[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s London, Slip Opinion No. 2024-Ohio-
5773.]




                                        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. 

  SHERWIN-WILLIAMS COMPANY, APPELLEE, v. CERTAIN UNDERWRITERS AT
                      LLOYD’S LONDON ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s
                    London, Slip Opinion No. 

.]
Insurance—Insurers of paint company that marketed and sold lead paint are not
        obligated to indemnify paint company for payments that paint company
        made into abatement fund to mitigate hazards of lead paint—Because
        abatement-fund payment was made to prevent future harm rather than
        compensate for past harm, payment was not “damages” covered under
        insurance contracts—Court of appeals’ judgment reversed and trial court’s
        grant of summary judgment in favor of insurers reinstated.
 (No. 2023-0255—Submitted October 24, 2023—Decided December 10, 2024.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                            No. 110187, 

.
                                 __________________
                            SUPREME COURT OF OHIO




       DETERS, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DEWINE, DONNELLY, and BRUNNER, JJ., joined. STEWART, J., concurred,
with an opinion.


       DETERS, J.
       {¶ 1} This case is about whether a paint company’s insurers must indemnify
it for money the company was ordered to pay into an abatement fund to mitigate
the hazards of lead paint. The trial court determined that the insurers did not have
to indemnify the paint company, but the court of appeals reversed. We conclude
that because the abatement-fund payment was ordered to prevent future harm to
children’s health from lead paint, the payment to the fund did not constitute
“damages” under the insurance contracts. The Eighth District Court of Appeals
erred when it concluded that the insurers were obligated to indemnify the paint
company. We therefore reverse the judgment of the court of appeals and reinstate
the trial court’s entry of summary judgment in favor of the insurers.
                               I. BACKGROUND
                           A. The California Lawsuit
       {¶ 2} In 2000, Santa Clara County, California, sued Sherwin-Williams and
other paint companies. The initial complaint alleged claims for strict liability,
negligence, fraud and concealment, unjust enrichment, indemnity, and unfair
business practices related to the companies’ role in selling and promoting the use
of lead-based paint. See Santa Clara Cty. v. Atlantic Richfield Co., 

 (2006). Other California governmental entities joined Santa Clara County
(“the governmental entities”) in the lawsuit, and ultimately, the lawsuit moved
forward on only one claim—a public-nuisance claim “on behalf of the People of




                                         2
                                     January Term, 2024




the State of California.”1 In the fourth amended complaint, the governmental
entities alleged:


                 As a direct and proximate result of [the paint companies’]
        conduct, large numbers of people throughout the State of California,
        and particularly children, have been exposed and/or are being
        exposed and/or will be exposed to [l]ead in, on and around the
        contaminated homes, buildings, and other property throughout the
        State of California, thereby affecting the health, safety, and welfare
        of each of those children.


        {¶ 3} In 2013, the case was tried to the Superior Court of California in Santa
Clara County. At the conclusion of the trial, the trial court held that Sherwin-
Williams and two other paint companies, NL Industries and ConAgra, (“the paint
companies”) had created a public nuisance as claimed by the governmental entities,
and it ordered the companies to pay jointly and severally $1.15 billion into an
abatement fund to be administered by the State of California. People v. Atlantic
Richfield Co., 

, *61 (Cal.Super.Ct. Mar. 26, 2014).                           The
California trial court explained that the abatement plan would require:


        •     Testing of interior surfaces in homes to identify both the
              presence of lead-based paint and the presence of lead-based
              paint hazards;




1. For purposes of the California lawsuit, “[t]he People” were “residents of the counties of Santa
Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura Counties and the cities
of Oakland, San Diego, and San Francisco.” People v. Atlantic Richfield Co., 

,
*2 (Cal.Super.Ct. Mar. 26, 2014).




                                                3
                            SUPREME COURT OF OHIO




       •     Remediation of lead-based paint on friction surfaces (including
            windows, doors, and floors) by either replacement of the
            building component or by encapsulation or enclosure of the
            lead-paint;
       •    Remediation of lead-based paint hazards in excess of actionable
            levels on all other surfaces through paint stabilization (as
            opposed to paint removal, enclosure or encapsulation);
       •    Dust removal, covering of bare contaminated soil, proper
            disposal of waste, post-hazard control cleanup and dust testing,
            and occupant and worker protection;
       •    Repair of building deficiencies that might cause the corrective
            measures to fail (e.g. water leaks) to ensure durability of the
            lead hazard control measures; and
       •    Education of families and homeowners on lead poisoning
            prevention and paint-stabilization techniques to remediate lead
            based paint hazards on non-friction surfaces.


