[Cite as Granger v. Auto Owners Ins. , 2013-Ohio-2792.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STEVE GRANGER, et al. Appellants

v. AUTO OWNERS INS., et al. Appellees C.A. No. 26473

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2011 07 3997

DECISION AND JOURNAL ENTRY Dated: June 28, 2013

BELFANCE, Judge. {¶1} Plaintiffs-Appellants Steve Granger and Paul Steigerwald appeal the judgment of the Summit County Court of Common Pleas granting summary judgment in favor of DefendantsAuto-Owners (Mutual) Insurance Company, Owners Insurance Company (Collectively “AutoOwners”), The Church Agency, Inc., and Mike C oudriet. For the reasons set forth below, we reverse and remand the matter for proceedi ngs consistent with this opinion.

I. {¶2} Mr. Granger and Mr. Steigerwald establishe d a trust to hold their assets, including a certain piece of real property in Akron, Ohio that Mr. Granger and Mr. Steigerwald have used as rental property. Both Mr. Granger and Mr. Stei gerwald are trustees of the trust. Auto-Owners issued a dwelling insurance policy to Mr. Granger, Mr. Steigerwald, and the trust and an umbrella policy to Mr. Granger alone. The Chur ch Agency and its broke r Mr. Coudriet provided assistance in obtaining the policies.2

{¶3} Valerie Kozera, the mother of a then-six-year old child, attempted to rent the premises, but Mr. Granger informed her that he would not rent to anyone with children. Ms. Kozera contacted Fair Housing Contact Service, In c., (“FHCS”) which investigated her claims of pre-leasing housing discrimination. In March 20 11, FHCS and Ms. Kozera filed a complaint in federal court against Mr. Granger and Mr. Steige rwald alleging federal and state fair housing claims premised on discriminati on based on familial status and r ace. The Church Agency was notified of the lawsuit, and it in turn notified Auto Owners Insurance. In a letter to Mr. Steigerwald and Mr. Granger dated June 8, 2011, Auto-Owners stated that it had received notification that Mr. Steigerwald and Mr. Granger had been accused of discrimination but that the dwelling policy definition of personal injury did not include discrimination. Thus, the dwelling policy did not cover the claim. In Ju ly 2011, Mr. Granger and Mr . Steigerwald settled the federal case for $32,500. {¶4} On July 21, 2011, Mr. Granger and Mr. Steigerwald filed the instant lawsuit against Auto-Owners, The Church Agency, and Mr . Coudriet for breach of contract and estoppel arising out of Auto-Owners’ refusal to provide c overage and a defense in the federal suit. The complaint is unclear as to the specific claims against The Church Agency and Mr. Coudriet. {¶5} Mr. Granger and Mr. Steigerwald filed a motion for partial summary judgment on the issue of Auto-Owners’ duty to defend pursuant to the umbrella policy. Auto-Owners filed a motion for summary judgment asserting that it had no duty to provide coverage or defense under the policies for discrimination cl aims. Additionally, The Church Agency and Mr. Coudriet filed a separate motion for summary judgment. The trial court denied Mr . Granger’s and Mr. Steigerwald’s motion for partial summary judgme nt and granted Auto-Owners’ and The Church3

Agency’s and Mr. Coudriet’s motions for summary judgment. Mr. Granger and Mr. Steigerwald have appealed, raising one assi gnment of error for review.

II.

ASSIGNMENT OR ERROR THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT[.] {¶6} Mr. Granger and Mr. Steigerwald assert that the trial court erred in granting summary judgment to Auto-Owners, The Church Agency, and Mr. Coudriet. Notably, they do not assert that the trial court erred in denyin g Mr. Granger’s and Mr. Steigerwald’s motion for partial summary judgment. {¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. , 77 Ohio St.3d 102, 105 (1996). “We apply th e same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v. Robart , 9th Dist. No. 25427, 2011– Ohio–1519, ¶ 8. {¶8} Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1) No genuine issue as to any material fact remains 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 to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conc lusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burde n of demonstrating that there are no genuine

