[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio 

N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-4057

OHIO NORTHERN UNIVERSITY, APPELLEE, v. CHARLES CONSTRUCTION 

SERVICES,INC., APPELLEE, ET AL.; CINCINNATI INSURANCE COMPANY,

APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 

2018-Ohio-4057.] 

Insurance claims—“Occurrence”—Subcontractor faulty workmanship—Insurer is 

not required to defend a commercial-general-liability policyholder against 

suit by property owner, because subcontractor faulty workmanship is not 

fortuitous—Custom Agri, applied. 

(No. 2017-0514—Submitted June 12, 2018—Decided October 9, 2018.) 

APPEAL from the Court of Appeals for Hancock County, 

No. 5-16-01, 2017-Ohio-258. 

______________________ 

FRENCH, J. 

{¶ 1} In 2012, we held that an insurance claim filed by a contractor under 

its commercial general liability (“CGL”) insurance policy for property damage 
SUPREME COURT OF OHIO

2

caused by the contractor’s own faulty workmanship does not involve an 

“occurrence” such that the CGL policy would cover the loss. Westfield Ins. Co. v. 

Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269, 

syllabus. That decision turned on the CGL policy’s definition of “occurrence” as 

an “ ‘accident, including continuous or repeated exposure to substantially the same 

general harmful conditions.’ ” Id. at ¶ 12, quoting the policy. Because the CGL 

policy did not define “accident,” we looked to the word’s common meaning and 

concluded that an “accident” involves “fortuity.” Id. at ¶ 14. We held that under 

the language of the CGL policy, property damage caused by a contractor’s own 

faulty work is not accidental and is therefore not covered. Id. at ¶ 11-14, 19. 

{¶ 2} This appeal concerns a general contractor’s CGL policy that is nearly 

identical to the one considered in Custom Agri. But here, the question is whether 

the general contractor’s CGL policy covers claims for property damage caused by 

a subcontractor’s faulty work. To answer that question, we must address the effect 

of additional portions of the CGL policy, including a products-completed 

operations-hazard (“PCOH”) clause, which covers damages “arising out of 

completed operations,” and terms that specifically apply to work performed by 

subcontractors. 

{¶ 3} To resolve this matter, we need only apply the holding of Custom 

Agri. Property damage caused by a subcontractor’s faulty work is not an 

“occurrence” under a CGL policy because it cannot be deemed fortuitous. Hence, 

the insurer is not required to defend the CGL policy holder against suit by the 

property owner or indemnify the insured against any damage caused by the 

insured’s subcontractor. We therefore reverse the judgment of the court of appeals. 

FACTS AND PROCEDURAL BACKGROUND 

{¶ 4} In 2008, appellee Ohio Northern University (“ONU”) contracted with 

appellee Charles Construction Services, Inc., to build The University Inn and 

Conference Center, a new luxury hotel and conference center on ONU’s campus. 
January Term, 2018 

3

Charles Construction promised to perform all the work itself or through 

subcontractors. The contract required Charles Construction to maintain a CGL 

policy that included a PCOH clause. 

{¶ 5} Charles Construction obtained from appellant, Cincinnati Insurance 

Company (“CIC”), a CGL policy that included a PCOH clause and terms 

specifically related to work performed by subcontractors. The general liability 

maximum payout under the CGL policy was $2 million. The separate maximum 

payout for the PCOH clause was also $2 million. Charles Construction paid an 

additional premium for the PCOH coverage. 

{¶ 6} The project’s estimated cost was $8 million. In September 2011, after 

work was completed, ONU discovered that the inn had suffered extensive water 

damage from hidden leaks that it believed were caused by the defective work of 

Charles Construction and its subcontractors. In the course of repairing the water 

damage, ONU discovered other serious structural defects. ONU estimated its repair 

costs at approximately $6 million. 

{¶ 7} In October 2012, ONU sued Charles Construction in the Hancock 

County Common Pleas Court for breach of contract and other claims related to the 

inn’s damage. Charles Construction answered and filed third-party complaints 

against several of its subcontractors. ONU filed its second and final amended 

complaint in February 2014. Charles Construction submitted to CIC a CGL-policy 

claim and asked CIC to defend it in court and indemnify it against any damages. 

