Jacquin Clifford v. Church Mutual Insurance Co. ( 2016 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 16a0373n.06
    Case No. 15-4154
    FILED
    UNITED STATES COURT OF APPEALS                                  Jul 05, 2016
    DEBORAH S. HUNT, Clerk
    FOR THE SIXTH CIRCUIT
    JACQUIN CLIFFORD, et al.,                                      )
    )         ON APPEAL FROM THE
    Plaintiffs-Appellants,                                 )         UNITED STATES DISTRICT
    )         COURT     FOR      THE
    v.                                                             )         SOUTHERN DISTRICT OF
    )         OHIO
    CHURCH MUTUAL INSURANCE                                        )
    COMPANY,                                                       )
    )
    Defendant-Appellee.                                    )                     OPINION
    BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*
    McKEAGUE, Circuit Judge. Lonnie Aleshire Jr., an associate pastor at Licking Baptist
    Church, sexually molested Sandra Cottrell on numerous occasions when she was thirteen and
    fourteen years old and raped her older sister Jacquin when she was sixteen. Aleshire pleaded
    guilty to unlawful sexual conduct with a minor, sexual imposition, and rape, and spent seven
    years in prison. Sandra, Jacquin, and their parents (collectively Plaintiffs) sued Aleshire for
    sexual assault, sexual battery, intentional infliction of emotional distress, false imprisonment,
    and loss of consortium. An Ohio jury found Aleshire liable and awarded $4.35 million in
    damages. Plaintiffs then sued Defendant, Church Mutual Insurance Company, to recover for the
    award against Aleshire under an insurance policy (the Policy) Defendant issued to the Church.
    The district court granted summary judgment in Defendant’s favor.
    * The Honorable William O. Bertelsman, United States Senior Judge for the Eastern District of Kentucky, sitting by
    designation.
    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    Plaintiffs cannot recover for their claims, which were based on Aleshire’s sexual acts,
    because the Policy does not cover an individual’s sexual misconduct and because Ohio public
    policy prohibits insurance for sexual abuse of a minor. Plaintiffs try to circumvent this lack of
    coverage by making a post hoc argument that their claims included three non-sexual incidents of
    false imprisonment, which they assert were covered by the Policy. But Plaintiffs did not present
    separate, non-sexual claims at trial, and Aleshire’s full liability stems from his sexual acts.
    Plaintiffs cannot transform sexual (non-covered) claims into non-sexual (covered) claims just
    because the Policy does not cover the claims they presented at trial. Accordingly, we AFFIRM.
    I
    A.     Factual Background
    Plaintiffs are former members of Licking Baptist Church in Hebron, Ohio. Defendant is
    a Wisconsin corporation specializing in insurance for religious organizations. Defendant issued
    the Policy to the Church in 2001 and again in 2004. Aleshire served several roles at the Church
    in 2003 and 2004, including associate pastor, deacon, youth leader, and choir director.
    During this time, Aleshire sexually molested Sandra Cottrell (now Sandra Whitman)
    around fifty times when she was just thirteen or fourteen years old. These acts occurred at the
    Church, on occasions when Aleshire drove Sandra to or from his home for her to babysit his
    children, and during trips to a children’s hospital where Sandra was visiting a dying friend.
    Aleshire also raped Sandra’s older sister, Jacquin Cottrell (now Jacquin Clifford), in June
    2004, when she was sixteen years old. Jacquin reported the rape in January 2005, at which point
    Sandra disclosed that Aleshire had molested her. Aleshire pleaded guilty to six counts of
    unlawful sexual conduct with a minor, three counts of sexual imposition, and one count of rape.
    He served seven years in prison.
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    B.        Underlying Lawsuit
    In April 2007, Plaintiffs filed a civil complaint in the Licking County Court of Common
    Pleas against Aleshire, the Church, and Lonnie Aleshire Sr., the Church’s pastor and Aleshire’s
    father.    The trial court granted the Church’s and Aleshire’s father’s motions for summary
    judgment, finding that Aleshire was not acting in his official capacity as an employee or
    volunteer of the Church, and the Ohio Court of Appeals affirmed. Clifford v. Licking Baptist
    Church, No. 09 CA 0082, 
    2010 WL 1254632
    , at *2, 6, 9 (Ohio Ct. App. Mar. 26, 2010).