Id. at *56-57.
       {¶ 4} The paint companies were to deposit payments into a fund for
disbursement by the State of California’s Childhood Lead Poisoning Prevention
Branch. Id. at *61. The governmental entities would then apply for grants from
the fund. Id. at *62. Under the abatement plan, the governmental entities had
various obligations—for example, establishing the priority of the inspection and
lead-hazard-control work; conducting workforce development, public-education
campaigns; designing hazard-control plans; reviewing payments to hazard-control
contractors; and reviewing workforce development. Id. at *57. According to the




                                         4
                                     January Term, 2024




court’s order, the plan would last for four years and, after that period, any remaining
funds would be returned to the paint companies. Id. at *62.
        {¶ 5} The paint companies appealed to the California Sixth District Court
of Appeal.      That court affirmed the lower court’s conclusion that the paint
companies had created a public nuisance by their promotion of lead-based paint.
People v. ConAgra Grocery Prods. Co., 

 (2017). But
the appellate court held that causation had not been established with respect to
houses built after 1950. 

. The appellate court therefore remanded the
case so that the trial court could “recalculate the amount of the abatement fund to
limit it to the amount necessary to cover the cost of remediating pre-1951 homes.”

. The California Supreme Court denied the paint companies’ petitions for
review of the court of appeal’s decision. 

 (Feb. 14, 2018),
cert. denied, __ U.S. __, 

 (2018). On remand, the Santa Clara County
Superior Court reduced the amount to be paid into the abatement fund to $409
million. See Certain Underwriters at Lloyd’s London v. ConAgra Grocery Prods.
Co., L.L.C., 

, 737 (2022). Ultimately, in 2019, the parties to the
California lawsuit came to a settlement by which each of the paint companies would
pay $101,666,667 into the abatement fund. See 

                          B. Sherwin-Williams’s case in Ohio
        {¶ 6} In 2006, Sherwin-Williams filed a lawsuit in the Cuyahoga County
Court of Common Pleas seeking, among other things, a declaration of the coverage
obligations of its insurers with respect to a similar public-nuisance lawsuit pending
in Rhode Island.2 In 2008, after the Rhode Island Supreme Court entered judgment
in favor of Sherwin-Williams in that lawsuit, Sherwin-Williams and all of the




2. Sherwin-Williams filed its lawsuit in Ohio based on its contention that the insurance companies
regularly did business in Ohio and had contracted to insure risks of Sherwin-Williams in Ohio. See
R.C. 2307.382(A)(1) and (9).




                                                5
                                SUPREME COURT OF OHIO




defendants jointly moved to stay the Cuyahoga County lawsuit. The trial court
ordered a stay.
        {¶ 7} After the California Supreme Court and United States Supreme Court
refused to hear Sherwin-Williams’s appeal in the California lawsuit and after the
Santa Clara County Superior Court entered its order reducing the total amount to
be paid to the abatement fund to $409 million, Sherwin-Williams moved to lift the
stay in January 2019. The common pleas court granted the motion the following
month. Sherwin-Williams then filed an amended complaint against “Certain
Underwriters at Lloyd’s, London, Certain London Market Companies, and Certain
Domestic Insurers”, seeking indemnification for the California lawsuit and any
other similar lead-paint claims.3
        {¶ 8} Nearly all of the insurers joined a motion for summary judgment
arguing that they were not required to indemnify Sherwin-Williams under the terms
of their various insurance policies.4 For proceedings before the trial court, Sherwin-
Williams and the insurers stipulated to exemplar contracts.                  The summary-
judgment motion argued that the policies provide no coverage for the lead-paint

3. The named defendants are Certain Underwriters at Lloyds, London, and Certain London Market
Companies; Ace American Insurance Company; Allianz Global Risks US Insurance Company;
Allstate Insurance Company; American Alternative Insurance Company; American Casualty
Company of Reading, Pennsylvania; American Guarantee & Liability Insurance Company;
American Home Assurance Company; American Zurich Insurance Company; Berkshire Hathaway
Direct Insurance Company; Central National Insurance Company of Omaha; Century Indemnity
Company; Columbia Casualty Company; Continental Casualty Companies; Continental Insurance
Company; Employers Mutual Casualty Company; Executive Risk Indemnity, Inc.; Federal
Insurance Company; Fireman’s Fund Insurance Company; First State Insurance Company;
Government Employees Insurance Company; Great American Insurance Company; Gulf Insurance
Company; Harbor Insurance Company; Insurance Company of the State of Pennsylvania; Lexington
Insurance Company; Mount McKinley Insurance Company; National Surety Corporation; National
Union Fire Insurance Company of Pittsburgh, Pa.; North River Insurance Company; Nutmeg
Insurance Company; OneBeacon Insurance Company; Royal Indemnity Company; Steadfast
Insurance Company; St. Paul Fire & Marine Insurance Company; TIG Insurance Company;
Travelers Casualty & Surety Company; Twin City Fire Insurance Company; United States Fire
Insurance Company; Westchester Fire Insurance Company; and Westport Insurance Corporation.

