[Cite as William Powell Co. v. Onebeacon Ins. Co.,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

THE WILLIAM POWELL COMPANY, : APPEAL NO. C-160291 TRIAL NO. A-1109350 Plaintiff-Appellee, :

vs. : O P I N I O N. ONEBEACON INSURANCE : COMPANY, : Defendant-Appellant, : and : FEDERAL INSURANCE COMPANY,

Defendant-Intervenor. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: December 14, 2016

Vorys, Sater, Seymour, and Pease L.L.P., Daniel J. Buckley and Joseph M. Brunner, for Plaintiff-Appellee,

Collins Roche Utley & Garner, LLC, Richard M. Garner and Sunny L. Horacek, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

D E W INE , Judge.

{¶1} This is an appeal from a declaratory judgment in an insurance-coverage

dispute involving asbestos-related liabilities. At issue are the terms of multiple

insurance policies dating back to the 1950s. The insurance company appeals, arguing

that the trial court construed the policies too generously.

{¶2} The issues before us include (1) the meaning of an “occurrence” under

the policies, (2) whether the limits of three-year policies should be applied annually or

over the policy term, (3) whether two “stub” policies which extended for irregular

periods of 13 and 14 months should each receive a single limit or two annual limits, (4)

whether the parties had modified two of the policies to provide for higher limits than

stated on the face of the policies and (5) the propriety of attorney fees awarded to the

insured as part of a discovery dispute.

{¶3} We conclude that the trial court got it right except for its construction of

the stub policies as providing for annual limits. We therefore affirm the judgment in

part and reverse in part.

I. Background

{¶4} The William Powell Company (“Powell”) makes industrial valves. Some

valves manufactured before 1987 contained asbestos. In 2001, Powell began receiving

personal-injury claims emanating from asbestos exposures involving its products. The

claims related to exposures that had occurred from the 1940s through the 1980s and

covered a wide geographical area. The circumstances varied. Some claimants had

worked directly on the valves, while others had prepared and packed or installed

replacement gaskets. There were also claimants who had not worked with Powell’s

products at all, but rather had been exposed to asbestos by washing a worker’s clothing.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Faced with potentially thousands of claims, Powell sought defense and

indemnification under various insurance policies. At issue in this appeal are policies

that were written by a predecessor to OneBeacon Insurance Company. These policies

consist of ten different primary-liability policies and three excess-liability policies

covering various periods from 1955 to 1977.

{¶6} The policies are what are known as occurrence-based policies—that is,

they provided coverage for any covered incident that “occurs” during the policy period,

regardless of when a claim is filed. Each policy contained a schedule that provided for a

limit of liability for each occurrence and in the aggregate. For example, policy

CG426753, in place from 1965-1968, provided:

LIMITS OF LIABILITY COVERAGES

$1,000,000 each person B. Bodily Injury Liability—Except Automobile

$2,000,000 each occurrence

$2,000,000 aggregate products

{¶7} OneBeacon initially undertook defense and indemnification under the

policies subject to a reservation of rights. As time progressed—and the magnitude of

Powell’s asbestos liabilities increased—OneBeacon adopted a more restrictive reading of

the coverage available. Not surprisingly, Powell disagreed with OneBeacon’s less

generous construction of the policies.

A. Declaratory-Judgment Action

{¶8} Things came to a head in 2011, when Powell filed a declaratory-judgment

action asking the court to resolve certain disputes relating to the policies. In the action,

Powell asserted that OneBeacon had improperly construed six of the primary insurance

policies to provide less coverage than that for which the parties had bargained. It also

3 OHIO FIRST DISTRICT COURT OF APPEALS

alleged that, in the event that the primary coverage was exhausted, OneBeacon was

improperly denying to Powell excess coverage. OneBeacon filed a counterclaim seeking

a declaration of the scope of its responsibility under the policies. Both parties ultimately

moved for summary judgment.

{¶9} The primary issues raised by the parties in their complaints and

summary judgment pleadings related to the following:

 Aggregate or Annual Limits for Three-Year Policies: A number of the

policies were issued for three-year terms. Those issued from 1965

onward expressly stated that the policy limits applied annually.

Powell asked for a declaratory judgment that the limits in policies

issued before 1965 also applied annually, while OneBeacon argued

that a single aggregate limit applied to the three-year term of the

policies.