    Plaintiffs re-filed their lawsuit in June 2010, suing only Aleshire for his sexual misconduct.
    They raised claims for sexual assault, sexual battery, intentional infliction of emotional distress,
    false imprisonment, and loss of consortium.
    At trial, Plaintiffs presented evidence of Aleshire’s sexual molestation of Sandra and his
    rape of Jacquin. Sandra’s and Jacquin’s testimony focused on Aleshire’s sexual acts, and their
    parents’ testimony centered on the devastating impact Aleshire’s acts had on their family.
    Plaintiffs made no attempt to present separate claims for relief that were unrelated to Aleshire’s
    sexual acts. There was no testimony, argument, or discussion of false imprisonment, or of
    Aleshire confining Sandra or Jacquin or holding them against their will, separate from Aleshire’s
    sexual misconduct. To the contrary, Plaintiffs’ counsel emphasized time and again that the
    purpose of the lawsuit was to hold Aleshire accountable for his sexual misconduct.
    The jury did just that, as it found Aleshire liable and awarded Plaintiffs approximately
    $4.35 million in damages: $1 million in non-economic and $1 million in punitive damages to
    Sandra; $250,000 in non-economic and $1 million in punitive damages to Jacquin; and
    $550,311.50 to each of their parents. The jury did not, however, allocate the award between the
    various claims for relief.
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    C.      Procedural Background
    Defendant paid for Aleshire’s defense in Plaintiffs’ lawsuit, but informed Aleshire and
    Plaintiffs that the Policy did not cover Aleshire for any liability. Following trial, Defendant
    refused to pay Plaintiffs for the award against Aleshire, leading Plaintiffs to file the current
    lawsuit in state court to recover for the jury award. Plaintiffs assert that the Policy covered their
    claims under its: (1) bodily injury provision; (2) medical expense provision; (3) professional
    counseling provision; and/or (4) personal injury provision. Defendant removed the case to the
    district court on the basis of diversity jurisdiction.
    After the parties filed cross-motions for summary judgment, the district court ruled in
    Defendant’s favor. Clifford v. Church Mut. Ins. Co., No. 2:13-cv-853, 
    2015 WL 6119436
     (S.D.
    Ohio Sept. 30, 2015). The court held that the claims for Aleshire’s sexual acts were not covered
    by the Policy, and also concluded that liability insurance for sexual abuse of a minor is against
    Ohio public policy. 
    Id.
     at *6–10. The court then identified three other incidents as potential
    non-sexual claims for false imprisonment, but found that Plaintiffs failed to show that Defendant
    was liable based on these three incidents. 
    Id.
     at *10–16.
    Specifically, the court found that the Policy’s personal injury provision may provide
    coverage for the non-sexual incidents. Id. at *14. However, the court held that, under Ohio law,
    Plaintiffs had the burden to allocate a general verdict between covered and non-covered claims.
    Id. (citing World Harvest Church v. Grange Mut. Cas. Co., No. 13AP-290, 
    2013 WL 6843615
    ,
    at *4, 7 (Ohio Ct. App. Dec. 24, 2013), rev’d on other grounds, No. 2014-1161, --- N.E.3d ---,
    
    2016 WL 2754889
     (May 12, 2016)). Because Plaintiffs did not provide “any indication as to the
    jury’s awards’ breakdown or that the jury even considered these [non-sexual] occasions as
    separate tortious instances,” they did not meet their burden and could not recover. 
    Id.
     The court
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    granted in part and denied in part Defendant’s motion for summary judgment, and directed the
    clerk to terminate the case. Id. at *14, 16. Plaintiffs timely appealed.
