[Cite as Jacubenta v. Cadillac Ranch,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98750

ALAN JACUBENTA, ET AL. PLAINTIFFS-APPELLEES

vs.

CADILLAC RANCH, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-756964 and CV-768054

BEFORE: Rocco, J., Stewart, A.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: February 21, 2013 ATTORNEYS FOR APPELLANTS

Sam A. Zingale 700 Rockefeller Building 614 West Superior Avenue Cleveland, Ohio 44113

Scott H. Schooler Forbes, Fields & Associates 700 Rockefeller Building 614 West Superior Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Alan Jacubenta, et al.

Jeffrey A. Leikin Nurenberg, Paris, Heller & McCarthy 1370 Ontario Street Suite 100 Cleveland, Ohio 44113

For Aspen Insurance UK Ltd.

Chad M. Sizemore 36 East Seventh Street Suite 2100 Cincinnati, Ohio 45202

For CR Cleveland, L.L.C.

Ryan Kennedy Roetzel & Andress 222 South Main Street Akron, Ohio 44308 KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant CR Cleveland, L.L.C. (“CR Cleveland”) appeals from

the trial court’s grant of summary judgment in favor of plaintiff-appellee Aspen Insurance

UK Ltd. (“Aspen”). Aspen received a declaratory judgment that it owed no duty to

defend or indemnify for a personal injury suit stemming from a mechanical bull injury.

CR Cleveland argues on appeal that the trial court erred in granting Aspen’s motion for

summary judgment because there were genuine issues of material fact as to whether the

insurance policy issued by Aspen covered the mechanical bull. Finding no error, we

affirm the trial court’s final judgment.

{¶2} Alan Jacubenta (“Jacubenta”) alleges that on August 2, 2009, he was injured

by the mechanical bull at the Cadillac Ranch in Cleveland, Ohio. CR Cleveland owned,

operated, and did business as the Cadillac Ranch when Jacubenta was allegedly injured.

{¶3} At the time of the alleged incident, CR Cleveland had a commercial general

liability insurance policy (“the Policy”) in effect with Aspen. The Policy contained an

endorsement (“the Endorsement”) entitled “Designated Ongoing Operations,” which

excluded coverage for liability claims arising out of mechanical, animal, or amusement

rides.

{¶4} On June 7, 2011, Jacubenta filed a personal injury lawsuit against CR

Cleveland. On November 1, 2011, Aspen filed a complaint for declaratory judgment

against CR Cleveland. On November 22, 2011, CR Cleveland moved to consolidate Jacubenta’s personal injury action with Aspen’s declaratory suit. The motion was

granted and the cases were consolidated.

{¶5} On April 6, 2012, Aspen moved for summary judgment on its declaratory

judgment action. The trial court granted the motion, ruling that Aspen was not obligated

to defend or indemnify CR Cleveland regarding the Jacubenta suit. On appeal, CR

Cleveland raises one assignment of error for our review:

I. The trial court erred in granting summary judgment to plaintiff-appellee Aspen Insurance UK Limited because there were genuine issues of material fact relating to whether the insurance policy covered the mechanical bull.

We overrule the assignment of error and affirm the trial court’s final judgment.

{¶6} We review summary judgment rulings de novo. Grafton v. Ohio Edison Co.,

,

(1996). Summary judgment is appropriate

when (1) there is no genuine issue as to any material fact; (2) the moving party is entitled

to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,

and that conclusion is adverse to the party against whom the motion for summary

judgment is made, who is entitled to have the evidence construed most strongly in his

favor. Civ.R. 56(C); Gilbert v. Summit Cty.,

,

,

.

{¶7} CR Cleveland makes two arguments in support of its assignment of error.

First, CR Cleveland argues that the Application for Insurance (“the Application”), the

Binder, and the Declarations Page are all part of the Policy, and that the trial court erred

by not giving those provisions proper effect. {¶8} “An insurance policy is a contract.” Westfield v. Galatis,

,

,

. “When confronted with an issue of

contractual interpretation, the role of a court is to give effect to the intent of the parties on

appeal.” Id. at ¶ 11. Courts are to “examine the insurance contract as a whole and

presume that the intent of the parties is reflected in the language used in the policy.” Id.

We begin and end this inquiry by looking at “the plain and ordinary meaning of the

language used in the policy unless another meaning is clearly apparent from the contents

of the policy.” Id. “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.

{¶9} Keeping these rules in mind, we turn to each part of CR Cleveland’s

argument. CR Cleveland argues that the trial court failed to give proper weight to the

Application. We disagree. The trial court properly excluded the Application from

consideration, because the Application was not a part of the Policy. “For an insurance

application to be incorporated by reference in an insurance policy, the incorporating

language must be unequivocal and appear on the face of the policy * * * .” Allstate Ins.

Co. v. Boggs,

,

(1971), paragraph three of the syllabus.

Here the Policy does not contain language incorporating the Application, and as such,

the Application is not a part of the Policy.

