E. Liverpool v. Owners Ins. Co. , 2021 Ohio 1474 ( 2021 )

[Cite as E. Liverpool v. Owners Ins. Co., 2021-Ohio-1474.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
CITY OF EAST LIVERPOOL,
Plaintiff-Appellant,
v.
OWNERS INSURANCE COMPANY et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 20 CO 0009Civil Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2018-CV-81
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Charles L. Payne, Law Director, 617 St. Clair Ave, P.O. Box 114, East Liverpool,
Ohio 43920 and Atty Thomas W. Connors, Warner Mendenhall, 190 N. Union St. Akron,
Ohio 44304 for Plaintiff-Appellant and
Atty. Craig G. Pelini, Atty. Nicole Richard, Pelini, Campbell & Williams LLC, Bretton
Commons - Suite 400, 8040 Cleveland Avenue N.W., North Canton, Ohio 44720 and
–2–
Atty. Joseph F. Nicholas, Jr., Atty. Frank H. Scialdone, Atty. George V. Pilat, Atty. Michael
P. Byrne, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road,
Cleveland, Ohio 44139 for Defendants-Appellees.
Dated April 21, 2021
Robb, J.
{¶1} Plaintiff-Appellant City of East Liverpool (the City) appeals the decision of
the Columbiana County Common Pleas Court granting summary judgment for
Defendants-Appellees Owners Ins. Co., Auto-Owners Ins. Co., Auto-Owners Ins. Group
(the three Owners Insurance Companies collectively referred to as Owners), John
Gauron, Jack L. Mills Agency, Inc., and Mega Ins. Agency, Inc. (all Appellees collectively
referred to as Appellees). Multiple assignments of error are raised in this appeal. The
first assignment of error is whether the term “intake well house” is plain and unambiguous.
If it is not, then does the evidence indicate it is reasonably susceptible to more than one
interpretation? Reasonably susceptible to more than one interpretation would create a
genuine issue of material fact and thereby preclude the granting of summary judgment
against the City. In the second assignment of error, the City asserts the trial court erred
in granting summary judgment in Owners’ favor on the bad faith denial of coverage claim
and failure to investigate claim. The third assignment of error raises issue with the trial
court’s decision denying the City’s Civ.R. 56(F) motion for a continuance of the summary
judgment ruling so that it could conduct more discovery. The final assignment of error
raises arguments concerning the trial court’s decision to grant summary judgment for
Appellees’ on the reformation, equitable estoppel, and negligence claims. For the
reasons discussed below, the trial court’s ruling is affirmed.
Statement of the Facts
{¶2} Many of the facts are undisputed in this case. In 1986, the City requested
bids for insurance for Water Department buildings and equipment. Appellee Auto Owners
submitted its bid in 1986 through agent Appellees Gauron and Mega Ins. Group. The bid
request listed the “Intake Well House” located at 2220 Michigan Avenue, East Liverpool,
Ohio. The bid was accepted by the City in 1986.
Case No. 20 CO 0009–3–
{¶3} Appellee Owners asked the City to provide estimated values of the buildings
and equipment. The City hired Stilson & Associates, Inc. to provide the estimated values
and they issued a report in 1989.
{¶4} The report defines and assigns a value for the “Intake Structure.” It defines
the structure as the point where the river water enters the system. The structure is located
in the Ohio River and is constructed out of reinforced concrete. It contains several valves
and piping from the river to the Well House, as well as minor electrical lighting for warning
lights. The replacement value of the Intake Structure is listed in the Stilson & Associates
Report as $750,000.
{¶5} The report also separately defines the “Well House.” It “receives water from
the intake structure and acts as a suction well for the pumps in the Pump Station.” The
Well House is 14 feet in diameter and is constructed of brick and contains ventilation,
service electricity, and a one-ton crane. The replacement value of the Well House is listed
at $115,800.
{¶6} In 1990, a renewal policy was issued. The declarations pages of the policy
did not list the Intake Structure and Well House as separate structures. The renewal
policy effective March 21, 2015 likewise does not list the Intake Structure and Well House
separately. Instead, the 2015 policy, for example, listed “Intake Well House” as being
located at 2198 Michigan Avenue and the limit of insurance as $142,800.
{¶7} On February 19, 2016, the water vessel Mary Artie Brannon owned by
Defendant Crounse Corporation collided with the Intake Structure in the Ohio River.
Following the collision, the City submitted a claim to Owners. That claim was denied on
the basis that the Intake Structure was not covered by the terms of the policy; the
assertion was the term “Intake Well House” only covered the Well House, not the Intake
Structure.
Statement of the Case
{¶8} Following the denial of the claim, the City filed suit against Appellees and
Defendant Crounse Corp. 2/15/18 Complaint; 3/28/19 Amended Complaint. The City
asserted causes of action sounding in breach of contract, reformation of contract,
equitable estoppel, misrepresentation, bad faith denial of a claim, failure to obtain the
requested coverage, and negligence with a request for punitive damages. The
Case No. 20 CO 0009–4–
negligence claim was solely against Defendant Crounse Corp. The claim against John
Gauron who was working for or doing business as Jack L. Mills Agency, Inc. and Mega
Ins. Agency, Inc. was that Gauron failed to obtain the insurance the City requested.
