Vinecourt Landscaping v. Kleve ( 2013 )

[Cite as Vinecourt Landscaping v. Kleve, 2013-Ohio-5825.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
VINECOURT LANDSCAPING INC., et al., : OPINION
Plaintiffs-Appellants, :
CASE NO. 2013-G-3142
- vs - :
DAVID R. KLEVE, et al., :
Defendants-Appellees. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12P000673.
Judgment: Affirmed in part, reversed in part, and remanded.
Timothy A. Shimko, Timothy A. Shimko & Assocs. Co., L.P.A. 1801 East Ninth St.,
1010 Ohio Savings Plaza, Cleveland, OH, 44114 (For Plaintiffs-Appellants).
Carol Ann Koncsol Metz, Buckley King, LPA, 1400 Fifth Third Center, 600 Superior
Avenue East, Cleveland, OH 44114 (For Defendants-Appellees).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, Vinecourt Landscaping, et al., appeal from the judgment of the
Geauga County Court of Common Pleas, entering summary judgment in favor of
appellees, David R. Kleve, et al. For the reasons discussed in this opinion, we affirm
the trial court’s judgment in part, reverse the judgment in part, and remand the matter
for further proceedings.
{¶2} Appellants Jim and Jill Vinecourt are owners of appellant-Vinecourt
Landscaping, Inc. Appellants have been customers of appellee-Kleve & Associates
Insurance Agency, Inc., since 1991. Appellants dealt directly with insurance agent,
appellee-David Kleve, who, in the course of their business relationship, procured a
commercial liability policy through Motorists Mutual Insurance Company. The policy
provided liability coverage, building coverage, business property coverage, and
commercial inland marine coverage for scheduled tools and equipment.
{¶3} Jim and Jill maintained they did not understand their insurance coverage
and did not question the nature of the coverage they possessed. And they did not
question David regarding the nature, extent, or scope of the coverage; instead, they
testified, they relied exclusively upon David to recommend proper insurance coverage
that would meet their needs.
{¶4} Each year Jim and Jill received a copy of their insurance policy that
expressly reflected the limits of coverage for business personal property as well as the
items listed on the schedule of insurance. The Vinecourts also received a checklist
setting forth appellants’ actual coverage as well as additional available types of
coverage that appellants did not have but could purchase. The Vinecourts believed they
had “full coverage” for their business, even though the annual updates showed they did
not possess, inter alia, “business interruption coverage.” The Vinecourts never asked
David about the lack of coverage or for an explanation of policy coverage because, in
their view, they trusted that David would recommend all necessary coverage for the
needs of their business.
{¶5} David stated he gives advice and recommendations to suit his clients’
specific needs. He does not, however, recommend what limits on coverage they should
set. And David maintained he procures only the coverage that his clients specifically
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request. Although they relied upon David’s advice, Jim stated that David did not have
authority to make insurance decisions for the business.
{¶6} In 2006, the Vinecourts began submitting annual lists of scheduled
equipment and inventory to appellees to ensure the items were covered. Each time an
increase in coverage occurred, that increase was based upon the Vinecourts’ lists and
reflected in the policy. Jim testified he was aware of the equipment that was covered
under the policy and never took issue with the coverage. He further confirmed he was
aware that policy provided $27,500 in coverage for business personal property and did
not question David regarding the implications of maintaining or increasing the coverage
amount.
{¶7} In late 2006, the Vinecourts built an addition onto one of their business
buildings. Upon David’s recommendation, the Vinecourts insured the building for
$32,000; Jim and Jill neither questioned this amount nor did they request additional
coverage in later years.
{¶8} On January 27, 2011, a fire in appellants’ warehouse caused significant
damage to the building and other business property. After the fire, Motorists paid the
policy limits; the record indicates, however, there was over $41,000 in equipment and
inventory that was not covered under the policy procured by David. Moreover, the
uncovered loss of the building was estimated at $120,000. And, appellants alleged,
they suffered a business interruption loss in excess of $300,000.
