[Cite as R&M Materials Handling, Inc. v. Cincinnati Ins. Co. , 2014-Ohio-949.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY R&M MATERIALS HANDLING, INC. Plaintiff-Appellee/Cross-Appellant

v. THE CINCINNATI INSURANCE CO. Defendant-Appellan t/Cross-Appellee

Appellate Case No. 2013-CA-40 Trial Court Case No. 2011-CV-154
(Civil Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of March, 2014.

. . . . . . . . . . . TODD A. BRENNER, Atty. Reg. No. 0051839, 555 Metro Place North, Suite 225, Dublin, Ohio 43017 Attorney for Plaintiff-Appellee/Cross-Appellant RICHARD M. GARNER, Atty. Reg. No. 0061734, DENNIS R. FOGARTY, Atty. Reg. No. 0055563, 1200 Fifth Third Center, 600 Superior Avenue, East, Cleveland, Ohio 44114 Attorney for Defendant -Appellant/Cross-Appellee

. . . . . . . . . . . . . 2

 WELBAUM, J. {¶ 1} Defendant-Appellant/Cross- Appellee, The Cincinnati Insurance Company, appeals from the decision of the Champaign C ounty Court of Common Pleas granting summary judgment in favor of Plaintiff-Appellee/Cross- Appellant, R&M Materials Handling, Inc., on its supplemental complaint filed pursuant to R.C. 3929.06. R&M Materials Handling, Inc. has also filed a cross-appeal from the tria l court's decision regarding the am ount of prejudgment interest it was awarded. For the reasons outlined below, we reverse the judgment of the trial court and remand the cause for further proceedings.

I. Facts and Course of Proceedings {¶ 2} On March 17, 2004, R&M Materials Handlin g, Inc. (R&M), filed a complaint against Paris Parts, LLC (Paris Parts), as well as four other defendants, in the United States District Court for the Southern District of Ohio. As part of its complaint, R&M alleged claims of copyright infringement, copyright conve rsion, trademark infri ngement, trademark disparagement, misappropriation of trade secrets, breach of fiduciary duty, tortious interference with business relationships, unfai r competition, deceptive trade prac tices, and unjust enrichment. When the lawsuit commenced, Paris Parts was insured by The Cincinnati Insurance Company (CIC), under an insurance policy that included commercial general liab ility coverage. As a result, Paris Parts forwarded R&M’s complain t to CIC and requested CIC to defend and indemnify the company. By le tter dated June 7, 2004, CI C determined that no coverage existed under the policy for R&M’s claims , and it declined to defend and indemnify Paris Parts. {¶ 3} During the course of litigation, R&M vol untarily dismissed the complaint against 3

 Paris Parts only to refile the action in the Di strict Court on May 15, 2006. The refiled complaint removed one defendant and limited R&M’s claims to misappropriation of trade secrets, trademark infringement, trademar k disparagement, unfair competiti on, tortious interference with business relations, and deceptive trade practices . On July 15, 2010, an agreed judgment was entered against Paris Parts on all counts asserted in the refiled co mplaint. Thereafter, on August 19, 2010, the District Court awarded R&M dama ges in the amount of $2,281,934 plus interest from the date of judgment and co sts. CIC was first notified of the refiled action two months after R&M was awarded the judgment. {¶ 4} Paris Parts did not satisfy the j udgment, so on June 10, 2011, R&M filed a supplemental complaint for damages against CIC pursuant to R.C. 3929.06 in the Champaign County Court of Common Pleas. The supplemental complaint alleged that CIC was required to indemnify Paris Parts under its insurance policy and pay R&M th e policy’s $1,000,000 liability limit. Specifically, R&M alleged that the policy provided liability coverage for “advertising injury,” and that said coverage was triggered by its trademark infringement claim against Paris
Parts. {¶ 5} Thereafter, R&M and CIC filed cross- motions for summary judgment on the supplemental complaint. CIC contended in its motion that there was no genuine issue of material fact that coverage does not exist for Paris Parts under the “adver tising injury” provisions of the policy because: (1) R&M’s damages did not arise from an “advertising injury” as defined in the policy; (2) an advertising injury was not caused in the course of advertising Paris Parts’s goods, products, or services during the policy peri od; (3) the policy’s vari ous exclusions preclude coverage; and (4) Paris Parts failed to comply with a precondition to coverage when it did not 4