 Stub Periods: Two of the policies were for irregular periods (13 and 14

months), because the policies either had been cancelled early or

extended. Powell sought a declaration that these policies receive

separate annual limits for each year or partial year, while OneBeacon

argued that the policies were entitled to only a single limit.

 Increased Limits: Powell requested a declaratory judgment that the

parties had increased the limits for two of the policies subsequent to

the inception of the policies. OneBeacon argued that the evidence was

insufficient to prove an increase.

 Occurrence: In its motion for summary judgment, OneBeacon asked

the court to declare the meaning of “occurrence” under the policies.

In their initial dealings, the parties had acted under the assumption

4 OHIO FIRST DISTRICT COURT OF APPEALS

that each individual’s exposure to a Powell product constituted an

“occurrence.” In its summary judgment papers, however, OneBeacon

argued that the proper meaning of occurrence was not an individual’s

exposure but Powell’s decision to manufacture and sell products

containing asbestos without adequate warnings.

 Allocation: The parties disagreed on the appropriate manner in

which to “allocate” losses where an “occurrence” spanned over

multiple policy periods. Powell sought a declaratory judgment

allowing it to allocate sums expended in relation to any individual

injured party to any single “triggered” insurance policy up to the

policy limits. OneBeacon argued for a pro rata approach where losses

would be proportionally allocated to all insurance policies in effect

based upon the duration of the occurrence.

 Excess Insurance: Powell sought a declaratory judgment that in the

event the underlying policies were triggered, OneBeacon was required

to pay 100 percent of defense costs and 100 percent of settlement

costs under the excess policies. OneBeacon, for its part, sought a

declaration that the excess policies had not been triggered because

Powell had other collectible underlying insurance.

B. The Record: Missing and Incomplete Insurance Policies and a Stipulation

{¶10} Assembling the insurance policies was a challenge for the parties. A

number of the policies were located during the course of litigation. But three policies—

all issued before 1965—were lost, and one policy—issued in 1960—was incomplete.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} The parties filed a stipulation with the trial court regarding all the

policies. For those issued after 1965, the parties stipulated to the coverage limits and

attached a copy of the policy’s essential provisions. For the three lost policies, Powell

and OneBeacon stipulated to the coverage limits “at [each policy’s] inception.” The

parties also stipulated to the lost policies’ basic coverage forms—for two policies, by

referencing a coverage form issued to another company and for the third, by referencing

a policy issued to Powell in 1965. As to the incomplete policy, the parties stipulated to

coverage limits and attached “the majority” of the policy’s essential provisions. The

stipulation further provided that

[e]ither party may submit additional Civ.R. 56 evidence with respect to

any stipulated fact, including, but not limited to: evidence that the limits,

terms and/or conditions of any particular policy may have changed while

that policy was in effect; evidence that the limits of any particular policy

applied annually or singularly; evidence that that policy period was

extended; and evidence that the policy was canceled.

The insurance policies are set forth in Appendix 1 to this opinion.

C. The Proceedings Below

{¶12} The trial court granted in part Powell’s motion for summary judgment

and denied OneBeacon’s motion. Relying upon our decision in Cincinnati Ins. Co v.

ACE INA Holdings, Inc.,

,

,

(1st

Dist.), it concluded that the pre-1965 insurance policies were ambiguous as to whether

the aggregate limit applied annually or to the entire policy period. It looked to extrinsic

evidence and determined that the limits should apply on an annual basis. The court

then moved to the question of whether an “occurrence” means an individual’s exposure

or the decision to manufacture and sell products containing asbestos. Again guided by

6 OHIO FIRST DISTRICT COURT OF APPEALS

our decision in Cincinnati Ins., the court determined that an occurrence was each

individual claimant’s “continued and repeated exposure to [Powell’s] asbestos-

containing product[s].” The William Powell Co. v. OneBeacon Ins. Co., Hamilton C.P.

No. A-1109350,

(Sept. 12, 2013), quoting LuK Clutch Systems

v. Century Indemn.,

(N.D.Ohio 2011). As to the allocation issue, the

trial court held that issues of fact precluded summary judgment.