{¶9} Appellants filed suit alleging appellees were negligent and breached their
fiduciary duties for failing to recommend greater coverage. In particular, they alleged
their policy was deficient because (1) business interruption coverage was not included;
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(2) the insurance limits for the building were insufficient; (3) the schedule of tools and
equipment was incomplete; and (4) the limits of insurance for unscheduled tools and
equipment were insufficient. Appellees moved for summary judgment and appellants
opposed the motion.
{¶10} The trial court subsequently granted appellees’ motion, ruling appellees
owed appellants no fiduciary duty; the court further determined, notwithstanding its
conclusion regarding the lack of fiduciary relationship, appellants’ professional
negligence and breach of fiduciary duty claims were barred by the applicable statute of
limitations. And, finally, the court determined appellees were not negligent in failing to
procure additional insurance on the unscheduled tools and equipment. This appeal
follows.
{¶11} Appellants assign four errors for this court’s review, all of which challenge
the trial court’s entry of summary judgment in appellees’ favor. Summary judgment is
proper where (1) there is no genuine issue of material fact remaining to be litigated; (2)
the movant is entitled to judgment as a matter of law; and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and, viewing the
evidence in the non-moving party's favor, that conclusion favors the movant. See e.g.
Civ.R.56(C).
{¶12} When considering a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal
Co., 64 Ohio St. 2d 116, 121 (1980). Rather, all doubts and questions must be resolved
in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St. 3d 356, 359
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(1992). An appellate court reviews a trial court’s entry of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105 (1996).
{¶13} Appellants’ first assignment of error provides:
{¶14} “The trial court erred as a matter of law when it held that appellants’ claims
against appellees for failing to procure insurance coverage were barred by the statute of
limitations.”
{¶15} Under their first assignment of error, appellants assert the trial court erred
in concluding appellants’ cause of action for professional negligence accrued at the time
of appellees’ purported negligent acts, rather than at the time they sustained damage
not covered under their insurance policy. Appellants argue, prior to sustaining damage,
they had no legally protected interest that was harmed and therefore no cause of action.
{¶16} R.C. 2305.09(D) sets a four-year statute of limitations period on claims
alleging “an injury to the rights of the plaintiff not arising out of contract * * *.” Neither
party disputes the application of R.C. 2305.09 to the instant case. Rather, at issue is
whether appellants’ professional negligence claim accrued, and the statute began to
run, at the point they purchased the insurance coverage, in 2006, or when they suffered
damages that were not covered under the policy.
{¶17} Appellants’ position is premised upon the Ohio Supreme Court’s ruling in
Kunz v. Buckeye Union Ins. Co., 1 Ohio St. 3d 79 (1982). In Kunz, the plaintiffs
purchased insurance from the defendant insurance agent for business equipment
coverage. The plaintiffs suffered an uncovered loss and filed suit against the agent for
negligently failing to provide the requested coverage. The agent moved for summary
judgment, asserting the four-year statute of limitations set forth under R.C. 2305.09 had
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expired. The trial court granted the motion and the court of appeals affirmed the
judgment.
{¶18} The Supreme Court of Ohio reversed the judgment of the appellate court
ruling that R.C. 2305.09 governed the statute-of-limitations issue. The court analogized
the cause of action to medical or legal malpractice cases in which a doctor or lawyer
failed to perform professional services for which a patient or client had contractually
bargained. Kunz, at 80. The court applied the “delayed-damages rule,” holding the
plaintiffs’ cause of action did not accrue until they suffered a loss to their equipment.
And, because the plaintiffs filed their suit within four years of the accident, the court held
the four-year statute of limitations period had not expired. Id. at 81-82.
{¶19} Although the Supreme Court has not expressly overruled Kunz, it has
since declined to follow its holding in other causes of action alleging professional
negligence that are governed by R.C. 2305.09. In Investors REIT One v. Jacobs, 46
Ohio St. 3d 176 (1989), the court addressed the application of the “discovery rule” to a
claim of accountant negligence governed by R.C. 2305.09.1 In that matter, the
Supreme Court pointed out R.C. 2305.09 contains a limited discovery rule that provides:
“‘If the action is for trespassing under ground or injury to mines, or for the wrongful
taking of personal property, the causes thereof shall not accrue until the wrongdoer is
discovered; nor, if it is for fraud, until the fraud is discovered.’” Investors REIT One,
supra, at 181, quoting R.C. 2305.09. To the extent the statute expressly limited the
application of a discovery rule to specific circumstances, the Court concluded, it did not
1. The “discovery rule” provides “that a cause of action accrues for purposes of the governing statute of
limitations at the time when the plaintiff discovers or, in the exercise of reasonable care, should have
discovered the complained of injury.” Investe REIT One, supra, at 179.