issues of material fact co ncerning an essential element of the opponent’s case. Dresher v. Burt , 75 Ohio St.3d 280, 292 (1996). If the movant satis fies this burden, the nonmoving party “‘must4

set forth specific facts showing that there is a genuine issue for trial.’” Id . at 293, quoting Civ.R. 56(E). {¶9} With respect to Mr. Granger’s and Mr. Steigerwald’s assertion the trial court erred in granting summary judgment to Auto-Owners, they maintain that the trial court erred only because Mr. Granger was owed a defense under the umbrella policy. Our analysis is thus limited

to that issue. {¶10} “An insurance policy is a contract between the insurer and the insured. If we must interpret a provision in the policy, we look to the policy language and rely on the plain and ordinary meaning of the words used to ascertain the intent of the parties to the contract.” (Internal citations omitted.) Ward v. United Foundries, Inc. , 129 Ohio St.3d 292, 2011-Ohio3176, ¶ 18. “Ambiguous provisions in an insurance policy must be construed strictly against the insurer and liberally in favor of the insured. This is particularly true when considering provisions that purport to limit or qualify coverage under the policy. ” (Internal cita tion omitted.) Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 11. “[A]n exclusion in an insurance policy will be interpreted as applying only to that which is clearly intended to be excluded.” (Internal quotations and citation omitted.) Id. An umbrella policy is a policy whic h provides excess coverage beyond an insured’s primary policies. Umbrella policies are different from standard excess insurance policies, since th ey provide both excess coverage (“vertical coverage”) and primary coverage (“horizontal covera ge”). The vertical coverage provides additional coverage above the limits of the insured’s underlying primary insurance, whereas the horizontal coverage is said to “drop down” to provide primary coverage for situations where the underlying insurance provides no coverage at all. (Internal quotations a nd citations omitted.) Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917, ¶ 5.5

{¶11} “[T]he duty to defend is broader than and distinct from the duty to indemnify.”

Ward at ¶ 19. “The duty to defend arises when a co mplaint alleges a claim that could be covered by the insurance policy.” CPS Holdings, Inc. at ¶ 6. The duty “is determined by the scope of the allegations in the complaint.” Ward at ¶ 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.” Id. “Once an insurer must defend one claim within a complaint, it must defend the insured on all the other claims within the comp laint, even if they bear no relation to the insurance-policy coverage.” Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio2180, ¶ 13. “But if all the claims are clearly and indisputably outside th e contracted coverage,

the insurer need not defend the insured.” Ward at ¶ 19. {¶12} Thus, we examine the umbrella policy to determine whether there exists an issue of fact as to whether Auto-Owners breached its contract with Mr. Granger by failing to provide a

defense in the federal suit. The umbrella policy names Steve Granger as an insured under the policy. There is nothing in the policy to suggest that Mr. Steigerwald is an insured under the umbrella policy, and Mr. Granger and Mr. Steigerwald do not make an argument to the contrary. The policy states:

DEFENSE – SETTLEMENT With respect to any occurrence: (a) not covered by underlying insurance; but (b) covered by this policy except for the retained limit;

we will: (a) defend any suit against the insured at our expense, using lawyers of our choice. * * * (b) investigate or settle any claim or suit as we think appropriate.6

The umbrella policy further states that Auto Owners “will pay on behalf of the insured the ultimate net loss in excess of the retained limit which the insured becomes legally obligated to pay as damages because of personal injury * * * .” Personal injury is defined as: (a) bodily injury, sickness, disease, disability or shock; (b) mental anguish or mental injury; (c) false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation; and (d) libel, slander, defamation of character or invasion of rights of privacy; including resulting death, sustained by any person. {¶13} As is evident from the above language, Auto-Owners defined personal injury both in terms of certain claims, such as malicious prosecution, and in terms of resulting harms, such as humiliation or mental anguish. Auto-Owners asserted in its motion for summary judgment that the claims against Mr. Granger and Mr. Steigerwald for pre-leasing discrimination do not constitute personal injury under the umbrella policy and thus are not covered. Therefore, according to Auto-Owners, it had no duty to defend Mr. Granger. Auto-Owners also asserted that even if pre-leasing discrimination did constitute a personal injury under the umbrella policy, it would be excluded under the provision that in dicates the policy does not cover “[p]ersonal injury * * * expected or intended by the insured[]” because Mr. Granger intended to