{¶13} OneBeacon appealed. Because the trial court had not decided the

allocation issue, we dismissed the appeal for lack of a final appealable order. See The

William Powell Co. v. OneBeacon Ins. Co., 1st Dist. Hamilton No. C-130681, 2014-Ohio-

3528. After the case’s return, the trial court dismissed Powell’s claims relating to

allocation and the excess insurance for lack of subject-matter jurisidiction, concluding

that they were not ripe for review. It granted summary judgment to Powell on its

remaining claims and dismissed OneBeacon’s claims for lack of subject-matter

jurisdiction. Thus, judgment was granted in favor of Powell with respect to the coverage

limits of the primary policies and the questions of annualization and multiple

occurrences.

{¶14} In the midst of the litigation, a discovery dispute arose between the

parties. The trial court granted a motion filed by Powell to compel the production of

documents and set a hearing on Powell’s request for fees and costs related to its motion.

After the hearing, the court concluded that the request for fees was reasonable and

ordered OneBeacon to pay attorney fees of $34,787.50 to Powell.

{¶15} OneBeacon now appeals, raising two assignments of error. The first

assignment is directed at the court’s decision to grant Powell’s motion for summary

judgment and to deny OneBeacon’s motion. The second takes on the fee award.

7 OHIO FIRST DISTRICT COURT OF APPEALS

II. We Uphold the Court’s Summary-Judgment Decisions with One Modification

{¶16} Within its first assignment of error, OneBeacon challenges the trial

court’s decisions that Powell’s asbestos-exposure liability arose from multiple

occurrences, that the aggregate limits should apply annually and that the aggregate

limits of two of the policies had been increased from their initial amounts. The insurer

also objects to the court’s refusal to declare that the excess policies had not been

triggered.

A. Powell’s Liability Arose from Multiple Occurrences

{¶17} We begin with the application of the policy term “occurrence” to injuries

arising from asbestos exposure. Each policy provided a per-occurrence and an aggregate

limit. Powell takes the position that each individual’s exposure to asbestos constitutes

an occurrence. OneBeacon, on the other hand, argues that Powell’s liability stemmed

from a single occurrence—the decision to manufacture and sell asbestos-containing

products without providing adequate warnings. Who is right presents a threshold

question in the sense that if OneBeacon is correct and there is only one occurrence, the

aggregate limits are never implicated.

{¶18} Ultimately, the issue is one of contract interpretation, so we look to the

language of the policies. The policies issued prior to 1968 did not define occurrence.

Beginning in 1968, however, the policies defined occurrence as “an accident, including

injurious exposure to conditions, which results, during the policy period, in bodily injury

or property damage neither expected nor intended from the standpoint of the insured.”

These policies also contained a clause—called a “deemer clause” because it deems when

an injury occurs—which provided that “all bodily injury and property damage arising out

of continuous or repeated exposure to substantially the same general conditions shall be

considered as arising out of one occurrence.”

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} We certainly are not the first court to confront the application of

occurrence-based policy language to asbestos exposure. Over the past 30 years, as

asbestos liabilities have reached magnitudes never imagined by insurers or insureds,

courts have struggled with how to count occurrences. See Stempel, Assessing the

Coverage Carnage: Asbestos Liability and Insurance After Three Decades of Dispute,

12 Conn.Ins.L.J. 349 (2005/2006). Courts generally have applied one of three theories

to identify an occurrence: a theory that looks to the underlying “cause” of the accident, a

theory that focuses on the “effect” of the accident, or a theory that looks to the

“triggering event” that caused liability. Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co.,

,

(2001).

{¶20} OneBeacon contends that Ohio courts apply the causation theory.

Under this approach, “the number of occurrences is determined by reference to the

cause or causes of the damage or injury, rather than by the number of individual claims.”

Cincinnati Ins.,

,

,

.

OneBeacon identifies the underlying act that was the proximate cause of injury as

Powell’s decision to sell asbestos-containing products without adequate warnings. It

analogizes the situation to a car accident that causes injuries to multiple people. There,

the occurrence is not the injuries but the car accident itself. In support of its argument,

OneBeacon cites numerous cases that have applied this approach to a variety of tort

claims. See, e.g., Banner v. Raisin Valley, Inc.,

(N.D.Ohio 1998);

Greater Cincinnati Chamber of Commerce v. Ghanbar,

, 2004-

Ohio-2724,

(1st Dist.); Progressive Preferred Ins. Co. v. Derby, 6th Dist.

Fulton No. F-01-002,

(June 15, 2001).

