Jenkins v. State Farm Fire & Cas. Co. ( 2012 )

[Cite as Jenkins v. State Farm Fire & Cas. Co., 2012-Ohio-6076.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
THOMAS JENKINS : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellant : Julie A. Edwards, J.
:
-vs- : Case No. 12-CA-5
:
:
STATE FARM FIRE AND CASUALTY : OPINION
COMPANY
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Perry County
Court of Common Pleas Case No.
10 CV 00141
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 20, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
EDWIN J. HOLLERN M. JASON FOUNDS
Hollern & Associates Andrew J. Kielkopf
77 North State Street Gallagher, Gams, Pryor,
Westerville, Ohio 43081 Tallan & Littrell, LLP
471 E. Broad Street, 19th Floor
Columbus, Ohio 43215
[Cite as Jenkins v. State Farm Fire & Cas. Co., 2012-Ohio-6076.]
Edwards, J.
{¶1} Plaintiff-appellant, Thomas Jenkins, appeals from the December 2, 2011,
Entry from the Perry County Court of Common Pleas granting the Motion for Partial
Summary Judgment filed by defendant-appellee State Farm Fire and Casualty
Company.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 17, 2004, a fire destroyed a residence under construction
that was being built for appellant. The shell and roof of the building were complete. The
residence was insured by appellee State Farm Fire and Casualty Company. At the time
of the fire, the policy issued by appellee to appellant states, in relevant part, as follows:
{¶3} “COVERAGE A – DWELLING:
{¶4} “1. A1 – Replacement Cost Loss Settlement – Similar Construction.
{¶5} “a. We will pay the cost to repair or replace with similar construction and
for the same use on the premises shown in the Declarations, the damaged part of the
property covered under SECTION I – COVERAGES, COVERAGE A – DWELLING,
except for wood fences, subject to the following:
{¶6} “(1) until actual repair or replacement is completed, we will pay only the
actual cash value at the time of the loss of the damaged part of the property, up to the
applicable limit of liability show in the Declarations, not to exceed the cost to repair or
replace the damaged part of the property;
{¶7} “(2) when the repair or replacement is actually completed, we will pay the
covered additional amount you actually and necessarily spend to repair or replace the
Perry County App. Case No. 12-CA-5 3
damaged part of the property, or an amount up to the applicable limit of liability show in
the Declarations, whichever is less;
{¶8} “(3) to receive any additional payments on a replacement cost basis, you
must complete the actual repair or replacement of the damaged part of the property
within two years after the date of loss, and notify us within 30 days after the work has
been completed; and…”
{¶9} The limits of liability for the fire loss to the dwelling was $340,000.00.
{¶10} On or about March 12, 2004, appellant submitted a Sworn Proof of Loss
presenting a claim for $225,251.63 for the damaged building. After obtaining estimates,
appellee determined that the total loss to the residence was $122,879.45 and, on or
about December 21, 2004, issued a check in such amount payable to Peoples National
Bank, the mortgage holder, appellant and his attorney. Appellant’s counsel, pursuant
to a letter to appellee dated January 21, 2005, indicated that appellant disputed the
amount and wished to take advantage of the appraisal process provided for in
appellant’s policy with appellee. The appraisal process determined that the replacement
cost value and actual cash value of the residence at the time of the fire was
$186,362.00. The appraisal award was issued on November 9, 2005.
{¶11} On or about November 17, 2005, appellee paid appellant and his
mortgage holder an additional $63,482.55, representing the difference between
$186,362.00 and the $122,879.45 already paid. Subsequently, on or about November 2,
2007, appellee issued a third check to appellant, his attorney and the mortgage holder
Perry County App. Case No. 12-CA-5 4
in the amount of $28,073.50. In all, appellant had received checks totaling $214,435.50
from appellee.1
{¶12} On March 30, 2010, appellant filed a complaint2 for breach of contract
against appellee, alleging that appellee had breached the insurance policy issued to
appellant by failing and refusing to pay the full value of the claim after appellant satisfied
all terms and/or conditions precedent to the policy. Appellant alleged that appellee failed
to timely and completely pay his claim in breach of the terms of the insurance policy.
Appellant, in his complaint, sought compensatory damages, attorney fees, prejudgment
interest, costs and expenses. In a September 17, 2010 pretrial statement, appellant
alleged that he was entitled to the following damages:
{¶13} “5. ITEMIZATION OF EXPENSES:
{¶14} “Rebuild estimate per Charter Hill $302,575;
{¶15} “Foundation included above;
{¶16} “Paid to date ($186,362);
{¶17} “Subtotal owed $116,213;
{¶18} “Demolition & miscellaneous $9,500;
{¶19} “Interest on construction loan $27,000;
{¶20} “Contractual damages to date $143,213;
{¶21} “Increase in mortgage payments 6% loan instead of 5% loan $62,100;
{¶22} “Contractual damages in future $62,100;
{¶23} “Total Contractual Expectation Damages $205,313.”
