaint alleged: “Accordingly, even after the conviction, Defendant Moore 

and other Defendant Officers have continued to work to keep Mr. Gillispie behind bars by 

repeating their lies and misrepresentations in post-conviction proceedings and through 

efforts to conceal their own misconduct, thereby causing Mr. Gillispie further damage.”

{¶ 14} Gillispie’s amended complaint contained nine substantive counts. Counts 

one through five set forth claims under 42 U.S.C. 1983 predicated on suppression of 

exculpatory material, suggestive identification, fabricated evidence, malicious

prosecution, and destruction of exculpatory evidence. Count six through eight set forth 

state-law claims for malicious prosecution, infliction of emotional distress, and spoliation 

of evidence. Finally, count nine alleged that Miami Township had a statutory duty under 

Ohio law to indemnify its employees and former employees for any judgment entered 

against them personally. 

{¶ 15} The federal district court significantly narrowed the issues and parties in 

Gillispie’s lawsuit in September 2020. As a result of summary-judgment rulings, the only 

remaining claims were counts one through five alleging violations of 42 U.S.C. 1983 by 

Matthew Scott Moore. All claims against all other defendants were dismissed. Thereafter, 

Gillispie and Moore filed a November 17, 2022 stipulation in the federal lawsuit. They 

stipulated to the voluntary dismissal of counts three, four and five, which alleged violations 

of 42 U.S.C. 1983 predicated on fabricated evidence, malicious prosecution, and 
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destruction of exculpatory evidence. Following the stipulation, Gillispie’s two remaining 

section 1983 claims against Moore (suppression of exculpatory material and suggestive 

identification) proceeded to a late November 2022 jury trial in federal district court. We 

take judicial notice that the jury returned a verdict for Gillispie on both counts.3

{¶ 16} As noted above, resolution of OTARMA’s duty to defend in the federal-court 

litigation requires us to examine the allegations in Gillispie’s complaint to determine 

whether they potentially fall within the liability coverage of either OTARMA policy. With 

the exception of paragraph 73 of the amended complaint quoted above, the factual 

allegations preceding the substantive counts of Gillispie’s complaint appear to us to 

predate his 1991 conviction and incarceration. In addition, all but one of the substantive 

counts necessarily allege wrongful acts and misconduct that occurred prior to the effective 

date of either OTARMA policy. 

{¶ 17} Count one, which pleads a section 1983 claim for “Suppression of 

Exculpatory Material,” alleges that Moore and others “destroyed, failed to disclose, and 

otherwise withheld and/or suppressed exculpatory information and material from the 

prosecution and, thus, from Plaintiff.” It alleges that “[a]s a result of these violations, 

Plaintiff was deprived of his right to a fair trial and was falsely convicted for a crime of 

which he was innocent.” In other words, count one alleges that wrongful acts caused 

Gillispie to have an unfair trial and to be convicted unfairly. Thus, the acts necessarily 

3 The jury awarded Gillispie damages of $45 million against Moore personally. In 

response to interrogatories, the jury answered “no” when asked whether it had been 

proven that Moore had not acted in good faith or that he had acted outside the scope of 

his employment. These responses appear to be relevant to the township’s potential 

obligation under R.C. 2744.07 to indemnify Moore for the $45 million judgment against 

him. 
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occurred before the trial and conviction. 

{¶ 18} Count two, which pleads a section 1983 claim for “Suggestive 

Identification,” alleges that Moore and others “used improper and suggestive procedures 

to cause Plaintiff to be misidentified as the perpetrator.” It further alleges that “[t]his 

misconduct tainted the pretrial identifications of Mr. Gillispie, which were offered against 

him at trial, and the in-court identifications during his trial.” Count two alleges that “[a]s a 

result of these violations, Plaintiff was deprived of his right to a fair trial and was falsely 

convicted for a crime of which he was innocent.” Once again, count two alleges pretrial 

conduct that deprived Gillispie of a fair trial and resulted in a wrongful conviction. 

