[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 Defendants 

Auto-Owners (Mutual) Insurance Company, Owners Insurance Company (Collectively “AutoOwners”), The Church Agency, Inc., and Mike Coudriet. For the reasons set forth below, we 

reverse and remand the matter for proceedings consistent with this opinion. 

I. 

{¶2} Mr. Granger and Mr. Steigerwald established 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. Steigerwald 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 Church Agency and its broker Mr. Coudriet provided 

assistance in obtaining the policies. 
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{¶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, Inc., (“FHCS”) which investigated her claims of 

pre-leasing housing discrimination. In March 2011, FHCS and Ms. Kozera filed a complaint in 

federal court against Mr. Granger and Mr. Steigerwald alleging federal and state fair housing 

claims premised on discrimination based on familial status and race. 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 July 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 coverage 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 claims. 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 judgment and granted Auto-Owners’ and The Church 
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Agency’s and Mr. Coudriet’s motions for summary judgment. Mr. Granger and Mr. Steigerwald 

have appealed, raising one assignment 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 denying 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 the 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 conclusion 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 burden of demonstrating that there are no genuine 

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt, 

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must 
4 

 

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 citation 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 which provides excess coverage beyond an 

insured’s primary policies. Umbrella policies are different from standard excess 

insurance policies, since they provide both excess coverage (“vertical coverage”) 

and primary coverage (“horizontal coverage”). 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 and citations omitted.) Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio 

St.3d 306, 2007-Ohio-4917, ¶ 5. 
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{¶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 complaint 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 complaint, 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 the 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. 
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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 indicates 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 mental reaction (such as anguish, grief, fright, 

humiliation, or fury) that results from another person’s conduct[.]” (Emphasis added.) Black’s 
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Law Dictionary 563 (8th Ed.2004). Thus, it would appear 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 applies. 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 the 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 appropriate 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 the 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 necessarily 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 breached 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 by 

granting summary judgment in favor of Auto-Owners with respect to its bad faith claim. AutoOwners did move for summary judgment on this issue 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 and 
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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. Steigerwald 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 their 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 Agency 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 concluded that Auto-Owners did not owe Mr. Granger 

a defense, and, therefore, essentially The Church Agency and Mr. Coudriet could not be said to 

have caused Mr. Granger and Mr. Steigerwald any damage. Because we determined that AutoOwners was not entitled to summary judgment on the issue of whether it breached its contract 

with Mr. Granger under the umbrella policy by failing to defend him in the federal suit, it is 

necessary for the trial court to consider the merits of The Church Agency’s and Mr. Coudriet’s 
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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 proceedings 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 mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document 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 intend 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 contractual 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 itself to find the intent of the parties. 

Id. As a matter of law, a contract in unambiguous 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 citations and quotations omitted) Westfield Ins. Co. v. Hunter, 128 Ohio 

St.3d 540, 2011-Ohio-1818, ¶ 11. Moreover, “a defense 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). 
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{¶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 duty to defend against any claim that is 

“clearly and indisputably outside the 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 establish 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 regarding 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: 
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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 expected 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, wrongful 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 construction of the complaint underlying Auto 

Owners’ alleged duty to defend. In their complaint filed in federal court, FHCS and Ms. Kozera 

alleged the following. After Ms. Kozera inquired 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 son would be living with her, Mr. Granger told her 

that he would not rent the apartment anyone with 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 that “No * * * children are permitted – period. No 
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exceptions!” FHCS and Ms. Kozera alleged both a federal and state claim for discrimination. 

Ms. Kozera further alleged that she suffered damages for “emotional distress” as a result of Mr. 

Granger’s discrimination. 

{¶25} Mr. Granger construes Ms. Kozera’s claim for damages arising out of emotional 

distress as one for “humiliation,” and therefore “personal injury” as that term is defined in the 

umbrella policy. While the majority agrees with 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, specifically, one federal and one state claim for 

discrimination. I would construe the allegation of emotional distress merely as part of the prayer 

for damages, as it was not developed as a distinct cause of action. Assuming arguendo, 

however, that Ms. Kozera’s claims arguably present 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 policy’s exclusion for expected or intended injury. 

{¶26} Mr. Granger argues that, because violations of 42 U.S.C. 3604 (Fair Housing Act) 

and R.C. 4112.02(H) (prohibiting discrimination relating to the rental of housing 

accommodations) constitute strict liability offenses, his conduct was not intentional. The 

violation of a law prohibiting discrimination and the act of engaging 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 to 
14 

 

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 “Lauren Green” about the rental property, informing her that he is 

“selective” in his choice of tenants and that pets 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 provided 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, however, 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 sworn statement made subsequent to his deposition 

did not serve to create a genuine issue of material 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 sufficient explanation, create a genuine issue of material fact to 
15 

 

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 explanation 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. Kozera. The umbrella policy by its plain language 

excluded from coverage claims based on intentional conduct 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 indisputably outside the contracted policy language, Auto 

Owners owed no duty to defend Mr. Granger. Moreover, because the insurance company owed 

no duty to defend, its refusal to defend did not 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. Specifically, he argues that a 

genuine issue of material fact existed regarding 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 judgment 
16 

 

would render this argument moot. Because Auto Owners’ duty to defend and provide coverage 

was obviated by an applicable exclusion in the policy, 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. Coudriet. 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.