1
Of this figure, $211,833.50 was for the actual cash value of the premises on the date of the fire and
$2,602.00 was payment for demolition costs.
2
The complaint was a refiled complaint.
Perry County App. Case No. 12-CA-5 5
{¶24} Appellant also alleged that he was entitled to interest pursuant to R.C.
1343.03(A) in the amount of $28,393.00 plus attorney’s fees in the amount of
$68,438.00, for total damages in the amount of $302,144.00.
{¶25} Appellee subsequently filed a Motion for Partial Summary Judgment.
Appellee, in its motion, asked the trial court for an order holding that appellant was only
entitled to the actual cash value of the subject premises (not the replacement cost of the
house) at the time of the fire on February 14, 2004, for an order holding that appellant
was not entitled to recover interest on his construction loan or other financing charges
paid to third parties, as damages, and for an order holding that appellant was not
entitled to an award of attorney’s fees. In response, appellant, on January 11, 2011,
filed a memorandum in opposition and a Cross-Motion for Partial Summary Judgment
on the same three issues. Appellant, in his motion, argued that he was financially
unable to rebuild his house because appellee has not paid him what was due and owing
under the insurance contract. Appellant further argued that he was entitled to the
replacement costs of house, to recover interest on the construction loan and the
contract, and was entitled to attorney’s fees.
{¶26} Pursuant to an Entry filed on December 2, 2011, the trial court granted the
Motion for Partial Summary Judgment filed by appellee. The trial court, in its Entry, held
that, under the terms of appellant’s policy with appellee, appellant was entitled to the
actual cash value at the time of loss of the damaged property up to the limits of liability,
that appellee had issued checks to appellant for what it determined to be the actual
cash value and that appellant had not reconstructed the residence. The trial court
further held that while appellant alleged that appellee prevented him from constructing
Perry County App. Case No. 12-CA-5 6
the residence within two years as required by the terms of the insurance policy,
appellant did not produce any evidence indicating that there was an impossibility of
performance or prevention of performance. The trial court also held that appellant was
not entitled to recover interest payments or other financing charges paid to another
party or attorney’s fees.
{¶27} As memorialized in an Agreed Final Judgment Entry filed on February 27,
2012, all remaining claims relating to damage to the foundation were dismissed with
prejudice.
{¶28} Appellant now raises the following assignment of error on appeal:
{¶29} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION FOR
SUMMARY JUDGMENT AND OVERRULING APPELLANT’S CROSS MOTION FOR
SUMMARY JUDGMENT.”
{¶30} Appellant, in his sole assignment of error, argues that the trial court erred
in granting summary judgment in favor of appellee.
{¶31} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, we must refer to Civ.R. 56 which provides, in pertinent part: “* * *Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
Perry County App. Case No. 12-CA-5 7
appears from such evidence or stipulation and only therefrom, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party against
whom the motion for summary judgment is made, such party being entitled to have the
evidence or stipulation construed most strongly in the party's favor.* * *”
{¶32} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
summary judgment bears the initial burden of informing the trial court of the basis for its
motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact. The moving party may not make a conclusory assertion
that the non-moving party has no evidence to prove its case. The moving party must
specifically point to some evidence which demonstrates the non-moving party cannot
support its claim. If the moving party satisfies this requirement, the burden shifts to the
non-moving party to set forth specific facts demonstrating there is a genuine issue of
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674
N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662 N.E.2d
264.
{¶33} Appellant, in the case sub judice, alleged that appellant breached the
insurance contract issued to appellant by failing to timely and completely pay the claim
that appellant presented to appellee. As is stated above, appellant, on March 12, 2004,
submitted a claim in the amount of $225,251.63.
{¶34} Where the policy language is clear and unambiguous, we have no
authority to rewrite or otherwise construe the language the parties have adopted.
Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 168, 436 N.E.2d 1347 (1982).
Perry County App. Case No. 12-CA-5 8
{¶35} As noted by the trial court, the policy issued to appellant clearly and
unambiguously provided that appellee would pay the actual cash value at the time of
the loss to the damaged property up to the limits of liability and that, when the repair or
replacement to the damaged property is completed, appellee would pay “the covered
additional amount you actually and necessarily spend to repair or replace the damaged
part of the property,…” The policy further indicated that such repair or replacement had
to be completed within two years to receive any additional payments on a replacement
cost basis. There is no dispute that appellee paid the actual cash value, as
determined by the appraisal process, at the time of the loss.