4. Of the named defendants, it appears that several insurance companies did not join the motion
for summary judgment.




                                              6
                                 January Term, 2024




claims, because (1) the policies only provide coverage for harm that was neither
expected nor intended, and Sherwin-Williams had intentionally promoted its lead-
based paint; (2) the policies only provide coverage for damages and expenses, and
no damages or expenses were awarded by the California trial court; and (3) the
policies only cover damages “for,” “because of,” or “on account of” “property
damage” or “bodily injury,” and Sherwin-Williams had not been held liable on that
basis.
         {¶ 9} Sherwin-Williams, for its part, filed a motion for partial summary
judgment against National Union Fire Insurance Company of Pittsburgh, Pa.,
choosing that company as a single policy to respond first under this court’s holding
in Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 

(“[The insured] should be permitted to choose, from the pool of triggered primary
policies, a single primary policy against which it desires to make a claim. In the
event that this policy does not cover [the insured’s] entire claim, then [the insured]
may pursue coverage under other primary or excess insurance policies.”).
         {¶ 10} The common pleas court granted summary judgment to the insurers.
Its decision hinged on language from the California Sixth District Court of Appeal
regarding whether payment to an abatement fund was a damages award:


                “The abatement fund was not a ‘thinly-disguised’ damages
         award. The distinction between an abatement order and a damages
         award is stark. An abatement order is an equitable remedy, while
         damages are a legal remedy. An equitable remedy’s sole purpose is
         to eliminate the hazard that is causing prospective harm to the
         plaintiff. An equitable remedy provides no compensation to a
         plaintiff for prior harm. Damages, on the other hand, are directed at
         compensating the plaintiff for prior accrued harm that has resulted
         from the defendant’s wrongful conduct.”




                                          7
                             SUPREME COURT OF OHIO




Cuyahoga C.P. No. CV-06-585786, 3 (Dec. 4, 2020), quoting ConAgra Grocery
Prods., 

. Although the common pleas court found the
California court’s determination to be “counterintuitive and illogical,” the court
considered itself bound by that determination. Id. at 7. Thus, it concluded that
there were no damages for purposes of reimbursement under the insurance policies.
Id. And because the recovery for “certain expenses” under some of the policies
was triggered only by a payment of damages, there were no expenses under those
policies. Id.
       {¶ 11} Sherwin-Williams appealed to the Eighth District Court of Appeals,
which reversed the trial court’s judgment. 

 (8th Dist.). The
Eighth District relied largely on the decisions of a New York trial court and
appellate court in a similar case involving liability of a paint company stemming
from the California litigation and abatement-fund settlement.          See Certain
Underwriters at Lloyd’s London v. NL Industries, Inc., N.Y. Sup.Ct., New York
Cty., No. 650103/2014, 2020 N.Y. Misc LEXIS 10905 (Dec. 29, 2020) (“NL I”);
Certain Underwriters at Lloyd’s London v. NL Industries, Inc., 

(N.Y.App.Div. 2022) (“NL II”). In that case, the New York courts determined that
the insurers of NL Industries were obligated to indemnify the company for the
California lawsuit.
       {¶ 12} Here, contrary to the trial court’s reasoning, the Eighth District
concluded that it was not bound by the California appellate court’s statement
regarding whether payment into the abatement fund constituted “damages” under
the policies, because that issue had not been litigated in the California lawsuit.

 (8th Dist.). Instead, the Eighth District considered the issue
and was persuaded by the New York courts’ conclusion in NL I and NL II that the
payment into the abatement fund constituted “damages” under the insurance
policies. Id. at ¶ 53-67. The Eighth District determined that “the Abatement Fund