{¶ 19} Count three, which pleads a section 1983 claim for “Fabricated Evidence,” 

alleges that Moore and others “fabricated evidence, including without limitation, false 

police reports, fabricated statements attributed to witnesses, and their own fabricated 

testimony offered at both trials.”4 Count three alleges that “[a]s a result of these violations, 

Plaintiff was deprived of his right to a fair trial and was falsely convicted for a crime of 

which he was innocent.” Count three makes clear that the fabrications at issue were used 

to secure Gillispie’s conviction. Therefore, they necessarily predated the trial. 

{¶ 20} Count four, which pleads a section 1983 claim for “Malicious Prosecution,” 

alleges that Moore and others “instigated and continued the prosecution of Plaintiff 

without probable cause and acting out of malice.” It further alleges that “[a]s a result of 

4 Although counts three through nine were dismissed in the federal-court proceedings, 

they remain relevant insofar as OTARMA may have had a duty to defend against them 

prior to their dismissal. Given the dismissal of counts three through nine, the only counts 

relevant to OTARMA’s duty to indemnify are counts one and two, on which the jury 

returned its $45 million verdict against Moore. 
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the malicious prosecution, Plaintiff was falsely convicted for a crime of which he was 

innocent.” Once again, if the “malicious prosecution” resulted in a false conviction it 

necessarily had to occur before the conviction. 

{¶ 21} Count five, which pleads a section 1983 claim for “Destruction of 

Exculpatory Evidence,” alleges that Moore and others “suppressed, destroyed, or caused 

to be destroyed exculpatory and materially-favorable evidence, including but not limited 

to police reports, audio recordings, alibi evidence, and crime-scene evidence containing 

genetic material.” Count five also alleges that certain crime-lab employees “destroyed 

exculpatory evidence and materially-favorable evidence, including but not limited to crime 

scene evidence containing genetic material.” It further alleges that “[a]s a result of these 

violations, Plaintiff was deprived of his right to a fair trial and was falsely convicted for a 

crime of which he was innocent.” Once again, the wrongful acts necessarily predated trial 

if they resulted in an unfair trial and a false conviction. 

{¶ 22} Count six, which pleads a state-law claim for “Malicious Prosecution,” 

alleges that Moore and others “instigated and continued the prosecution of Plaintiff 

without probable cause and acting out of malice.” It alleges that “[a]s a result of the 

malicious prosecution, Plaintiff was falsely convicted for a crime of which he was 

innocent.” As noted above, if the “malicious prosecution” resulted in a false conviction it 

necessarily had to precede the conviction.

{¶ 23} Count seven, which pleads a state-law claim for “Infliction of Emotional 

Distress,” alleges that Moore and others “intentionally and/or recklessly engaged in 

extreme and outrageous conduct that caused Plaintiff severe emotional distress and also 
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bodily harm from his distress.” It further alleges that “Plaintiff suffered actual damages, 

pain and suffering, lost wages, and other damages as a direct and proximate result.”

Unlike the prior counts, which allege that specified misconduct occurred and that it 

resulted in an unfair trial and a wrongful conviction, count seven does not identify the 

distress-causing acts or make clear when they occurred. That being so, count seven may

be read as alleging acts of post-conviction infliction of emotional distress that occurred 

during one of the OTARMA policy periods. 

{¶ 24} Count eight, which pleads a state-law claim for “Spoliation of Evidence,” 

alleges that Moore and others “willfully destroyed evidence in a manner that disrupted 

Plaintiff’s criminal proceedings, knowing that there was pending or probable litigation that 

would involve this evidence.” It further alleges that “[a]s a result of the absence of this 

evidence, Plaintiff was falsely convicted for a crime of which he was innocent.” If the 

absence of the evidence resulted in the false conviction, the act of destroying the 

evidence necessarily must have occurred before the conviction. 

