Costanzo v. Nationwide Mutual Insurance , 2005 Ohio 3170 ( 2005 )

Painter, J.,

concurring separately.

{¶ 35} I concur in the first part of the opinion and in the result. Under the common law of agency, Nationwide always owned the policyholder information. Nationwide operates through exclusive agents; under that system, all policyholder information is the property of the principal, not the agent. 4

{¶ 36} But if Nationwide had not already owned the information, it did not receive it as a result of the Computer Agreement. This contract did not transfer anything — it was exclusively concerned with the installation and operation of the computer system.

{¶ 37} Hidden away in Section 9, entitled “Protection and Security” was this: ‘You also agree that the Nationwide System (hardware, software, manuals, policyholder information and related documentation) are [sic] the property of and proprietary to, Nationwide or Nationwide’s third party vendors, and further agree to protect the Nationwide System (hardware, software, manuals, and related documentation) or any part thereof, from unauthorized use or disclosure.” (Emphasis added.) There were no words of conveyance, and construing the language against the drafter, I would hold that the language meant, at most, that the electronic data stored in the system was Nationwide’s property. That would have no bearing at all on the ownership of the underlying information — or on the agent’s right to use it.

4

. Freeman & Eggert, Exploration of Policyholder Information Ownership Rights Under the Three Existing Insurance Agency Systems in the United States (2002), 32 W.New Eng.L.Rev. 409, and cases cited there.