Robson v. Quentin E. Cadd Agency , 179 Ohio App. 3d 298 ( 2008 )

{¶ 34} I respectfully dissent insofar as the majority affirms summary judgment against Robson on the claim of negligent procurement. In my view, there may be an issue of whether Cadd owed Robson a duty of care to procure insurance coverage. See Lu-An-Do, Inc. v. Kloots (1999),131 Ohio App.3d 71, 76, 721 N.E.2d 507 (holding that insurance agents owe no duty to procure coverage for persons with no written or oral agreement with the agent to procure coverage or who have never contacted the agent about insurance coverage); but, see, Minor v. Allstate Ins. Co. (1996),111 Ohio App.3d 16, 21, 675 N.E.2d 550 (finding that an agent owed a duty to procure insurance coverage for a third-party beneficiary of the insurance policy). However, neither party addressed the duty of care owed to Robson, or lack thereof, in the trial court or in this court.

{¶ 35} Because a trial court "is not permitted to base its decision to grant summary judgment upon an argument which was not asserted in the summary judgment motion," we must assume that the trial court did not base its grant of summary judgment against Robson on such grounds. Murray v. GrangeMut. Cas. Co., Stark App. No. 2003CA00047, 2003-Ohio-3365, 2003 WL 21472649, U 7, citing Battin v. Trumbull Cty., 11th App. No. 2000-T-0047, 2002-Ohio-5162, 2002 WL 31160572;Butler v. Harper, 9th App. No. 21051, 2002-Ohio-5029, 2002 WL 31114898; Hollinghead v. Bey (Jul. 21, 2000), 6th Dist. No. L-99-1351, 2000 WL 1005205. Further, although appellate courts must sustain judgments if correct, even if a trial court enters a judgment for an erroneous reason, such rule does not apply to summary judgment proceedings, because "appellate courts do not address issues that were not addressed by the trial court." Murray at ¶ 8-9.

{¶ 36} Thus, although summary judgment against Robson on the negligent procurement claim may ultimately be appropriate if Cadd owed no duty of care to Robson, I believe that the parties should be given the opportunity to present arguments and evidence on this issue and allow the trial court to address this issue first.

{¶ 37} Accordingly, I dissent with regard to the majority's conclusion that summary judgment in favor of Cadd and against Robson is appropriate at this time.