{¶ 25} Finally, count nine pleads a state-law claim for indemnification. It raises an 

issue of law regarding a potential statutory obligation of Miami Township to indemnify its 

current or former employees for any judgment rendered against them personally.5 But 

any statutory duty to indemnify that Miami Township may owe to its employees or former 

employees is distinct from OTARMA’s contractual duty to defend and indemnify Miami 

Township in Gillispie’s federal litigation. Moreover, the Ohio Supreme Court has made 

5 Count nine of Gillispie’s amended complaint cites R.C. 1729.031. In its September 21, 

2020 summary-judgment ruling, the federal district court noted Gillispie’s concession that 

this citation is a typographical error and that the indemnification statute is R.C. 2744.07. 
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clear that the statutory right to indemnification is a personal right held by the employee, 

not a judgment creditor. For that reason, a judgment creditor such as Gillispie may not 

assert an employee’s indemnification right in an action directly against a political 

subdivision. Ayers v. Cleveland, 160 Ohio St.3d 288, 2020-Ohio-1047, 156 N.E.3d 848.

Finally, count nine, which addresses indemnification rights between Miami Township and 

the individual defendants, does not itself allege any wrongful act that resulted in an injury.

Therefore, count nine of Gillispie’s amended complaint does not come within the scope 

of either OTARMA policy. 

{¶ 26} Having examined the causes of action in Gillispie’s amended complaint, we 

conclude that count seven, which states a claim for infliction of emotional distress, 

potentially or arguably alleges wrongful acts that occurred during one of the OTARMA 

policy periods. Therefore, with respect to count seven, OTARMA had a duty to defend 

Miami Township until September 2020, when count seven was dismissed in connection 

with the federal district court’s summary-judgment rulings. See Ward v. United Foundries, 

Inc., 129 Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 19 (“If the allegations state 

a claim that potentially or arguably falls within the liability insurance coverage, then the 

insurer must defend the insured in the action.”). 

{¶ 27} As for all other claims in Gillispie’s federal lawsuit, they necessarily allege 

wrongful acts that occurred prior to or at the time of his trial and conviction, which was 

before the effective date of the OTARMA policies. As noted above, both OTARMA policies 

only provide coverage for damages resulting from an injury caused by an act, or 

“occurrence,” that takes place during the policy period. Given that the wrongful acts 
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mentioned in every other count of Gillispie’s federal lawsuit were alleged to have occurred 

before the effective dates of the OTARMA policies, we conclude that OTARMA had no 

duty to defend or indemnify. 

{¶ 28} In reaching our conclusion, we again acknowledge the existence of 

paragraph 73 of Gillispie’s amended complaint. Paragraph 73 does allege that Moore and 

others “continued to work to keep Mr. Gillispie behind bars by repeating their lies and 

misrepresentations in post-conviction proceedings and through efforts to conceal their 

own misconduct.” Although this language—along with the rest of the complaint’s factual 

background—was incorporated by reference into each cause of action that followed, it 

does not correspond to the specific allegations supporting any of Gillispie’s substantive 

claims. Other than count seven, the substantive causes of action allege that certain 

wrongful acts occurred and that they resulted in Gillispie’s receiving an unfair trial and 

being wrongfully convicted. They do not allege or depend on any post-conviction 

misconduct by any of the defendants. Therefore, we are unpersuaded by Miami 

Township’s reliance on paragraph 73 to bring Gillispie’s actual claims within the scope of 

OTARMA’s policies. 

{¶ 29} We have reached our conclusion solely by examining the OTARMA policies 

and the allegations in Gillispie’s complaint. We note, however, that the federal district 

court’s jury instructions on the two surviving section 1983 claims shed additional light on 

the acts underpinning them. Addressing the two claims together, Instruction 20 advised 

the jury:

* * * Plaintiff Gillispie claims that Defendant Moore violated his right 
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to a fair trial in one or more of the following ways:

First, that Defendant Moore violated his right to a fair trial through 

unreliable identifications that were used as evidence against him in the 

criminal case; and

Second, that Defendant Moore violated his right to a fair trial by 

suppressing material evidence.

(Emphasis added.)