 notify CIC of the refiled lawsuit. In support of its motion for summary judgment, CIC attached all relevant pleadings and corres pondences, the policy at issue, and an affidavit of CIC’s Casualty Claims Superintendent, Michael Lally. {¶ 6} R&M argued in its motion for summary judgment that there is no genuine issue of material fact that the tradem ark claims alleged against Paris Parts triggered coverage under the policy as an “advertising injury” given that the trademark claims stemmed from Paris Parts improperly advertising and marketing R&M’s products. A dditionally, R&M claimed that the policy’s exclusions do not preclude coverage becau se they only apply to advertising injuries based on libel, slander, disparagem ent, and invasion of privacy. R&M also contended that there was no genuine issue of material fact that CIC declined to defend or indemnify Paris Parts after it obtained notice of the original lawsuit in 2004, and that said denial waived Paris Parts’s obligation to abide by the policy’s notice conditi ons. In support of its cross-motion for summary judgment, R&M merely attached the underlying complaint from 2004 and the corresponding civil coversheet. {¶ 7} The trial court denied CIC’s motion fo r summary judgment, but granted summary judgment in favor of R&M in the amount of the policy’s $1,000,000 liability limit. In so holding, the trial court made no findings of fact and did not sp ecify the amount of prejudgment interest to be awarded R&M. As a result, R&M filed a motion for prejudgment interest arguing that it was entitled to interest from June 7, 2004, the date that CIC refused to defend and indemnify it, which amounted to $448,100. The tria l court, however, dete rmined that R&M was entitled to prejudgment inte rest from September 18, 2010, the date on which R&M became eligible to assert a claim against CIC under R.C. 3929.06, which amounted to $77,123.29. 5

 {¶ 8} CIC now appeals from the trial court’s decision granting summary judgment in favor of R&M, raising one assignme nt of error. R&M has also filed a cross-appeal regarding the award of prejudgment interest and ra ises one assignment of error.

II. Assignment of Error {¶ 9} CIC’s sole assignment of error is as follows:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING PLAINTIFF-APPELLANT R&M MATERIALS HANDLING INC.’S MOTION FOR SUMMARY JUDGMENT AND OVERRULING DEFENDANT-APPELLEE THE CINCINNATI INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT. {¶ 10} Under this assignment of error, CIC contends that the trial court erred in granting summary judgment in favor of R&M on the issue of coverage because: (1) Paris Parts did not cause an “advertising injury” as defined by the policy; (2) an advertising injury was not caused in the course of advertisin g Paris Parts’s goods, products, or se rvices during the policy period; (3) the policy exclusions preclude coverage; and (4) Paris Parts failed to comply with a precondition to coverage when it did not notif y CIC of the refiled lawsuit. Summary Judgment Standard {¶ 11} A trial court may grant a moving party summary judgment "if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact, if an y timely filed in the action, show th at there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Civ.R. 56(C). 6

 In other words, summary judgment may be gran ted “if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclu sion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evid ence construed most str ongly in his favor.” (Citation omitted.) Smith v. Five Rivers MetroParks , 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999). {¶ 12} “A party who moves for summary judgment bears the initial burden of informing the trial court of the basis of its motion and ‘i dentifying those portions of the record that demonstrate the genuine absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims * * *.’ ” Doriott v. MVHE, Inc ., 2d Dist. Montgomery No. 20040, 2004-Ohio-867, ¶ 37, quoting Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). “We review summary judgment decisions de novo, which means that we apply the same standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co. , 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.). R.C. 3929.06 {¶ 13} The cross-motions for summary judgment in this case arise from R&M filing a complaint against CIC pursuant to R.C. 3929.06. Under R.C. 3929.06, plaintiffs who are awarded damages at trial may f ile a posttrial, supplemental co mplaint against the judgment debtor’s insurer to recover da mages covered under the judgment debtor’s insurance policy. Estate of Heintzelman v. Air Experts, Inc ., 126 Ohio St.3d 138, 2010-Ohio 3264, 931 N.E.2d 548, ¶ 11. Specifically, R.C. 3929.06(A)(1) provides th at the plaintiff “is entitled as judgment creditor to have an amount up to the remain ing limit of liability cove rage provided in the 7