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apply to “professional negligence claims against accountants.” Investors REIT One,
supra, at 182.
{¶20} Moreover, in Flagstar Bank v. Airline Union’s Mortgage Co., 128 Ohio
St.3d 529, 2011-Ohio-1961, the Court held that “[a] cause of action for professional
negligence against a property appraiser accrues on the date that the negligent act is
committed, and the four-year statute of limitations commences on that date.” Id. at
syllabus. The Court in Flagstar rejected the application of the “delayed-damages rule,”
even though it acknowledged it had applied the rule in Kunz, supra.
{¶21} Although the foregoing cases addressed professional negligence in
contexts different than that of an insurance agent’s purported negligence, the Second
Appellate District recently applied the rule of Investors REIT One, which was reaffirmed
by Flagstar to such a cause, notwithstanding Kunz. In Auckerman v. Rogers, 2d Dist.
Greene No. 2011-CA-23, 2012-Ohio-23 (discretionary appeal not allowed by 2012-
Ohio-3054, the court reviewed the relevant case law and concluded the Supreme Court,
in Flagstar, “implicitly overruled Kunz with regard to application of the delayed-damages
rule in cases of professional negligence governed by R.C. 2305.09.” Auckerman,
supra, at ¶17. The court pointed out that, in Kunz, the Court characterized a negligent-
procurement claim against an insurance agent as one alleging negligent performance of
“professional services.” Auckerman, supra, citing Kunz, at 80. And, the Auckerman
court further underscored that Flagstar expressly stated that “‘a cause of action for
professional negligence accrues when the act is committed.’” Auckerman, supra,
quoting Flagstar, at ¶27. Given the conceptual breadth of this conclusion, the
Auckerman court reasoned that Flagstar “foreclosed the application of a discovery or a
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delayed-damages rule in cases involving professional negligence governed by R.C.
2305.09.” Auckerman, supra. The Auckerman court acknowledged that, even though
Flagstar addressed an appraiser’s professional negligence and Investors REIT One
addressed accountant negligence, it saw “no principled reason why an insurance
agent’s professional negligence should be treated differently.” Auckerman, supra, ¶18.
{¶22} While we understand and appreciate the reasoning of the Second
Appellate District in Auckerman, we differ with its conclusion that Flagstar operated to
implicitly overrule Kunz. The syllabus of Flagstar explicitly limits its holding, stating: “A
cause of action for professional negligence against a property appraiser accrues on the
date that the negligent act is committed, and the four-year statute of limitations
commences on that date.” And, as indicated above, the Court, in Flagstar, actually
discussed Kunz in the course of its analysis. Far from suggesting an intent to overrule
Kunz, the case was cited with ostensible approval when, in the course of discussing the
delayed-damages rule, the Court stated, “[w]e have * * * applied the rule to a case
involving the purchase of insurance coverage [and held] ‘“The statute of limitations as to
torts does not usually begin to run until the tort is complete. A tort is ordinarily not
complete until there has been an invasion of a legally protected interest of the plaintiff.”’”
Flagstar, supra, at ¶20, quoting Kuntz, at 81, quoting Austin v. Fultin Ins. Co., 444 P.2d
536, 539 (1968).