{¶9} All defendants filed answers. Crounse admitted that its vessel, the Mary
Artie Brannon, collided with the Intake Structure located at Mile Marker 40.2, but denied
the nature and extent of the damage the City claimed was caused by the collision. 3/15/18
Answer of Crounse; 5/10/19 Crounse Answer of First Amended Complaint. Owners
Insurance Company answered and filed a cross claim against Crounse. 3/22/18 Owners
Insurance Company Answer and Cross Claim; 5/23/19 Answer of Owners Insurance
Company to First Amended Complaint. Appellees Mega Ins. Agency, Gauron, and Jack
L. Mills Agency answered asserting the building insured was the Intake Well House
located at 2220 Michigan Avenue, not the Intake Structure located in the Ohio River.
4/2/18 Answer of Defendant Mega Ins. Agency; 4/20/18 Gauron and Jack L. Mills Agency
Answer; 5/20/19 Answer of Gauron and Mega Ins. Agency to First Amended Complaint;
5/21/19 Answer of Gauron and Jack L. Mills Agency to First Amended Complaint.
{¶10} Defendant Crounse Corp. answered the cross claim. 3/29/18 Answer of
Crounse Corp. to Cross Claim.
{¶11} Following discovery, Owners filed a Motion for Summary Judgment
asserting the language of the policy is clear that the Intake Structure was not listed in the
policy. The policy instead listed the “Intake Well House” located at 2220 Michigan Avenue
with a coverage limit of $142,800. (The 2015 policy actually lists the location as 2198
Michigan Ave.). Similarly, Appellees Gauron, Jack L. Mills Agency and Mega Ins. Agency
filed a motion for summary judgment asserting the Intake Well House remained on the
policy as a single item for over 20 years at a value ranging from approximately $120,000
to $140,000. 5/31/19 Motion for Summary Judgment. However, when the Stilson Report
was completed in 1989 the replacement value listed on that report for the Intake Structure
was $750,000. Owners asserted the Stilson Report was not a request for coverage and
the City failed to read the policy to ensure that there was coverage for the Intake Structure.
{¶12} The City filed motions in opposition to the motions for summary judgment
asserting there was a genuine issue of material fact as to what the term “Intake Well
Case No. 20 CO 0009–5–
House” means. 8/5/19 Plaintiff’s Brief in Opposition to Motion for Summary Judgment.
Appellees filed a reply in support of summary judgment. 8/19/19 Reply.
{¶13} Defendant Crounse Corp also filed a motion for partial summary judgment.
8/7/19 Crounse Corp Motion for Partial Summary Judgment.
{¶14} The trial court granted summary judgment for Appellees on the claims the
City asserted against them. 11/5/19 J.E. The judgment entry did not address the claims
the City asserted against Crounse. Thus, the decision was not a final appealable order.
{¶15} Following the summary judgment ruling, the City and Crounse reached a
settlement. The trial court then issued a judgment entry indicating the November 5, 2019
grant of summary judgment for Appellees is a final appealable order. 2/20/20 J.E.
{¶16} On April 29, 2020 the City and Crounse entered an agreed entry of
dismissal stating, “The within action having been fully compromised and settled between
Plaintiff City of East Liverpool and Defendant Crounse Corporation, Plaintiff’s Amended
Complaint and all pending Motions may be and are hereby dismissed, with prejudice each
party to bear its own costs.” 4/29/20 Agreed Entry of Dismissal.
{¶17} The notice of Appeal was filed prior to the Entry of Dismissal. 3/12/20 Notice
of Appeal. Appellees filed a Motion to Dismiss. 3/20/20 Motion to Dismiss. On May 4,
2020, days after the agreed entry of dismissal was filed with the trial court, we granted
the motion to dismiss indicating the order granting summary judgment would not become
final until the entry of dismissal was filed and other issues such as allocation of court costs
were resolved. 5/4/20 J.E. (acknowledging the parties were granted until May 29, 2020
to file an agreed entry of dismissal or judgment).
{¶18} On May 13, 2020 the City filed a second notice of appeal attaching the April
29, 2020 Entry of Dismissal. 5/13/20 Notice of Appeal. A new appeal number was
assigned.
Standard of Review for the First, Second, and Fourth Assignments of Error
{¶19} An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply
the same test as the trial court in determining whether summary judgment was proper. A
court may grant summary judgment only when (1) no genuine issue of material fact exists;
(2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can
Case No. 20 CO 0009–6–
only produce a finding that is contrary to the non-moving party. Civ.R. 56(C). “Trial 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, 617 N.E.2d 1129 (1993).
{¶20} With that standard in mind, we review the first, second, and fourth
assignments of error.
First Assignment of Error
“The trial court erred by granting summary judgment dismissing the City’s breach
of contract claims against Owners.”
{¶21} This assignment of error addresses the breach of contract claims asserted
by the City against Owners and focuses on the phrase “Intake Well House” found in the
declarations pages of the insurance contract. The City contends there is a genuine issue
of material fact as to the meaning of “Intake Well House.” The City argues the phrase
was meant to include the Intake Structure, while Appellees contend it only covers the Well
House. Thus, the City asserts the phrase “Intake Well House” is ambiguous since it is
reasonably susceptible of two meanings and/or has a special meaning. Thus, according
to it, extrinsic evidence can be considered to determine the meaning of the phrase. The
City contends that while the insurance contract at issue is the 2015 renewal policy, the
prior policies dating back to the request for the Stilson Report should be considered to
determine the special meaning the City understood the phrase to mean. The City argues
the trial court misapplied the test for determining the existence of a special meaning of
“Intake Well House.” It asserts the trial court did not determine whether there was
evidence that reasonable minds could find the existence of a special meaning. Instead,
it weighed the evidence regarding the meaning and invaded the province of the jury.