                                         8
                                January Term, 2024




essentially serves the purpose of reimbursing the government’s costs in responding
to the lead paint hazard.” Id. at ¶ 67. The court continued, “Indeed, the Abatement
Fund was not strictly intended to prevent harm but was monies to be paid to the
government to compensate for money depleted by its ongoing efforts to remediate
the longstanding contamination of houses and buildings by lead paint in
California.” Id.    Thus, according to the Eighth District, Sherwin-Williams’s
payment into the abatement fund qualified as damages under the policies. Id.
       {¶ 13} The Eighth District also concluded that the trial court had correctly
determined that coverage was not excluded because of any “intentional and
expected acts” of Sherwin-Williams, id. at ¶ 79, or because the liability was not
imposed “because of” bodily injury or property damage, id. at ¶ 90.
       {¶ 14} The insurers filed a motion for reconsideration and reconsideration
en banc following our decision in Acuity v. Masters Pharmaceutical, Inc., 2022-
Ohio-3092, arguing that in Acuity, we “rejected the basis for the [Eighth District’s]
holding that the Santa Clara abatement fund was damages because of property
damage or bodily injury.” The Eighth District denied the motion.
       {¶ 15} The insurers’ appealed, and we accepted jurisdiction over three
propositions of law:


               Proposition of Law 1: Under Acuity, [commercial general
       liability (“CGL”)] policies cover an insured’s liability for
       “damages” “because of” “bodily injury” or “property damage” to
       particular individuals or properties. They do not cover liability
       imposed to abate societal harm and prevent future injuries.
               Proposition of Law 2: When an insured is “substantially
       certain” or has “actual knowledge” that its conduct will result in
       harm, coverage is unavailable under both CGL “expected or
       intended” policy language and Ohio public policy.




                                         9
                              SUPREME COURT OF OHIO




                Proposition of Law 3: The term “damages” in a CGL policy
        is payment for loss or injury sustained by a person, and it does not
        include monetary payments that do not compensate anyone for loss
        or injury.


See 

.
        {¶ 16} As will be discussed below, the ultimate question in this appeal is
resolved by determining whether the payment to the abatement fund constituted
“damages” under the policies, so we confine our discussion to the insurers’ third
proposition of law.
                                  II. ANALYSIS
        {¶ 17} “‘An insurance policy is a contract whose interpretation is a matter
of law.’ Sharonville v. Am. Emps. Ins. Co., 

, 

,

, citing Alexander v. Buckeye Pipe Line Co., 

,

 (1978), paragraph one of the syllabus. Therefore, we apply the de
novo standard of review when we interpret insurance contracts.” Krewina v. United
Specialty Ins. Co., 

, ¶ 17.
              A. The policies cover compensation for past harms,
                         not for eliminating future harms
        {¶ 18} Throughout the proceedings, the parties have stipulated to exemplar
language from nine insurance policies issued to Sherwin-Williams. Although the
policies employ different phrasing, each one contains some version of the language
used in a policy between Lloyd’s and Sherwin-Williams for the period of 1964-
1967:


                Underwriters hereby agree . . . to indemnify [Sherwin-
        Williams] for all sums which [Sherwin-Williams] shall be obligated
        to pay by reason of the liability




                                            10
                                        January Term, 2024




                   ...
                   for damages on account of:
                              (1) Personal Injuries, including death at any time
                   resulting therefrom,
                              (2) Property Damage, including the loss of use
                   thereof
                   . . . .5


Most of the policies provide definitions of terms such as “personal injuries” or
“property damage,” but none defines “damages.”
         {¶ 19} “We interpret insurance contracts with the same rules as other
written contracts. That means that for an insurance contract, just like any other
contract, a court has an obligation to give plain language its ordinary meaning and
to refrain from rewriting the contractual agreement of the parties.” (Cleaned up.)
Acuity v. Progressive Specialty Ins. Co., 

.
         {¶ 20} Here, the parties don’t dispute the definition of “damages.” Instead,
they disagree on how that definition applies to the facts of this case. The parties
point to the same definition of “damages” in their respective briefs: “[m]oney
claimed by, or ordered to be paid to, a person as compensation for loss or injury,”
Black’s Law Dictionary (8th Ed. 2004). Another definition is “the estimated

5. Other agreements provide that Sherwin-Williams will be indemnified “for damages” for “bodily
injuries” or “for damages on account of any claim made against [Sherwin-Williams] as respects
damage to or destruction of property”; for “all sums which [Sherwin-Williams] shall become legally
obligated to pay as damages because of: bodily injury or property damage”; for “those sums that
[Sherwin-Williams] pays as costs, expenses, or damages because of ‘bodily injury’ or ‘property
damage’”; “for any and all sums which [Sherwin-Williams] shall by Law become liable to pay and
shall pay . . . as damages for bodily injuries . . . [or] for damage to or destruction of property”; “[f]or
damages and expenses . . . because of personal injury . . . [or] [f]or damages and expenses . . .
because of injury to or destruction of tangible property”; “for damages on account of . . . [p]ersonal
[i]njuries . . . [or] [p]roperty [d]amage”; “for damages, direct or consequential and expenses on
account of . . . [p]ersonal [i]njuries . . . [or] [p]roperty [d]amage”; and for “that portion . . ., which
[Sherwin-Williams] shall become legally obligated to pay as damages for liability imposed . . .
because of . . . personal injury [or] property damage.”