{¶ 30} With regard to the elements of the section 1983 claim predicated on 

suppressing evidence, the district court then instructed the jury that Gillispie was required 

to prove: 

1. Moore knowingly or recklessly concealed from the prosecutor readily 

apparent exculpatory and/or impeachment evidence during the criminal 

case and/or during Gillispie’s appeal.

2. The evidence was material; and

3. Gillispie was injured as a result.

(Emphasis added.)

{¶ 31} With regard to the section 1983 claim predicated on a suggestive 

identification, the district court instructed the jury that Gillispie was required to prove:

1. Moore knowingly or recklessly used unnecessarily suggestive 

identification procedures that resulted in one or more unreliable 

identifications;

2. Evidence of the one or more unreliable identifications was offered into 

evidence in the criminal case; and
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3. Gillispie was injured as a result.

(Emphasis added.)

{¶ 32} The foregoing claims are the only two on which indemnification remains an 

issue, and the district court’s jury instructions are consistent with our determination that 

OTARMA has no duty to indemnify Miami Township. Like Gillispie’s amended complaint 

in federal court, the jury instructions also demonstrate that his section 1983 claims are 

predicated on wrongful acts that predate the OTARMA policies.6

{¶ 33} Relying primarily on paragraph 73 of Gillispie’s amended complaint, Miami 

6

If we assume, arguendo, that Gillispie’s section 1983 claims also allege post-conviction 

suppression of evidence and related misconduct during the OTARMA policy periods, a 

potential issue arises as to whether a post-conviction constitutional right to exculpatory 

evidence even exists. Gillispie’s section 1983 claims are predicated largely on violations 

of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In District 

Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 

174 L.Ed.2d 38 (2009), the United States Supreme Court recognized that Brady involves 

a defendant’s due-process right to the disclosure of material exculpatory evidence before 

trial. Id. at 68. Osborne characterized Brady as “the wrong framework” for assessing 

disclosure obligations after a defendant is convicted and a case is closed. Id. at 68-69; 

see also Haughey v. County of Putnam, No. 18-CV-2861, 2020 WL 1503513, at *10 

(S.D.N.Y. Mar. 29, 2020) (recognizing that “several courts—and possibly the Supreme 

Court—have held that there is no post-conviction constitutional right to exculpatory 

evidence”); Gavitt v. Born, 835 F.3d 623, 647-648 (6th Cir.2016) (relying on Osborne to 

uphold the dismissal of a wrongfully-convicted plaintiff’s section 1983 claim predicated on 

law enforcement withholding exculpatory evidence “at the time of his trial” and also 

“throughout the period of his imprisonment, in violation of his due process rights”). We 

recognize that Osborne is distinguishable in some ways from the present case. Perhaps 

most significantly, Osborne involved evidence discovered after trial, whereas Miami 

Township contends Gillispie’s lawsuit involves evidence known before trial that continued 

to be suppressed after his conviction. Whether this distinction makes a difference is 

subject to dispute. In the portion of Gavitt cited above, the federal Sixth Circuit Court of 

Appeals appears to have found that it does not. In any event, we need not resolve what 

have been characterized as “thorny questions about the existence and scope of a 

constitutional right to post-conviction disclosure of exculpatory evidence.” Haughey at 

*10. We do not read the section 1983 claims in Gillispie’s lawsuit as relying on any postconviction non-disclosure of exculpatory evidence.
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Township does suggest that he alleges the commission of additional wrongful acts 

committed during the OTARMA policy periods by continuing to suppress exculpatory 

evidence, engaging in lies, and concealing prior misconduct. In our view, however, any 

post-conviction ongoing suppression of evidence or related wrongdoing that may be 

gleaned from the complaint was merely a continuation of alleged Brady violations 

committed earlier. Although an ethical obligation to disclose exculpatory evidence may 

continue after trial, the continuing obligation stems from an earlier completed act of nondisclosure. Here Gillispie’s federal-court complaint makes clear that any act of failing to 

disclose exculpatory evidence occurred prior to the effective date of the OTARMA 

policies. We reject the notion that continued suppression of evidence during postconviction proceedings constituted one or more new acts that occurred within the 

OTARMA policy periods.7 Travelers Indemnity Ins. Co. v. Mitchell, 925 F.3d 236, 245, fn.