{¶22} The City argues the Stilson Report was commissioned to provide an
evaluation of structures for insurance purposes and this report lists the Intake Structure
as well as the Well House. This, according to it, is evidence that the Intake Structure was
intended to be insured. Thus, the Intake Well House phrase in the declarations page
included both the Well House and the Intake Structure. The City points to the testimony
of Bob Disch, the City’s Public Utility Director at the time of the insurance contracts, that
the Intake Well House includes both the Intake Structure and the Well House. The City
Case No. 20 CO 0009–7–
argues it was the trier of fact’s province to weigh the evidence to determine the intent of
the parties regarding the meaning of the phrase Intake Well House. It asserts the trial
court acted improperly when it would not consider the corrections Disch made to his
deposition in the errata sheets.
{¶23} Owners Insurance counters asserting the language of the policy is plain; the
policy provides coverage for damage to the Intake Well House located at 2220 Michigan
Avenue. There was never a request to cover the Intake Structure. It further contends the
Intake Structure was specifically left off of the policy per the instruction of Bob Disch. The
intent to only cover the Well House is also evidenced by the appreciably lower value listed
in the policy that corresponds with the value of the Well House alone. The policy provided
for coverage in the amount of roughly $140,000. The Intake Structure was valued at
$750,000 in the 1989 Stilson Report. They also assert that the deposition testimony from
Bob Disch also indicates that the Intake Structure and the Well House were two separate
structures. Owners further argues that the City is incorrect that the trial court did not
consider the statements Disch made to the errata sheets of his deposition. The trial court
did consider them, but found them insufficient to create a genuine issue of material fact
because the corrections directly contradicted other statements in the deposition.
{¶24} To succeed on a breach of contract claim, a plaintiff must demonstrate (1)
the existence of a contract, (2) plaintiff's performance, (3) defendant's breach, and (4)
damages or loss to the plaintiff. Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th
Dist. Franklin No. 09AP-788, 2010-Ohio-1649, ¶ 13. The interpretation of a written
contract is an issue of law. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio
St.3d 107, 108, 652 N.E.2d 684 (1995). The purpose of contract construction is to realize
and give effect to the parties' intent. Skivolocki v. E. Ohio Gas Co., 38 Ohio St.2d 244,
313 N.E.2d 374 (1974), paragraph one of the syllabus.
{¶25} “[T]he intent of the parties to a contract resides in the language they chose
to employ in the agreement.” Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638,
597 N.E.2d 499 (1992). When “‘the terms in a contract are unambiguous, courts will not
in effect create a new contract by finding an intent not expressed in the clear language
employed by the parties.’” Holdeman v. Epperson, 111 Ohio St.3d 551, 2006-Ohio-6209,
857 N.E.2d 583, ¶ 12, quoting Shifrin. “A court will resort to extrinsic evidence in its effort
Case No. 20 CO 0009–8–
to give effect to the parties' intentions only where the language is unclear or ambiguous,
or where the circumstances surrounding the agreement invest the language of the
contract with a special meaning.” Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, 132,
509 N.E.2d 411 (1987).
{¶26} When extrinsic evidence is used to resolve an ambiguity or understand a
special meaning, the court must first examine parol evidence to determine the parties'
intent. In re Estate of Taris, 10th Dist. Franklin No. 04AP-1264, 2005-Ohio-1516, citing
Cline v. Rose, 96 Ohio App.3d 611, 615, 645 N.E.2d 806 (1994). The extrinsic evidence
may include: (1) the circumstances surrounding the parties at the time the contract was
made; (2) the objectives the parties intended to accomplish by entering into the contract;
and (3) any acts by the parties that demonstrate the construction they gave to their
agreement. Blosser v. Carter, 67 Ohio App.3d 215, 219, 586 N.E.2d 253 (4th Dist.1990).
Ordinarily, courts should not grant summary judgment when an ambiguity exists, however
if the extrinsic evidence stands undisputed, then the court may take this step. Ma v.
Cincinnati Children's Hosp. Med. Ctr., 2020-Ohio-1471, 153 N.E.3d 866, ¶ 18 (1st Dist.),
citing Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d
1256, ¶ 13 (“It is generally the role of the finder of fact to resolve ambiguity.”) and Lewis
v. Mathes, 161 Ohio App.3d 1, 2005-Ohio-1975, 829 N.E.2d 318, ¶ 25 (4th Dist.)
(“Ordinarily, summary judgment is inappropriate when contractual language is
ambiguous, because a question of fact remains. But if the extrinsic evidence
demonstrates that no genuine issue of material fact exists, we conclude that summary
judgment may still be appropriate.”).
{¶27} When parol evidence cannot resolve an ambiguity or special meaning and
show the intent of the parties, a court must apply the secondary rule of contract
construction whereby the ambiguous language/special meaning is strictly construed
against the drafter. Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313, 667 N.E.2d
949 (1996); Reida v. Thermal Seal, Inc., 10th Dist. Franklin No. 02AP-308, 2002-Ohio-
6968.
{¶28} Under the Building and Personal Property Coverage Form of the
Insurance policy, it states:
Case No. 20 CO 0009–9–
A. Coverage
We will pay for direct physical loss of damage to Covered Property at the
premises described in the Declarations caused by or resulting from any
Covered Cause of Loss.