                                                    11
                             SUPREME COURT OF OHIO




reparation in money for detriment or injury sustained.” Webster’s Third New
International Dictionary (2002).
        {¶ 21} The insurers argue that the payment Sherwin-Williams was ordered
to make to the abatement fund “did not and could not compensate anyone for a loss
or injury.” Instead, according to the insurers, the abatement fund was to provide
prospective relief—to prevent children from being poisoned by lead. In response,
Sherwin-Williams contends that the insurers lean too heavily on California public-
nuisance law to answer an Ohio question of law and that “all parties agree that the
meaning of ‘damages’ in the Policies is a question of Ohio insurance law and the
parties’ intent.”   (Emphasis in original.)      In Sherwin-Williams’s view, the
abatement fund was established to compensate for a past harm—the presence of
lead paint in residences built before 1951. We conclude that the insurers have the
better argument. As we explain below, the abatement fund established by the
California trial court did not compensate the governmental entities for past loss or
injury; it was designed to prospectively prevent further harm related to lead
poisoning.
   B. The California court’s order was not to compensate for bodily harm
        {¶ 22} California law provides three types of remedies for public nuisances:
“[i]ndictment or information,” “[a] civil action,” or “[a]batement.” Cal.Civ.Code
3491.    In their fourth amended complaint in the California lawsuit, the
governmental entities sought only abatement as a remedy for the paint companies’
creation of a public nuisance.      “Abatement” is “[t]he act of eliminating or
nullifying.” Black’s. Unlike damages, which are designed to compensate for a past
injury, an abatement remedy looks to prevent future harm.
        {¶ 23} This distinction is borne out by the California trial court’s March 26,
2014 order. The court made clear that the purpose of the abatement plan was to
prevent or, at the very least, mitigate the future risk of harm to children. The court
crafted the plan to address the recognition that children were at the greatest risk to




                                          12
                                January Term, 2024




suffer from the effects of lead poisoning. Thus, “[i]nstitutional group quarters,
including correctional facilities, nursing homes, dormitories, non-family military
housing (e.g. barracks), mental health psychiatric rehabilitation residences,
alcohol/detox living facilities, supervised apartment living quarters for youths over
16, schools, and non-home based day care centers” were excluded from the
abatement plan. Atlantic Richfield Co., 

, at *56.
       {¶ 24} The specifics of the plan looked toward addressing future risks of
lead poisoning, rather than compensating for past injury. Under the plan, property
owners would be screened to see if their property qualified for inspection and
subsequent services. Id. at *57. Educational outreach was also included. Id. The
court established “Priority Groups” to determine the order in which properties
should be addressed under the plan. Id. at *58. Priority Group 1 included properties
housing children with already elevated blood-lead levels as well as homes “with a
history of repeated, multiple poisonings occupied by a young child who has not
(yet) developed an elevated blood level.”        Id.   Priority Group 2 included
“[p]roperties with lower lead paint concentrations,” “[p]roperties with no history of
lead poisoning,” and “vacant housing units that could one day be occupied by
children.” Id. In short, the plan, as laid out by the California trial court, was to
eliminate future harm, not compensate past injuries.
       {¶ 25} The Eighth District mistakenly determined that “the Abatement
Fund was not strictly intended to prevent harm but was monies to be paid to the
government to compensate for money depleted by its ongoing efforts to remediate
the longstanding contamination of houses and buildings by lead paint in
California.” 

 (8th Dist.). The primary source of support
for the Eighth District’s determination was the New York courts’ conclusion that
“[b]ecause the Abatement Fund was not strictly intended to prevent harm but
instead directed toward repaying monies depleted by the government’s ongoing
efforts to remediate the longstanding contamination of houses and buildings by lead




                                         13
                            SUPREME COURT OF OHIO




paint in California, . . . the Abatement Fund qualified as damages under the
applicable policies.” Id. at ¶ 65, citing NL I, 

, at
*42. However, while the California trial court noted that “[t]he [governmental
entities] lack the resources to force homeowners to remove all lead paint from
homes in their jurisdictions,” Atlantic Richfield Co., 

, at *56,
there is no indication that any part of the abatement fund was used to pay back the
governmental entities for work already done. Moreover, the Eighth District’s
conclusion is belied by the following statement of the California Sixth District
Court of Appeal:


               Here, plaintiff sought the equitable remedy of abatement for
       the nuisance because the hazard created by defendants was
       continuing to cause harm to children, and that harm could be
       prevented only by removing the hazard. Plaintiff did not seek to
       recover for any prior accrued harm nor did it seek compensation of
       any kind. The deposits that the trial court required defendants to
       make into the abatement account would be utilized not to
       recompense anyone for accrued harm but solely to pay for the
       prospective removal of the hazards defendants had created.