{¶21} In addressing the issue, we must be guided by our own precedent. In

Cincinnati Ins., the insured was a manufacturer of protective masks that were allegedly

9 OHIO FIRST DISTRICT COURT OF APPEALS

defective for not protecting users from asbestos exposures. We found the causation

theory inapplicable to the exposures that caused injury in that case. We noted that the

case did not concern a car accident, but rather “multiple asbestos claims spanning many

years, over a broad geographic area, under a multitude of unrelated circumstances, and

[] injuries [caused] by a plethora of different asbestos-related exposures.” Cincinnati

Ins. at ¶ 47. Rather than the causation theory, we adopted the “triggering-event” theory

discussed in Babcock & Wilcox Co. v. Arkwright-Boston Mfg. Mut. Ins. Co.,

(6th Cir. 1995). There, the court held that the event that triggered liability was “exposure

to asbestos, not a more remote cause such as Babcock’s decision to use asbestos or its

failure to warn.” Id. at 769.

{¶22} Importantly, 0ur decision in Cincinnati Ins. was anchored in not only

the “triggering-event” theory, but also the policy language. We found the policy

definition of occurrence “most damning” to the insurer. Cincinnati Ins. at ¶ 51. As in

OneBeacon’s policies, the language explicitly defined an occurrence to

include “ ‘injurious exposure to conditions’ that cause bodily injury.” See id. Thus,

“under the explicit terms of the policy, there [were] multiple occurrences because there

[were] multiple injurious exposures to conditions that [caused] bodily injury.” Id.

{¶23} Nonetheless, OneBeacon argues that Cincinnati Ins. is distinguishable.

It cites our statement that the masks were “not intrinsically harmful” but rather “they

failed to protect, and that failure to protect led to a multitude of physically and

temporally distinct injuries under a multitude of differing factual scenarios that did not

constitute the ‘same general conditions’ contemplated under the plain language of the

deemer clause.” Id. at ¶ 54. In contrast, OneBeacon argues that the products

manufactured by Powell were intrinsically harmful so the deemer clause should apply.

We are not convinced. Regardless of whether the products were intrinsically harmful,

10 OHIO FIRST DISTRICT COURT OF APPEALS

the deemer clause only applies to exposures to the “same general conditions.” Here, the

exposures were from different products, used in different manners, in different

worksites, in different temporal periods. Just as in Cincinnati Ins., the exposures to

Powell products “under a multitude of differing factual scenarios” did not constitute the

“same general conditions.”

{¶24} We do not believe a different result is warranted for the pre-1968 policies

that did not include a definition of occurrence. The approach taken in Cincinnati Ins.

has been utilized by other courts, even in the absence of a definition for “occurrence.” In

Metro. Life,

,

, the court was faced with a policy that did not

define “occurrence.” Relying on the triggering-event theory, the court in Metro. Life

rejected an argument that liability stemmed from a failure to warn about asbestos

exposure. Instead, the court concluded that it was “clear * * * that exposure to asbestos

was the immediate event that caused the claimants’ injuries. Indeed, the ‘last link in the

causal chain’ leading to Metropolitan’s liability was the claimants’ exposure to asbestos.”

.

{¶25} Thus, we conclude that Cincinnati Ins. controls. An occurrence

constitutes each individual claimant’s exposure to asbestos.

B. The Question of Annualization

{¶26} Because we have determined that individual asbestos-exposure claims

constitute multiple occurrences, we must address the question of whether policies

purchased prior to 1965 provide for annual aggregate limits.

1. The Pre-1965 Policies are Ambiguous

{¶27} It is undisputed that, beginning in May 1965, the primary policies

provided for annualization of the aggregate limits. Policy CG426753, effective May 4,

1965, stated in part “[a]ggregate limits of liability stated in this policy shall apply

11 OHIO FIRST DISTRICT COURT OF APPEALS

separately to each annual period.” Subsequent three-year policies contained similar

language. But, as stipulated by the parties, the basic policy forms for the policies that

were effective before May 1965 did not include annualization language.

{¶28} OneBeacon argues that the pre-1965 language stipulated to by the

parties plainly provides for a single aggregate limit. The policies contained the

following, or similar, language:

[T]he limit of such liability stated in the declarations as applicable to ‘each

occurrence’ is * * * the total limit of the company’s liability for all

damages * * * arising out of bodily injury, sickness or disease, including at

any time resulting therefrom, sustained by two or more persons in any

one occurrence.