1. Covered Property
Covered Property, as used in this Coverage Part, means the type of
property described in Section A.1., and limited in A.2., Property Not
Covered, if a Limit of Insurance is shown in the Declarations for that
type of property.
a. Building. Meaning the building or structure described in the
Declarations, including:
(1) Completed additions;
(2) Fixtures, including outdoor fixtures;
(3) Permanently installed:
(a) Machinery; and
(b) Equipment;
(4) Building glass, meaning glass that is part of the
building or structure;
(5) Personal property owned by you that is used to
maintain or service the building or structure or its
premises, including:
(a) Fire-extinguishing equipment;
(b) Outdoor furniture;
(c) Floor coverings; and
(d) Appliances used for refrigerating, ventilating,
cooking, dishwashing or laundering; and
(6) If not covered by other insurance:
(a) Additions under construction, alterations and
repairs to the building or structure; and
(b) Materials, equipment, supplies and
temporary structures, on or within 1,000 feet of
Case No. 20 CO 0009– 10 –
the described premises, used for making
additions, alterations or repairs to the building or
structure.
2015 Insurance Policy.
{¶29} Location 003 in the Declarations Sections is the only declaration being
argued that could cover the Intake Structure. This declaration indicates there are no
additional forms for this location. The address listed for Location 003 is “BLDG 001 3R
2198 Michigan Avenue, East Liverpool, OH 43920.” This declaration labels this location
as “Intake Well House” and limits the insurance to $142,800.
{¶30} There is no plain and ordinary definition for “Intake Well House”; dictionaries
do define “intake” and “well house,” but there is no listed definition for “Intake Well House.”
Well House is defined as a “covered structure (as a house or room) built around the top
of a well.” https://www.merriam-webster.com/dictionary/well%20house. Intake is defined
“an opening through which fluid enters an enclosure.” https://www.merriam-
webster.com/dictionary/intake.
{¶31} In looking at just the policy declarations and those definitions, the plain and
ordinary meaning of “Intake Well House” is the well house that connects to the intake.
The word “intake” modifies and describes the well house for which the insurance policy
provides coverage. This definition corresponds to the address listed for the well house
that is connected to the Intake Structure. Thus, the label “Intake Well House” describes
that property. Furthermore, the address listed is not the mile marker in the Ohio River
where the Intake Structure is located. Had that address been listed then possibly the
label “Intake Well House” would have included the Intake Structure. Moreover, the City
was the first party to use the term “Intake Well House” and specify that it was located at
2220 Michigan Avenue. It did so in 1986 when it published its Notice for Bids and Request
for Bid. Defendant’s Exhibit A and B to Disch Depo. The City cannot now claim that its
own term, first used by it, is ambiguous. Therefore, this court concludes the language is
not ambiguous. It is plain that what is located at that Michigan Avenue address, the well
house that connects to the intake, is all that is covered.
{¶32} Even if this court were to conclude the term is ambiguous, the use of parol
evidence would still limit the coverage to the one structure. The extrinsic evidence would
Case No. 20 CO 0009– 11 –
include, but not be limited to, the Stilson Report and Request for Bid. It is undisputed that
the Stilson Report was done for purposes of insurance. It was prepared in response to
new construction and renovations to existing structures. Disch Depo. Exhibit C. The
Stilson Report stated the scope of the report was to provide the City with a summary of
information and estimated replacement costs for the major structures for the purpose of
submitting to the insurance company. Disch Depo. Exhibit C. “The insurance company
will then be in a better position to evaluate and assess the rates to be charged for
insurance protection to the City.” Disch Depo. Exhibit C. However, as Disch
acknowledged, that report lists the two (Intake Structure and Well House) separately.
Disch Depo. 33. The replacement value of the Intake Structure listed in the Stilson Report
is $750,000. The replacement value of the “Well House” in that same report is $115,800.
Despite the Stilson Report’s separate listings, the insurance contract does not list the Well
House and Intake Structure separately. The contract also did not insure the “Intake Well
House” for the combined amount of the Well House and Intake Structure. Instead, the
contract covered the “Intake Well House” for an amount equivalent to the amount of the
Well House alone; the insurance coverage was for approximately $150,000.
{¶33} Furthermore, the “Intake Well House” as described in the insurance contract
was for a Michigan Avenue address, not for a structure in the Ohio River. As stated
above, the Request for Bid that was sent out by the City in 1986 states, “The Location of
Board of Public Utilities Buildings & Tanks to be bid are: * * * Intake Well House, 2220
Michigan Avenue, E.L.O.” Likewise, this bid request does not list the structures
separately and only lists a Michigan Avenue address for the location.
{¶34} Given the difference in the values between what was covered and what the
structures were worth, it is glaring as to what the intent of the parties was by the use of
the phrase intake well house. It was to only cover the Well House where the intake
connects. Had the intent been to cover the Intake Structure, it would have been listed
separately as it was in the Stilson Report or it would have been valued at a much higher
amount.
{¶35} Admittedly, Disch did testify, “If you say to me ‘intake pier,’ that’s the cement
thing out in the middle of the river. If you say ‘intake well house,’ it kind of tells me you’ve
combined these two features into one.” Disch Depo. 32. The City focuses on Disch’s
Case No. 20 CO 0009– 12 –
deposition testimony and the corrections he made to his testimony to indicate he
subjectively understood the insurance contract to insure the Intake Structure and the Well
House when it used the phrase “Intake Well House.” The City asserts the corrected
testimony creates genuine issue of material fact as to what “Intake Well House” means.