ConAgra Grocery Prods., 

.
       {¶ 26} Sherwin-Williams urges this court to disregard the California
appellate court’s analysis as we address whether, under Ohio law, “damages”
include payments into an abatement fund. But while California courts hold no sway
over resolution of Ohio questions of law, the order to pay into the abatement fund
was not made in a vacuum. The circumstances surrounding the California courts’
decisions are useful in answering whether Sherwin-Williams’s payment constituted
damages under the insurance contracts. And we conclude that the answer to that




                                        14
                                       January Term, 2024




question is that the purpose of the payment into the abatement fund was to prevent
future harm to the children represented by the California governmental entities, not
to compensate the governmental entities for past injury.
 C. The California court order did not compensate for past physical damage
         {¶ 27} The determination whether the order to pay into the abatement fund
was to compensate for physical damage is easily resolved. Sherwin-Williams
argues that because the paint companies were held liable for the nuisance created
by lead paint in residences built before 1951, the purpose of its payment to the
abatement fund was to compensate for past property damage.
         {¶ 28} Although the exact phrasing differs, the policies use a similar
definition for “property damage,” e.g., “loss of or direct damage to or destruction
of tangible property.”6 But here, there is no indication that lead paint causes
physical damage to property. See Mastellone v. Lightning Rod Mut. Ins. Co., 2008-
Ohio-311, ¶ 61 (8th Dist.) (construing “physical injury” to mean “harm to the
property that adversely affects the structural integrity of the house”).
         {¶ 29} Moreover, as explained by the California appellate court, the
California trial court did not order the payment to fix any damage to buildings,
because the governmental entities never alleged that buildings had suffered
physical injury; rather the governmental entities had




6. Other definitions for “property damage” from the exemplar policies include “physical injury to
or destruction of tangible property which occurs during the policy period, including the loss of use
thereof at any time resulting therefrom, or . . . loss of use of tangible property which has not been
physically injured or destroyed provided such loss of use is caused by an occurrence during the
policy period”; “Physical injury to tangible property, including all resulting loss of use of that
property . . . or [l]oss of use of tangible property that is not physically injured”; “physical injury to
or destruction of tangible property, which occurs during the policy period, including loss of use
thereof at any time resulting therefrom; or . . . loss of use of tangible property, which has not been
physically injured or destroyed provided such loss of use is caused by an occurrence during the
policy period.”




                                                   15
                                SUPREME COURT OF OHIO




          adequately alleged that the presence of deteriorated lead paint poses
          an unreasonable danger to human beings, [but] they . . . made no
          allegations that the deteriorated lead paint even threatens the
          buildings themselves with physical injury. They ha[d] not alleged
          that deteriorated lead paint causes the walls or floors of the structure
          to themselves deteriorate or in any other way causes damage to the
          physical components of plaintiffs’ buildings other than the lead
          paint.


(Emphasis in original.) Atlantic Richfield Co., 

. The court
clarified that “[w]hile a human being who had suffered lead poisoning as a result
of exposure to deteriorating lead paint in plaintiffs’ buildings might have a viable
negligence or strict liability cause of action . . ., plaintiffs, as the owners of
structures simply containing deteriorated lead paint, do not.” 

          {¶ 30} In its merit brief, Sherwin-Williams, quoting Stychno v. Ohio Edison
Co., 

 (N.D. Ohio 1992), protests that payments “‘to remove
and remedy the effects of improper hazardous [substances]’ ” have been considered
“damages” by other courts. (Bracketed text in original.) However, setting aside
the fact that we are not bound by any of the holdings in the cases Sherwin-Williams
cites in support of this argument, we find those cases distinguishable from this
matter.
          {¶ 31} In Stychno, a federal trial court considered whether “response costs”
under 42 U.S.C. 9601 et seq. (i.e., CERCLA) were “damages” under a lease
agreement, such that a lessee was bound to defend a lessor for the cleanup of
hazardous waste the lessee allegedly disposed on the lessor’s property. 

 at 665-
666. Even if response costs were equitable in nature, the court concluded that they
constituted “damages.”        

.    The response costs were sought to
remediate the harm done to the property by the improper disposal of hazardous




                                            16
                                January Term, 2024




waste. 