4 (5th Cir.2019) (“The estates do allege that Forrest County officials committed additional 

wrongful acts during Travelers’ and Scottsdale’s policy periods by failing to come forward 

with exculpatory evidence or admit their civil rights violations. But other courts have 

rejected this argument, holding that failure to admit past unconstitutional acts does not 

retrigger an act-based policy.”).8

7

It is worth noting too that Miami Township’s argument about multiple or continuous acts 

or “triggers” occurring post-conviction during the OTARMA policy periods is largely 

academic in light of our determination above that Gillispie’s section 1983 claims do not 

allege or depend on any post-conviction wrongdoing by Moore or others.

 

8 Miami Township itself cites Travelers Indemnity for the proposition that insurance 

coverage need not “be triggered by a single moment of wrongful conduct[.]” Travelers 

Indemnity at 246. But that statement was true in Travelers Indemnity because the policies 

at issue were injury-based policies, not act-based policies. Coverage existed for injuries 

occurring during the applicable policy periods regardless of when the wrongful causal act 
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{¶ 34} “In wrongful conviction cases, the wrongful act is the one that causes the 

wrongful conviction; thus, act-based policies are usually triggered on or around the time 

of conviction.” Id. at 245. We note too that “Ohio, like the majority of states, applies the 

‘cause test’ when determining the number of occurrences under an insurance policy.” Big 

Lots Stores, Inc. v. Am. Guarantee & Liab. Ins. Co., 240 F. Supp.3d 725, 732 (S.D. Ohio 

2017), citing Parker Hannifin Corp. v. Steadfast Ins. Co., 445 F.Supp.2d 827 (N.D. Ohio 

2006). “Under the cause test, the court considers ‘if there was but one proximate, 

uninterrupted, and continuing cause which resulted in all of the injuries and damages.’ ” 

(Citation omitted.) Id. If so, “then there is a single occurrence under an insurance 

contract.” Id.; see also Indian Harbor Ins. Co. v. City of Waukegan, 392 Ill. Dec. 812, 33 

N.E.3d 613, ¶ 44 (Ill. App. 2015) (“Applying the cause theory * * * to the present case 

clearly establishes that this case presented a single cause and therefore a single 

occurrence. The alleged Brady violations that contributed to Rivera’s arrest and 

convictions might have had an ongoing effect over a period of time, but Rivera’s injury 

resulted from the ‘same conditions and was inflicted as part of an unbroken and 

uninterrupted continuum.’ ”) 9 Here the section 1983 claims in Gillispie’s amended 

occurred. Id. at 241. Travelers Indemnity does not help Miami Township because 

OTARMA’s policies are “occurrence” policies with act-based triggers, not injury-based 

triggers. For the same reason, we are unpersuaded by Miami Township’s citation to 

Ferguson v. St. Paul Fire & Marine Ins. Co. 597 S.W.3d 249 (Mo. App. 2019), and St. 

Paul Guardian Ins. Co. v. City of Newport, 804 Fed. Appx. 379 (6th Cir. 2020), which as 

Miami Township acknowledges both involved injury-based policies providing coverage if 

an injury occurred during the policy period. 

9

In Ferguson, 597 S.W.3d 249, 258, a Missouri court of appeals criticized Indian Harbor

for applying “act-based” or “occurrence-based” principles to an “injury-based” policy. That 

criticism does not apply here because OTARMA’s policies are “act-based” or “occurrencebased.” 
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complaint allege the commission of wrongful acts that predate the OTARMA policies. 

Those completed acts were the single cause of Gillispie’s “injury” of wrongful conviction 

and his lengthy imprisonment. 