We disagree and agree with the trial court’s reasoning.
{¶36} The trial court explained that the statements on the errata sheet of Disch’s
deposition are little more than conclusory statements offered in support of his subjective
belief and understanding. 11/5/19 J.E. The trial court acknowledged Civ.R. 30(E) permits
a witness to make changes in form or substance to deposition testimony, but it is not a
safe harbor. 11/5/19 J.E. It stated self-serving deposition testimony is insufficient to
demonstrate a material issue of fact. The trial court determined:
The subjective belief or understanding of Mr. Disch as set forth on the Eratta
sheet to his deposition stands alone and is opposed by the objective
evidence in the record. This includes the Notice For Bids, the Request for
Bid, the express limitation contained therein, the insurance quote of Mr.
Gauron, the Stilson report, the Statement of Values signed by Mr. Disch and
his knowledge acquired during his long tenure with the City of East Liverpool
and/or the Board of Public Utilities, and the unambiguous language of the
Renewal Policy and Declarations, which Mr. Disch chose not to read for
years. This evidence is not doubtful, uncertain, or ambiguous. All of it has
been thoroughly analyzed, an appropriate activity at the stage of summary
judgment.
Mr. Disch apparently never expressed his “understanding” or raised any
concern to anyone for some 20 years before the collision at issue. During
this same time he continued to choose not to read the insurance policies
that were renewed year after year. Had he read the insurance policies he
would have or should have discovered that Auto-Owners did not insure the
intake structure as of September 19, 2016. Even when construing the
evidence most strongly in favor of the City of East Liverpool, the Eratta
sheet to the deposition of Mr. Disch, supported only by his unexpressed
Case No. 20 CO 0009– 13 –
understanding cannot as a matter of law create a genuine issue of material
fact that precludes summary judgment.
Based upon the entirety of the record before me, the only reasonable
conclusion I can reach is that Auto-Owners insured the intake well house,
but it did not insure the intake structure as of February 19, 2016. This
conclusion is consistent with the intent of the Board of Public Utilities as
expressed through the express limitation contained in the Notice for Bids
and Request for Bid. This conclusion is consistent with the insurance
policies issued starting in 1986 and renewed annually thereafter. It is
consistent with the Renewal Policy that was in effect on September 19,
2016.
11/5/19 J.E.
{¶37} Our sister districts have indicated, “changes in Errata sheet—which
completely change the deposition testimony—cannot be used to defeat a Motion for
Summary Judgment.” Musil v. Gerken Materials, Inc., 6th Dist. Lucas No. L-19-1262,
2020-Ohio-3548, fn. 2, citing Christian v. Wal-Mart Stores East, LP, 5th Dist. Holmes No.
09CA014, 2010-Ohio-3040, ¶ 18, quoting Hambleton Bros. Lumber Co. v. Balkin Ents.,
Inc., 397 F.3d 1217, 1225 (9th Cir.2005).
{¶38} Specifically in the deposition testimony Disch was asked if he ever
requested the Intake Structure located in the river be insured. Disch Depo. 103. He
responded he did not. Disch Depo. 103. Then on the errata sheet he changed his
response to make it “clearer by adding” the city made the request prior to him being the
director and that was the bid to insure all water department buildings including the intake
well house, which he understood to mean the intake and the well house. 7/22/19 Filing.
The five changes he made to his deposition were all similar to this one indicating that he
understood the Intake Well House to mean the Intake Structure and the Well House.
{¶39} Considering that the major issue in this case is what is the meaning of Intake
Well House, his changes in the errata sheet did change his answers substantially as to
his subjective belief. Furthermore, during his tenure the policy was renewed and he
admittedly did not read the policy except for the phrase “Intake Well House.” When his
Case No. 20 CO 0009– 14 –
corrections are taken into consideration with his admission he did not read the insurance
policy, the trial court correctly indicated it did not create a genuine issue of material fact.
{¶40} In conclusion, when viewed in the light most favorable to the City,
reasonable minds conclude that the language used was clear and unambiguous. The
Intake Structure was not covered by the policy. Our analysis could end at that point.
However, even if we were to conclude the term was ambiguous, the only reasonable
definition the extrinsic evidence suggests for “Intake Well House” is the Well House
connected to the intake. It does not reasonably suggest coverage for the Intake Structure.
The trial court’s analysis, even though reviewed de novo, was on point and did not
overstep by weighing the evidence. This assignment of error lacks merit.
Second Assignment of Error
“The trial court erred by granting summary judgment dismissing the City’s bad faith
claims against Owners.”
{¶41} This assignment of error specifically addresses the bad faith claim. The
City argues Owners had no lawful basis for denying the claim if the term “Intake Well
House” has a special meaning that includes both the Intake Structure and the Well House
or it is reasonably subject to such interpretation. It also contends that Owners had a duty
to reasonably investigate the claim. Thus, they are raising a bad faith investigation and
bad faith denial claim.
{¶42} As to the bad faith investigation, the City argues to survive summary
judgment it was only required to show that the insurer had no reasonable justification for
failing to determine whether its refusal had a lawful basis. It asserts the claim was filed
on March 9, 2016 and denied 9 days later on March 18, 2016 with a statement that the
City could provide further information supporting coverage.