    II
    We review a grant of summary judgment de novo. Kleiber v. Honda of Am. Mfg., Inc.,
    
    485 F.3d 862
    , 868 (6th Cir. 2007). Summary judgment is proper when “the movant shows that
    there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
    matter of law.” Fed. R. Civ. P. 56(a). We must view the evidence and draw all reasonable
    inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
    
    475 U.S. 574
    , 587 (1986). The inquiry is whether a reasonable jury could return a verdict for the
    non-moving party or “whether it is so one-sided that one party must prevail as a matter of law.”
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 252 (1986).
    The parties agree that Ohio law governs interpretation of the Policy, which is an
    insurance contract. “Under Ohio law, the interpretation of an unambiguous insurance contract
    presents a question of law that an appellate court reviews de novo.” Bondex Intern., Inc. v.
    Hartford Acc. & Indem. Co., 
    667 F.3d 669
    , 676 (6th Cir. 2011) (citing Nationwide Mut. Fire Ins.
    Co. v. Guman Bros. Farm, 
    652 N.E.2d 684
    , 686 (Ohio 1995)). Where the policy sets forth the
    relevant coverages and exclusions in unambiguous terms, we must apply the terms according to
    their plain and ordinary meaning. 
    Id.
     at 677 (citing Cincinnati Indem. Co. v. Martin, 
    710 N.E.2d 677
    , 679 (Ohio 1999)). “One who seeks to recover on an insurance policy generally has the
    burden of demonstrating coverage under the policy and then proving a loss,” Chicago Title Ins.
    Co. v. Huntington Nat’l Bank, 
    719 N.E.2d 955
    , 959 (Ohio 1999), while “insurance companies
    bear the burden of demonstrating that an insurance claim falls within an exclusion to coverage.”
    Bondex, 667 F.3d at 677 (citations omitted). Thus, Plaintiffs have the burden of demonstrating
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    that the Policy covered their claims, while Defendant has the burden of demonstrating that an
    exclusion applied to deny coverage.
    Plaintiffs raise three issues on appeal. First, they argue the district court abused its
    discretion in denying their motion to remand to state court. Second, they argue the district court
    erred in determining that the Policy did not cover claims based on Aleshire’s sexual misconduct.
    Third, they alternatively argue that they are entitled to recover the full $4.35 million judgment
    based on three non-sexual incidents between Aleshire and Sandra. We reject each in turn.
    A
    Despite this case meeting the requirements for diversity jurisdiction, Plaintiffs first argue
    that the district court should have remanded to state court based on its discretionary authority for
    declaratory judgment actions. We review for abuse of discretion. Scottsdale Ins. Co. v. Roumph,
    
    211 F.3d 964
    , 967 (6th Cir. 2000) (citations omitted). Our circuit uses a five-factor test, laid out
    in Grand Trunk W. R.R. Co. v. Consol. Rail. Corp., 
    746 F.2d 323
    , 326 (6th Cir. 1984). The
    district court found that three factors weighed in favor of retaining federal jurisdiction, one factor
    weighed in favor of remand to state court, and one factor was neutral.
    Plaintiffs present only a barebones argument that the district court incorrectly weighed
    the factors, alternatively arguing that even one factor in their favor requires remand. Plaintiffs’
    argument is wholly without merit. The district court properly applied the test from Grand Trunk,
    and further analysis would be duplicative and is unnecessary. We agree that federal jurisdiction
    is proper in this case.
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    B
    Plaintiffs next appeal the district court’s decision that they could not recover for
    Aleshire’s sexual acts. Plaintiffs’ argument is unpersuasive, as they cannot recover under the
    Policy’s terms and are further barred by Ohio public policy.
    The Policy. The Plaintiffs contend that Aleshire’s sexual acts were covered by the
    Policy’s: (1) bodily injury provision; (2) medical expense provision; (3) professional counseling
    provision; and/or (4) personal injury provision. The Policy includes an additional provision,
    however, titled “Sexual Misconduct or Sexual Molestation Liability Coverage.” It provides:
    1. Except for the insurance provided by sexual misconduct or sexual molestation
    liability coverage, the policy does not apply to nor do we have any duty to defend,
    any claim or “suit” seeking damages arising out of any actual or alleged act of
    “sexual misconduct or sexual molestation[.]”