CIC intervened in order to pursue a declaratory judgment against Charles 

Construction and to submit jury interrogatories related to insurance coverage. CIC 

explained that it would defend Charles Construction while reserving its right to 

argue that the CGL policy did not cover ONU’s claim. 

{¶ 8} After CIC intervened, it sought a declaratory judgment that it did not 

have to defend or indemnify Charles Construction under the CGL policy. In 

January 2015, CIC filed a motion for summary judgment relying on Custom Agri, 
SUPREME COURT OF OHIO

4

which it characterized as holding that “claims for defective workmanship are not 

claims for ‘property damage’ caused by an ‘occurrence.’ ” ONU filed a crossmotion for summary judgment arguing, in part, that the PCOH clause and 

subcontractor-specific terms distinguished this case from Custom Agri. Charles 

Construction filed a memorandum supporting ONU’s position. The trial court 

issued judgments in favor of CIC, reasoning that this court’s decision in Custom 

Agri “constrained” it and that consequently, CIC could deny Charles 

Construction’s claim and had no duty to defend Charles Construction. 

{¶ 9} Charles Construction and ONU appealed to the Third District Court 

of Appeals. The majority determined that Custom Agri remains good law as applied 

to construction defects caused by the insured’s own work. 2017-Ohio-258, 77 

N.E.3d 538, ¶ 38. But the Third District read Custom Agri narrowly and noted that 

it did not address any PCOH or subcontractor-specific CGL-policy terms. Id. at 

¶ 34-40. It found the CGL policy language to be ambiguous as to whether it covers 

claims for property damage caused by subcontractors’ defective work, and because 

ambiguous language is construed against the insurer, it reversed the judgment of 

the trial court. Id. at ¶ 41. 

{¶ 10} We accepted Cincinnati Insurance Company’s appeal on two 

propositions of law: 

1. Westfield Ins. Co. v. Custom Agri Systems, Inc., 133 Ohio 

St.3d 476, 2012-Ohio-4712 remains applicable to claims of 

defective construction or workmanship by a subcontractor included 

within the “products-completed operations hazard” of [sic] 

commercial general liability policy. 

2. The contractual liability exclusion in the general liability 

policy precludes coverage for claims for defective 

construction/workmanship. 
January Term, 2018 

5

151 Ohio St.3d 1452, 2017-Ohio-8842, 87 N.E.3d 221. CIC withdrew its second 

proposition of law during briefing. 

ANALYSIS 

Standard of review 

{¶ 11} This case involves basic contract interpretation. When we face an 

issue of contractual interpretation, our role “is to give effect to the intent of the 

parties to the agreement.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-

Ohio-5849, 797 N.E.2d 1256, ¶ 11, citing Hamilton Ins. Servs., Inc. v. Nationwide 

Ins. Cos., 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999). We review an insurance 

contract as a whole and presume that its language reflects the parties’ intent. Kelly 

v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of 

the syllabus. “We apply the de novo standard of review to a decision granting or 

denying a motion for summary judgment based on an insurance contract.” 

Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 

931, ¶ 12. We honor the plain meaning of the policy’s language “unless another 

meaning is clearly apparent from the contents of the policy.” Galatis at ¶ 11, citing 

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), 

paragraph two of the syllabus. And when a written contract’s language is clear, we 

look no further than the writing itself to determine the parties’ intent. Alexander at 

paragraph two of the syllabus. 

Custom Agri 

{¶ 12} In Custom Agri, we answered a certified question from the United 

States Court of Appeals for the Sixth Circuit concerning a defective-construction 

lawsuit involving a property owner and a general contractor for faulty construction 

of a steel bin. Custom Agri, 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269, 

at ¶ 2. The contractor filed a third-party complaint against Custom Agri, the 

subcontractor who was responsible for building the defective steel bin. Id. 
SUPREME COURT OF OHIO

6

{¶ 13} Custom Agri had obtained a CGL policy from Westfield Insurance 

Company. Id. Westfield intervened and sought a declaratory judgment that it had 

no duty to defend or indemnify Custom Agri under the CGL policy because Custom 

Agri’s claims did not involve “property damage” caused by an “occurrence.” Id. 

at ¶ 3. 