{¶ 35} On appeal, Miami Township discusses whether we should apply (1) the 

“arrest-conviction rule,” which it describes as providing “that coverage is triggered only 

under a policy in effect on the date of the arrest and/or conviction”; (2) the “exoneration 

rule,” which it characterizes as providing “that coverage is triggered only under the policy 

in effect on the date of exoneration”; or (3) the “continuous trigger rule” or “multiple trigger 

rule,” which it describes as providing “that coverage is triggered under all applicable 

policies in effect between arrest through exoneration.” See Appellants’ Merit Brief at 17.

Miami Township asserts that the “arrest-conviction rule” represents the majority view but 

that the proper approach remains an open question in Ohio. 

{¶ 36} For purposes of our analysis herein, we need not “adopt” any of the 

foregoing rules. In evaluating OTARMA’s duty to defendant and indemnify, we simply 

have applied the pertinent policy language to the allegations in Gillispie’s complaint. As 

explained above, both OTARMA policies provide coverage for damages resulting from an 

injury caused by an act, or “occurrence,” that takes place during the policy period.

Therefore, the applicable “rule” in the present case is this: coverage is triggered only if a 

wrongful act occurs during the policy period and causes an injury. With the exception of 

count seven, the injury-causing acts alleged in Gillispie’s complaint necessarily did not 

occur during either OTARMA policy period. 

{¶ 37} Miami Township also stresses the absence of a “deemer” clause in the 
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OTARMA policies. It contends such a clause explicitly would deem all injuries arising out 

of continuous or repeated exposure to the same or substantially the same general 

conditions to be “one occurrence.” See Appellants’ Merit Brief at 15. In response, we note 

that the LDCPA policy comes close to containing such a clause insofar as it defines an 

“occurrence” as “an accident including continuous or repeated exposure to substantially 

the same general harmful conditions, event, happening or a commission of a wrongful 

act.” Regardless, the presence of a so-called “deemer” clause might make resolution of 

a coverage dispute easier, but we do not view the absence of such a clause as dispositive. 

{¶ 38} Finally, we turn to Miami Township’s argument that probable cause for 

Gillispie’s continued incarceration dissolved while the OTARMA polices were in effect. 

See Appellants’ Merit Brief at 10-12. This argument appears to relate to Gillispie’s 

malicious-prosecution claims under section 1983 and/or state law. Miami Township 

suggests that probable cause may have disappeared while an OTARMA policy was in 

effect and that the disappearance of probable cause would result in the accrual of a 

malicious-prosecution claim. 

{¶ 39} We find Miami Township’s argument unpersuasive for at least two reasons. 

First, with regard to OTARMA’s duty to defend, counts four and six of Gillispie’s complaint 

set forth factually identical malicious-prosecution claims under 42 U.S.C. 1983 and state 

law. As noted above, they alleged that Moore and others “instigated and continued the 

prosecution of Plaintiff without probable cause and acting out of malice.” They further 

alleged that “[a]s a result of the malicious prosecution, Plaintiff was falsely convicted for 

a crime of which he was innocent.” 
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{¶ 40} For present purposes, we find it notable that the malicious-prosecution

claims alleged instigation of the prosecution without probable cause. This allegation is 

indicative of a claim by Gillispie that probable cause never existed, not that it initially 

existed and later evaporated. In addition, if the malicious prosecution resulted in a false 

conviction, it necessarily had to occur before the conviction. Therefore, as plead in 

Gillispie’s complaint, the malicious-prosecution claims did not involve acts occurring 

during the OTARMA policy periods. Second, with regard to OTARMA’s duty to indemnify, 

the state-law malicious-prosecution claim was dismissed in conjunction with the federal 

district court’s September 2020 summary-judgment rulings. Gillispie later voluntarily 

dismissed his section 1983 malicious-prosecution claim before trial. Therefore, OTARMA 

cannot have a duty to indemnify on either claim. 

