B. Prematurity of Summary Judgment Motion.
As an initial matter, we must consider Trans World's argument that the facts in this declaratory relief action are not yet sufficiently developed to make summary judgment under Rule 56 appropriate. Trans World contends that, since the facts of the underlying Adler action are still unfolding, the extent and nature of damages for which it will be seeking indemnification under the Aetna policy are not yet fixed. In particular, Trans World argues that the number of plaintiffs in the class may increase and that new plaintiffs may claim emotional distress, bodily injury, and property loss injuries not claimed by current plaintiffs. Thus, Trans World argues that consideration of summary judgment in this case is premature.
In support of its argument, Trans World cites to McWhirter Distributing Company v. Texaco, Inc., which, in interpreting Rule 56, held that summary judgment should not be granted "'until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.'" 668 F.2d 511, 519 (Temporary Emergency Court of Appeals, 1980), quoting N.L.R.B. v. Smith Industries, 403 F.2d 889, 893 (5th Cir. 1968). Trans World claims that it is entitled under Fed.R.Civ.P. 56(f)
to denial of Aetna's motion because Trans World is not adequately able to present its opposition given the lack of fully developed facts.
Aetna contends that the granting of summary judgment in this action would not be premature, advancing several arguments. Aetna argues that Trans World is incorrect in its speculation that additional plaintiffs might come forward in the Adler case with claims for emotional distress or property damage covered by the insurance policy. Aetna argues that this is not possible, for two reasons. First, Aetna argues that such claims would be time-barred by Ohio's two-year statutes of limitations for emotional distress and property damage claims. Ohio Revised Code § 2305.10. Second, Aetna argues that emotional distress or property damage claims advanced by new plaintiffs would be sufficiently different from the claims advanced by the current Adler plaintiffs that potential new plaintiffs would not be eligible as class members. Thus, the court could not be faced with a situation where the claims in the underlying Adler action differ significantly from those described in the Adler complaint currently presented to the court as evidence.
Aetna further contends that Trans World is merely speculating that other plaintiffs may appear in the Adler case with claims covered by the policy, and that mere speculation is no basis for denying Aetna's motion. Aetna cites to Ninth Circuit authority holding that the party opposing summary judgment must make a strong showing of why it is currently unable to adequately present its opposition. Mere speculation that further evidence may develop is inadequate to make such a showing. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978).
Having reviewed the complaint in the underlying Adler action and the insurance policy under which Trans World seeks indemnification and defense from Aetna, we believe this controversy is ripe for consideration of summary judgment. We agree with Aetna that Trans World's objection regarding the possible appearance of additional plaintiffs with claims different than the current Adler plaintiffs amounts to speculation. Neely requires us to reject such speculation as grounds for refusing to consider summary judgment. The Adler complaint gives a full description of the claims which the Aetna policy is alleged to cover. Copies of the policy have been provided to the court. Thus, the court has the necessary information before it to allow resolution of this controversy by summary judgment. We wish to make absolutely clear for the record, however, that we rule only on the facts as presented to us at this time. Were the Adler plaintiffs to successfully amend their complaint to state additional causes of action, the new causes of action would not be governed by this order.
C. Whether the Underlying Complaint Alleges Damages Covered by the Policy.
Aetna and Trans World dispute whether the underlying complaint in the Adler action contains claims for relief of such a nature that damages from those claims would be covered by the Aetna policy. Aetna argues that the Adler complaint will not inflict any damages upon Trans World that fall into any of the following categories covered by the policy: 1) property damage; 2) bodily injury; 3) advertising injury; or 4) personal injury.
Aetna also contends that Trans World has effectively admitted that the Adler complaint fails to allege any damages falling into categories one, two, or four. The court agrees that Trans World opposes only Aetna's argument that no advertising injuries as defined by the policy have been alleged by the Adler plaintiffs. Trans World's arguments regarding bodily injury, property damage, and personal injury go only to the question of whether additional plaintiffs might come forward at some future date alleging such injuries. Counsel for Trans World so stated at the oral argument of this motion. Therefore, it is undisputed that no damages falling into the categories of property damage, bodily injury, or personal injury as defined by the policy are alleged in the Adler complaint.
The court will now address the parties' dispute regarding whether advertising injuries as defined by the policy are alleged by the Adler complaint. The Aetna policy provides coverage for:
. . . all sums which the insured shall become legally obligated to pay as damages because of . . . advertising injury to which this insurance applies, sustained by any person or organization and arising out of the conduct of the named insured's business, within the policy territory, and [Aetna] shall have the right and duty to defend any suit against the insured seeking damages on account of such injury. . . . Policy Broad Form Comprehensive Coverage General Liability Endorsement, p. 2.
The policy further defines advertising injury as follows:
"Advertising injury" means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title, or slogan.