 judgment debtor’s policy of liability insurance applied to the satisfaction of the final judgment.” If the judgment debtor’s insurer has not paid the judgment creditor within 30 days of the entry of final judgment, “the judgment creditor may file in the court that entered the final judgment a supplemental complaint against the insurer seeking the entry of a judgment ordering the insurer to pay the judgment creditor the requisite am ount.” (Emphasis added.) R.C. 3929.06(A)(2). “The word ‘may’ within the statute indicates that a judgment creditor is merely permitted-not mandated-to file its ac tion in the same cour t pronouncing judgment.” Benahmed v. Houston
Cas. Co. , 486 Fed.Appx. 508 (6th Cir.2012). {¶ 14} In a supplemental action, th e plaintiff’s rights agai nst the defendant insurer “cannot rise above those of the insured.” Bennett v. Swift & Co. , 170 Ohio St. 168, 163 N.E.2d 362 (1959), paragraph one of the syllabus. Therefore, “a plai ntiff proceeding against an insurance company under a supplemental complaint is subject to the limitations and conditions of the insurance contract between the insurance company and its insured * * *.” Appointe v. Seecharan , 8th Dist. Cuyahoga No. 86408, 2006-Ohio-938, ¶ 21, citing Conold v. Stern, 138 Ohio St. 352, 35 N.E.2d 133 (1941) and Bennett at paragraph one of the syllabus. Accordingly, the plaintiff in a supplemental action must prove by a prepondera nce of the evidence, that the terms of the policy have been complied with. Teter v. Kenilworth Ins. Co. , 9th Dist. Lorain No. 2283, 1975 WL 180667, *1 (July 30, 1975); see also Owens-Illinois, Inc. v. Aetna Cas. & Sur.
Co. , 990 F.2d 865, 874 (6th Cir.1993). Policy Analysis {¶ 15} The language of the CIC policy in this case must be reviewed to determine whether the trial court correctly concluded that coverage exists for Paris Parts’s actions under the 8

 “advertising injury” provisions of the policy. The policy provides that CIC “will pay those sums that the insured becomes legally obligated to pay as damages because of * * * ‘advertising injury’ to which this insurance applies.” The insurance applies to: “ ‘Advertising injury’ caused by an offense committed in the course of advertising [Paris Parts’s] goods, products or services; but only if the offense was committed in the ‘covera ge territory’ during the policy period.” {¶ 16} “Advertising injury” is defined by the policy as an injury arising out of one or more of the following offenses: a.) Oral or written publicati on of material that slande rs or libels a person or organization or disparages a person's or or ganization's goods, products or services; b.) Oral or written publication of material that violates a person's right of privacy; c.) Misappropriation of adve rtising ideas or style of doing business; or d.) Infringement of copyright, title or slogan. {¶ 17} R&M claims that Paris Parts’s act of trademark infringement qualifies as an “advertising injury” under “misappropr iation of advertising ideas or style of doing business.” In its appellate brief, CIC concedes that courts have interpreted trademark infringement claims to imply misappropriation of advertising ideas and st yle of doing business, but requests that we follow the contrary view set forth in Advance Watch Co., Ltd. v. Kemper Natl. Ins. Co. , 99 F.3d 795, 800-803 (6th Cir.1996). In that case, the Sixth Circuit reviewed policy language similar to that at issue here and held that under Michigan law, “misappropriation of advertising ideas or style of doing business” covere d under the "advertising injury” pr ovision of a commercial general liability policy did not extend to claims of trademark or trade dress infringement. Id . at 802. {¶ 18} However, in AMCO Ins. Co. v. Lauren-Spencer, Inc ., 500 F.Supp.2d 721 9