discriminate. {¶14} Mr. Granger and Mr. Steigerwald asserted in their response that, because Ms. Kozera claimed in her complaint that she suffered emotional distress, she arguably suffered humiliation, which is a personal injury covered under the policy. We agree. Emotional distress has been defined as “[a] highly unpleasant ment al reaction (such as anguish, grief, fright,

humiliation , or fury) that results from another pe rson’s conduct[.]” (E mphasis added.) Black’s7

Law Dictionary 563 (8th Ed.2004). Thus, it would app ear that the federal complaint alleges a personal injury as contemplated by the umbrella policy. {¶15} Moreover, based upon the limited arguments made below, we cannot at this point

determine whether the exclusion a pplies. The dissent maintains that, because the record is clear that Mr. Granger intended the discrimination , the exclusion applies and Auto-Owners had no duty to defend. However, this approach ignores th e plain language of the policy. The relevant inquiry under the exclusion portion of the policy is whether the personal injury was expected or intended. Thus, the appropr iate question to ask is whether Mr. Granger expected or intended Ms. Kozera to be humiliated by his conduct. There has not even been any argument advanced by Auto-Owners on this point, let alone th e introduction of relevant evidence. See Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312, ¶ 59 (“An insurer’s motion for summary judgment may be properly granted when intent may be inferred as a matter of law. In cases such as this one, where the insured’s act does not necessa rily result in harm, we cannot infer an intent to cause injury as a matter of law.”). Thus, we conclude that Auto-Owners is not entitled to summary judgment on the issue of whether it br eached the contract by failing to defend Mr. Granger pursuant to the umbrella policy. This portion of Mr. Granger’s and Mr. Steigerwald’s assignment of error is sustained. {¶16} Mr. Granger and Mr. Steigerwald further argue that the trial court erred bygranting summary judgment in favor of Auto-Owners with respect to its bad faith claim. AutoOwners did move for summary judgment on this i ssue and the trial court, without qualification, granted summary judgment to Auto-Owners. Because the trial court does not discuss the bad faith claim in its judgment entry, its basis for awarding summary judgment on this issue is entirely unclear. We are unsure what role the trial court’s determination that Mr. Granger and8

Mr. Steigerwald were not entitled to coverage or a defense played in determining that AutoOwners was entitled to summary judgment on Mr. Granger’s and Mr. Steigerwald’s bad faith claim. Accordingly, upon remand, the trial court should consider this issue in the first instance in light of our conclusion that Auto-Owners was not entitled to summary judgment on the breach of contract claim with respect to its failure to provide a defense to Mr. Granger under the umbrella policy. {¶17} Additionally, Mr. Granger and Mr. Steigerw ald argue that the trial court erred by granting summary judgment in favor The Church Agency and Mr. Coudriet. Specifically, they argue that a genuine issue of material fact existed regarding whether The Church Agency and

Mr. Coudriet breached their duties owed to th eir clients by failing to timely submit Mr. Granger’s insurance claim to Auto-Owners. They do not appear to challenge the trial court’s conclusion that The Church Agency and Mr. Coudriet were entitled to summary judgment on Mr. Granger’s and Mr. Steigerwald’s breach of contract claim. Nor do they challenge the trial court’s determination that there was no breach of duty with respect to the submission of the claim under the dwelling policy. {¶18} In addressing whether The Church Agen cy and Mr. Coudriet breached any duties with respect to the submission of the claim as to Mr. Granger under the umbrella policy, the trial