{¶43} It claims Owners’ files were searched for photographs or information
regarding the intake, but none were located and Owners was unaware of the Stilson
Report in Gauron’s file. Further, Owners representative, John Biviano, a claims adjuster,
would not answer questions at the deposition concerning whether the Stilson Report and
Intake Structure photograph would have been pertinent to the investigation of the claim
that the term “Intake Well House” referred to both the Intake Structure and the Well
Case No. 20 CO 0009– 15 –
House. The City asserts this evidence is sufficient to find that a reasonable mind would
have concluded Owners did not adequately investigate.
{¶44} Owners counters, arguing the Stilson Report and findings confirm the
position of no coverage. Thus, not reviewing it prior to denying coverage does not amount
to bad faith.
{¶45} As to the denial claim, a bad faith denial claim hinges on the success of the
breach of contract claim. As this court found no merit with the first assignment of error,
this argument fails. However, this court will still address the issues.
{¶46} The City asserts the court must consider the evidence in the record showing
a special meaning. Those are the 2015 renewal policy; the 1986 bid request; 1989 Stilson
Report; and the statement by Tim Clark, the City representative, that the purpose of the
Stilson Report was to identify all water department structures and have those insured.
{¶47} Owners counters, asserting the breach of contract claim fails and thus, this
claim also fails. However, it also asserts a lack of good faith is more than just bad
judgment or an incorrect decision. A result adverse to the insured does not mean the
insurer acted in bad faith.
{¶48} The Ohio Supreme Court has determined that an insurer “fails to exercise
good faith in processing 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, 644 N.E.2d 397 (1994), paragraph one of the
syllabus. Reasonable justification does not exist where an insurer's refusal to pay a claim
is arbitrary or capricious. Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185, 188, 87 N.E.2d
347 (1949).
{¶49} The Sixth Appellate District has explained:
“[A]n insurer has the duty to act in good faith in the handling and payment
of the claims of its insured.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d
272, 452 N.E.2d 1315 (1983), paragraph one of the syllabus. Where an
insurer refuses to pay a claim without providing reasonable justification, the
insurer fails to act in good faith. McNair at ¶ 124, citing Zoppo v. Homestead
Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of the
Case No. 20 CO 0009– 16 –
syllabus. Failure to act in good faith gives rise to a claim against the insurer.
Hoskins at paragraph one of the syllabus.
Watkins v. Allstate Vehicle & Property Ins. Co., 6th Dist. Lucas No. L-19-1235, 2020-
Ohio-3397, ¶ 53, appeal not allowed, 160 Ohio St.3d 1409, 2020-Ohio-4574, 153 N.E.3d
113, ¶ 53.
{¶50} The City’s assertion of the facts is correct concerning the amount of time to
investigate and the consideration of the Stilson report. However, (as stated above) given
the facts either there is a dispute as to what “Intake Well House” means or it is plain that
it does not mean both the Intake Structure and the Well House. The division of the
structures used in the Stilson Report and the different valuations does clearly support
Owner’s position that intake and well house are two separate structures and “Intake Well
House” is not a combination of the both. At most, the claim is fairly debatable. As the
City points out, “’Where a claim is fairly debatable the insurer is entitled to refuse the claim
* * *as long as such refusal is premised on a genuine dispute over either the status of the
law at the time of the denial or the facts giving rise to the claim.’” Marshall v. Colonial Ins.
Co., 7th Dist. Mahoning No. 15 MA 0169, 2016-Ohio-8155, ¶ 80. A failure to reasonably
investigate before arriving at a legal or factual position can give rise to liability. Marshall,
citing Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 554, 644 N.E.2d 397 (1994)
(finding evidence from which the jury could conclude the insurer failed to conduct an
adequate investigation on cause of fire and was not reasonably justified in denying the
insured's claim).
{¶51} Had the Stilson report defined Intake Well House differently and the values
set forth in the report for the total of both structures been equivalent to the value insured,
the result of not looking at that report may have been different. However, as it stands
given the facts, the Stilson Report creates a further indication the two are separate
structures and, by using the phrase “Intake Well House,” the word “intake” does not mean
the Intake Structure but rather is a descriptor of the well house being insured. This further
supports the position that even if there is a genuine issue as to what “Intake Well House”
means and Owners incorrectly determined the definition, they are not necessarily liable
for a bad faith claim. The actions and interpretation of Owners as described by the City
do not amount to bad faith. Even an incorrect result does not mean bad faith.
Case No. 20 CO 0009– 17 –
{¶52} This assignment of error is meritless.
Preliminary Issue for Third and Fourth Assignments of Error
{¶53} Mega and Gauron’s brief only addressed the Third and Fourth Assignments
of Error asserting that as Owners’ agents these are the only assignments that relate to
them. They address these assignments of error together. They start by asserting the
City waived its claims against them because following its settlement with Crounse, the
City voluntarily dismissed all its claims instead of just dismissing its claims against
Crounse. Therefore, the interlocutory summary judgment order that would not become
final until the claims against Crounse were resolved did not become final because the
claims against everyone were dismissed. Effectually, they are asserting there is no order
for this court to review because the interlocutory summary judgment ruling was dismissed
along with all claims against all parties.
{¶54} The Agreed Entry of Dismissal states the following, “The within action
having been fully compromised and settled between Plaintiff City of East Liverpool and
Defendant Crounse Corporation, Plaintiff’s Amended Complaint and all pending Motions
may be and are hereby DISMISSED, with prejudice, each party to bear its own costs.”
4/29/20 J.E. This dismissal was signed by the Judge and attorneys for the City and
Crounse.
{¶55} The April 29, 2020 dismissal does not indicate which subsection of Civ.R.