 (S.D.Ohio 2007), the United States Di strict Court for the Southern District of Ohio recognized that Advance Watch “has often been severely criticized by other courts and represents the minority view.” Id . at 730, citing Pizza Magia Intl., LLC v. Assurance Co. of America , 447 F.Supp.2d 766, 772 (W.D.Ky. 2006). The District C ourt determined that “Sixth Circuit law cannot control * * * because Ohio explicitly rejected * * * Advance Watch’s ‘restrictive holding’
” in Westfield Ins. Co. v. Factfinder Marketing Research, Inc. , 168 Ohio App.3d 391, 2006-Ohio-4380, 860 N.E.2d 145 (1st Dist.). AMCO at 732. Moreover, the District Court credited Factfinder’s analysis of the misappropriation issue. Id. {¶ 19} In Factfinder , the First Appellate District concluded that the plaintiff’s allegation that the defendant wrongly used its “trademarks in materials presented to clients,” which “misled the clients as to the origin of the products a nd services” arguably fell under “misappropriation of advertising ideas of style of doing business.” Factfinder at ¶ 27. The court noted that it has been “generally found that trade-dress and tr ademark infringement can be covered under the policy as an advertising injury caused by the ‘misappropriation of advertising ideas or style of doing business,’ where the misappropriated intell ectual property draws the public’s attention to the product and makes the source of the product readily identif iable.” (Citation omitted.) Id . at ¶ 22. {¶ 20} Additionally, Factfinder stated that “advertising id ea” has been found to mean “ ‘any idea or concept related to the prom otion of the product to the public.’ ” Id . at ¶ 23, quoting Hyman v. Nationwide Mut. Fire Ins. Co. , 304 F.3d 1179, 1188 (11th Cir.2002). (Other citation omitted.) Factfinder further indicated that, “style of doing business” has been interpreted as “ ‘the manner in which a company promotes, presents, and markets its products to 10

 the public.’ ” Id . at ¶ 24, quoting Hyman at 1189 and Adolfo House Distrib. Corp. v. Travelers Prop. & Cas. Ins ., 165 F.Supp.2d 1332, 1339 (S.D.Fla. 2001). {¶ 21} In the present case, R&M alleged trad emark infringement on grounds that Paris Parts “used and continued to use reproductions, copies or co lorable imitations of [R&M's] registered trademarks in connection with the sale, offering for sale, distri bution or advertising of [Paris Parts’s] goods.” Complaint (May 15, 2006) , ¶ 42. R&M also alleged that the use of its trademark by Paris Parts “is likely to cause confusion or mistake and is likely to deceive.” Id. at ¶ 43. By entering an agreed judgment on all counts asserted in the complaint, Paris Parts admitted liability for trademark infringement. Accordingly, there is no genuine issue of material fact that Paris Parts engaged in trademark infringement as alleged. {¶ 22} R&M’s trademark infringement allegations are very similar to the allegations in Factfinder stating that the defendant wrongly used its “trademarks in materials presented to clients,” which “misled the c lients as to the origin of the products and services.” Factfinder Marketing Research, Inc. , 168 Ohio App.3d 391, 2006-Ohio-4380, 860 N.E.2d 145 at ¶ 27. We agree with Factfinder’s conclusion that the alleged c onduct “arguably fall[s] under the misappropriation of a dvertising ideas or style of doing busin ess, as it has come to be defined.” Id. Therefore, we conclude that Paris Parts’s improper use of R&M’s tr ademark in connection with the sale, offering for sale, distribution, or a dvertising of its goods, which is likely to deceive the public, arguably qualifies as “misappropriati on of advertising ideas or style of doing business” and an “adve rtising injury” as defined by the policy. {¶ 23} Although Paris Parts’s trademark in fringement may qualify under the general term of “advertising injury,” the coverage analysis is not complete, because of the specific 11