    ****
    3. Exclusions. This insurance does not apply to:
    a. Any person who personally participated in any act of “sexual misconduct
    or sexual molestation.”
    R. 61-1, Policy at 49–50, PID 1209–10 (emphasis added).           Plaintiffs do not dispute that
    Aleshire’s acts constitute sexual misconduct or sexual molestation. Thus, under Exclusion 3.a,
    Aleshire’s sexual acts are not covered by this provision.
    The Policy’s remaining provisions also exclude coverage for Aleshire’s sexual acts. The
    bodily injury, professional counseling, and personal injury provisions specifically exclude
    damages arising out of acts of “sexual misconduct and sexual molestation.” See R. 61-1, Policy
    at 47, 48, 83, Bodily Injury Provision Exclusion 2.p, PID 1207; Personal Injury Provision
    Exclusion 2.a(5), PID 1208; Professional Counseling Provision Exclusion 2.i, PID 1243. The
    medical expense provision provides coverage only for “bodily injury” caused by an “accident.”
    Id. at 50, Medical Expense Provision Section 1.a, PID 1210. Under Ohio law, Aleshire’s
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    intentional sexual acts were not “accidents.” See Gearing v. Nationwide Ins. Co., 
    665 N.E.2d 1115
    , 1119–20 (Ohio 1996). Thus, because all relevant Policy provisions exclude coverage for
    Aleshire’s sexual acts, Plaintiffs cannot recover for claims based on those acts.
    Ohio Public Policy. Even if the Policy itself did not exclude coverage, the public policy
    of the State of Ohio prohibits liability coverage for sexual abuse of minors. Id. at 1120. In
    Gearing, a neighbor (Gearing) sexually molested three minor girls and pleaded guilty to three
    felony counts of gross sexual imposition. Id. at 1116. The family filed a civil lawsuit against
    Gearing, and he brought a declaratory judgment action to require his homeowner’s insurance
    carrier to defend and indemnify him. Id. The family intervened to similarly assert that the
    homeowner’s policy provided coverage for their tort claims. Id.
    The Ohio Supreme Court held that the insurance policy did not cover Gearing’s sexual
    misconduct. Id. at 1118. The policy in Gearing defined an insurable “occurrence” as an
    “accident,” and the Ohio Supreme Court had “long recognized that Ohio public policy generally
    prohibits obtaining insurance to cover damages caused by intentional torts.”        Id. (citations
    omitted). Gearing’s sexual abuse was not an accident because there is “nothing ‘accidental’
    about acts of sexual molestation of children or harm resulting from that molestation; it is the
    result of the deliberate exercise of free will upon innocent and vulnerable victims.” Id. at 1119.
    The court concluded that “incidents of intentional acts of sexual molestation of a minor do not
    constitute ‘occurrences’ for purposes of determining liability insurance coverage . . . .     The
    public policy of the state of Ohio precludes issuance of insurance to provide liability coverage
    for injuries produced by criminal acts of sexual misconduct against a minor.” Id. at 1120.
    Plaintiffs’ case is materially indistinguishable from Gearing. Aleshire, like Gearing,
    pleaded guilty to molesting minors. Plaintiffs, like the family in Gearing, seek damages from an
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    insurance company for an insured’s sexual acts. And the Policy here uses the same definition for
    “occurrence” (an “accident”) as the policy the Ohio Supreme Court analyzed in Gearing. See R.
    61-1, Policy at 59, Definition 13, PID 1219.
    Plaintiffs argue this case is different because it involves a religious insurance policy.
    They assert that, because religious institutions have reported numerous instances of sexual child
    abuse, Defendant, as a company that insures religious institutions, should be liable for Aleshire’s
    sexual misconduct.        Plaintiffs add that the public interest in compensating victims should
    outweigh any countervailing interest in denying coverage. Plaintiffs ask us to establish an
    exception to Ohio’s general rule against sexual misconduct insurance, but they cite no case to
    suggest the Ohio Supreme Court would create such an exception. The cases they do cite are
    neither on point nor persuasive.1 Because the public policy of Ohio prohibits insurance for
    sexual abuse of a minor, we affirm the district court’s holding that Plaintiffs cannot recover for
    claims based on Aleshire’s sexual acts.