{¶ 14} We noted that the general principle underlying CGL policies is that 

they are not intended to protect business owners from ordinary business risks. Id. 

at ¶ 10, citing Heile v. Herrmann, 136 Ohio App.3d 351, 353, 736 N.E.2d 566 (1st 

Dist.1999). “ ‘Courts generally conclude that the policies are intended to insure the 

risks of an insured causing damage to other persons and their property, but that the 

policies are not intended to insure the risks of an insured causing damage to the 

insured’s own work.’ ” Custom Agri at ¶ 10, quoting Heile at 353. “ ‘In other 

words, the policies do not insure an insured’s work itself; rather, the policies 

generally insure consequential risks that stem from the insured’s work.’ ” Custom 

Agri at 

¶ 10, quoting Heile at 353. 

[A] CGL policy is not intended to insure business risks that are the 

normal, frequent, or predictable consequences of doing business and 

which businesses can control and manage. * * * A CGL policy does 

not insure the insured’s work itself; rather, it insures consequential 

damages that stem from that work. * * * As a result, a CGL policy 

may provide coverage for claims arising out of tort, breaches of 

contract, and statutory liabilities as long as the requisite accidental 

occurrence and property damage are present. 

Custom Agri at ¶ 10, quoting ACUITY v. Burd & Smith Constr., Inc., 2006 ND 187, 

721 N.W.2d 33, ¶ 12. 
January Term, 2018 

7

{¶ 15} We noted that all the claims against which Westfield was asked to 

defend and indemnify Custom Agri were related to Custom Agri’s own work. Id. 

at ¶ 11. But we continued to analyze the CGL policy’s specific terms and 

considered whether Custom Agri’s faulty work could still be considered “property 

damage” caused by an “occurrence” under the policy. Id. 

{¶ 16} As in this case, the CGL policy in Custom Agri defined “occurrence” 

as an “accident, including continuous or repeated exposure to substantially the same 

general harmful conditions.” Custom Agri at ¶ 12. But the CGL policy did not 

define “accident.” Id. We determined that we had to give the word its “ ‘natural 

and commonly accepted meaning.’ ” Id., quoting Gomolka v. State Auto. Mut. Ins. 

Co., 70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347 (1982). 

{¶ 17} We noted that we had previously defined “accidental” as 

“ ‘unexpected, as well as unintended.’ ” Custom Agri, 133 Ohio St.3d 476, 2012-

Ohio-4712, 979 N.E.2d 269, at ¶ 13, quoting Hybud Equip. Corp. v. Sphere Drake 

Ins. Co., 64 Ohio St.3d 657, 666, 597 N.E.2d 1096 (1992). And we agreed with 

our sister court in Kentucky that in the context of a CGL policy, “ ‘[i]nherent in the 

plain meaning of “accident” is the doctrine of fortuity.’ ” Custom Agri at ¶ 13, 

quoting Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 74 

(Ky.2010). We added that “ ‘ “[t]he fortuity principle is central to the notion of 

what constitutes insurance.” ’ ” Custom Agri at ¶ 13, quoting Cincinnati Ins. Co.

at 74, quoting 46 Corpus Juris Secundum, Insurance, Section 1235 (2009); see also 

Indiana Ins. Co. v. Alloyd Insulation Co., 2d Dist. Montgomery No. 18979, 2002-

Ohio-3916, ¶ 27, quoting Franco, Insurance Coverage for Faulty Workmanship 

Claims Under Commercial General Liability Policies, 30 Torts & Ins.L.J. 785 

(1994) ( “ ‘[F]aulty workmanship claims generally are not covered, except for their 

consequential damages, because they are not fortuitous. In short, contractors’ 

“business risks” are not covered by insurance, but derivative damages are. The key 
SUPREME COURT OF OHIO

8

issues are whether the contractor controlled the process leading to the damages and 

whether the damages were anticipated’ ”). 

{¶ 18} We concluded that “claims for faulty workmanship, such as the one 

in the present case, are not fortuitous in the context of a CGL policy like the one 

here.” Custom Agri at ¶ 14. Therefore, they “are not claims for ‘property damage’ 

caused by an ‘occurrence’ under a [CGL] policy such as the one in the present 

case.” Id. at ¶ 19.