The limits of bodily injury liability * * * stated in the declarations as

‘aggregate products’ are respectively the total limits of the company’s

liability for all damages arising out of the product hazard.

OneBeacon reasons that because the policies refer to a “total limit” and there is no

mention of annualization, the pre-1965 policies provide only a single aggregate limit.

{¶29} The position advocated by OneBeacon is not without support in the

caselaw. As one court has explained, allowing extrinsic evidence of annualization of

multi-year limits “would serve only to alter the plain terms of the contract by adding the

word ‘annual’ where it simply does not otherwise exist.” Maryland Cas. Co. v. W.R.

Grace & Co., S.D.N.Y. No. 88 Civ. 2613,

, * 15 (Apr. 11, 1996).

See Union Carbide Corp. v. Affiliated FM Ins. Co.,

,

(2009).

{¶30} But in deciding this issue, we must be guided by our own precedent. In

Cincinnati Ins.,

,

,

, we

12 OHIO FIRST DISTRICT COURT OF APPEALS

were likewise presented with multi-year insurance policies that provided for an

aggregate limit. As in our case, full copies of the insurance policies were not available.

We held that “aggregate” as used in the partial multi-year policies “was ambiguous and

that extrinsic evidence had to be used to deciper the contracting parties’ intent.” Id. at ¶

27. We explained that “[i]n multi-year insurance policies where the policies are

incomplete, the very absence of a limiting modifier is precisely what makes the word

‘aggregate’ ambiguous as to how the limits should be applied.” Id. at ¶ 28. Thus, we

looked to extrinsic evidence and determined that the aggregate amount applied

annually. Id. at ¶ 60.

{¶31} As in Cincinnati Ins., each of the four multi-year policies issued before

1965 is missing or incomplete. And in our view, the doctrine of stare decisis dictates that

we adhere to our holding in Cincinnati Ins. Stare decisis “provides continuity and

predictability in our legal system, * * * thwart[s] the arbitrary administration of justice

[and] provide[s] a clear rule of law by which the citizenry can organize their affairs.”

Westfield Ins. Co. v. Galatis,

,

,

. We find no compelling reason to depart from the doctrine in this case. Thus, finding

Cincinnati Ins. to be controlling, we conclude that the word “aggregate” in the

incomplete pre-1965 policies is ambiguous and that we must look to extrinsic evidence

to resolve the ambiguity.

2. Resolving the Ambiguity

{¶32} In Cincinnati Ins., we looked to three categories of evidence to resolve

the ambiguity: (1) performance after formation, (2) insurance industry norms and (3)

premiums paid for the policies. Cincinnati Ins. at ¶ 32. The record here contains the

same types of evidence.

13 OHIO FIRST DISTRICT COURT OF APPEALS

a. Performance After Formation

{¶33} Perhaps the strongest evidence for annualization is that from the time of

Powell’s first claim in 2001 up until 2009, OneBeacon treated the policies as providing

for annual limits. Even post-contract formation conduct has been said to be relevant in

construing ambiguous contractual language. Thus, where terms are reasonably

susceptible to more than one interpretation and “the parties to such contract have by

their acts and conduct in the performance of the contract over a reasonable period of

time mutually adopted one of those interpretations, the interpretation so adopted will be

given to those words.” State ex rel. Burgess & Niple v. Linzell,

,

(1950), syllabus. See Cincinnati Ins. at ¶ 33. OneBeacon protests that we

should not consider evidence of the parties’ conduct because the policies specifically

prohibited revisions unless made in writing. But we are not determining whether

revisions to the policies were made; we are construing the language initially agreed upon

by the parties. And here, evidence of the parties’ performance supports annualized

aggregate limits.

{¶34} Greg Waymon, an account manager for OneBeacon, was responsible for

overseeing the Powell claims from 2002 to 2005. He testified by affidavit that the

purpose of the multi-year policies was to secure coverage for three one-year periods. As

a result, when he set up the initial defense of Powell’s asbestos claims, he interpreted the

policies as having separate annual limits of liability. According to Waymon, during the

time he oversaw Powell’s asbestos claims, no one contested that the multi-year policies

were subject to annual limits. The treatment of the pre-1965 aggregate limits as

annualized continued after Waymon left OneBeacon. A subsequent account manager,

Darilyn Michaud, recorded annual limits of liability for each of the post-1960 policies in

an exhaustion chart provided to Powell in March 2009.