    C
    On appeal, Plaintiffs focus on an alternative, post hoc argument: they cite three non-
    sexual incidents between Aleshire and Sandra as potential claims for false imprisonment and
    assert that the jury “may have returned their verdict based on this conduct.” Appellants Br. at 23.
    First, Plaintiffs cite an incident at Church camp where Aleshire, Sandra, and others were on a
    group hike, and Aleshire linked pinkies with Sandra. R. 61-10, Sandra Testimony at 171, PID
    1
    Plaintiffs’ only support for their religious distinction is the dissent in their previous suit against the Church.
    Clifford, 
    2010 WL 1254632
    , at *14 (Hoffman, P.J., dissenting). The dissent’s argument related to whether the
    Church had a duty to have a policy to protect children, not whether there is an exception to the rule against sexual
    molestation insurance, and so has no bearing here. Plaintiffs’ case support for public policy favoring the
    compensation of victims is also unhelpful. See Yousuf v. Cohlmia, 
    741 F.3d 31
    , 40 (10th Cir. 2014) (addressing
    insurer’s duty to defend, rather than indemnify); Bohrer v. Church Mut. Ins. Co., 
    965 P.2d 1258
    , 1261 (Colo. 1998)
    (holding that sexual abuse victim could recover for damages from counseling activities, but not for damages from
    sexual abuse); Harasyn v. Normandy Metals, Inc., 
    551 N.E.2d 962
    , 964–66 (Ohio 1990) (holding, in a decision that
    predates Gearing, that an employer could insure for unintentional tort claims when it knew injury was substantially
    certain to occur).
    -9-
    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    1616. Second, they cite a subsequent incident where Aleshire asked to speak to Sandra in
    private, gave her a hug, and told her “I know we have feelings for each other.” 
    Id.
     at 172–74,
    PID 1617–19. Finally, they cite the many times Aleshire drove Sandra to the hospital to visit her
    dying friend and assert that on at least one occasion Aleshire did not sexually molest her.
    Plaintiffs argue that the damages at trial could have been allocated between these non-sexual
    incidents, which would be covered by the Policy, and their claims for Aleshire’s sexual acts,
    which would not be covered. They then argue that Defendant had the burden to allocate
    damages between covered and non-covered claims, and assert that Defendant is liable for the full
    $4.35 million award because it did not request an allocated verdict.
    The district court concluded that these non-sexual incidents—the “pinkie incident,” the
    “hugging incident,” and the “driving incident”—were “sufficiently clear” to consider, and that
    the Policy may cover them under the personal injury provision. Clifford, 
    2015 WL 6119436
    , at
    *11, 14. However, the court determined that Plaintiffs (not Defendant) had the burden to
    allocate the verdict, and because they failed to do so Defendant was entitled to summary
    judgment. Id. at *14. The district court relied on World Harvest Church, an unreported Ohio
    Court of Appeals case, for the general rule that the party seeking coverage (here, Plaintiffs) bears
    the burden of allocating a general verdict. Id. (citing World Harvest Church, 
    2013 WL 6843615
    ,
    at *5). Plaintiffs counter that World Harvest Church established an exception, requiring an
    insurer (Defendant) to allocate the verdict when they have a duty to defend the insured. See
    World Harvest Church, 
    2013 WL 6843615
    , at *4.
    However, we need not determine which party had the burden to allocate the verdict,
    because in this case there was nothing to allocate. At trial, Plaintiffs presented the pinkie
    incident and the hugging incident as part of the sexual relationship. And although Sandra
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    identified one hospital trip that did not involve molestation in her pretrial deposition, Plaintiff did
    not present any evidence of a non-sexual driving incident to the jury. All of Plaintiffs’ claims
    were based on Aleshire’s sexual misconduct, and because Plaintiffs did not attempt to present
    non-sexual (covered) claims at trial, they cannot recover based on these hypothetical,
    manufactured-after-the-fact claims. We have read the trial transcript in detail, and there is
    simply no basis to support Plaintiffs’ argument that the jury returned any portion of its verdict for
    these non-sexual incidents.