41 the parties intended to dismiss in the matter. The dismissal in this case was titled
“Agreed Entry of Dismissal,” and not a notice of dismissal or stipulation of dismissal.
Notices and stipulations are covered by Civ.R. 41(A)(1). Civ.R. 41(A)(2) is the By Order
of the Court provision and states, “Except as provided in division (A)(1) of this rule, a claim
shall not be dismissed at the plaintiff's instance except upon order of the court and upon
such terms and conditions as the court deems proper.” Given that the order was signed
by the court and the parties settling, this was a Civ.R. 41(A)(2) dismissal.
{¶56} Two months prior to the entry, the trial court was made aware of the
settlement agreement between the City and Crounse. In February 2020, the trial court
issued a decision indicating that due to the settlement agreement, the November 5, 2019
grant of summary judgment became a final appealable order. 2/20/20 J.E. It is clear the
trial court was only dismissing the claims pending against Crounse, not any other claims.
Case No. 20 CO 0009– 18 –
Thus, the April 29, 2020 dismissal did not dismiss claims against Appellees. Mega and
Gauron’s preliminary argument fails.
Third Assignment of Error
“The trial court erred by denying the City’s motions to compel deposition testimony
and production of claims file from Owners and Mega.”
{¶57} The City’s argument focuses on the discovery of materials from Owners and
Mega. It asserts Owners refused to provide a witness on the history of the relationship
between Owners and the City. Owners did produce John Biviano, a claims adjuster, to
testify about the investigation and the denial of the claim. The City contends this
representative was not prepared or refused to answer deposition questions. Mega,
Owners agent, provided its president Tom Minor as its representative. He also refused
to answer questions. The City then moved the trial court to compel discovery of Owners’
claim file and the testimony it sought from both Owners and Mega. That request was part
of Civ.R. 56(F) motion to continue the decision on the summary judgment motions to allow
the further requested discovery.
{¶58} The trial court denied the motion when issuing its summary judgment ruling.
11/5/19 J.E. It indicated the discovery in the case was already comprehensive,
Fed.Civ.R. 30(b)(6) was not applicable, and additional discovery would not change the
facts:
Moreover, additional discovery will not change many of the facts already
recited herein, including that the intake structure is in the Ohio River and
has never been located on Michigan Avenue, even according to the City of
East Liverpool and/or the Board of Public Utilities. Additional discovery will
not change the fact that Mr. Disch did not read the insurance policies that
were issued. Additional discovery will not change the many conclusions
springing from the repeated failure to read the insurance policies and the
resulting impact on the City of East Liverpool. Finally, additional discovery
will not change the fact that, as a matter of law, the City of East Liverpool is
presumed to be familiar with the contents of its insurance policy.
11/5/19 J.E.
Case No. 20 CO 0009– 19 –
{¶59} The City focuses on the denial of allowing additional discovery, while
Appellees focus on the denial of the continuance. Civ.R. 56(F) states:
Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party's opposition, the court
may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or discovery to be had or may make such
other order as is just.
Civ.R. 56(F).
{¶60} We have previously explained:
[A] review of the trial court’s decision regarding the motion to stay judgment
on Appellants’ motion for summary judgment (construed as a Civ.R. 56(F)
motion) is for abuse of discretion. State ex rel. Denton v. Bedinghaus, 98
Ohio St.3d 298, 2003-Ohio-861, 784 N.E.2d 99, ¶ 31. An abuse of
discretion reflects more than an error of judgment, but that the trial court
acted unreasonably, arbitrarily or unconscionably in making its
determination. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983).
Taylor v. Burkhart, 7th Dist. Monroe No. 19 MO 0013, 2020-Ohio-3632, ¶ 19.
{¶61} As Appellees point out, the questions the City claims it was entitled to
answers and the questions deponents did not answer were questions asking for legal
conclusions. They were: 1. “Whether Owners had a lawful basis for its denial of the
claim?” 2. “Whether it was reasonable to investigate what ‘intake well house’ mean?” 3.
“Whether the City’s belief that ‘intake well house refers to the intake and the well house
is information pertinent to Owners investigation?” 4. “Whether the City’s understanding
that ’intake well house’ refers to the intake and the well house, is reasonable under the
circumstances?” 5. “Whether there were ambiguities in the policy?”
{¶62} Appellees are right. The majority, if not all, of these questions ask for legal
conclusions. For instance, whether the term “Intake Well House” is ambiguous is a
Case No. 20 CO 0009– 20 –
question for a court to decide. Also, it is noted there were approximately 20 depositions
filed in this case. Thus, there was extensive discovery. As such, the trial court is correct
that allowing further discovery would not have changed the result.
{¶63} Also, as referenced above, Disch testified he did not read the policy. His
deposition testimony indicated the only portion he read was the portion dealing with the
Intake Well House. Disch Depo. 32. Considering this statement, this means he did not
look at the remainder of the policy. Had the policy listed the Intake Structure separately
he would not have seen it. Had it listed the Well House separately he also would not
have seen it. Therefore, the City’s conclusion that by reading only “Intake Well House”
and its description indicated he read enough to draw the conclusion the Intake Structure
and the Well House were both covered is an overbroad conclusion. An insured has a
duty to examine the coverage provided and is charged with knowledge of the contents of
his or her own insurance policies. Fry v. Walters & Peck Agency, Inc., 141 Ohio App.3d
303, 310, 750 N.E.2d 1194 (6th Dist.2001); Jacubenta v. Cadillac Ranch, 8th Dist.