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶35} Notwithstanding Waymon’s and Michaud’s treatment of the aggregate

limits as annualized, OneBeacon maintains that the reservation-of-rights letter indicated

that OneBeacon considered the aggregate limits to apply per term. The letter provided

in part:

[OneBeacon] policies explicitly provide for specific limits of liability for

each occurrence and in the aggregate during a particular policy period. In

no event is Powell entitled to coverage under a [OneBeacon] policy for

any amount in excess of the specified limits of liability.

Unlike OneBeacon, we do not read this language as addressing whether the aggregate

limits were to be applied annually. Notably, OneBeacon continued to treat the limits as

annualized after it sent the reservation-of-rights letter in 2002. We conclude that the

parties’ past performance supports a construction that allows for the annualization of

the aggregate limits.

b. Insurance Industry Norms

{¶36} The customs and practices of the insurance industry also support an

annualized aggregate limit construction. As Waymon explained in his affidavit:

It was [the] custom and practice [of the three insurance companies

who were predecessors to OneBeacon] to treat multiyear policies [as]

having separate annual limits of liability, rather than having a single

non-annualized per policy period limit. In my experience as a claims

manager, the purpose of a multiyear policy was to lock in coverage for

three one year periods.

This view was echoed by Powell’s expert, Douglas Talley, who stated that insurance

industry custom was to apply aggregate limits on an annual basis.

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} OneBeacon claims that it rebutted Talley’s view with the testimony of its

own expert, James Robertson. But nothing in Robertson’s expert disclosure or

deposition addressed industry practice as to the aggregate policy limits for the multi-

year pre-1965 policies. The undisputed evidence showed the custom of the insurance

industry was to apply aggregate limits annually.

c. Premiums

{¶38} The final piece of evidence that we looked to in Cincinnati Ins. was

insurance premiums, though in doing so we were “mindful that courts should be

cautious when comparing insurance premiums to ascertain the contracting parties’

intent.” Cincinnati Ins.,

,

,

.

In Cincinnati Ins., policies that explicitly provided for the annualization of aggregate

limits cost almost an identical amount as those multi-year policies that did not.

We

explained that “‘common sense seems to dictate” that the insured would not have paid

approximately the same amount for a policy that provided one-third of the coverage.

Here, Powell submitted evidence that the pre-1965 policies calculated premiums using

the same or similar rates and sales figures as the 1965 policy, which clearly provided for

annualized aggregate limits. Powell was paying an almost identical yearly premium rate

for the pre-1965 policies and the 1965 policy. Despite OneBeacon’s protest that the

similarity in premiums is merely a reflection of accounting principles, we find the

premium evidence to be probative of the annualization question.

{¶39} Thus, after considering the extrinsic evidence, we conclude that the trial

court did not err when it determined that the pre-1965 policies provided for annual

aggregate limits.

16 OHIO FIRST DISTRICT COURT OF APPEALS

C. Stub Periods

{¶40} In addition to the four multi-year policies addressed above, Powell

sought a declaration that aggregate limits applied on an annual basis for two policies

that covered periods of 13 and 14 months.1 The parties refer to these periods as “stub

periods.”

{¶41} Policy GLA3716075 was issued as a three-year policy effective May 4,

1968, to May 4, 1971. But Powell signed a notice of cancellation effective on June 24,

1969, which effectively shortened the term of the policy from three years to 14 months.

The policy provides “[i]f this policy is issued for a period of three years, the limits of the

company liability shall apply separately to each consecutive annual period thereof.”

(Emphasis added.) Although the policy was issued for three years, there were no

consecutive annual periods. Rather, there was a one-year period followed by a two-

month period. Because there was not a consecutive annual period, annualization did not

apply.

{¶42} The second policy with a stub period—GLA4345057—was issued for one

year and then extended by endorsement for 32 days. The policy contains the following

provision: “[i]f this policy is issued for a period of three years any limit of the company’s

liability stated in this policy as ‘aggregate’ shall apply separately to each consecutive

annual period thereof.” Annualization does not apply for two reasons: it was not issued

as a three-year policy, and there were no consecutive annual periods. The trial court

erred when it determined that the aggregate limits applied annually for GLA3716075

and GLA4345057. Rather, each policy should receive a single aggregate limit.