{¶23} The Court did not, in Flagstar, specifically conclude it was completely
abandoning the rule announced in Kunz and, given the limited scope of the statement of
law in the Flagstar syllabus, we decline to read Flagstar as implicitly overruling previous
precedent. Had the Court intended Kunz to be explicitly overruled, it would have said
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so in the course of its legal discussion; had it intended Kunz to be implicitly overruled,
its legal holding would have been expressed in broader terms, extending the Investers
REIT One rule to all professional negligence causes of action. It did neither. And we
decline to extrapolate an intent to overrule Kunz, notwithstanding the reasoning lead
opinion in Auckerman.2
{¶24} There are also policy reasons for not discarding Kunz without an express
pronouncement by the Supreme Court. First, an action sounding in negligence requires
the existence of a duty; breach of that duty, and an injury proximately caused by the
breach. Jeffers v. Olexo, 43 Ohio St. 3d 140, 142 (1989). An individual can engage in
negligent conduct, but a cause of action premised upon negligence necessitates legal
harm. It consequently stands to reason that a statute of limitations should not
commence running until a plaintiff has sustained actual damages as a result of a
tortfeasor’s acts or omissions. To adopt the rule of Auckerman, without an express
statement from the Supreme Court that Kunz has been overruled and the “delayed-
damages rule” is not applicable to negligent procurement claims, flies not only in the
face of stare decisis, but also fundamentally obfuscates the principles of traditional tort
law.
{¶25} Moreover, statutes of limitations foster important public policies; to wit:
they ensure fairness to a defendant; they encourage the efficient prosecution of claims;
they function to suppress stale or fraudulent claims; and they help avoid the
inconvenience engendered by delay and by the difficulty in proving older cases.
2. We acknowledge the Supreme Court declined to accept Auckerman for discretionary review. This,
however, does not necessarily imply the Court adopted the appellate court’s decision. Rather, a rejection
of a jurisdictional appeal simply suggests the Court did not deem the issue sufficiently significant to
consider.
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Cundall v. U.S. Bank, 122 Ohio St. 3d 188, 2009-Ohio-2523, ¶22. None of the foregoing
interests are served, however, where the application of a statute of limitations functions
to negate a cause of action before that cause becomes legally actionable. In short,
justice is not served where a tort dies before a reasonable person has an opportunity, in
the exercise of ordinary diligence, to even seek redress.
{¶26} Given the foregoing, we hold, pursuant to Kunz, appellants’ cause of
action accrued and the statute of limitations began to run when they were damaged.
The trial court therefore erred when it ruled the Vinecourts’ professional negligence
claim was barred by the statute of limitations. Their cause of action accrued in January
2011, when they sustained damages as a result of the fire. Because the instant cause
of action was filed within the applicable four-year limitation period, i.e., in July 2012, we
hold appellants’ cause of action is not barred by operation of R.C. 2305.09.
{¶27} Appellants’ first assignment of error is sustained.
{¶28} Appellants’ second assignment of error provides:
{¶29} “The trial court erred as a matter of law when it held that appellants’ claims
for breach of fiduciary duty were barred by the statute of limitations.”
{¶30} Appellants contend the trial court erred in granting summary judgment in
appellees’ favor on their claim for breach of fiduciary duty because their cause of action
did not accrue until January 29, 2011, the date they suffered damages. Appellants
again cite Kunz as authority for this proposition. Given our disposition of appellants’ first
assignment of error, and that the statute of limitations for a breach of fiduciary duty
claim is also governed by R.C. 2305.09, we agree with appellants. See e.g. Marks v.
Reliable Title Agency, Inc., 7th Dist. Mahoning No. 11 MA 22, 2012-Ohio-3006, ¶14.
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{¶31} Appellants’ second assignment of error is sustained.
{¶32} Appellants’ third assignment of error provides:
{¶33} “Appellants’ evidence was sufficient to establish a fiduciary relationship
between appellants and appellee[s].”
{¶34} Appellants assert they produced enough evidence to create a genuine
issue of material fact relating to the fiduciary nature of their relationship with appellees.
In particular, appellants underscore they had employed appellees since 1991 for their
business insurance needs. They further point out they had no understanding of
insurance and relied upon appellee-Kleve to recommend and procure insurance
necessary to cover their business.
{¶35} A “fiduciary relationship” is one “in which special confidence and trust is
reposed in the integrity and fidelity of another and there is a resulting position of
superiority or influence, acquired by virtue of this special trust.” Nichols v.