    To the contrary, the record supports our conclusion that Plaintiffs never presented non-
    sexual false imprisonment claims. False imprisonment, under Ohio law, “occurs when a person
    confines another intentionally without lawful privilege and against his consent within a limited
    area for any appreciable time, however short.” Bennett v. Ohio Dep’t of Rehab. & Corr., 
    573 N.E.2d 633
    , 636 (Ohio 1991) (citation and internal quotation marks omitted). The Complaint’s
    statement of facts did not mention Aleshire confining Sandra, and its allegations for false
    imprisonment did not distinguish between claims for sexual and non-sexual false imprisonment.
    Plaintiffs’ opening statement focused entirely on Aleshire’s sexual acts and did not mention any
    incidents of non-sexual confinement. During trial, Sandra testified to the pinkie and hugging
    incidents as background to Aleshire’s sexual molestation, but she never testified that Aleshire
    confined her. Instead, she agreed that Aleshire “never held [her] against [her] will or kept [her]
    from leaving a room or said . . . ‘You can’t leave my house,’ or anything of that nature[.]” R.
    61-10, Sandra Testimony at 237, PID 1682. Finally, during closing statements, Plaintiffs did not
    ask for the jury to hold Aleshire liable for linking pinkies or hugging Sandra; they asked the jury
    to hold him accountable for sexually molesting her. Considering Plaintiffs sought recovery for
    Aleshire’s sexual acts at trial—acts that Plaintiffs included in their claims for false
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    Case No. 15-4154, Clifford, et al. v. Church Mutual Insurance Company
    imprisonment—we fail to see how Aleshire, his counsel, Defendant, or the jury would have had
    any idea that Plaintiffs were also presenting non-sexual claims for false imprisonment.
    Plaintiffs argument is an after-the-fact attempt to re-characterize background events as
    separate claims so that they can recover under the Policy. But allocation is only an issue when
    there are both “covered and non-covered claims.” World Harvest Church, 
    2013 WL 6843615
    , at
    *4. In this case, there were no covered claims, and Plaintiffs cannot argue that they presented
    separate, non-sexual claims just because the Policy does not cover the claims they did present.
    We therefore hold that Plaintiffs presented no non-sexual claims for false imprisonment.2
    III
    This case comes to us under tragic circumstances, and we sympathize with Plaintiffs’
    desire to be made whole for the harm Lonnie Aleshire Jr. did to their family. But Defendant’s
    insurance Policy does not cover sexual misconduct, and Plaintiffs’ claims were entirely based on
    Aleshire’s sexual acts. As such, Sandra and Jacquin cannot recover from Defendant for their
    claims, and their parents’ derivative claims fail. See Gearing, 665 N.E.2d at 1120. Because
    Plaintiffs’ claims are not covered, Plaintiffs also cannot recover attorney’s fees. Accordingly,
    and for the foregoing reasons, we AFFIRM summary judgment to Defendant.3
    2
    The Ohio Supreme Court reversed World Harvest Church on alternative grounds without addressing allocation.
    See World Harvest Church, 
    2016 WL 2754889
    , at *7. We need not address the burden to allocate under Ohio law.
    See Dixon v. Clem, 
    492 F.3d 665
    , 673 (6th Cir. 2007) (“[W]e may affirm on any grounds supported by the record
    even if different from the reasons of the district court.”) (citation omitted).
    3
    Plaintiffs briefly argue that the district court erred in terminating the case. The district court denied Defendant’s
    motion for summary judgment in one small part, rejecting Defendant’s argument that the jury did not consider
    Aleshire’s non-sexual acts as separate claims for false imprisonment. See Clifford, 
    2015 WL 6119436
    , at *14, 16.
    As we agree with Defendant’s argument on this point, Plaintiffs’ argument fails.
    - 12 -
    

Document Info

Docket Number: Case 15-4154

Judges: McKeague, Griffin, Bertelsman

Filed Date: 7/5/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024