Kean v. Cincinnati Ins. Co. ( 2021 )

[Cite as Kean v. Cincinnati Ins. Co., 2021-Ohio-490.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bradley Kean, :
Plaintiff-Appellant, :
No. 20AP-177
v. : (C.P.C. No. 19CV-3186)
The Cincinnati Insurance Company, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on February 23, 2021
On brief: Steven E. Hillman, for appellant. Argued: Steven
E. Hillman.
On brief: David J. Heinlein, for appellee. Argued: David J.
Heinlein.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Plaintiff-appellant, Bradley Kean, appeals from the February 28, 2020
decision and entry issued by the Franklin County Court of Common Pleas granting the
motion for summary judgment of defendant-appellee, The Cincinnati Insurance Company
("CIC"), and dismissing appellant's complaint with prejudice. For the following reasons,
we affirm.
I. Facts and Procedural History
{¶ 2} The salient facts of the instant matter are undisputed and evinced in the
record as follows. CIC issued a homeowners' insurance policy (the "Policy") to Kean which
covers his residence in Canal Winchester, Ohio. (Apr. 16, 2019 Compl. at ¶ 2.) Kean testified
at his deposition that in July 2018, he became aware of water damage to his home after he
No. 20AP-177 2
had a fence installed which was attached to the rear of the home. (Kean Depo. at 7.) Kean
initiated a claim under his Policy, which was investigated by CIC's claims adjustor, Tod
Felton ("Felton"). (Felton Aff. at ¶ 3-4.)
{¶ 3} Felton inspected the home and attendant damage on several occasions and
determined that the affected corner of the home exhibited wet-rot damage, apparently from
water that had been going behind the siding, i.e., between the interior wall and the outside
siding. (Id. at ¶ 3-4; 6-10.) On Felton's first visit to the home, he made Kean aware of the
Policy's limitation on "Fungi, Wet-Rot and Dry-Rot" coverage, which was $10,000. (Id. at
¶ 4; see also Policy, Endorsement HR 929.)
{¶ 4} Ultimately, CIC paid Kean $17,617.48, less the $1,000 deductible under the
Policy, which included $10,000 for the wet-rot damage plus $7,617.48 in damage to
personal property. (Felton Aff., at ¶ 10-13.) Kean submitted a Sworn Statement in Proof of
Loss which acknowledged the foregoing, including the fact that the origin of the loss was
due to "Water, Fungi, Wet/Dry Rot." (Felton Aff., Ex. C-2; Kean Depo. at 13.)
{¶ 5} Subsequently, on April 16, 2019 Kean filed a complaint in which he asserted
three claims: 1) breach of contract; (2) bad faith; and (3) intentional infliction of emotional
distress. (See Compl.) CIC filed its answer on May 15, 2019 and the parties proceeded with
discovery.
{¶ 6} On January 21, 2020, CIC filed a motion for summary judgment. On
February 12, 2020, the trial court ordered additional briefing on the claim for intentional
infliction of emotional distress. Subsequently, on February 28, 2020, the trial court
granted summary judgment in favor of CIC on all three of Kean's claims. (Feb. 28, 2020
Decision & Entry.)
{¶ 7} This timely appeal followed.
II. Assignments of Error
{¶ 8} Appellant assigns three errors for our review:
[I.] The Trial Court failed to appropriately apply Civ.R. 56 when
granting the Appellee's Motion for Summary Judgment.
[II.] When the Appellee choose [sic] not to inspect the building
as required by R.C. 3929.25 and continued to insure the
dwelling and collect its premiums for the same values as before
No. 20AP-177 3
the claim it cannot raise construction defects that would have
existed at the time the original policy was issued and the
defense of a construction defect and any visible defect is
waived.
[III.] Because the doctrine of Waiver is potentially involved in
this case, this is a question for a Jury and is not subject to
Summary Judgment.
III. Discussion and Legal Analysis
A. Standard of Review
{¶ 9} An appellate court reviews summary judgment under a de novo standard.