Schwendeman, 10th Dist. Franklin No. 07AP-433, 2007-Ohio-6602, ¶14, citing Ed
Schory & Sons, Inc. v. Francis, 75 Ohio St. 3d 433, 442 (1996). Although the law has
recognized a public interest in fostering certain professional relationships as fiduciary
relationships, e.g., the doctor-patient and attorney-client relationships, it does not
recognize the insurance agent-client relationship to be of similar importance. Advent v.
Allstate Ins. Co., 10th Dist. Franklin No. 05AP-1092, 2006-Ohio-2743, ¶14, citing
Nielsen Enterprises, Inc. v. Ins. Unlimited Agency, Inc. 10th Dist. Franklin No. 85AP-
781, 1986 Ohio App. LEXIS 6754, *7 (May 8, 1986). Thus, as a general rule, “the
relationship between an insurance agent and his client is not a fiduciary relationship, but
rather, an ordinary business relationship.” Advent, supra; see also Slovak v. Adams,
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141 Ohio App. 3d 838, 846 (6th Dist.2001); Gillin v. Indiana Ins. Co., 2d Dist.
Montgomery No. CA17108, 1998 Ohio App. LEXIS 5039. (Oct. 30, 1998).
{¶36} Notwithstanding these points, however, a fiduciary relationship may be
inferred from an otherwise informal business relationship “when both parties understand
that a special trust or confidence has been reposed.” Umbaugh Pole Bldg Co., Inc. v.
Scott, 58 Ohio St. 2d 282 (1979), paragraph one of the syllabus; Tornado Techs., Inc. v.
Quality Control Inspection, Inc., 8th Dist. Cuyahoga No. 97514, 2012-Ohio-3451, ¶26.
Consequently, a fiduciary relationship cannot be unilateral and may only exist where the
parties have a mutual recognition of the relationship. Id., citing Horak v. Nationwide Ins.
Co., 9th Dist. Summit No. CA 23327, 2009-Ohio-3744, ¶32.
{¶37} Here, Jim testified he has known David since they were children; he
testified he has used David as an agent since the early 1990s. Even though he
received annual information regarding his insurance coverage, Jim testified he did not
understand his policies and he only met with David “every couple years.” Jim testified,
despite his lack of understanding, he never requested an explanation of the policy
because “he trusted [David’s] judgment.” Jim stated that, prior to the fire, he received a
list of equipment that was insured under the policy. Jim stated he reviewed it but was
“mainly looking at the price.” Jim was aware that his insurance policy limited coverage
to $27,500 for business personal property and $8,200 for electronic data processing
equipment; and, although Jim testified he did not understand that his policy insured
building and tool storage for $15,000, he did not contact David to ask him what the
coverage limitations meant. Jim testified he trusted David’s recommendations on policy
increases, but David was not permitted to make independent decisions for Jim’s
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company. Jim further testified he could not recall if he explicitly told David he relied
upon him to make insurance decisions.
{¶38} Jill also testified she did not understand the company’s insurance policy
procured by David. She explained she and Jim trusted and relied upon Dave to make
sure they were “covered for what [they] needed.” Jill admitted Jim mostly dealt with
David and she did not seek explanations of what was covered. Regardless, Jill testified
she and Jim relied on Dave to obtain a policy to “make sure [they were] covered.”
{¶39} Alternatively, David testified that, although he knew the Vinecourts
personally and they shared mutual friends, their acquaintanceship was a business
relationship. He further testified that he was aware that the Vinecourts did business
with other insurance companies for life and health insurance coverage. Regarding the
Vinecourts’ policy, David testified he recommended policy coverage based upon the
information given to him by the Vinecourts. He further testified that, at any time, the
Vinecourts were free to accept or reject any coverage option he recommended. And,
although Vinecourts argued David did not recommend or discuss the import and
advantages of business-interruption coverage, David testified he prepared and sent
appellants checklists itemizing their actual coverage and additional coverages that were
available, including business-interruption coverage. Despite the checklists, the
Vinecourts never inquired into or requested business-interruption coverage.