The CGL policy 

{¶ 19} As in Custom Agri, our decision here depends on the specific terms 

of the CGL policy, including the PCOH and subcontractor-specific language. CIC 

submits that we considered in Custom Agri, at least indirectly, the same contractual 

language before us now, because Custom Agri was a subcontractor and had hired 

subcontractors. But while the CGL policy in Custom Agri may have included 

PCOH and subcontractor clauses, we did not address them directly and must do so 

here. 

{¶ 20} The CGL policy in this case states the following regarding general 

liability: 

COMMERCIAL GENERAL LIABILITY COVERAGE 

FORM 

* * * 

SECTION I—COVERAGES 

COVERAGE A. BODILY INJURY AND PROPERTY 

DAMAGE LIABILITY 

1. Insuring Agreement 

a. We will pay those sums that the insured becomes 

legally obligated to pay as damages because of “bodily injury” or 

“property damage” to which this insurance applies. We will have 
January Term, 2018 

9

the right and duty to defend the insured against any “suit” seeking 

those damages. However, we will have no duty to defend the insured 

against any “suit” seeking damages for “bodily injury” or

“property damage” to which this insurance does not apply. We 

may, at our discretion, investigate any “occurrence” and settle any 

claim or “suit” that may result. But:

* * * 

b. This insurance applies to “bodily injury” and 

“property damage” only if: 

(1) The “bodily injury” or “property damage” is caused 

by an “occurrence” that takes place in the “coverage territory 

* * *.” 

 (Capitalization sic and emphasis added.) 

{¶ 21} In “Section V—Definitions,” the CGL policy defines “occurrence” 

and “property damage” as follows: 

16. “Occurrence” means: 

a. An accident, including continuous or repeated exposure 

to substantially the same general harmful conditions. 

* * * 

20. “Property damage” means: 

a. Physical injury to or destruction of tangible property 

including all resulting loss of use. All such loss of use shall be 

deemed to occur at the time of the physical injury or destruction that 

caused it; or 
SUPREME COURT OF OHIO

10 

b. Loss of use of tangible property that is not physically 

injured. All such loss of use shall be deemed to occur at the time of 

the “occurrence” that caused it. 

(Emphasis added.) 

{¶ 22} By its terms, the CGL policy emphasizes that only “an occurrence” 

can trigger coverage for property damage. It states that CIC agrees to “pay those 

sums that the insured becomes legally obligated to pay as damages because of 

* * * ‘property damage’ to which this insurance applies.” But the damage must be 

due to an “occurrence,” which is defined as “an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions.” There is 

no question that the damage to the inn was “property damage” that was discovered 

after work was completed. But without an “occurrence” as defined in the CGL 

policy, there is no coverage for any property damage. 

{¶ 23} Nevertheless, the appellees argue, and the court below held, that the 

CGL policy’s subcontractor-specific terms and the PCOH clause show that the 

parties intended for the policy to cover the damages here. Those provisions state 

the following: 

SECTION I—COVERAGES 

COVERAGE A. BODILY INJURY AND PROPERTY 

DAMAGE LIABILITY 

* * * 

2. Exclusions: 

This insurance does not apply to: 

* * * 

j. Damage to Property 

“Property damage” to: 
January Term, 2018 

11 

* * * 

(6) That particular part of any property that must be 

restored, repaired or replaced because “your work” was incorrectly 

performed on it. 

* * * 

Paragraph (6) of this exclusion does not apply to “property 

damage” included in the “products-completed operations hazard.” 

{¶ 24} In “Section V—Definitions,” the CGL policy defines “productscompleted operations hazard” as follows: 

19. “Products-completed operations hazard”: 

a. Includes * * * “property damage” occurring away 

from premises you own or rent and arising out of * * * “your work” 

except: 

* * * 

(2) Work that has not yet been completed or abandoned. 

{¶ 25} The CGL policy then lists the instances in which “your work” is 

deemed completed. The parties do not dispute that work on the inn was completed 

by the time that the water-related damage was discovered. Still, the CGL policy’s 

definition of “your work” must be considered: 

29. “Your work”: 

a. Means: 

(1) Work or operations performed by you or on your 

behalf; and 
SUPREME COURT OF OHIO

12 

(2) Materials, parts or equipment furnished in 

connection with such work or operations. 

b. Includes: 

(1) Warranties or representations made at any time with 

respect to the fitness, quality, durability, performance, or use of 

“your work”; and 

(2) The providing of or failure to provide warnings or 

instructions. 