{¶ 41} Based on the reasoning set forth above, we find that OTARMA had a duty 

to defend Miami Township on count seven of Gillispie’s amended complaint in federal 

district court. That duty to defend continued until September 2020, when count seven was 

dismissed. OTARMA had no duty to defend or indemnify Miami Township with respect to 

any other causes of action in Gillispie’s federal lawsuit. 

{¶ 42} Miami Township’s first assignment of error is sustained insofar as the trial 

court erred in entering summary judgment for OTARMA regarding its duty to defend on 

count seven. Given the absence of any factual dispute, the trial court should have entered 

summary judgment in favor of Miami Township on its cross motion with respect to 

OTARMA’s duty to defend on count seven until September 2020. In all other respects, 

Miami Township’s first assignment of error is overruled. 
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B. Motion to Compel Discovery

{¶ 43} In its second assignment of error, Miami Township contends the trial court 

abused its discretion in overruling a November 21, 2018 motion to compel discovery. In 

its motion, Miami Township sought to compel OTARMA to respond to and comply with

interrogatories and requests for document production. Miami Township maintained that it 

was entitled to know who made the no-coverage decision, why it was made, and whether 

the applicable process was followed. The trial court overruled the motion on January 28, 

2019. The trial court later denied reconsideration, reasoning that the requested discovery 

was unnecessary, unduly burdensome, and unlikely to lead to the discovery of relevant, 

admissible evidence. 

{¶ 44} Upon review, we see no abuse of discretion in the trial court’s discovery 

ruling. By Miami Township’s own admission, the discovery dispute concerned OTARMA’s 

claims-handling and decision-making process and its decision to seek declaratory 

judgment regarding its duty to defend and indemnify. In its reply brief, Miami Township 

also asserts that the requested discovery was relevant to a potential bad-faith claim. 

{¶ 45} In our analysis herein, however, we have reviewed the terms of OTARMA’s 

policies and the allegations of Gillispie’s complaint and fully resolved the issues raised in 

this declaratory-judgment action. The facts are not in dispute, and there is no 

disagreement as to the underlying coverage documents. We are unpersuaded that 

discovery regarding OTARMA’s claims-handling or decision-making was necessary. 

Moreover, in light of our present ruling, Miami Township has no potential bad-faith claim. 

OTARMA provided a defense in the federal-court litigation, and OTARMA has no duty to 
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indemnify. Accordingly, Miami Township’s second assignment of error is overruled.

III. Conclusion

{¶ 46} The trial court’s entry of summary judgment in this declaratory-judgment 

action is reversed insofar as it declared that OTARMA had no duty to defend Miami 

Township on count seven of Gillispie’s amended complaint. The trial court erred in 

entering summary judgment in favor of OTARMA on that issue. The trial court should 

have sustained Miami Township’s cross motion for summary judgment to the extent that 

OTARMA did have a duty to defend on count seven until it was dismissed in September 

2020.10 The trial court’s entry of summary judgment in favor of OTARMA is affirmed in all 

other respects. As a matter of law, OTARMA had no duty to defend or indemnify Miami 

Township on any other cause of action. Finally, the trial court did not abuse its discretion 

in overruling Miami Township’s motion to compel discovery.

. . . . . . . . . . . . .

EPLEY, J. and LEWIS, J., concur. 

10 Although the denial of summary judgment ordinarily is not appealable, an exception 

exists in declaratory-judgment actions where there are no genuine issues of material fact 

and a trial court fully sets forth the rights and responsibilities of the parties. In such a case, 

a denial of summary judgment may be appealable. See, e.g., Algren v. Algren, 183 Ohio 

App.3d 114, 2009-Ohio-3009, 916 N.E.2d 491, ¶ 34, fn. 4 (2d Dist.), citing Hoop v. 

Nationwide Mut. Fire Ins. Co., 2d Dist. Montgomery No. 19686, 2003-Ohio-3772, ¶ 2, fn.

1. We find that to be the case here. We note too that Miami Township did appeal from 

both the trial court’s entry of summary judgment in favor of OTARMA and from its 

overruling of Miami Township’s cross motion.