{¶40} Given the foregoing, the Vinecourts apparently saw David’s role as not
only a procurer of insurance, but also as an overseer and prognosticator of their
insurance needs. They admittedly testified they did not understand their policy; they did
not, however, request explanations of the coverage. In doing so, they presumed David
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knew and understood their ignorance and, in light of this knowledge and understanding,
David could and should anticipate when they desired additional coverage that they had
not previously requested.
{¶41} David, on the other hand, based his recommendations upon the
information the Vinecourts provided him. This was the protocol he used with all clients.
David sent the Vinecourts information pertaining to their policy and checklists showing
the coverage they had as well as coverage they could request. This also was company
protocol. Even assuming the Vinecourts reposed a special trust or confidence in David,
the evidence does not demonstrate the bilateral understanding required to convert an
arms-length business relationship into a fiduciary one. We therefore hold the trial court
did not err when it concluded, as a matter of law, David did not have a fiduciary
relationship with the Vinecourts.
{¶42} Appellants’ third assignment of error lacks merit.
{¶43} Appellants’ final assignment of error provides:
{¶44} “The trial court erred when it ruled as a matter of law that appellants failed
to prove that appellees’ failure to provide sufficient coverage for appellants’ tools and
equipment breached any duties.”
{¶45} Preliminarily, appellees argue this court need not address the foregoing
assignment of error because appellants did not contest the issue in their memorandum
in opposition to summary judgment. Appellants, in their reply brief, contend they were
not required to contest the issue because appellees did not move for summary
judgment on the substantive issue of their alleged professional negligence in failing to
procure adequate coverage. A review of appellees’ motion for summary judgment,
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however, demonstrates otherwise. Appellees argued they were entitled to summary
judgment on appellants’ allegations of liability arising from the inadequate limits for the
scheduled and unscheduled equipment. In effect, appellees argued they were not
legally responsible for any loss suffered from the purported underinsured tools and
equipment. Appellants did not address this issue in their memorandum in opposition.
{¶46} In its judgment entry, the trial court stated:
{¶47} “[Appellees] have stated that Mr. Kleve relied upon [appellants] to advise
him as to the amount of coverage desired for the tools and equipment. [Appellants]
have not provided any reliable, probative evidence disputing that assertion.
Furthermore, [Appellants] have not disputed that Mr. Kleve would provide them with a
list of what was covered and the amount of coverage.”
{¶48} Because appellants did not contest the issue, the trial court correctly
determined there was nothing to dispute appellees’ position. A fundamental rule of
appellate review is that an appellate court will not consider an alleged error that a party
was aware of but failed to argue before the trial court. Schade v. Carnegie Body Co.,
70 Ohio St. 2d 207, 210 (1982). Hence, a party waives the right to contest an issue on
appeal if the issue was manifest prior to or at the time of the proceedings and the party
failed to raise it at the appropriate time in the trial court. Little Forest Med. Ctr. Of Akron
v. Ohio Civ.Rights Comm., 91 Ohio App. 3d 76, 80 (9th Dist.1993). Moreover, this
principle extends to issues not addressed in a summary judgment exercise; to wit, a
party who fails to respond to an adverse party’s motion for summary judgment may not
raise issues on appeal that should have been raised in a response to the motion for
summary judgment. Calabris v. Pfieffer, 11th Dist. Ashtabula No. 96-A-0038, 1997 Ohio
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App. LEXIS 427, *10; see also Haas v. Industrial Commn. Ohio, 10th Dist. Franklin No.
99AP-475, 1999 Ohio App. LEXIS 6483, *5-*6. Appellants have therefore waived their
final assigned error for sake of this appeal.
{¶49} Appellants’ final assignment of error lacks merit.
{¶50} For the reasons discussed in this opinion, the judgment of the Geauga
County Court of Common Pleas is affirmed in part, reversed in part, and remanded.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Concurring/
Dissenting Opinion.
_______________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Concurring/
Dissenting Opinion.