1 The parties also discuss GLA4271741, a primary policy, and X10362, an excess policy. But the trial court did not make a declaration as to GLA4271741. And the court’s dismissal of Powell’s claim regarding the excess policy limits was not appealed. Thus, neither policy is before us for determination.

17 OHIO FIRST DISTRICT COURT OF APPEALS

D. Increased Policy Limits

{¶43} The parties also disagree about whether the aggregate limits of two

policies—CG249982 and CG304557— were increased after the inception of the policies.

The parties stipulated to initial aggregate limits of $300,000 for CG249982 and

$500,000 for CG304557. But Powell introduced evidence that the limits of both policies

had been increased. See Sharonville v. Am. Emps. Ins. Co.,

, 2006-

Ohio-2180,

. OneBeacon contends that the evidence was

insufficient to show that the limits for the two policies had increased.

{¶44} Before delving into the evidence, we must determine the appropriate

standard of proof. “In civil cases, the general rule is that issues of fact are to be

determined by the preponderance—the greater weight—of the evidence.” Tupler v.

Tupler, 1st Dist. Hamilton Nos. C-920852 and C-920887,

, *3-

4 (Jan. 12, 1994). OneBeacon, however, maintains that Powell needed to prove any

changes in the initial limits by clear and convincing evidence. In support, it cites an 1875

Ohio Supreme Court case requiring a plaintiff alleging the existence of a deed to “clearly

and satisfactorily” prove the deed. Gillmore v. Fitzgerald,

(1875),

syllabus. Notwithstanding this authority, we see no reason to depart from the ordinary

preponderance-of-the-evidence standard employed in civil cases. Indeed, the Sixth

Circuit Court of Appeals, applying Ohio law, has rejected the use of a clear-and-

convincing standard for proof of the existence and terms of an insurance policy. See

Lincoln Elec. Co. v. St. Paul Fire & Marine Ins.,

(6th Cir. 2000). In that

case, the court noted that while there was “no dispositive statute or Ohio Supreme Court

case on point,” the preponderance standard “appears to represent the majority rule, and

can be said to reasonably anticipate the Ohio Supreme Court’s position.”

. We

18 OHIO FIRST DISTRICT COURT OF APPEALS

agree and conclude that Powell needed to prove the increased limits by a preponderance

of the evidence.

{¶45} To prove the revision of the initial limits, Powell presented

correspondence with its insurance broker confirming an increase in aggregate limits for

CG249982 from $300,000 to $500,000 and for CG304557 from $500,000 to

$1,000,000. OneBeacon presented no evidence to the contrary. Given the undisputed

evidence, there remained no question of fact that the policy limits had been raised. The

court properly granted judgment on the issue in favor of Powell.

E. Whether the Excess Policies were Triggered was Not Ripe for Review

{¶46} In its final order, the trial court dismissed the parties’ claims for a

declaration of their rights under the excess policies. OneBeacon now argues that the

court should have declared that its obligations under the excess policies were not

triggered until all other collectible insurance has been exhausted. Powell did not appeal

the trial court’s dismissal of its claim regarding the excess policies.

{¶47} Even as to proceedings seeking declaratory judgments, there must be a

genuine controversy “between parties having adverse legal interests, of sufficient

immediacy and reality.” Maryland Cas. Co. v. Pacific Coal & Oil Co.,

,

,

(1941). “For a cause to be justiciable, there must exist a real

controversy presenting issues that are ripe for judicial resolution and which will have a

direct and immediate effect on the parties.” Cristino v. Ohio Bur. of Workers’ Comp.,

10th Dist. Franklin No. 13AP-772,

. See Burger Brewing Co. v.

Liquor Control Comm.,

,

(1973). To be ripe, a

declaratory judgment cannot be dependent on the occurrence or nonoccurrence of

future events. Keller v. Columbus,

,

,

. We apply an abuse-of-discretion standard when reviewing a trial court’s

19 OHIO FIRST DISTRICT COURT OF APPEALS

dismissal of a declaratory-judgment claim as not justiciable. Arnott v. Arnott,

,

,

, ¶ 13.