You v. Northeast Ohio Med. Univ., 10th Dist. No. 17AP-426, 2018-Ohio-4838, ¶ 16, citing
Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567,
¶ 19, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995). Summary
judgment is proper only when the parties moving for summary judgment demonstrate: (1)
no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as
a matter of law, and (3) reasonable minds viewing the evidence most strongly in favor of
the nonmoving party could reach but one conclusion, and that conclusion is adverse to the
nonmoving party. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d
181 (1997).
{¶ 10} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact by pointing to specific
evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
If the moving party fails to satisfy its initial burden, the court must deny the motion for
summary judgment; however, if the moving party satisfies its initial burden, summary
judgment is appropriate unless the nonmoving party responds, by affidavit or as otherwise
provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial.
Id; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-
5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).
{¶ 11} A fact is "material" if it "might affect the outcome of the suit under the
applicable substantive law." Mitchell v. Mid-Ohio Emergency Servs., L.L.C., 10th Dist. No.
No. 20AP-177 4
03AP-981, 2004-Ohio-5264, ¶ 12. A "genuine" issue of material fact exists to prevent
summary judgment only if "a reasonable jury could find that the evidence satisfies the
evidentiary standards required at trial." Myocare Nursing Home, Inc. v. Fifth Third Bank,
98 Ohio St.3d 545, 2003-Ohio-2287, ¶ 33. Additionally, a nonmovant's own self-serving
assertions, whether made in an affidavit, deposition or interrogatory responses, cannot
defeat a well-supported summary judgment when not corroborated by any outside
evidence. White v. Sears, Roebuck & Co., 10th Dist. No 10AP-294, 2011-Ohio-204, ¶ 7.
{¶ 12} Finally, "[t]rial courts should award summary judgment with caution, being
careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco
Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v.
Reynoldsburg, 65 Ohio St.3d 356 (1992). "Even the inferences to be drawn from the
underlying facts contained in the evidentiary materials, such as affidavits and depositions,
must be construed in a light most favorable to the party opposing the motion." Hannah v.
Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67 Ohio
St.3d 337, 341 (1993).
B. Appellant's First Assignment of Error
{¶ 13} In his first assignment of error, Kean asserts that the trial court erred by
failing to appropriately apply Civ.R. 56 in granting CIC's motion for summary judgment.
We disagree.
{¶ 14} " 'An insurance policy is a contract whose interpretation is a matter of law.' "
Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio-3308, ¶ 8, citing
Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, ¶ 6. When
interpreting an insurance policy, the fundamental goal is to ascertain the intent of the
parties. Id., citing Burris v. Grange Mut. Cos., 46 Ohio St.3d 84, 89 (1989). The intent of
the parties is ascertained by reading the policy in its entirety and settling upon " 'reasonable
interpretation of any disputed terms in a manner designed to give the contract its intended
effect.' " Id. "Words and phrases must be given their plain and ordinary meaning 'unless
manifest absurdity results, or unless some other meaning is clearly evidenced from the face
or overall contents of the instrument.' " Id., citing Alexander v. Buckeye PipeLine Co., 53
Ohio St.2d 241 (1978), paragraph two of the syllabus.
No. 20AP-177 5
{¶ 15} The Supreme Court of Ohio has held that "provisions in an insurance contract
that are reasonably susceptible of more than one interpretation will be construed liberally
in favor of the insured." Laboy at ¶ 9, citing King v. Nationwide Ins. Co., 35 Ohio St.3d
208 (1988), syllabus (further citation omitted.) Nevertheless, this rule " 'will not be applied
so as to provide an unreasonable interpretation of the words of the policy.' " Id., citing
Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917, ¶ 8,
citing Morfoot v. Stake, 174 Ohio St. 506 (1963), paragraph one of the syllabus.