{¶51} I concur fully with the majority’s well-reasoned holding regarding
appellants’ first two assignments of error. However, I find that appellant demonstrated
there was a genuine issue of material fact regarding the existence of a fiduciary
relationship from which a reasonable jury could find in favor of appellants. As such I
dissent regarding the majority’s finding on the third assignment of error. Additionally, I
find that in the summary judgment proceedings, appellants did contest appellees’ claims
regarding the allegations of inadequate limits for appellants’ equipment. Therefore I
also dissent as to the majority’s finding regarding the fourth assignment of error.
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{¶52} When seeking summary judgment the moving party bears the initial
burden of informing the trial court of the basis for the motion and identifying those
portions of the record that demonstrate the absence of a genuine issue of material fact
on an essential element of the non-moving party’s claims. Dresher v. Burt, 75 Ohio
St.3d 280, 293 (1996). If the moving party meets its burden, then the non-moving party
has a reciprocal burden to set forth specific facts showing that there is a genuine issue
for trial. Civ.R. 56(E); Dresher at 293. “The inferences to be drawn from the underlying
facts contained in the affidavits and other exhibits must be viewed in the light most
favorable to the party opposing the motion [for summary judgment], and if when so
viewed reasonable minds can come to differing conclusions the motion should be
overruled.” Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 433 (1981). And the
Supreme Court of Ohio has noted that, as summary judgment terminates the litigation, it
must be granted with caution. Norris v. Ohio Std. Oil Co., 70 Ohio St. 2d 1, 2-3 (1982).
{¶53} The Supreme Court of Ohio has defined the term “fiduciary relationship”
as “‘…one in which special confidence and trust is reposed in the integrity and fidelity of
another and there is a resulting position of superiority or influence, acquired by virture of
this special trust.’" Stone v. Davis, 66 Ohio St. 2d 74, 78 (1981), quoting In re
Termination of Emp., 40 Ohio St. 2d 107, 115 (1974). Determining what constitutes a
fiduciary relationship is a question of fact dependent upon the circumstances in each
case. Taylor v. Shields, 2d Dist. Montgomery No. 2163, 1951 Ohio App. LEXIS 753
(Dec. 7, 1951); Cope v. Metropolitan Life Ins. Co., 82 Ohio St. 3d 426, 437 (1998).
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{¶54} Appellants provided several examples of how a relationship of “special
confidence and trust” existed between them and Mr. Kleve. Among the factors
appellants cite:
 The length of the relationship between the parties;
 The absence of any other insurance advisor for appellants;
 The difference in knowledge of insurance between the parties;
 That appellants always followed the insurance advice offered by Mr.Kleve;
 Mr. Kleve’s unsolicited advice on the replacement cost of the building
addition.
{¶55} Viewing this evidence in a light most favorable to appellants, there is
sufficient information in the record to create a genuine issue of material fact regarding
whether a fiduciary relationship existed between the parties. Thus, appellants’ third
assignment of error has merit.
{¶56} Regarding appellants’ fourth assignment of error, a review of the briefs
from the trial court demonstrates that appellants did contest appellees’ claims regarding
the allegations of inadequate limits for appellants’ equipment. Appellees claim that
appellants failed to address the argument raised in their summary judgment motion that
as to appellants’ allegations of liability arising from inadequate limits for scheduled and
unscheduled equipment. Conversely, appellants claim that appellees did not move for
summary judgment on appellants’ breach of fiduciary duty claims. Neither are correct.
{¶57} Although appellants did not address appellees’ arguments regarding the
liability arising from inadequate limits for equipment in a separately-titled section of their
memorandum in opposition to summary judgment, they nevertheless contested this
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argument at several points. Specifically, appellants argue in their memorandum in
opposition that:
 They relied on Mr. Kleve to provide full coverage (pg. 3);
 They delivered lists of equipment for Kleve to provide coverage (pg. 4);
 Appellees failed to provide $41,000 of requested coverage (pg. 4);
 Appellants requested “full coverage” from Kleve. (pg. 5);
 Failure to provide full coverage resulted in liability for the difference
(pg.12).
{¶58} Given that appellants did contest appellees’ arguments relating to the
allegations of liability arising from inadequate limits for scheduled and unscheduled
equipment, they have not waived this issue on appeal. Thus, appellants’ fourth
assignment of error has merit.
{¶59} I respectfully concur in part and dissent in part.
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