. Similarly, the Ohio Eleventh District Court of Appeals concluded
that environmental cleanup costs ordered to remedy damage done when oil was
discharged into a nearby pond were “damages” under an insurance policy. Sanborn
Plastics Corp. v. St. Paul Fire & Marine Ins. Co., 

(11th Dist. 1993). And in Cincinnati v. Metro. Design & Dev., L.L.C., 2019-Ohio-
364, ¶ 1, 16-18 (1st Dist.), the First District Court of Appeals determined that an
order directing a construction company to repair and stabilize land damaged during
a landslide caused by the company constituted “damages” under an insurance
contract, even though the order was made in a public-nuisance suit. These three
cases share a common thread that make them different from the case before us—
they all involve remedies sought to fix damage to property. As discussed above,
the abatement payment was not ordered to compensate for past physical damage to
properties in the governmental entities’ jurisdictions.
                                III. CONCLUSION
       {¶ 32} The insurance contracts between Sherwin-Williams and its insurers
required the insurers to indemnify Sherwin-Williams for all sums paid for
“damages.” Because Sherwin-Williams’s payment to the abatement fund was not
to compensate for past harm but, rather, to eliminate future harm, the payment was
not damages under the contracts. The judgment of the Eighth District Court of
Appeals is reversed, and the trial court’s judgment is reinstated.
                                                                     Judgment reversed
                                                and trial court’s judgment reinstated.
                               __________________
       STEWART, J., concurring.
       {¶ 33} Although the term “damages” is not defined in the insurance
contracts at issue in this case, I agree with the majority opinion’s determination that
“damages” in the insurance contracts does not include the cost of abatement of the
public nuisance that the hazards of lead paint in homes have caused and continue




                                          17
                             SUPREME COURT OF OHIO




to cause. The parties to this action agree that the term “damages” involves
compensation for loss or injury. But as I explained in In re Natl. Prescription
Opiate Litigation, 

 (Stewart, J., concurring in part and
dissenting in part), money awarded by a court to abate an ongoing nuisance is
generally not compensatory in nature but rather serves to remediate an existing
harm.
        {¶ 34} The parties in the present action are sophisticated business entities.
As such, they had the power to define terms within their insurance contracts to meet
their specific needs and intentions. In this case, the parties chose not to define the
term “damages” and have thus left it up to the courts to define it for them based on
the ordinary meaning of the term, see Krewina v. United Specialty Ins. Co., 2023-
Ohio-2343, ¶ 25. Because the ordinary meaning of the term requires compensation
for actual injury or loss, but not money spent to prevent future harm, I agree with
the majority opinion’s determination that Sherwin-Williams’s payment into the
abatement fund did not constitute damages entitling the company to be indemnified
by its insurers.
                               __________________
        Jones Day, Leon F. DeJulius, Mark J. Andreini, Amanda R. Parker, and
Anderson T. Bailey; and Hilow & Spellacy and James R. Wooley, for appellee.
        McCarthy, Lebit, Crystal & Liffman Co., L.P.A., David A. Schaefer, and
Nicholas R. Oleski; and Zuckerman Spaeder L.L.P., Carl S. Kravitz, Jason M.
Knott, and Nicholas M. DiCarlo, for appellants Certain Underwriters at Lloyd’s,
London; World Marine and General Insurance Corporation Ltd.; World Auxiliary
Insurance Company Ltd.; The Victory Insurance Company Ltd.; New London
Reinsurance Company Ltd.; Scottish Lion Insurance Company Ltd.; Winterthur
Swiss Insurance Company; Yasuda Fire & Marine Insurance Company (UK) Ltd.;
Yasuda, UK; Government Employees Insurance Company; and Berkshire




                                         18
                              January Term, 2024




Hathaway Direct Insurance Company, f.k.a. American Centennial Insurance
Company.
       Weston Hurd, L.L.P., and Gary W. Johnson; Aronberg Goldgehn Davis &
Garmisa, Mitchell S. Goldgehn, and Daniel J. Berkowitz, for appellant Allstate
Insurance Company.
       Reminger Co., L.P.A., Clifford C. Masch, and Brianna M. Prislipsky; and
Dentons US, L.L.P., Keith Moskowitz, and Shannon Y. Shin, for appellants
American Casualty Company of Reading Pennsylvania; Columbia Casualty
Company; Continental Casualty Companies; and The Continental Insurance
Company.
       Roetzel & Andress, L.P.A., Ronald B. Lee, and Laura M. Faust; and
Chaffetz Lindsey, L.L.P., Charles J. Scibetta, and Ted DeBonis, for appellants
American Home Assurance Company; Lexington Insurance Company; National
Union Fire Insurance Company of Pittsburgh, Pa.; and The Insurance Company of
the State of Pennsylvania.
       Seeley, Savidge, Ebert & Gourash Co., L.P.A., Daniel F. Gourash, and
Robert D. Anderle; and O’Melveny & Myers, L.L.P., and Jonathan D. Hacker, for
appellants Century Indemnity Company; Westchester Fire Insurance Company;
and Federal Insurance Company.
       Kohrman, Jackson & Krantz, L.L.P., and Maribeth Meluch; and Mendes &
Mount, L.L.P., and Matthew B. Anderson, for appellants Certain London Market
Companies; Fidelidade Insurance Co. of Lisbon; Guildhall Insurance Co. Ltd.;
Helvetia-Accident Swiss Insurance Co.; London & Edinburgh Per HUA Pool and
Per Tower X; National Casualty Co.; National Casualty Co. of America Ltd.; River
Thames Insurance Co. Ltd.; The Royal Scottish Insurance Co. Ltd.; Southern
Insurance Co. Ltd.; Swiss National Insurance Co. Ltd.; Swiss Re International;
Terra Nova Insurance Co. Ltd.; Trent Insurance Co. Ltd.; and Cavello Bay
Reinsurance Ltd.