court based its decision on the fact that it conc luded that Auto-Owners did not owe Mr. Granger a defense, and, therefore, essentially The Church Agency and Mr. Coudriet could not be said tohave caused Mr. Granger and Mr. Steigerwald any damage. Because we determined that AutoOwners was not entitled to summary judgment on th e issue of whether it breached its contract with Mr. Granger under the umbre lla policy by failing to defend h im in the federal suit, it is necessary for the trial court to consider the me rits of The Church Agency’s and Mr. Coudriet’s9

motion on this point. Neura v. Goodwill Industries, 9th Dist. No. 11CA0052-M, 2012-Ohio2351, ¶ 19. We sustain Mr. Granger’s and Mr . Steigerwald’s assignment of error.

III. {¶19} In light of the foregoing, we reverse the judgment of the Summit County Court of Common Pleas and remand the matter for proc eedings consistent with this opinion. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. CONCURS.10

CARR, J. DISSENTING. {¶20} I respectfully dissent. Because I would conclude that Auto Owners demonstrated that Mr. Granger intended to discriminate against Ms. Kozera based on her familial status, while Mr. Granger failed to show that he did not inte nd any discrimination, I would affirm the trial court’s award of summary judgment to the insurance company. {¶21} It is well settled that the interpretation of an insurance policy, like any other contract, is a matter of law. Cincinnati Ins. Co. v. CPS Holdings, Inc. , 115 Ohio St.3d 306, 2007-Ohio-4917, ¶ 7. The Ohio Supreme Court directed:

When confronted with an issue of contract ual interpretation, the role of a court is to give effect to the intent of the parties to the agreement. Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos. , 86 Ohio St.3d 270, 273 (1999), citing Employers’ Liab. Assur. Corp. v. Roehm , 99 Ohio St. 343 (1919), syllabus. See also Ohio Constitution, Article II, Section 28. We examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. We look to the plain and ordinary meaning of the language used in the policy unless another meaning is clearly apparent from the contents of the policy. Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241 (1978), paragraph two of the syllabus. When the language of a written contract is clear, a court may look no further than the writing itsel f to find the intent of the parties. Id . As a matter of law, a contract in una mbiguous if it can be given a definite legal meaning. Gulf Ins. Co. v. Burns Motors, Inc. , 22 S.W.3d 417, 423 (Tex.2000). Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 11. “An exclusion in an insurance policy will be interpreted as applying only to that which is clearly intended to be excluded.” (Internal citati ons and quotations omitted) Westfield Ins. Co. v. Hunter , 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 11. Moreover, “a defe nse based on an exception or exclusion in an insurance policy is an affirmative one, and the burden is cast on the insurer to establish it.” Continental Ins. Co. v. Louis Marx Co., Inc. , 64 Ohio St.2d 399, 401 (1980).11

{¶22} The majority and Mr. Granger are correct that the duty to defend is broader than and distinct from the insurer’s duty to provide coverage. Ohio Govt. Risk Mgt. Plan v. Harrison , 115 Ohio St.3d 241, 2007-Ohio-4948, ¶ 19. “‘The test of the duty of an insurance company, under a policy of liability insurance, to defend an action against an insured, is the scope of the allegations of the complaint in the action against the insured, and where the complaint brings the action within the coverage of the policy the insurer is required to make a defense, regardless of the ultimate outcome of the action or its liability to the insured.’” Willoughby Hills v. Cincinnati

Ins. Co. , 9 Ohio St.3d 177, 178-179 (1984), quoting Motorists Mut. v. Trainor , 33 Ohio St.2d 41 (1973), paragraph two of the syllabus. Therefore, the insurance company has a duty to defend its insured whenever the allegations in the complaint state a claim that “arguably” falls within the

coverage. Harrison at ¶ 19. However, the insurer has no dut y to defend against any claim that is “clearly and indisputably outside th e contracted policy language.” CPS Holdings at ¶ 6, citing Preferred Risk Ins. Co. v. Gill , 30 Ohio St.3d 108, 113 (1987); see also Harrison at ¶ 19; Maxum Indemn. Co. v. Selective Ins. Co. of South Carolina , 9th Dist. No. 11CA0015, 2012-Ohio-2115, ¶ 17 (holding that “once the insurer is able to estab lish that there is no set of facts that would bring the allegations of the complaint within coverage of its policy, its duty to defend is extinguished.”). {¶23} The relevant policy provisions regardin g the duty to defend are as follows:

DEFENSE – SETTLEMENT With respect to any occurrence: not covered by underlying insurance; but covered by this policy except for the retained limit;

we will:12

defend any suit against the insured at our expense, using lawyers of our choice. * * * investigate or settle any claim or suit as we think appropriate. The policy further contains the following relevant exclusion:

EXCLUSIONS

We do not cover:

* * Personal injury or property damage ex pected or intended by the insured. The policy defines “personal injury” to mean: bodily injury, sickness, disease, disability or shock; mental anguish or mental injury; false arrest, false imprisonment, wrongfu l eviction, wrongful detention, malicious prosecution or humiliation; and libel, slander, defamation of character or invasion of rights of privacy; including resulting death, sustained by any person. {¶24} I disagree with the majority’s construc tion of the complaint underlying Auto Owners’ alleged duty to defend. In their complain t filed in federa l court, FHCS and Ms. Kozera alleged the following. After Ms. Kozera inqui red about an apartment that Mr. Granger had advertised for rent, he asked her who would be living in the apartment with her. After Ms. Kozera told Mr. Granger that her six-year old so n would be living with her, Mr. Granger told her that he would not rent the apartment anyone w ith children. Ms. Kozera contacted FHCS. The agency conducted an investigation, sending trained testers to inquire about renting the premises. Mr. Granger, both verbally and in writing, informed testers who stated that they had children that he would not rent to people with children. Mr. Granger further provided one of the testers with a copy of the lease which emphatically stated th at “No * * * children are permitted – period. No13

exceptions!” FHCS and Ms. Kozera alleged both a federal and state claim for discrimination. Ms. Kozera further alleged that she suffered da mages for “emotional distress” as a result of Mr. Granger’s discrimination. {¶25} Mr. Granger construes Ms. Kozera’s cla im for damages arising out of emotional distress as one for “humiliation,” a nd therefore “personal injury” as that term is defined in the umbrella policy. While the majority agrees wi th this construction, I do not. Nowhere in the complaint does any form of the word “humiliation” appear. Moreover, my review of the federal complaint indicates only two causes of action, sp ecifically, one federal a nd one state claim for

discrimination. I would c onstrue the allegation of emotional distress merely as part of the prayer for damages, as it was not developed as a di stinct cause of action. Assuming arguendo, however, that Ms. Kozera’s claims arguably presen t a claim for personal injury as that term is defined in the policy, I would conclude that Auto Owners’ duty to defend was abrogated by application of the plain language of the polic y’s exclusion for expected or intended injury. {¶26} Mr. Granger argues that, because violati ons of 42 U.S.C. 3604 (Fair Housing Act) and R.C. 4112.02(H) (prohibiting discrimina tion relating to the rental of housing accommodations) constitute strict liability offe nses, his conduct was not intentional. The violation of a law prohibiting di scrimination and the act of en gaging in conduct intended or expected to cause personal injury are not dependent events. The umbrella policy does not limit its exclusion for intended or expected harm to only situations in which the insured has been convicted or found liable for an offense requiring proof of intent. Moreover, the commission of a strict liability offense does not preclude the ability of the actor to have acted with intent (or any other culpable mental state). The question in this case was whether Mr. Granger intended to14

discriminate against Ms. Kozera. I believe that the trial court properly concluded that no genuine issue of material fact existed in that regard. {¶27} Auto Owners deposed Mr. Granger who testified and admitted that he told Ms. Kozera and others that he would not rent to people with children. He testified that he wished to maintain a quiet environment for his tenants. Mr. Granger further admitted during his deposition

that he sent an email to “Lau ren Green” about the rental property, informing her that he is “selective” in his choice of tenants and that pe ts and children are not allowed. “Lauren Green”

was one of the testers sent to the property by FHCS to investigate Ms. Kozera’s allegation of discrimination. A copy of the lease Mr. Granger pr ovided to prospective tenants, attached to the federal lawsuit which is appended to Mr. Granger’s complaint, clearly states that no children are permitted on the premises under the lease. In addition, Mr. Granger admitted in his deposition that he violated the discrimination laws. Based on this evidence, I would conclude that Auto