{¶ 26} Finally, the CGL policy provides the following exclusion for “property 

damage” to “your work,” which includes an exception to the exclusion when a 

subcontractor performs the work: 

2. Exclusions 

This insurance does not apply to: 

* * * 

l. Damage to Your Work: 

“Property damage” to “your work” arising out of it or any 

part of it and included in the “products-completed operations 

hazard.” 

This exclusion does not apply if the damaged work or the 

work out of which the damage arises was performed on your behalf 

by a subcontractor. 

Under the CGL policy’s plain language, property damage caused by a 

subcontractor’s faulty work does not meet the definition of an “occurrence” 

because faulty work is not fortuitous

{¶ 27} Again, we concluded in Custom Agri that “claims for faulty 

workmanship, such as the one in the present case, are not fortuitous in the context 
January Term, 2018 

13 

of a CGL policy.” Custom Agri, 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 

269, at ¶ 14. We made that determination because these claims “are not claims for 

‘property damage’ caused by an ‘occurrence’ under a [CGL] policy” because faulty 

work is not fortuitous. Id. at ¶ 19. Here, we similarly hold that a subcontractor’s 

faulty work does not meet the definition of an “occurrence” because it is not based 

in fortuity. 

{¶ 28} The language within the Coverage A portion of the CGL policy is 

critical to the policy’s overall effect. It states that CIC agrees to pay for property 

damage under certain circumstances. But the damage must be due to an 

“occurrence,” which the policy defines as “an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions.” Again, 

there is no question that the water-related damage to the inn was “property damage” 

and was discovered after work had been completed. But unless there was an 

“occurrence,” the PCOH and subcontractor language has no effect, despite the fact 

that Charles Construction had paid additional money for it. 

{¶ 29} If the subcontractors’ faulty work were fortuitous, the PCOH and 

subcontractor-specific terms would require coverage. But as we explained in 

Custom Agri, CGL policies are not intended to protect owners from ordinary 

“business risks” that are normal, frequent or predictable consequences of doing 

business that the insured can manage. Custom Agri at ¶ 10. Here, we cannot say 

that the subcontractors’ faulty work was fortuitous. 

{¶ 30} Charles Construction, ONU, and their amici curiae assert that parties 

to a construction contract understand that contractors buy coverage for defects 

discovered after completion through the PCOH clause and that CGL policies and 

PCOH clauses have changed over time to assure that subcontractor work is covered. 

In support, they note that over the past several years, courts have agreed with their 

arguments. 
SUPREME COURT OF OHIO

14 

{¶ 31} We acknowledge that our reasoning in this case contrasts with recent 

decisions of other courts. See, e.g., Black & Veatch Corp. v. Aspen Ins. (UK), Ltd., 

882 F.3d 952, 965-966 (10th Cir.2018) (analyzing history of CGL policies and 

holding that definition of “occurrence” encompasses damage to the insured’s own 

work arising from faulty subcontractor workmanship); Natl. Sur. Corp. v. Westlake 

Invests., L.L.C., 880 N.W.2d 724, 740 (Iowa 2016) (“[W]e interpret the insuring 

agreement in the modern standard-form CGL policy as providing coverage for 

property damage arising out of defective work performed by an insured’s 

subcontractor unless the resulting property damage is specifically precluded from 

coverage by an exclusion or endorsement”); Cypress Point Condominium Assn. v. 

Adria Towers, L.L.C., 226 N.J. 403, 428-429, 143 A.3d 273 (2016) (“[B]ecause the 

result of the subcontractors’ faulty workmanship here—consequential water 

damage to the completed and nondefective portions of Cypress Point—was an 

‘accident,’ it is an ‘occurrence’ under the policies and is therefore covered so long 

as the other parameters set by the policies are met”); French, Revisiting 

Construction Defects as “Occurrences” Under CGL Insurance Policies, 19 

U.Pa.J.Bus.L. 101, 122-123 (2016) (“In the past five years * * * there has been near 

unanimity by the courts that have addressed the issue. They have held that 

construction defects can constitute occurrences and contractors have coverage 

under CGL policies at least for the unexpected property damage caused by 

defective workmanship done by subcontractors”). But the language requiring that 

“property damage” be caused by an “occurrence” remains a constant in the policies. 