                                      19
                           SUPREME COURT OF OHIO




       Willman & Silvaggio, and Anna M. Sosso, for appellant Employers Mutual
Casualty Company.
       McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and David A. Schaefer;
and Rivkin Radler, Lawrence A. Levy, and Michael Kotula, for appellants National
Surety Corporation; Allianz Global Risks US Insurance Company, f.k.a. Allianz
Insurance Company; and American Insurance Company.
       Cavitch Familo & Durkin, and Gregory E. O’Brien; and Ruggeri Parks
Weinberg, L.L.P., James P. Ruggeri, Joshua D. Weinberg, and Joshua P. Mayer,
for appellants First State Insurance Company; Nutmeg Insurance Company; and
Twin City Fire Insurance Company.
       Burns White, L.L.C., and Kevin C. Alexandersen, for appellant Great
American Insurance Co.
       Weston Hurd, L.L.P., and Gary W. Johnson, for appellant American
Alternative Insurance Corporation.
       Weston Hurd, L.L.P., and Gary W. Johnson; and Crowell & Moring, L.L.P.,
and Laura A. Foggan, for appellants North River Insurance Company; TIG
Insurance Company; Mount McKinley Insurance Co.; and United States Fire
Insurance Co.
       Sutter O’Connell Co. and Matthew C. O’Connell, for appellant Royal
Indemnity Company.
       Roetzel & Andress, L.P.A., Ronald B. Lee, Laura M. Faust, and Phillip M.
Sarnowski; and Simpson Thacher & Bartlett, L.L.P., and Bryce L. Friedman, for
appellants Travelers Casualty and Surety Company; St. Paul Fire & Marine
Insurance Company; and Gulf Insurance Company.
       Janik, L.L.P., and Crystal L. Maluchnik; and Skarzynski Marick & Black,
L.L.P., and James H. Kallianis Jr., for appellant Zurich American Insurance
Company.




                                       20
                               January Term, 2024




       Roetzel & Andress, L.P.A., Emily K. Anglewicz, and Bradley L. Snyder;
and Walker Wilcox Matousek, L.L.P., Alla Cherkassky Galati, and Arthur J.
McColgan, for appellant Westport Insurance Corporation, f.k.a. Employers
Reinsurance Corporation.
       Rutter & Russin, L.L.C., Robert P. Rutter, and Robert A. Rutter, urging
affirmance on behalf of amicus curiae United Policyholders.
       McCarter & English, L.L.P., Sheila Kles, Sherilyn Pastor, and Jennifer
Black Strutt, urging affirmance on behalf of amici curiae Product Liability
Advisory Council, Inc.; and the National Association of Manufacturers.
       Calfee, Halter & Griswold, L.L.P., Matthew A. Chiricosta, K. James
Sullivan, and Robert F. Sohm, urging affirmance on behalf of amici curiae The
Ohio Manufacturers’ Association; Avient Corporation; Cleveland-Cliffs, Inc.;
Eaton Corporation; GOJO Industries, Inc.; The Goodyear Tire & Rubber Company;
Greif, Inc.; The Lincoln Electric Company; Materion Corporation; TimkenSteel
Corporation; and Worthington Industries, Inc.
       Collins Roche Utley & Garner, and Richard M. Garner, urging reversal on
behalf of amicus curiae The Ohio Insurance Institute.
       Plunkett Cooney, and Patrick E. Winters, urging reversal on behalf of amici
curiae American Property Casualty Insurance Association; Complex Insurance
Claims Litigation Association; and National Association of Mutual Insurance
Companies.
                           ________________________




                                       21