[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-Appellant/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 

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

 
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WELBAUM, J. 

{¶ 1} Defendant-Appellant/Cross-Appellee, The Cincinnati Insurance Company, 

appeals from the decision of the Champaign County 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 trial court's decision regarding the amount 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 Handling, 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 conversion, trademark infringement, trademark 

disparagement, misappropriation of trade secrets, breach of fiduciary duty, tortious interference 

with business relationships, unfair competition, deceptive trade practices, 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 liability coverage. As a 

result, Paris Parts forwarded R&M’s complaint to CIC and requested CIC to defend and 

indemnify the company. By letter dated June 7, 2004, CIC 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 voluntarily dismissed the complaint against 
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Paris Parts only to refile the action in the District Court on May 15, 2006. The refiled complaint 

removed one defendant and limited R&M’s claims to misappropriation of trade secrets, 

trademark infringement, trademark disparagement, unfair competition, 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 complaint. Thereafter, on August 

19, 2010, the District Court awarded R&M damages in the amount of $2,281,934 plus interest 

from the date of judgment and costs. CIC was first notified of the refiled action two months 

after R&M was awarded the judgment. 

{¶ 4} Paris Parts did not satisfy the judgment, 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 the 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 “advertising 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 period; (3) the policy’s various exclusions preclude 

coverage; and (4) Paris Parts failed to comply with a precondition to coverage when it did not 
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notify CIC of the refiled lawsuit. In support of its motion for summary judgment, CIC attached 

all relevant pleadings and correspondences, 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 trademark 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. Additionally, R&M claimed that the 

policy’s exclusions do not preclude coverage because they only apply to advertising injuries 

based on libel, slander, disparagement, 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 conditions. 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 for 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 specify 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 trial court, however, determined that R&M was 

entitled to prejudgment interest 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. 
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{¶ 8} CIC now appeals from the trial court’s decision granting summary judgment in 

favor of R&M, raising one assignment of error. R&M has also filed a cross-appeal regarding the 

award of prejudgment interest and raises 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 advertising Paris Parts’s goods, products, or services 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 notify 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 any timely filed in the action, show that 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). 
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 In other words, summary judgment may be granted “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 conclusion, and that conclusion is adverse to the 

nonmoving party, who is entitled to have the evidence construed most strongly 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 ‘identifying 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 file a posttrial, supplemental complaint against the judgment 

debtor’s insurer to recover damages 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 that the plaintiff “is entitled as judgment 

creditor to have an amount up to the remaining limit of liability coverage provided in the 
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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 amount.” (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 action in the same court pronouncing judgment.” Benahmed v. Houston 

Cas. Co., 486 Fed.Appx. 508 (6th Cir.2012). 

{¶ 14} In a supplemental action, the plaintiff’s rights against 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 plaintiff 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 preponderance 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 
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“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 ‘coverage 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 publication of material that slanders or libels a person or 

organization or disparages a person's or organization's goods, products or services; 

b.) Oral or written publication of material that violates a person's right of privacy; 

c.) Misappropriation of advertising 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 “misappropriation 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 style 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” covered under the "advertising injury” provision 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 
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(S.D.Ohio 2007), the United States District 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 Court 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 and 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 trademark 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 intellectual property draws the public’s attention to 

the product and makes the source of the product readily identifiable.” (Citation omitted.) Id. at 

¶ 22. 

{¶ 20} Additionally, Factfinder stated that “advertising idea” has been found to mean “ 

‘any idea or concept related to the promotion 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 
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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 trademark infringement on grounds that Paris 

Parts “used and continued to use reproductions, copies or colorable imitations of [R&M's] 

registered trademarks in connection with the sale, offering for sale, distribution 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 clients 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 conduct “arguably fall[s] under the 

misappropriation of advertising ideas or style of doing business, as it has come to be defined.” 

Id. Therefore, we conclude that Paris Parts’s improper use of R&M’s trademark in connection 

with the sale, offering for sale, distribution, or advertising of its goods, which is likely to deceive 

the public, arguably qualifies as “misappropriation of advertising ideas or style of doing 

business” and an “advertising injury” as defined by the policy. 

{¶ 23} Although Paris Parts’s trademark infringement may qualify under the general 

term of “advertising injury,” the coverage analysis is not complete, because of the specific 
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limitations of that term in the CIC policy. According to the policy, coverage only applies to an 

advertising injury that is “caused by an offense 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 advertising, “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 broadcasted or published to the general public’ * * *.”); see 

also AMCO, 500 F.Supp.2d at 732-733. 

{¶ 25} In this case, the CIC policy defines “advertising” 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 given in a manner designed to attract 

public attention.” Accordingly, R&M was required to demonstrate that Paris Parts committed 

trademark infringement while in the course of using some notice to attract 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 connection with the sale, offering for sale, 

distribution or advertising of [Paris Parts’s] goods.” (Emphasis added.) Complaint (May 15, 
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2006), ¶ 42. Given that the advertising allegation is in the disjunctive 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 the advertising injury offense to have 

occurred during the policy period of March 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 trial court erred in granting summary judgment in 

favor of R&M. We need not address whether the policy’s exclusions and notice conditions 

apply to preclude coverage given that the existence 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. 
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III. Cross-Assignment of Error

{¶ 30} R&M’s sole assignment of error 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