Owners met its initial burden under Dresher v. Burt , 75 Ohio St.3d 280, 293 (1996), to show that Mr. Granger intended to discriminate against Ms. Kozera based on her familial status. {¶28} I would conclude that Mr. Granger, howev er, failed to meet his reciprocal burden

under State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 449 (1996), to show that he did not intend to discriminate against Ms. Kozera when he declined to rent to her based on her familial status. In response to the defendants’ motions for summary judgment, Mr. Granger submitted his affidavit in which he averred that he did not intend to discriminate against Ms.

Kozera or others. I would conclude that his sw orn statement made subsequent to his deposition did not serve to create a genuine issue of materi al fact. This Court has recognized that “‘an affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without suffici ent explanation, create a genuine issue of material fact to15

defeat a motion for summary judgment.’” First Energy Solutions v. Gene B. Glick Co. , 9th Dist. No. 23646, 2007-Ohio-7044, ¶ 12, quoting Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 28. In this case, Mr. Granger offered no expl anation for the disparity between his deposition testimony and the subsequent sworn statement in his deposition. Accordingly, he failed to present evidence to contradict Auto Owners’ evidence that he intended to discriminate against Ms. Kozera by refusing to rent to her on the basis of her familial status. {¶29} I would conclude that there was no genuine issue of material fact regarding Mr. Granger’s intent to discriminate against Ms. Koze ra. The umbrella policy by its plain language excluded from coverage claims ba sed on intentional c onduct by the insured. The policy further unambiguously stated that the insurer would only defend the insured against claims “covered by this policy * * *.” Because Ms. Kozera’s discrimination claims were not arguably covered by the policy, and were in fact clearly and indisput ably outside the contracted policy language, Auto Owners owed no duty to defend Mr. Granger. Mo reover, because the insurance company owed no duty to defend, its refusal to defend did no t constitute bad faith. Accordingly, I would conclude that the trial court did not err by finding that no genuine issue of material fact existed and that Auto Owners was entitled to judgment as a matter of law. {¶30} Mr. Granger further argues that the trial court erred by granting summary judgment in favor of The Church Agency and Mr. Coudriet. Specifical ly, he argues that a genuine issue of material fact existed regard ing whether The Church Agency and Mr. Coudriet breached their duties owed to their client by failing to timely submit Mr. Granger’s insurance claim to Auto Owners. Assuming that Mr. Granger’s complaint alleges a cause of action against the insurance agent and the company that helped him procure insurance policies from Auto Owners, my resolution of the issue relating to Auto Owners’ motion for summary judgment16

would render this argument moot. Because Auto Owners’ duty to defend and provide coverage was obviated by an applicable exclusion in the polic y, the agency’s delay, if any, in forwarding the claim to Auto Owners does not create a genuine issue of material fact as to any claim against The Church Agency and Mr. Coudriet which might be gleaned from the complaint. Accordingly, I would conclude that the trial court did not err in granting summary judgment in favor of The Church Agency and Mr. Coudrie t. Accordingly, I would overrule Messrs. Granger’s and Steigerwald’s assignment of error.

APPEARANCES: THOMAS C. LOEPP, Attorney at Law, for Appellants. BRIAN T. WINCHESTER and DAWN E. SNYDER, Attorneys at Law, for Appellees. STEPHAN KREMER and HOLLY MARIE WILSON, Attorneys at Law, for Appellees.