 limitations of that term in the CIC policy. According to the policy, coverage only applies to an advertising injury that is “caused by an offens e committed in the course of advertising [Paris Parts’s] goods, products or services.” {¶ 24} Trademark infringement involves advertising . Westfield Cos. v. O.K.L. Can
Line , 155 Ohio App.3d 747, 2003-Ohio-7151, 804 N.E.2d 45 ¶ 15-16 (1st Dist.), citing Poof Toy Products, Inc. v. United States Fidelity & Guaranty Co. , 891 F.Supp. 1228, 1236 (E.D.Mich.1995); Factfinder , 168 Ohio App.3d 391, 2006-Ohio-4380, 860 N.E.2d 145 at ¶ 33. Yet, it still must be demonstrated that the insured engaged in “advertising” as that term is defined in the policy. See, e.g., O.K.L. Can Line at ¶ 16 (finding that while trade-dress infringement necessarily involves a dvertising, “this principle does not resolve this case because ‘advertisement’ was specifically defined in the * * *policy” and “in the policy's words, the injury had to arise out of ‘a notice that is broadcas ted or published to the general public’ * * *.”); see also AMCO , 500 F.Supp.2d at 732-733. {¶ 25} In this case, the CIC policy defines “adve rtising” as “an advertisement, publicity article, broadcast or telecast.” The term, “advertisement” is not defined in the policy, but Black’s Law Dictionary (6th Ed.1990) defines it as “notice give n in a manner designed to attract public attention.” Accordingl y, R&M was required to demons trate that Paris Parts committed trademark infringement while in the course of using some notice to a ttract public attention, publicity article, broadcast, or telecast. {¶ 26} Here, R&M alleged in its complaint that Paris Parts committed trademark infringement by using R&M’s trademark “in c onnection with the sale, offering for sale, distribution or advertising of [Paris Pa rts’s] goods.” (Emphasis added.) Complaint (May 15, 12

 2006), ¶ 42. Given that the advertis ing allegation is in the disjunc tive form, the agreed judgment against Paris Parts does not sufficiently establish whether the trademark was in fact used in the course of advertising. Furthermore, R&M’s complaint did not specifically allege that Paris Parts used the trademark in an advertisement, publicity article, broadcast, or telecast. R&M also failed to file any documents or other materials with its motion for summary judgment establishing that Paris Parts used R&M’s trademark in an advertisement, publicity article, broadcast, or telecast. Accordingly, there remains a genuine issue of material fact as to whether Paris Parts’s trademark infringement was “committed in the course of advertising.” {¶ 27} We also note that the policy requires th e advertising injury offense to have occurred during the policy period of Ma rch 20, 2002 through March 20, 2005. R&M’s complaint does not allege the dates in which Paris Parts engaged in trademark infringement, and R&M filed nothing with its motion for summary judgment establishing that the offense occurred sometime between 2002 and 2005. Accordingly, there is also a genuine issue of material fact as to whether the advertising injury was committed during the policy period. {¶ 28} Because there is a general issue of material fact as to whether the advertising injury triggered coverage under the policy, the tr ial court erred in grantin g summary judgment in favor of R&M. We need not address whethe r the policy’s exclusions and notice conditions apply to preclude coverage given that the exis tence of coverage is presently uncertain. Furthermore, the determination of these issues would not change the fact that the trial court’s summary judgment decision was made in error. {¶ 29} CIC’s sole assignment of error is sustained. 13

 III. Cross-Assignment of Error {¶ 30} R&M’s sole assignment of erro r on cross-appeal is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING IN PART APPELLEE/CROSS-APPELLANT’S MOTION FOR PREJUDGMENT INTEREST IN THE AMOUNT OF $448,100.00. {¶ 31} In light of our decision finding that the trial court improperly granted summary judgment in favor of R&M, it is unnecessary to address R&M’s assignment of error regarding prejudgment interest. Any ruling on this matter would be premature given that it is uncertain whether R&M is entitled to damages against CIC under R.C. 3929.06.

IV. Conclusion {¶ 32} Having sustained CIC’s sole assignment of error, we hereby reverse the judgment of the trial court and remand the cause for further proceedings.

. . . . . . . . . . . . . DONOVAN and HALL, JJ., concur.

Copies mailed to: Todd A. Brenner Richard M. Garner Dennis R. Fogarty Hon. Nick A. Selvaggio