{¶48} OneBeacon asked for a declaration that its excess policies were not

presently triggered “if there is additional collectible, unscheduled, underlying insurance

issued by any insurer.” OneBeacon argues that there is at least one other collectible,

underlying policy issued by National Union. Powell counters that the National Union

policy is an excess—not primary—policy, which would not trigger the other excess

policies. The disagreement was never before the trial court for resolution. OneBeacon

claimed that it was “not necessary for [the trial court] to make a final determination that

the National Union Policy provides coverage [before deciding the summary judgment

motion]—only to issue declaratory relief that OneBeacon’s defense obligations under its

excess policies are not triggered if there is other triggered primary insurance.” But

absent a determination as to the existence of other primary insurance, the excess-

insurance question is largely hypothetical. We conclude that the court did not abuse its

discretion in finding the issue not ripe for review.

{¶49} Thus, we sustain the first assignment of error with respect to the

annualization of the aggregate limit for the stub periods in policies GLA3716075 and

GLA4345057. In all other respects, we overrule the first assignment of error.

III. The Second Assignment of Error is Overruled

{¶50} OneBeacon’s second assignment of error challenges the attorney fees

awarded for Powell’s motion to compel. OneBeacon does not question whether attorney

fees were appropriate. Rather, it protests that the record does not support the amount

awarded.

{¶51} In support of its fee request, Powell submitted an invoice that indicated

106.5 hours had been spent on the motion. OneBeacon protests that the ten-page

20 OHIO FIRST DISTRICT COURT OF APPEALS

motion filed by Powell did not justify 106.5 hours in attorney time. Apparently much of

the attorney time was spent reviewing the documents produced—something OneBeacon

says Powell would have had to do anyway. Powell counters that in response to its

discovery requests, OneBeacon produced over 20,000 pages of documents, 14,000

pages of which were unresponsive and unrequested. Review of these documents was

necessary to prepare the motion to compel, says Powell, because it needed to determine

which documents were responsive and which requests remained outstanding.

{¶52} Ordinarily we would tend to agree that the simple review of documents—

something that a party would have to do anyway—would not properly be chargeable as

attorney fees for a motion to compel the production of additional documents. But this

case is a little different. The trial court apparently accepted Powell’s argument that

OneBeacon’s production was so unwieldy that in order to file the motion to compel,

Powell was required to expend unusual amounts of attorney time to determine the

extent of OneBeacon’s compliance with the discovery requests. Discovery is an area

where we give particular deference to the trial judge who is familiar with the ins and outs

of the parties’ conduct in the case. McCulley v. P.J. Knittel Engraving Co., 1st Dist.

Hamilton No. C-910644,

, *6 (Jan. 29, 1993). For this

reason, we review fee awards such as this one under the deferential abuse-of-discretion

standard. Berger v. Berger, 1st Dist. Hamilton No. C-030631,

. We

find no abuse of that discretion here. The second assignment of error is overruled.

IV. Conclusion

{¶53} The first assignment of error is sustained with respect to policies

GLA3716075 and GLA345057 and overruled in all other respects. The second

assignment of error is overruled. We reverse the trial court’s judgment with respect to

GLA3716075 and GLA345057 and remand the case for the trial court to enter judgment

21 OHIO FIRST DISTRICT COURT OF APPEALS

consistent with this opinion. In all other respects, the judgment of the trial court is

affirmed.

Judgment affirmed in part, reversed in part, and cause remanded.

F ISCHER , P.J., and M OCK , J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

22 OHIO FIRST DISTRICT COURT OF APPEALS

Appendix 1

Years Policy Number Amount per occurrence/aggregate

5/4/55-5/4/58 CG249982* $300,000/$300,000***

5/4/58-5/4/60 CG304557* $500,000/$500,000***

5/4/60-5/4/63 CG348800** $1 million/$1 million

5/4/63-5/4/65 CG372862* $2 million/$2 million

5/4/65-5/4/68 CF426753 $2 million/$2 million

5/4/68-6/24/69 GLA3716075 $2 million/$2 million

6/24/69-6/24/72 GLA3807927 $500,000/$500,000

6/24/69-6/24/72 XC5424 $5 million/$5 million

6/24/72-6/24/75 GLA4014464 $500,000/$500,000

6/24/72-6/24/75 XC6867 $5 million/$5 million

6/24/75-7/26/76 GLA4345057 $500,000/$500,000

6/24/75-8/26/76 XC10362 $5 million/$5 million

7/26/76-7/26/77 GLA4271741 $1 million/$1 million

* Lost policy. ** Incomplete policy. *** Powell argued that the initial aggregate limits of CG249982 and CG304557 were increased to $500,000 and $1 million, respectively.

23