Koscielak v. United Ohio Ins. Co. ( 2020 )

[Cite as Koscielak v. United Ohio Ins. Co., 2020-Ohio-3224.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
ANGELA A. KOSCIELAK,
PLAINTIFF-APPELLANT, CASE NO. 4-19-20
v.
UNITED OHIO INSURANCE COMPANY,
OPINION
DEFENDANT-APPELLEE.
Appeal from Defiance County Common Pleas Court
Trial Court No. 18 CV 44410
Judgment Affirmed
Date of Decision: June 8, 2020
APPEARANCES:
Ian A. Weber for Appellant
Christine N. Farmer for Appellee, United Ohio Insurance Company
Case No. 4-19-20
SHAW, P.J.
{¶1} Plaintiff-appellant, Angela A. Koscielak (“Koscielak”), brings this
appeal from the October 16, 2019 judgment of the Defiance County Common Pleas
Court granting summary judgment to defendant-appellee, United Ohio Insurance
Company (“United”). On appeal, Koscielak argues that the trial court erred by
finding that there were no genuine issues of material fact in this case.
Background
{¶2} In January of 2015, Koscielak lived at 4163 Cicero Road in Hicksville
with her husband, Jeff. Koscielak had an insurance policy through United covering
the premises, a 60 x 80 “pole building,” and personal property.1 On January 9, 2015,
Jeff was working in the pole barn when he noticed heavy smoke coming from the
area above the sink. Jeff stated that he attempted to extinguish the fire with an
extinguisher, but was unsuccessful so he called the fire department.2
{¶3} A deputy sheriff was the first responder to arrive at the scene and by the
time he arrived, the pole barn was “fully engulfed.” When the deputy sheriff
arrived, he observed Jeff and Koscielak attempting to move a motorcycle away from
the fire.
{¶4} The Hicksville Fire Department, Edgerton Fire Department, and Farmer
Fire Department all arrived to fight the fire. Despite their efforts, Koscielak would
1
The relevant policy covered the period of December 28, 2014, to December 28, 2015.
2
Koscielak would later state that she came out and used fire extinguishers to try and put the fire out.
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later claim the pole building and all the personal property inside was a “total loss.”
The deputy sheriff’s report indicated that the fire had an undetermined cause, and
that it was still under investigation at that time.
{¶5} Koscielak filed a claim with United for the policy limits related to the
pole building, which were $14,800 for other structure loss, $103,600 for personal
property loss, and $29,600 for loss of use.
{¶6} In the months after the fire, United investigated Koscielak’s claim and
the cause of the fire. United was also seeking an itemized list of the personal
property purportedly lost.
{¶7} While the investigation was occurring, in April of 2015 Koscielak and
Jeff got into a serious argument that led to Jeff being charged with domestic
violence. Jeff would later claim that Koscielak told him on the night of the
altercation that she started the fire on purpose while he was inside the pole barn.
Koscielak and Jeff separated after this fight and were in the process of a divorce at
the inception of this case.
{¶8} On August 18, 2015, Jeff was examined “under oath” by United. In the
examination, Jeff stated that Koscielak’s friends had told him that Koscielak talked
about starting a fire for the insurance money before she had done it, and that
Koscielak later told people that she started the fire. Jeff stated that eventually
Koscielak herself told him that she started the fire. Jeff claimed that Koscielak had
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indicated that since Jeff was in the pole building there was an added benefit because
of a life insurance policy.
{¶9} On September 1, 2015, United’s attorneys sent a letter to Koscielak
indicating that United wanted to have her examined under oath on September 14,
2015. United’s letter cited language from the insurance policy detailing Koscielak’s
duty to comply, which read as follows:
B. Duties After Loss
In case of a loss to covered property, we have no duty to provide
coverage under this policy if the failure to comply with the
following duties is prejudicial to us. These duties must be
performed either by you, [a]n “insured” seeking coverage, or a
representative of either:
5. Cooperate with us in the investigation of a claim;
6. Prepare an inventory of damaged personal property showing
the quantity, description, actual cash value and amount of loss.
Attach all bills, receipts and related documents that justify the
figures in the inventory;
7. As often as we reasonably require:
(a) Show the damaged property;
(b) Provide us with records and documents we request and
permit us to make copies; and
(c) Submit to examination under oath, while not in the
presence of another “insured”, and sign the same.
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(Doc. No. 6, Ex. B). In addition to submitting to an examination under oath, United
requested that Koscielak provide, inter alia, copies of documents which related to
any property lost in the fire.
{¶10} Despite scheduling the examination under oath, the examination did
not take place on September 14, 2015, and Koscielak did not provide the requested
documentation. The examination was rescheduled for October 5, 2015. Koscielak
requested that the rescheduled examination take place at the Hicksville Police
Department, but the department was unable to accommodate the request, thus the
examination was scheduled to proceed per the prior letter. However, Koscielak did
not attend the second scheduled examination under oath and she still did not provide
the requested documentation.
{¶11} Another letter was sent to Koscielak on October 15, 2015, demanding
that Koscielak comply with the investigation.
{¶12} On October 27, 2015, United’s attorneys sent Koscielak yet another
letter demanding that she provide the requested documentation and advising her that
if the documents were not received by November 4, 2015, her claim would be denied
for her failure to comply.
{¶13} On November 16, 2015, Koscielak was sent a letter denying her claim,
“based upon the information and evidence discovered during our investigation to
date, combined with a material lack of cooperation provided by you during our
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investigation.” (Doc. No. 6, Ex. G). More specifically, the letter cited Koscielak’s
failure to provide an examination under oath, her failure to provide an inventory of
the personal property lost, and her failure to provide requested documentation to
support her claim. (Id.) The letter contained excerpts of provisions from the
insurance policy that Koscielak did not comply with.
{¶14} On June 4, 2018, Koscielak filed a complaint in the Defiance County
Common Pleas Court requesting that United pay her the policy limits.3
{¶15} On July 2, 2018, United filed a “motion for more definite statement”
requesting a more definite statement of the complaint. United also requested that
Koscielak produce the insurance contract upon which Koscielak based her claims
as it had not been attached to the complaint.
{¶16} On July 12, 2018, Koscielak responded in writing to United’s motion
for a more definite statement and attached the insurance contract and the deputy
sheriff’s police report from the date of the fire.
{¶17} On February 19, 2019, United filed an answer to Koscielak’s
complaint denying the allegations and asserting ten affirmative defenses including,
inter alia, that Koscielak failed to comply with terms and conditions of the insurance
policy, thereby barring her claim.
3
Statements made in the record indicate that Koscielak had previously filed suit against United but
voluntarily dismissed that claim, thus this case was a refiling of that claim.
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{¶18} On February 26, 2019, United filed a notice to take Koscielak’s
deposition on Wednesday April 24, 2019. Despite not providing United with
examinations under oath previously, Koscielak’s deposition was taken in this matter
on the scheduled date.
{¶19} In her deposition, Koscielak stated that she was, in fact, asked to
complete the examinations under oath by United but she did not. She indicated that
she missed the later-scheduled examination because she had gone to Tennessee with
her daughter and she did not have her mail forwarded. She stated that by the time
she returned from Tennessee her claim was denied.
{¶20} Koscielak testified that she thought the fire in the pole building was
“electrical,” because she thought it started in a wall. She testified that Jeff’s
statements that she started the fire were false and she indicated she helped Jeff
attempt to fight the fire.
{¶21} Koscielak additionally testified that the residence at 4163 Cicero Rd
had been foreclosed upon and she was no longer the owner. She still wanted
reimbursed for all her personal property lost in the fire, for the price that it would
cost to rebuild the pole building, and the loss of use of the pole building. She
acknowledged that United had provided her with a check for $27,090 for the face
value of the pole building itself but she had not cashed the check.
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{¶22} The next filing in the record was on July 29, 2019. At that time United
filed a motion for summary judgment arguing that despite numerous requests for
documentation and a demand for an examination under oath, Koscielak failed to
substantially or meaningfully comply with United’s investigation. United cited case
authority stating that an insurer was not obligated to perform under a contract until
conditions precedent were satisfied such as submitting to an examination under oath
if requested. See Savage v. Am. Family Ins. Co., 10th Dist. Franklin No. 08AP-273,
2008-Ohio-4460. In addition, United argued that Koscielak engaged in intentional
misconduct and her claim should be denied for that reason.
{¶23} Over the ensuing months, Koscielak did not file any response to
United’s motion for summary judgment.
{¶24} On October 16, 2019, the trial court filed an entry granting United’s
summary judgment motion finding generally that there were no genuine issues of
material fact, that United was entitled to judgment as a matter of law, and that
reasonable minds could reach only one conclusion, adverse to Koscielak. It is from
this judgment dismissing her complaint that Koscielak appeals, asserting the
following assignment of error for our review.
Assignment of Error
The trial court abused its discretion in holding that there were no
genuine issues of material fact and that the defendant [met] the
standard for summary judgment.
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{¶25} In her assignment of error, Koscielak argues that the trial court erred
by granting summary judgment to United. Specifically, she claims that genuine
issues of material fact existed in this case.
Standard of Review
{¶26} We review a trial court’s decision on a motion
for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 671 N.E.2d 241 (1996). Thus, this Court conducts an independent review of
the evidence and arguments that were before the trial court without deference to the
trial court’s decision. See State ex rel. Sunset Estate Properties, L.L.C. v. Lodi, 142
Ohio St.3d 351, 2015-Ohio-790, ¶ 6.
{¶27} Pursuant to Civ.R. 56(C), summary judgment is appropriate only
under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to but one conclusion, that conclusion being adverse to the
nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978). “When seeking summary judgment on grounds that the non-moving party
cannot prove its case, 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
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of the non-moving party’s claims.” Lundeen v. Graff, 10th Dist. Franklin, 2015-
Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Dresher at 293.
Analysis
{¶28} At the outset, we note that after reciting the summary judgment
standard in her brief, Koscielak spends two total paragraphs arguing that the trial
court erred in this matter, citing no case authority whatsoever in support. While a
lengthier, quantitative argument does not equate to a qualitative argument, App.R.
16(A)(7) requires an appellant’s argument to contain citations to authorities or parts
of the record that the appellant relies upon. “It is not the obligation of an appellate
court to search for authority to support an appellant’s argument as to an alleged
error.” Harris v. Nome, 9th Dist. Summit No. 21071, 2002-Ohio-6994, ¶ 15, citing
Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.1996).
{¶29} Moreover, we emphasize that Koscielak did not even file a response
to United’s summary judgment motion at the trial court level. See Whitt v.
Wolfinger, 4th Dist. Ross No. 14CA3455, 2015-Ohio-2726, ¶ 47, citing Shover v.
Cordis Corp., 61 Ohio St.3d 213, 220 (1991) (“It is axiomatic that a litigant’s failure
to raise an issue at the trial court waives the litigant’s right to raise that issue on
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appeal.”). Nevertheless, we will review the argument that Koscielak does make in
the interest of justice.
{¶30} In her brief, Koscielak claims broadly that the trial court erred by
finding that the evidence was undisputed that Koscielak failed to comply with the
terms of the insurance contract and that United was therefore entitled to summary
judgment. Koscielak contends that, “An allegation that terms and conditions were
not complied with, absent further evidence, is not enough to satisfy the rigorous test
required to grant summary judgment.” (Appt.’s Br. at 2).
{¶31} Contrary to Koscielak’s argument, the only evidence in the record,
including Koscielak’s own 2019 deposition, establishes that Koscielak repeatedly
failed to comply with United’s demands for her to appear for an examination under
oath and for her to provide documentation regarding the personal property losses.
Koscielak herself testified that she was aware of United’s earlier requests for the
examination under oath, and despite the ongoing investigation, Koscielak claimed
she went to Tennessee with her daughter. Koscielak then claimed that she did not
have her mail forwarded and that she was thus unaware of communications
regarding the denial of her claim until months after-the-fact. Even accepting all of
Koscielak’s statements as true, she still admitted to willfully ignoring United’s
ongoing investigation despite the numerous and stern letters she received from
United’s attorneys. It is perfectly reasonable given the statements Jeff made in his
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examination under oath that United would want to investigate the matter further,
and it was also perfectly reasonable that United would want a list of items lost in
the fire and their relative value before paying for them.
{¶32} Furthermore, legal authority does support a trial court granting
summary judgment in favor of an insurer where the insured fails to comply with an
investigation pursuant to the contract. See Savage v. Am. Family Ins. Co., 10th Dist.
Franklin No. 08AP-273, 2008-Ohio-4460, ¶¶ 24-25; Joseph v. State Farm Fire and
Cas. Co., 2013 WL 663623 (S.D. Ohio); Luntz v. Stern, 135 Ohio St. 225, 236-237
(“Cooperation with the insurer is one of the conditions of the policy and where there
has been a failure to fulfill a condition upon which the obligation is dependent, the
obligation ceases.”); Gabor v. State Farm Mut. Auto. Ins. Co., 66 Ohio App.3d 141(8th Dist.1990) (summary judgment granted in favor of insurer affirmed where
insured did not cooperate with investigation); Doerr v. Allstate Ins. Co., 121 Fed.
Appx. 638, 641 (6th Cir.2005) (summary judgment granted in favor of insurer
affirmed where insured did not cooperate with investigation); Johnson v. Allstate
Ins. Co., 11th Dist. Trumbull No. 2001-T-0127, 2002-Ohio-7165 (summary
judgment granted in favor of insurer affirmed where insured did not cooperate with
investigation).
{¶33} Based on the foregoing we find that the trial court correctly determined
that no genuine issue of material fact existed in this case, that United was entitled
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to judgment as a matter of law, and that reasonable minds could reach but one
conclusion, adverse to Koscielak. Therefore, her assignment of error is overruled.
Conclusion
{¶34} For the foregoing reasons Koscielak’s assignment of error is overruled
and the judgment of the Defiance County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
/jlr
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