And under our precedent, faulty workmanship is not an occurrence as defined in 

CGL polices like the one before us. 

{¶ 32} Regardless of any trend in the law, we must look to the plain and 

ordinary meaning of the language used in the CGL policy before us. See Alexander 

v. Buckeye Pipeline, 53 Ohio St.2d 241, 245-246, 374 N.E.2d 146 (1978). When 
January Term, 2018 

15 

the language of a written contract is clear, we may look no further than the writing 

itself to find the intent of the parties. Id. at paragraph two of the syllabus. 

{¶ 33} In deciding Custom Agri, we adopted the Arkansas Supreme Court’s 

reasoning in Essex Ins. Co. v. Holder, 372 Ark. 535, 261 S.W.3d 456 (2008). 

In Essex, a homebuilder demanded that his insurance provider defend him under 

his CGL policy after the homeowners sued him during the construction of their 

house for damages caused in part by his use of incompetent subcontractors. Id. at 

457. The Arkansas court concluded that the insurance provider had no such duty 

because “[f]aulty workmanship is not an accident; instead it is a foreseeable 

occurrence.” Id. at 460. The court relied, in part, on a federal district court decision 

that had applied the Arkansas court’s definition of “accident”: “[T]he contractor’s 

obligation to repair or replace its subcontractor’s defective workmanship could not 

be deemed unexpected on the part of the contractor, and therefore, failed to 

constitute an ‘event’ for which coverage existed under the policy.” Id. at 459, citing 

Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 923 

(E.D.Ark.2005). 

{¶ 34} After that decision, the Arkansas legislature enacted Ark.Code Ann. 

23-79-155(a)(2), which states that a CGL policy offered for sale in Arkansas shall 

define “occurrence” to include “[p]roperty damage * * * resulting from faulty 

workmanship.” If it were so inclined, the Ohio General Assembly could take 

similar action in response to our opinion today. 

CONCLUSION 

{¶ 35} We hold that property damage caused by a subcontractor’s faulty 

work is not fortuitous and does not meet the definition of an “occurrence” under a 

CGL policy. CIC was not required to defend Charles Construction against ONU’s 

lawsuit or indemnify Charles Construction against any damages. We reverse the 

judgment of the court of appeals and reinstate the judgment of the trial court. 

Judgment reversed. 
SUPREME COURT OF OHIO

16 

O’DONNELL, FISCHER, DEWINE, and DEGENARO, JJ., concur. 

O’CONNOR, C.J., and KENNEDY, J., concur in judgment only. 

_________________ 

Collins, Roche, Utley & Garner, L.L.C., Richard M. Garner, and 

David W. Orlandini, for appellant. 

White, Getgey & Meyer Co., L.P.A., David P. Kamp, Jean Geoppinger 

McCoy, and Carl J. Stich Jr., for appellee Charles Construction Services, Inc. 

 Vorys, Sater, Seymour & Pease, L.L.P., Allen L. Rutz, and Mitchell A. 

Tobias; and Eastman & Smith, Ltd., and Thomas P. Kemp, for appellee Ohio 

Northern University. 

Cavitch, Familo & Durkin Co., L.P.A., and Gregory E. O’Brien, urging 

reversal for amicus curiae Counsel for Ohio Insurance Institute. 

Kristen L. Sours, urging affirmance for amici curiae Ohio Home Builders 

Association and National Association of Home Builders. 

Brouse McDowell, Amanda M. Leffler, P. Wesley Lambert, Lucas M. 

Blower, Alexandra V. Dattilo, and Christopher T. Teodosio, urging affirmance for 

amici curiae Associated Builders and Contractors, Inc.; Associated Builders and 

Contractors, Inc., Central Ohio Chapter; Associated Builders and Contractors, Inc., 

Ohio Valley Chapter; and Associated Builders and Contractors, Inc., Northern Ohio 

Chapter. 

Thompson Hine, L.L.P., Terry W. Posey Jr., and Daniel M. Haymond, 

urging affirmance for amici curiae Associated General Contractors of Ohio, Ohio 

Contractors Association, and American Subcontractors Association. 

_________________