{¶10} Turning to the Binder, we agree with Aspen that the Binder did not contain

terms and conditions that should have been considered separate and apart from the Policy.

According to CR Cleveland, the Binder and the Declarations drafted by Aspen were less restrictive than the terms of the Policy itself, and the trial court failed to take this fact into

consideration.

{¶11} A binder is evidence of the temporary insurance contract until the actual

policy is issued. Friemoth v. Fruehauf Trailer Corp.,

,

,

(3d Dist. 2001). “‘A contract for temporary

insurance is construed as being subject to the terms of the policy to be issued or of the

policy ordinarily used by the company.’”

quoting 44 Corpus Juris Secundum,

Insurance, Section 267(a), at 496 (1993). See also Jaber v. Prudential Ins. Co. of Am.,

,

(6th Dist. 1996), internal quotation marks

omitted (“[A] binder incorporates * * * the terms, conditions and limitations of the

policies * * * used by the insurer.”)

{¶12} In this case, the Binder listed all of the coverage and endorsements to the

Policy. The cover letter accompanying the Binder informed CR Cleveland that “[t]he

terms of this binder and the policy and its endorsements supersede any specific requests

that you may have provided * * * .” The Designated Ongoing Operations Exclusion for

the mechanical bull ride was part of the Binder. CR Cleveland was also informed that it

had the opportunity to make changes and provide a counter-offer, which CR Cleveland

apparently did not do because the Policy issued with the Designated Ongoing Operations

Exclusion for the mechanical bull ride. CR Cleveland’s argument is without merit.

{¶13} Next we turn to the Declarations, which put CR Cleveland on notice to read

the Policy. The Declarations are part of the insurance contract. In all capital letters and bold typeface, the Policy states at the bottom of the second page of the Common Policy

Declarations, “THESE DECLARATIONS, TOGETHER WITH THE COMMON

POLICY CONDITIONS AND COVERAGE FORM(S) AND ANY

ENDORSEMENT(S), COMPLETE THE ABOVE NUMBERED POLICY.” As

such, the Declarations’ terms, conditions, and endorsements are considered together as

the entire insurance contract. Under the Endorsement pertaining to the Designated

Ongoing Operations Exclusion, it states that the Policy does not provide coverage for

“MECHANICAL, ANIMAL, OR AMUSEMENT RIDES OPERATED BY OR ON

BEHALF OF ANY INSURED.”

{¶14} CR Cleveland argues that the above-language does not constitute adequate

notice, because the Declarations page itself should have explicitly referred to the

mechanical bull. We disagree. The Declarations page contains an “Ongoing Operations

Exclusion,” and the applicable Endorsement makes clear that the mechanical bull is

excluded from coverage. The Policy stated in bold, capitalized language that the

Declarations and Endorsements were part of the Policy.

{¶15} An insurance policyholder has a duty to read its insurance policy. Fry v.

Walters & Peck Agency, Inc.,

,

(6th Dist.

2001). CR Cleveland’s representative testified that he did not receive a copy of the

policy until sometime in December 2008 (two months after the Policy’s effective date)

and that he did not become aware that there was no coverage for the mechanical bull until

after the personal injury suit was filed. But Jacubenta alleged that he was injured by the mechanical bull in August 2009. That means that CR Cleveland had from December

2008 until August 2009 to read the Policy.

{¶16} CR Cleveland had the Binder and the Declarations that identified the

Designated Ongoing Operation Exclusion. During this time, CR Cleveland failed to

review the Policy to confirm whether it covered the mechanical bull. A prudent

policyholder that owns a country—western bar with a mechanical bull ride would have

read the Policy and the terms and conditions of the disclosed exclusion. We conclude

that the trial court gave proper weight to the Application for Insurance, the Binder, and

the Declarations Page. Accordingly, we reject CR Cleveland’s arguments to the

contrary.

{¶17} Next, CR Cleveland argues that the trial court erred in granting Aspen’s

motion for summary judgment because the Policy was ambiguous. We decline to

address this argument because CR Cleveland is raising it for the first time on appeal.

“[F]ailure to timely advise a trial court of possible error, by objection or otherwise, results

in a waiver of the issue for purposes of appeal.” Goldfuss v. Davidson,

,

(1997).

{¶18} In its brief in opposition to Aspen’s motion for summary judgment, CR

Cleveland did not argue that the Policy was ambiguous, nor that the rules of contract

construction required the court to find that the Policy was ambiguous. Rather, CR

Cleveland opposed Aspen’s motion for summary judgment claiming it was not properly

supported under Civ.R. 56(E). CR Cleveland argued in the trial court that Aspen’s affiant, Michael Uzenski, did not have personal knowledge regarding CR Cleveland’s

insurance needs or regarding communications leading up to the Policy’s issuance. CR

Cleveland did not pursue any argument regarding whether the Policy was ambiguous in

the trial court, and so it has waived this argument on appeal.

{¶19} The trial court’s order is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________________ KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, A.J., and EILEEN A. GALLAGHER, J., CONCUR