{¶36} Moreover, appellant argues that appellee’s actions in refusing, in March of
2004, to pay him the $225,351.63.00 cost to rebuild made it impossible for him to
rebuild the residence within two years. Impossibility of performance occurs where, after
the contract is entered into, an unforeseen event arises rendering impossible the
performance of one of the contracting parties. State v. Curtis, 5th Dist. No.2008CA22,
2008-Ohio-5643. Performance may be impracticable because it will involve a risk of
injury to person or property that is disproportionate to the ends to be attained by
performance. B-Right Trucking Co. v. Warfab Field Machining and Erection Corp., 11th
Dist. No. 2000-T-0072, 2001-Ohio-8724. “Impracticability” means more than
“impracticality.” Id. at 5. A mere change in the degree of difficulty or expense does not
amount to impracticability. Id. A party is expected to use reasonable efforts to surmount
obstacles to performance, and performance is only impracticable if it is so in spite of
such efforts. Id.
Perry County App. Case No. 12-CA-5 9
{¶37} As noted by the trial court, appellant failed to “provide any evidence
indicating that there was an impossibility of performance or prevention of performance,
which prohibited [appellant] from rebuilding his residence.” Appellant did not provide
the trial court with an affidavit or any type of financial documents. Moreover, there were
no unforeseeable events that prevented appellant from complying with the terms of the
policy. Lack of finances does not excuse performance upon a contract by establishing
impossibility of performance. Richards v. Hidden Valley, 8th Dist. No. 43486, 1981 WL
4695 (Dec. 17, 1981).
{¶38} Appellant further contends that he was entitled to statutory interest
pursuant to R.C. 1343.03(A) as a result of appellee’s breach of the contract. Appellant
claims that he is entitled to interest on the $225,351.63 from March of 2004. According
to appellant, had appellee “fulfilled its obligation to [appellant] in March of 2004 by
paying [appellant] $225,351.63 as the ACV [actual cash value] of the fire loss at that
time, [appellant] would have paid off the construction loan and not incurred interest
charges….”
{¶39} We concur with appellee that statutory interest would only be payable, in
theory, if appellant had established that appellee had breached the contract. There has
been no finding that appellee breached the contract with appellee.
{¶40} Moreover, an award of prejudgment interest as to claims arising out of a
breach of contract is governed by R.C. 1343.03(A). Galmish v. Cicchini, 90 Ohio St.3d
22, 33, 2000-Ohio-7, 734 N.E.2d 782. R.C. 1343.03(A) states in pertinent part: “[W]hen
money becomes due and payable upon any * * * note, * * * and upon all judgments,
decrees, and orders of any judicial tribunal for the payment of money arising out of * * *
Perry County App. Case No. 12-CA-5 10
a contract or other transaction, the creditor is entitled to interest at the rate per annum
determined pursuant to section 5703.47 of the Revised Code, unless a written contract
provides a different rate of interest in relation to the money that becomes due and
payable, in which case the creditor is entitled to interest at the rate provided in the
contract.”
{¶41} The policy issued by appellee to appellant states, in relevant part, as
follows:
{¶42} “I. Loss Payment
{¶43} “We will adjust all losses with you. We will pay you unless some other
person is named in the policy or is legally entitled to receive payment. Loss will be
payable 60 days after we receive your proof of loss and:
{¶44} “a. reach an agreement with you;
{¶45} “b. there is an entry of a final judgment; or
{¶46} “c. there is a filing of an appraisal award with us.”
{¶47} In the case sub judice, appellant submitted a Sworn Proof of Loss on
March 12, 2004. After the parties were unable to agree on the amount of the loss
suffered by appellant an appraisal was conducted. The appraisal award was issued on
November 9, 2005. On November 17, 2005, appellee paid appellant and his mortgage
holder an additional $63,482.55. As noted by appellee, its obligations under the policy
did not become “due and payable” until the appraisal award was filed. Appellee issued
its payment of the balance of the appraisal award within 8 days of the award. Appellant,
therefore, was not entitled to interest under R.C. 1343.03(A).
Perry County App. Case No. 12-CA-5 11
{¶48} Appellant further contends that the trial court erred in holding that appellee
was not liable for interest that appellant had had to pay on a separate construction loan
that appellant had obtained before the fire to finance the original construction on the
house. However, “absent policy language indicating otherwise or bad faith established
on the part of the insurance company, interest paid to a third party is not recoverable as
a cost of repairing or replacing property.” Sam Tisci, Inc. v. State Farm & Cas. Co., 48
Ohio App.3d 155, 158, 548 N.E.2d 978 (6th Dist. 1987). There is no policy language
“indicating otherwise” and appellant has not demonstrated that appellee acted in bad
faith.
{¶49} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of appellee.
Perry County App. Case No. 12-CA-5 12
{¶50} Appellant’s sole assignment of error is, therefore, overruled.
{¶51} Accordingly, the judgment of the Perry County Court of Common Pleas is
affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1018
[Cite as Jenkins v. State Farm Fire & Cas. Co., 2012-Ohio-6076.]
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THOMAS JENKINS :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
STATE FARM FIRE AND CASUALTY :
COMPANY :
:
Defendant-Appellee : CASE NO. 12-CA-5
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Perry County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES