Perrin v. Cincinnati Ins. Co. , 2020 Ohio 1405 ( 2020 )

[Cite as Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JULIETA L. PERRIN :
:
Plaintiff-Appellant : Appellate Case No. 28502
:
v. : Trial Court Case No. 2017-CV-2090
:
CINCINNATI INSURANCE : (Civil Appeal from
COMPANY, et al. : Common Pleas Court)
:
Defendant-Appellee :
...........
OPINION
Rendered on the 10th day of April, 2020.
...........
RYAN J. MELEWSKI, Atty. Reg. No. 0084956 and JEFFREY A. PALLANTE, Atty. Reg.
No. 0075005, 165 East Livingston Avenue, Columbus, Ohio 43215
Attorneys for Plaintiff-Appellant
BRIAN R. McHENRY, Atty. Reg. No. 0065876 and GERALD V. SOUTHARD, Atty. Reg.
No. 0095264, 130 West Second Street, Suite 1850, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
.............
TUCKER, P.J.
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{¶ 1} Plaintiff-appellant, Julieta L. Perrin, appeals from a series of interlocutory
decisions that were merged into a final judgment on July 23, 2019. Specifically, Perrin
challenges the trial court’s decisions of June 6, 2018; August 21, 2018; March 12, 2019;
and April 19, 2019, all of which related to one or more of Perrin’s causes of action against
Defendant-appellee, Cincinnati Insurance Company (“Cincinnati Insurance”). 1 In the
first of her two assignments of error, Perrin argues that the court erred in its decisions of
June 6, 2018; August 21, 2018; and March 12, 2019, by restricting her rights to discovery
under Civ.R. 30 and 34, and in the second of her two assignments of error, Perrin argues
that the court erred in its decision of April 19, 2019, by sustaining Cincinnati Insurance’s
motion for summary judgment. We find that the court did not err, and its judgment is
therefore affirmed.
I. Facts and Procedural History
{¶ 2} On May 4, 2015, Perrin was involved in an automobile accident while driving
along East Dorothy Lane in Kettering. She alleges that “her vehicle was * * * struck by
a vehicle [being negligently] operated” by Anne Kelsey. Appellant’s Brief 1. At the time,
Kelsey and Perrin alike were insured under policies issued by Cincinnati Insurance.2
1 In August 2017, Cincinnati Insurance moved for judgment on the pleadings. The trial
entered a decision on September 19, 2017, in which it sustained the motion in part and
dismissed two of Perrin’s four causes of action against the company. In her notice of
appeal, Perrin indicated that she also sought to challenge this decision, yet in her brief,
she offers no corresponding argument. We conclude, then, that she has abandoned her
challenge to this decision.
2 Kelsey was driving a vehicle owned by her mother, Susan Kelsey. Complaint ¶ 8;
Motion of Anne and Susan Kelsey for Summary Judgment 2. In its answer to the
complaint, Cincinnati Insurance denied that it insured either Perrin or Kelsey, claiming
that it lacked “knowledge or information sufficient to form a belief as to the truth” of
whether Perrin or Kelsey were among its policyholders. Answer of Defendants, the
Cincinnati Insurance Company, the Cincinnati Indemnity Company and the Cincinnati
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{¶ 3} Perrin engaged counsel to represent her and pursued two claims arising from
the accident: a first-party claim under her own policy for payment of her medical expenses
(the “Medpay Claim”); and a third-party liability claim (the “Liability Claim”) against
Kelsey’s policy. She executed an assignment with respect to the former claim on May
5, 2015, in which she assigned “her right to [Medpay] benefits to Pike Chiropractic.”
Decision Sustaining Motion for Summary Judgment 6, Apr. 19, 2019; Plaintiff’s
Memorandum in Opposition to Cincinnati Insurance’s Motion for Summary Judgment 15,
Mar. 21, 2019. Perrin did not have written permission from Cincinnati Insurance to
execute the assignment, contrary to the terms of her insurance policy. See Complaint,
Ex. 1; Plaintiff’s Second Motion to Compel, Ex. 2.
{¶ 4} Perrin’s counsel requested that Cincinnati Insurance open the Medpay Claim
in a letter received by the company on or about May 18, 2015.3 In response, Cincinnati
Insurance requested documentation or authorization to obtain documentation, such as
the relevant billing statements and medical records, but neither Perrin herself nor her
counsel complied with the request. Decision Sustaining Motion for Summary Judgment
6. The company did, however, receive a request for payment from Pike Chiropractic on
September 14, 2015, accompanied by copies of a billing statement and medical records,
followed by a second request, accompanied by the same documents, on September 23,
2015. Plaintiff’s Memorandum in Opposition to Cincinnati Insurance’s Motion for
Summary Judgment 13. Cincinnati Insurance did not issue a payment in response to
Casualty Company ¶ 1(b); Complaint ¶ 14-15; see also Civ.R. 8(B).
3 The letter was dated May 8, 2015. Decision Sustaining Motion for Summary Judgment
2.
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the submissions from Pike Chiropractic.
{¶ 5} Perrin filed a complaint on May 1, 2017, against Anne Kelsey; Susan Kelsey,
who owned the vehicle that Anne Kelsey was driving; Cincinnati Insurance Company;
Cincinnati Indemnity Company; and Cincinnati Casualty Company. The complaint set
forth a cause of action for negligence against Anne Kelsey; a cause of action for negligent
entrustment against Susan Kelsey; and causes of action for breach of contract, bad faith,
breach of fiduciary duty, and violation of R.C. Chapter 3904 and Ohio Adm.Code Chapter
3901 against Cincinnati Insurance and its associated co-defendants. Cincinnati
Insurance moved for judgment on the pleadings on August 1, 2017, and on September
19, 2017, the trial court sustained the motion in part, resulting in the dismissal of two of
Perrin’s four causes of action against the company.
{¶ 6} On July 31, 2018, Cincinnati Insurance moved for summary judgment on
Perrin’s remaining causes of action. After a considerable delay occasioned by a series
of discovery disputes and other procedural matters, the trial court entered a decision on
April 19, 2019, in which it sustained the motion.
{¶ 7} Perrin then reached a settlement agreement with Anne and Susan Kelsey,
and the trial court accordingly entered an order on July 23, 2019, dismissing Perrin’s
causes of action against the Kelseys with prejudice, which was effectively the final
judgment in this case. On August 20, 2019, Perrin timely filed her notice of appeal.
II. Analysis
{¶ 8} For her first assignment of error, Perrin contends that:
THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTIONS
TO COMPEL ON JUNE 6, 2018 AND MARCH 12, 2019 AND LIMITING
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THE PLAINTIFF’S SCOPE OF DEPOSITIONS.
{¶ 9} Perrin challenges three rulings issued by the trial court regarding discovery.
On appeal, a trial court’s discovery orders are generally “reviewed under [the] abuse-of-
discretion standard.” (Citation omitted.) Ward v. Summa Health Sys., 128 Ohio St. 3d
212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. A trial court abuses its discretion by
exercising its authority unreasonably, unconscionably or arbitrarily. See Stratacache,
Inc. v. Wenzel, 2d Dist. Montgomery No. 28060, 2019-Ohio-3523, ¶ 16.
{¶ 10} Of the three discovery rulings Perrin challenges, the first is the trial court’s
ruling on her motion to compel of February 16, 2018, in which she sought an order
directing Cincinnati Insurance to produce its file on her Liability Claim. The court
overruled the motion in its decision of June 6, 2018, without ordering Cincinnati Insurance
to produce any potentially responsive documents for an inspection in camera. Though
it presumably concurred more or less with the arguments in opposition made by Cincinnati
Insurance, the court offered no express rationale for its ruling.4 See Decision, Entry and
Order Overruling Plaintiff’s Motion to Compel 1.
{¶ 11} In her motion, Perrin insisted that Cincinnati Insurance “should be
compelled to produce its liability claims [sic] file” because the company had “used its
4 The court and the parties, for that matter, appear to have engaged in significant
discussions about the motion through an exchange of emails. See Cincinnati
Insurance’s Memorandum in Opposition to Plaintiff’s Motion to Compel 1-2; Plaintiff’s
Reply in Support of Motion to Compel 1. No transcript of the emails has been entered
into the record, and although Cincinnati Insurance included what it claimed were excerpts
from one or more emails sent by the court on October 24, 2017, the excerpts cannot be
checked for accuracy in the absence of a transcript. Cincinnati Insurance’s
Memorandum in Opposition to Plaintiff’s Motion to Compel 2. Even so, the record
suffices to demonstrate that the court had a reasonable basis for overruling Perrin’s
motion.
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position of trust,” relative to her Medpay Claim, “to acquire information about [her] that [it]
shared with [its] liability adjuster”; she also nominally requested, in the alternative, that
the trial court order Cincinnati Insurance to produce its file on her Liability Claim for an in
camera inspection.5 See Plaintiff’s Motion to Compel 1 and 4. Similarly, Perrin argues
in her brief that because Cincinnati Insurance’s “liability file related to the ‘subject matter’
of [her] lawsuit[,] including [her] claim of bad-faith [sic] as well as punitive damages,” the
file “was discoverable unless it contained ‘privileged’ material.” Appellant’s Brief 11.
She adds that because this court has “held that a trial court commits reversible error by
ordering the disclosure of a claims [sic] file without conducting an in-camera [sic] review,”
we should also hold that “a trial court commits reversible error by failing to conduct an in-
camera [sic] review of a claims [sic] file before [determining that the file is] not
discoverable.” Id., citing Unklesbay v. Fenwick, 167 Ohio App. 3d 408, 2006-Ohio-2630,
855 N.E.2d 516 (2d Dist.).
{¶ 12} Perrin’s fundamental premise is that Cincinnati Insurance’s medical
payments adjuster acted improperly by sharing information, which the adjuster had
received for purposes of Perrin’s Medpay Claim, with the company’s liability adjuster “to
help [the company] defend [against Perrin’s concurrent] [L]iability [C]laim.” Id. Perrin
cites no authority establishing that such information sharing would necessarily have been
improper, though in Counts 5 and 6 of her complaint, she alleged that Cincinnati
Insurance thereby violated R.C. Chapter 3904 and Ohio Adm.Code Chapter 3901, and
5 Perrin presented her request for alternative relief, such as it was, only by implication.
She captioned her motion “Plaintiff’s Motion to Compel or in the Alternative Motion for an
In-camera [sic] Inspection of Cincinnati Insurance Company’s Liability Claims [sic] File,”
but she made no reference to the request in the text of the motion itself.
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breached its fiduciary duty to her. See Complaint ¶ 49-61. In her brief, she contends
that the information sharing was a breach of Cincinnati Insurance’s “duty of good-faith
[sic] and fair dealings [sic],” which relates to Count 4 of her complaint. See Appellant’s
Brief 11.
{¶ 13} Neither R.C. Chapter 3904, which concerns “insurance information
practices,” nor Ohio Adm.Code Chapter 3901, which comprises a variety of insurance-
related regulations, supports the proposition that the alleged information sharing was
unlawful or otherwise improper. R.C. 3904.02(A)(1)-(2) states that the “obligations
[imposed by R.C.] 3904.01 to 3904.22 * * * apply to those insurance institutions, agents,
or insurance support organizations” that “[c]ollect, receive, or maintain information in
connection with insurance transactions [pertaining] to natural persons who are residents
of this state,” and to insurance institutions, agents, or insurance support organizations
that “[e]ngage in insurance transactions with applicants, [individual persons], or
policyholders who are residents of this state.”6 (Emphasis added.) The definition of the
term “insurance transaction,” however, excludes automobile insurance policies. For
purposes of “sections 3904.01 to 3904.22 of the Revised Code,” an “[i]nsurance
transaction” is defined as
any transaction involving life, health, or disability insurance primarily for
personal, family, or household needs[,] rather than business or professional
6 Mirroring the provisions of Subsection (A), Subsection (B) states that the “rights granted
by [R.C.] 3904.01 to 3904.22 * * * extend to [those persons] who are residents of this
state” and are “[n]atural persons who are the subject of information collected, received,
or maintained in connection with insurance transactions,” and to “[a]pplicants, [individual
persons], or policyholders who engage in or seek to engage in insurance transactions.”
(Emphasis added.) R.C. 3904.02(B)(1)-(2).
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needs[,] and entailing either the determination of [a person]’s eligibility for a
life, health, or disability insurance coverage, benefit, or payment, or
[entailing] the servicing of a life, health, or disability insurance application,
policy, contract, or certificate.
(Emphasis added.) R.C. 3904.01(M). Sections “3904.01 to 3904.22 of the Revised
Code” constitute the entirety of R.C. Chapter 3904, as it is presently codified, whereas
motor vehicle insurance is regulated under R.C. Chapter 3937, which defines the term
“motor vehicle insurance” as a form of “casualty insurance.” See R.C. 3937.01.
Furthermore, although a number of regulations established by Ohio Adm.Code Chapter
3901 pertain to motor vehicle insurance, none of the regulations set forth in the chapter
prohibits the type of information sharing that allegedly occurred in Perrin’s case.
{¶ 14} With respect to her cause of action for breach of fiduciary duty, Perrin bore
the burden to prove: “(1) the existence of a [heightened] duty [of care on the part of
Cincinnati Insurance] arising from [its] fiduciary relationship [to her]; (2) a failure [on the
part of Cincinnati Insurance] to observe [its] duty; and (3) an injury proximately” caused
by the failure. See Harwood v. Pappas & Assocs., Inc., 8th Dist. Cuyahoga No. 84761,
2005-Ohio-2442, ¶ 26, citing Strock v. Pressnell, 38 Ohio St. 3d 207, 216, 527 N.E.2d
1235 (1988). Cincinnati Insurance did stand in a fiduciary relationship to Perrin because,
“[u]nder Ohio law, * * * a fiduciary relationship exists in the context of insurance contracts.”
(Citation omitted.) Gallo v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No. 91893, 2009-
Ohio-1094, ¶ 15.
{¶ 15} Nevertheless, the information sharing that Perrin characterizes as improper
would inevitably have been necessary for the processing of her Liability Claim. For
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example, under Part B of Perrin’s policy, which set the terms for “medical payments
coverage,” the “limit of insurance” provision stated that “[n]o one will be entitled to receive
duplicate payments for the same elements of loss under this [medical payments]
coverage and [also under] Part A,” which set the terms for “liability coverage,” or under
“any uninsured or underinsured motorists coverage provided by endorsement.”
Complaint, Ex. 1. For that matter, had Kelsey been insured by an insurance provider
other than Cincinnati Insurance, Perrin would almost certainly have been required to
document her medical expenses—and the legitimacy of those expenses—for purposes
of a liability claim against Kelsey’s policy. Cincinnati Insurance, then, cannot have
breached its fiduciary duty to Perrin by allowing its medical payments adjuster and its
liability adjuster to exchange information necessary for the processing of both the Medpay
Claim and the Liability Claim.
{¶ 16} Yet, even assuming strictly for sake of analysis that the alleged information
sharing did constitute a breach of fiduciary duty on the part of Cincinnati Insurance, Perrin
could not have proven that she was thereby harmed. Perrin did not meet “all conditions
precedent to [Cincinnati Insurance]’s duty to provide medical payments coverage,” given
that neither she nor her counsel “respond[ed] [to requests from the company’s medical
payments adjuster for] copies of [her] medical records [and] bills,” and she did not allege
in her complaint that Cincinnati Insurance refused to pay her Liability Claim in breach of
its fiduciary duty to her. Decision Sustaining Motion for Summary Judgment 7; see
Complaint ¶ 24-61; Appellant’s Brief 2-3.
{¶ 17} Regardless, Perrin has not offered any argument directed to the trial court’s
decision of September 19, 2017, in which the court partly sustained Cincinnati Insurance’s
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motion for judgment on the pleadings and dismissed her causes of action for breach of
fiduciary duty, and violation of R.C. Chapter 3904 and Ohio Adm.Code Chapter 3901.
She has, therefore, effectively abandoned her challenge to that decision. Consequently,
Perrin’s challenge to the decision overruling her first motion to compel is moot as it relates
to Counts 5 and 6 of the complaint.
{¶ 18} To the extent that the alleged sharing of information relates to Count 4 of
the complaint, in which Perrin accused Cincinnati Insurance of breaching its duty of good
faith and fair dealing, Perrin could establish a right to recovery only if she could show that
Cincinnati Insurance “ ‘refus[ed] to pay [her Medpay] [C]laim [in] circumstances that [did
not] furnish reasonable justification’ ” for the refusal. Zoppo v. Homestead Ins. Co., 71
Ohio St. 3d 552, 554-555, 644 N.E.2d 397 (1994), quoting Staff Builders, Inc. v.
Armstrong, 37 Ohio St. 3d 298, 303, 525 N.E.2d 783 (1988). Cincinnati Insurance,
however, never became legally obligated to pay the Medpay Claim because Perrin did
not meet the conditions precedent. Perrin therefore could not prove that Cincinnati
Insurance unreasonably refused to pay her Medpay Claim.
{¶ 19} Although Cincinnati Insurance passively waited “for Perrin or her attorney
to provide the medical bills and records” that would have implicated its obligation to pay
her Medpay Claim, after which it simply “closed the [Medpay Claim] file,” the company’s
passivity was, at worst, poor customer service, rather than a breach of its duty of good
faith and fair dealing. Decision Sustaining Motion for Summary Judgment 7.
Notwithstanding that Pike Chiropractic provided some or all of the medical documentation
Cincinnati Insurance had requested from Perrin, Cincinnati Insurance “cannot be held to
[have] violate[d] its duties under [Perrin’s] policy by rejecting the submission[s] from Pike
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Chiropractic, [which were made pursuant to] an invalid assignment” of Perrin’s contractual
rights. Id. at 8. In addition, Perrin’s counsel conceded at oral argument that his firm
merely assumed, but did not verify, that Cincinnati Insurance had issued payment
subsequent to its receipt of documents from Pike Chiropractic. Under these
circumstances, Cincinnati Insurance did not refuse to pay Perrin’s Medpay Claim in the
absence of any reasonable justification.
{¶ 20} The second of the discovery rulings Perrin challenges is the trial court’s
entry of August 21, 2018, “regarding the scope of discovery permitted at the * * *
depositions of [Cincinnati Insurance’s] adjust[e]rs.” Entry on Scope of Discovery at
Depositions 1. On August 16, 2018, Perrin had filed a document entitled “Plaintiff’s
Memoranda [sic] on Scope of Discovery” in which she requested that the court enter an
order declaring that she would be: (1) “permitted to ask questions of any person who may
have knowledge relating to [her Medpay] [C]laim and [Cincinnati Insurance’s
corresponding] investigation”; (2) “entitled to ask questions regarding the [Medpay Claim]
file produced in discovery”; (3) “permitted to ask questions regarding the motive,
adequacy and extent of [the] investigation conducted by [Cincinnati Insurance] related to
[her Medpay] [C]laim”; (4) “entitled to ask * * * whether the [persons] investigating [her
Medpay] [C]laim communicated [with] anyone handling [her L]iability [C]laim”; and (5)
“permitted to ask * * * whether anyone adjusting or investigati[ng] the * * * [Medpay]
[C]laim accessed” the Liability Claim file. Plaintiff’s Memorandum on the Scope of
Discovery 5. Perrin also requested that Cincinnati Insurance not be permitted to invoke
“work product privilege [in response to] questions focus[ed] on [its] conduct prior to the
filing of [her] [c]omplaint on May 1, 2017.” In its entry, the court “agree[d] that the first
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three [of these items were] within the scope of discovery [under] Civ.R. 26(B),” but it
limited the scope of inquiry regarding the fourth and fifth items “to [that] information [which]
the [Medpay] adjust[e]rs received [or] reviewed.” Entry on Scope of Discovery at
Depositions 1-2. As well, the court noted that the work product privilege did “not appear
to apply because [any information that the] adjust[e]rs received and reviewed in handling
the [Medpay] [C]laim [could not] be considered to have been [received] in anticipation of
litigation.” Id. at 2.
{¶ 21} In her brief, Perrin argues that the trial court abused its discretion by
“prevent[ing] [her] from asking any questions about [the] information [that Cincinnati
Insurance’s medical payments adjuster or] claim supervisors [might have] provided to [the
company’s] liability adjuster” because the evidence she sought “directly relates to the
subject matter of [her] bad faith claim” and to her claim “for punitive damages.”
Appellant’s Brief 12. Given, however, that Cincinnati Insurance never became legally
obligated to pay Perrin’s Medpay Claim, Perrin could not have proven that the company
breached its duty of good faith by “ ‘refus[ing] to pay the claim [in] circumstances that [did
not] furnish reasonable justification’ ” for the refusal. Zoppo, 71 Ohio St. 3d at 554-555,
644 N.E.2d 397, quoting Staff Builders, Inc., 37 Ohio St. 3d at 303, 525 N.E.2d 783.
{¶ 22} The third of the discovery rulings Perrin challenges is the trial court’s
decision of March 12, 2019, in which the court overruled her second motion to compel.
In the motion, Perrin asked the court for an order directing Cincinnati Insurance to respond
to her second set of requests for production of documents, which she had propounded to
address “issues that were raised during the depositions” of the Cincinnati Insurance
personnel who were associated with the handling of her claims. Plaintiff’s Second
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Motion to Compel 1. The court overruled the motion because it found Perrin’s second
set of requests for production were “overly broad and seeking material not relevant to the
subject matter of [her] remaining” causes of action. 7 Decision Overruling Plaintiff’s
Second Motion to Compel 1. Id. Here, Perrin argues that the trial court abused its
discretion by overruling the motion because her requests “were specific and tailored[,]
and even included citations to deposition pages where the material requested was
discussed by [Cincinnati Insurance’s] adjusters.” Appellant’s Brief 13.
{¶ 23} Perrin’s argument lacks merit. Her second motion to compel presented 10
requests for production of documents and two requests for inspection. Of her 10
requests for production, only two concerned Perrin’s Medpay Claim, whereas the other
eight requests were directed to documents that pertained to the handling of medpay
claims in general, such as “any form letter(s) and/or documents related to medpay claims,
including but not limited to [letters] requesting authorizations from an insured to obtain
medical records/bills.” See Plaintiff’s Second Motion to Compel, Ex. 2. In her requests
for inspection, Perrin asked for access to a computer that would permit her to view
Cincinnati Insurance’s file on her Medpay Claim, and more generally, to access the
7 The court also faulted Perrin for omitting “an appropriate description of efforts [she
undertook] to resolve” the dispute short of filing her motion to compel. Decision
Overruling Plaintiff’s Second Motion to Compel 1. Perrin rejects the court’s assertion as
“inaccurate” because she “attached * * * email correspondence [demonstrating that she]
tried to [obtain] responses without filing a motion,” but the two exhibits to which she refers
provide no indication of any effort to resolve the dispute. See Plaintiff’s Second Motion
to Compel, Exs. 1 and 3. The first of the exhibits is a copy of the email message in which
Perrin’s counsel initially submitted the requests, a simple transmittal letter consisting of a
single sentence, and the second of the exhibits is a copy of an email message in which
counsel noted that Cincinnati Insurance’s response was two days overdue and asked
when the responses could be expected. Id.
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company’s “internal website.” Id. The former request was redundant, inasmuch as
Cincinnati Insurance had already discovered its file on the Medpay Claim, and the latter
request was not tailored to any specific information, let alone to information relevant
specifically to the claim itself.
{¶ 24} Although two of Perrin’s requests for production—the third and the fifth—
were directed to documents of nominal relevance, the only “issues remaining [to be
adjudicated at that point] in [the] case” were “whether [Cincinnati Insurance] breached”
Perrin’s policy by refusing to pay her Medpay Claim, “and, if so, whether [Cincinnati
Insurance] lacked any reasonable basis” for refusing to pay. Decision Overruling
Plaintiff’s Second Motion to Compel 1. Yet, as we have noted, Perrin could not have
proven that Cincinnati Insurance unreasonably refused to pay her Medpay Claim because
she failed to satisfy the conditions precedent to the company’s obligation to remit
payment. Thus, even if the trial court arguably should have instructed Cincinnati
Insurance to respond to Perrin’s third and fifth requests for production, any such error
was harmless.
{¶ 25} Finally, we reject Perrin’s proposition that, consistent with our holding in
Unklesbay, 167 Ohio App. 3d 408, 2006-Ohio-2630, 855 N.E.2d 516, we should hold that
a trial court abuses its discretion by overruling a motion to compel discovery of potentially
privileged documents without conducting an in camera review. This proposition would,
if adopted, require that a trial court conduct an in camera inspection of potentially
privileged documents in response to nearly every motion to compel, regardless of whether
the documents being requested were relevant to any viable cause of action.
{¶ 26} For all of the foregoing reasons, we hold that the trial court did not abuse its
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discretion by overruling Perrin’s first and second motions to compel in its decisions of
June 6, 2018, and March 12, 2019, or by limiting the scope of depositions in its decision
of August 21, 2018. Perrin’s first assignment of error is overruled.
{¶ 27} For her second assignment of error, Perrin contends that:
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT[,] THE CINCINNATI
INSURANCE COMPANY[,] ON PLAINTIFF’S CLAIMS OF BREACH OF
CONTRACT AND BREACH OF ITS DUTY OF GOOD-FAITH [sic] AND
FAIR DEALINGS [sic] WHEN THE TRIAL COURT FOUND THAT
PLAINTIFF DID NOT MEET A CONDITION PRECEDENT FOR A
CONDITION [sic] THAT WAS NOT WRITTEN IN THE INSURANCE
POLICY.
{¶ 28} Perrin makes two arguments in this assignment of error. First, she argues
that the trial court erred by “finding that [she] failed to meet a condition precedent” to
Cincinnati Insurance’s obligation to remit payment in satisfaction of her Medpay Claim.
See Appellant’s Brief 15. Second, she argues that the court erred by sustaining
Cincinnati Insurance’s motion for summary judgment because the court incorrectly
treated her cause of action for bad faith as derivative of her cause of action for breach of
contract. See id.
{¶ 29} Under Civ.R. 56, summary judgment is proper only where: (1) a case
presents no genuine dispute as to any material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) construing the evidence most strongly in favor of the
non-moving party, reasonable minds can reach only one conclusion, which is adverse to
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the non-moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St. 2d 64, 66, 375
N.E.2d 46 (1978); Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-
Ohio-3197, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 369-370,
696 N.E.2d 201 (1998). The substantive law of the claim or claims being litigated
determines whether a fact is “material.” Herres v. Millwood Homeowners Assn., Inc., 2d
Dist. Montgomery No. 23552, 2010-Ohio-3533, ¶ 21, citing Hoyt, Inc. v. Gordon &
Assocs., Inc., 104 Ohio App. 3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
{¶ 30} Initially, the movant bears the burden of establishing the absence of any
genuine dispute of material fact. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 115, 526 N.E.2d
798 (1988). The movant may rely only on evidence of the kinds listed in Civ.R. 56(C) for
this purpose. Dalzell at ¶ 5, citing Dresher v. Burt, 75 Ohio St. 3d 280, 292-293, 662
N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears a
reciprocal burden to establish, as set forth in Civ.R. 56(E), that the case presents one or
more genuine issues of fact to be tried. Id. at ¶ 6. The non-moving party, in satisfying
this requirement, may not rely merely upon the allegations or denials offered in the
pleadings, but like the movant, “must be able to point to evidentiary materials of the type[s]
listed in Civ.R. 56(C).” Dresher at 293, quoting Civ.R. 56(E); Dalzell at ¶ 6. On appeal,
a trial court’s ruling on a motion for summary judgment is reviewed de novo. Dalzell at
¶ 6, citing Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
{¶ 31} Perrin argues, first, that the trial court erred by finding that she failed to meet
the conditions precedent to Cincinnati Insurance’s obligation to remit payment for her
Medpay Claim because neither she nor her counsel respond[ed] [to requests from the
company’s medical payments adjuster for] copies of [her] medical records [and] bills,” or
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alternatively, for an authorization allowing Cincinnati Insurance to obtain these records
itself. Appellant’s Brief 15; Decision Sustaining Motion for Summary Judgment 7.
Attempting to refute the court’s finding, Perrin maintains that she “never refused to provide
authorizations [sic],” and she blames Cincinnati Insurance for not “sending any
authorizations [sic] [for her] to execute.” Appellant’s Brief 15.
{¶ 32} This argument has no merit. Cincinnati Insurance might have been remiss
for failing to send an authorization form for Perrin to execute, but Perrin nevertheless did
not provide the records requested by the company’s medical payments adjuster.
Furthermore, Perrin or her counsel could have asked Cincinnati Insurance to send an
authorization form for her signature, or at minimum, notified the company that she had
not received an authorization form. As well, Perrin’s counsel could have drafted a letter
for her signature in which she granted Cincinnati Insurance permission to obtain the
records it required. The trial court, in any event, did not err by finding that Perrin neither
provided the requested records, nor authorized Cincinnati Insurance to obtain them.
{¶ 33} Perrin argues, second, that her cause of action “for bad faith is * * * separate
and independent [from her cause of action for] breach of contract,” rather than being a
derivative cause of action. Appellant’s Brief 15. As we noted in our review of Perrin’s
first assignment of error, however, Perrin could have proven that Cincinnati Insurance
breached its duty of good faith only by showing that the company refused to pay her
Medpay Claim in “ ‘circumstances that [did not] furnish reasonable justification’ ” for the
refusal. Zoppo, 71 Ohio St. 3d at 554-555, 644 N.E.2d 397, quoting Staff Builders, Inc.,
37 Ohio St. 3d at 303, 525 N.E.2d 783. Because Perrin did not provide the records
requested by Cincinnati Insurance, or authorize the company to procure those records
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for itself, she failed to meet the conditions precedent to the company’s obligation to issue
payment on her Medpay Claim. We hold, as a result, that the trial court did not err by
determining that Cincinnati Insurance did not refuse to perform its contractual obligations
without reasonable justification, meaning that the court did not err by sustaining the
company’s motion for summary judgment. Perrin’s second assignment of error is
overruled.
III. Conclusion
{¶ 34} We hold that the trial court did not abuse its discretion by overruling Perrin’s
motions to compel in its decisions of June 6, 2018, and March 12, 2019, or by limiting the
scope of depositions in its decision of August 21, 2018. In addition, we hold that the trial
court did not err by sustaining Cincinnati Insurance’s motion for summary judgment in its
decision of April 19, 2019. Therefore, the trial court’s final judgment in this matter,
entered effectively on July 23, 2019, is affirmed.
.............
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Ryan J. Melewski
Jeffrey A. Pallante
Brian R. McHenry
Gerald V. Southard
Christopher Johnson
Jennifer Myers
Hon. Richard Skelton