{¶ 16} When the parties to a contract disagree on the meaning of the language in the
contract, a court "must first look to the four corners of the document to determine whether
an ambiguity exists." Antonucci v. Ohio Dept. of Taxation, 10th Dist. No. 09AP-629, 2010-
Ohio-3326, ¶ 8, citing Buckeye Corrugated, Inc. v. DeRycke, 9th Dist. No. 21459, 2003-
Ohio-6321. Where the terms of a contract are clear and precise, the contract is not
ambiguous, and a court is not permitted to refer to any evidence outside of the contract
itself. Id., citing Ryan v. Ryan, 9th Dist. No. 19347 (Oct. 27, 1999). Furthermore, when a
written instrument is unambiguous, parol evidence will not be considered in an attempt to
demonstrate an ambiguity that otherwise does not exist. Id., citing Shifrin v. Forest City
Enterprises, Inc., 64 Ohio St.3d 635, 638 (1992), citing Stony's Trucking Co. v. Pub. Util.
Comm., 32 Ohio St.2d 139, 142 (1972).
{¶ 17} Additionally, it is well-established that, when opposing a motion for
summary judgment, "the evidence necessary to create a genuine issue of material fact must
be more than just bare, unsupported assertions" and that "a 'party's unsupported and self-
serving assertions, offered by way of affidavit, standing alone and without corroborating
materials under Civ.R. 56, will not be sufficient to demonstrate material issues of
fact.' " Eichenberger v. Tucker, 10th Dist. No. 12AP-515, 2013-Ohio-805, ¶ 9, quoting
Hillstreet Fund III, L.P. v. Bloom, 12th Dist. No. CA2009-07-178, 2010-Ohio-2961, ¶ 10,
citing TJX Cos., Inc. v. Hall, 183 Ohio App.3d 236, 2009-Ohio-3372 (8th Dist.), ¶ 30; see
also Pinchot v. Mahoning Cty. Sheriff's Dept., 164 Ohio App.3d 718 (7th Dist.), ¶ 24,
(generally, self-serving affidavits cannot be used by the nonmoving party to survive
summary judgment). "Otherwise, a party could avoid summary judgment under all
circumstances solely by simply submitting such a self-serving affidavit." Bell v. Beightler,
10th Dist. No. 02AP-569, 2003-Ohio-88, ¶ 33. Thus, a party's self-serving affidavit which
No. 20AP-177 6
purports to attest to the terms of a contract and the meaning of those terms may not be
considered by a court reviewing a motion for summary judgment where the contract's terms
are clear and unambiguous.
{¶ 18} Section I.A.5.m.(1) of the Policy, titled "Fungi, Wet or Dry Rot, or Bacteria,"
provides in pertinent part:
The amount shown in the Section 1 – Fungi, Wet or Dry Rot or
Bacteria – Limit of Insurance Schedule is the most "we" will
pay at each "location" under this Additional Coverage during
the "coverage term"[.]
(Policy, Section I.A.5.m.(1).) The term "location" is specifically defined under the Policy as
"the 'residence premises,' " with "residence premises" being further defined as "the one or
two family dwelling where 'you' reside." (Id., Definitions, 15.a. and 24.a.) In turn, Section
1 – Fungi, Wet or Dry Rot, or Bacteria – Limit of Insurance Schedule (the "HR 929
Endorsement") specifies the limit of insurance for this coverage is $10,000. (Id., HR 929.)
{¶ 19} We find that the language of the policy clearly and unambiguously establishes
that CIC's obligation to reimburse Kean for damages to his residence caused by fungi or wet
rot is limited to a maximum of $10,000. We further agree with the trial court that all
admissible evidence in this case supports the finding that the damage to Kean's property is
due to fungi or wet rot and that Kean has failed to submit any evidence to the contrary.
Indeed, the evidence unequivocally shows the damage to Kean's residence is fungi and wet
rot damage. As noted above, Kean submitted a Sworn Statement in Proof of Loss to CIC
acknowledging the damage to be "Water, Fungi Wet/Dry Rot" and testified at his deposition
that he signed it. (Felton Aff., Ex. C-2; Kean Depo. at 13.) Tod Felton, CIC's claims adjustor
assigned to Kean's claim, inspected the property and concluded the damage was the result
of "repeated seepage or leakage of water, or the presence of moisture over a period of weeks,
months, or years." (Felton Aff. at ¶ 15.) CIC's expert, Eric R. Drozdowski, P.E., likewise
determined the damage was "a result of repeated seepage or leakage of water or the
presence of moisture over a period of weeks, months or years and as a result of degradation
of the building envelope, poor construction techniques and/or poor maintenance of the
home." (Drozdowski Aff. at ¶ 11.)
No. 20AP-177 7
{¶ 20} Nevertheless, Kean argues in his brief that it was error for the trial court to
have granted summary judgment in favor of CIC because there are at the very least issues
of fact concerning whether the damage to Kean's residence is covered by the Policy. In
support of this argument, Kean points to his own affidavit. Yet, as discussed above, a self-
serving affidavit submitted by the nonmovant without corroborating materials admissible
under Civ.R. 56 will not suffice to avoid summary judgment where the moving party has
submitted a motion for summary judgment that is supported by admissible evidence.
Eichenberger at ¶ 9. Kean has submitted no corroborating materials supporting any of the
assertions made in his affidavit and as such cannot use it to show there are genuine issues
of material fact in this case.
{¶ 21} Nor can Kean use his own affidavit to show the Policy means something other
than what it clearly and unambiguously provides, which as we have already found is that
CIC's obligation to Kean in this case is $10,000 for damage due to fungi and wet rot. The
HR 929 Endorsement providing for coverage due to water damage from wet/dry rot clearly
limits the maximum payment to $10,000 per "location," and "location" is defined in the
Policy as "the residence premises." Thus, even if we were to consider Kean's interpretation
of the Policy as set forth in his affidavit, "location" clearly refers to the house itself, not the
location of each and every instance or area of water intrusion. In short, Kean's argument
that he should be paid up to $10,000 for each area of water intrusion fails by virtue of the
plain language of the Policy.
{¶ 22} The evidence in the form of Tod Felton's affidavit shows that Kean was paid
$17,617.48, which consisted of $10,000 for the full Policy limits for "Fungi, Wet or Dry Rot,
or Bacteria" plus $6,617.48 ($7,617.48 minus the $1,000 deductible) for damages to
personal property. (Felton Aff. at ¶ 10-13.) Kean has provided no evidence to the contrary
and indeed, does not dispute this proof. Thus, CIC fully met its obligation under the Policy
and there are no genuine issues of material fact on this point.
{¶ 23} Therefore, we find the trial court did not err by failing to appropriately apply
Civ.R. 56, and the trial court properly granted CIC's motion for summary judgment
pursuant to Civ.R. 56(C). Accordingly, we overrule Kean's first assignment of error.
C. Appellant's Second and Third Assignments of Error
No. 20AP-177 8
{¶ 24} Kean's second and third assignments of error both concern his arguments
predicated on waiver, and we therefore address them together. In these assignments of
error, and although not clearly articulated, in essence Kean asserts the trial court erred in
granting summary judgment to CIC when there was a genuine issue of material fact as to
whether CIC had waived any potential defense that the damage to the property was caused
by a construction defect, which would ostensibly relieve CIC of its duty to pay its insured
pursuant to the Policy. These assignments of error have no merit.
{¶ 25} First, as argued by CIC and as the trial court properly found, R.C. 3929.25 is
wholly inapplicable in this case. This statute applies only in cases where a building is
insured "against loss or damage by fire or lightning." R.C. 3929.25. Neither of the parties
in this case asserts this case involves damage due to fire or lightning. Indeed, as discussed
previously, Kean submitted a Sworn Statement in Proof of Loss to CIC acknowledging the
damage to be "Water, Fungi Wet/Dry Rot" and testified at his deposition that he signed it.
(Felton Aff., Ex. C-2; Kean Depo. at 13.) Tod Felton, CIC's claims adjustor assigned to
Kean's claim, inspected the property and concluded the damage was the result of "repeated
seepage or leakage of water, or the presence of moisture over a period of weeks, months, or
years." (Felton Aff. at ¶ 15.) Furthermore, even if this statute did apply, Kean's argument
regarding "waiver" of a defense of construction defects is nonsensical. The statute makes
clear that the inspection requirement is for the purpose of fixing a valuation of the property
to be paid for a total loss due to fire, not to uncover construction defects for the purpose of
preserving a future defense to payment under an insurance policy based on original
construction defects.
{¶ 26} Moreover, in this case CIC has never asserted a "defense" based on
underlying construction defects. To be sure, Eric R. Drozdowski, the engineer engaged by
CIC as its expert after the suit was filed, opined that the water damage occurred, at least in
part, due to construction defects. (Drozdowski Aff. at ¶ 11.) But this is merely an
explanation of how the damage occurred, which is not directly relevant to what is payable
under the Policy. As thoroughly discussed above, the Policy clearly limits payment for
damage due to wet-rot to $10,000 without speaking to how the wet-rot came to occur, so it
is of no matter whether or not it was caused by a construction defect.
No. 20AP-177 9
{¶ 27} Second, regardless of the inapplicability of R.C. 3929.25, Kean is confusing
the concept of a right to void a contract and/or deny an insurance claim made pursuant to
an insurance policy, with the right to be obligated to pay out under the policy only in
accordance with its terms, including its limitations and exclusions. Contrary to Kean's
position, CIC did not attempt to "void" the Policy and did not "deny" the claim. Rather, CIC
appropriately processed Kean's claim according to the limitations and exclusions set forth
in the Policy.
{¶ 28} Lastly, although not specifically assigned as an error, as part of his discussion
under the third assignment of error, Kean has also asserted there is an issue of fact
regarding whether CIC acted in bad faith.1 We do not agree. It is well-settled that "[b]ased
upon the relationship between an insurer and its insured, an insurer has the duty to act in
good faith in the handling and payment of the claims of its insured. A breach of this duty
will give rise to a cause of action in tort against the insurer." Hoskins v. Aetna Life Ins. Co., 6
Ohio St.3d 272 (1983), paragraph one of the syllabus. "An insurer fails to exercise
good faith in the processing of a claim of its insured where its refusal to pay the claim is not
predicated upon circumstances that furnish reasonable justification therefor." Zoppo v.
Homestead Ins. Co., 71 Ohio St.3d 552 (1994), paragraph one of the syllabus.
{¶ 29} In this case, CIC had reasonable justification for its position that Kean was
entitled only to $10,000 for the water damage pursuant to the terms of the Policy.
Furthermore, Kean admitted in his deposition that Felton and CIC were responsive in
investigating the claim. (Kean Depo. at ¶ 17.) There simply is no evidence of bad faith in
this case; instead, the evidence shows CIC acted in good faith in investigating and paying
Kean's claim. Therefore, CIC is entitled to judgment as a matter of law on Kean's claim for
bad faith.
{¶ 30} In short, based on the foregoing, Kean's second and third assignments of
error are meritless and are hereby overruled.
IV. Disposition
1 In his complaint, Kean had also asserted a claim for intentional infliction of emotional distress, and the
trial court granted summary judgment on this claim as well as the claims for breach of contract and bad
faith. Kean has assigned no errors based on his claim for intentional infliction, nor has he made any
arguments on this point; accordingly, we presume he has abandoned this claim on appeal.
No. 20AP-177 10
{¶ 31} For the foregoing reasons, the trial court did not err in granting CIC's motion
for summary judgment pursuant to Civ.R. 56(C). Having overruled appellant's first, second
and third assignments of error, we affirm the judgment of the Franklin County Court of
Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.