Cuyahoga No. 98750, 2012-Ohio-586, ¶ 15; Craggett v. Adell Ins. Agency, 92 Ohio
App.3d 443, 453, 635 N.E.2d 1326 (8th Dist.1993); Nickschinski v. Sentry Ins. Co., 88
Ohio App.3d 185, 195, 623 N.E.2d 660 (8th Dist.1993). Reading one portion to draw the
conclusion the Intake Structure was covered is insufficient because more could have
been in the policy. Thus, reading one portion of the policy is insufficient to conclude the
policyholder met the duty to read the policy.
{¶64} For all the above stated reasons, the trial court did not abuse its discretion
in denying the Civ.R. 56(F) motion. This assignment of error lacks merit.
Fourth Assignment of Error
“The trial court erred in granting summary judgment dismissing the City’s
reformation, estoppel, negligence and misrepresentation claims against Owners and
Owners’ agents.”
{¶65} This assignment of error addresses the trial court’s decision to grant
summary judgment to Appellees on the reformation, equitable estoppel, negligence, and
misrepresentation claims.
Case No. 20 CO 0009– 21 –
A. Reformation
{¶66} As to reformation, the City argues the trial court improperly held Disch’s
acknowledgment that he did not read the insurance contract in its entirety against him.
He cites our Gerace Flick v. Westfield Nat. Ins. Co. decision to support his position.
{¶67} In Gerace Flick, we held that the failure to read the insurance contract did
not, given the facts of that case, prohibit the insured from coverage:
Admittedly, [the insured’s] failure to ever read the Westfield Homepak
policy, and thus determine on his own that the coverage may be inadequate,
is remarkable. It is axiomatic that one receiving a written instrument in a
business transaction is presumed to be familiar with its contents. Slovak v.
Adams, supra at 845, 753 N.E.2d 910; and Atlas Realty, Inc. v. Ladies
Auxiliary to Broth. of R.R. Trainmen (1960), 111 Ohio App. 396, 397, 171
N.E.2d 382; citing, 31 Corpus Juris Secundum, page 838, § 150.
Nevertheless, [the insured’s] failure to read the policy is typically the subject
of a comparative negligence defense which is generally addressed at trial
and not on a motion for summary judgment. See, Texler v. D.O. Summers
Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 681, 693 N.E.2d
271 (the question as to whether plaintiffs' contributory negligence is the
proximate cause of his injury is an issue of fact for the jury to decide
pursuant to the comparative negligence provisions of R.C. § 2315); and
Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 39, 518 N.E.2d
1226 (contributory negligence is generally an issue of fact unless the
evidence shows that plaintiff's negligence was so extreme as a matter of
law that no reasonable person could conclude plaintiff was entitled to
recover). Thus, Appellees themselves raise a factual issue that a jury ought
to decide.
Gerace Flick v. Westfield Nat. Ins. Co., 7th Dist. Columbiana No. 01 CO 45, 2002-Ohio-
5222, ¶ 66-67.
{¶68} We held there was a genuine issue of material fact as to whether the
insurance company was negligent in securing the insurance coverage sought. Id. at ¶
Case No. 20 CO 0009– 22 –
95. We explained a jury could determine the failure to review the policy forecloses the
ability to recover and thus, the issue is for trial. Id. at ¶ 97. Accordingly, the trial court
erred when it granted summary judgment with respect to the request for equitable
reformation of the insurance policy. Id. at ¶ 97.
{¶69} While we decline to overrule our prior decision, we recognize our sister
districts do indicate a court should not reform an insurance policy where the party seeking
reformation has failed to fulfill his duty to read the policy. LG Mayfield LLC v. United States
Liab. Ins. Group, 2017-Ohio-1203, 88 N.E.3d 393, ¶ 63 (11th Dist.) (explaining,
“Reformation is a remedy in equity, and ‘[e]quity aids the vigilant.’ Marconi v. Savage, 8th
Dist. Cuyahoga No. 99163, 2013-Ohio-3805, 2013 WL 4774506, ¶ 23 (discussing the
equitable doctrine of laches and explaining that ‘a person is not entitled to relief when
there has been an “[u]nreasonable delay; neglect to do a thing or to seek to enforce a
right at a proper time’”), quoting Russell v. Fourth Natl. Bank, 102 Ohio St. 248, 265, 131
N.E. 726 (1921). See also Jacubenta v. Ranch, 8th Dist. Cuyahoga No. 98750, 2013-
Ohio-586, ¶ 15 (‘An insurance policyholder has a duty to read its insurance policy.’); Hts.
Driving School v. Motorists Ins. Co., 8th Dist. Cuyahoga No. 81727, 2003-Ohio-1737, ¶
38 (charging a policyholder with knowledge about the contents of his insurance policy);
Allstate Ins. Co. v. Croom, 8th Dist. Cuyahoga No. 95508, 2011-Ohio-1697, ¶ 11.
{¶70} The City is correct the trial court does cite the Gerace Flick decision.
However, the City fails to acknowledge the decision was based on those unique facts.
The facts here are different, which the trial court acknowledged when it made its
reformation ruling. Disch indicated he did not read the insurance contract other than the
phrase “Intake Well House.” He claims to have taken that phrase to mean both the Intake
Structure and the Well House. He also acknowledged he saw the Stilson Report. That
report was prepared for insurance purposes and listed the Intake Structure and the Well
House separately. What is even more telling is the value of the Intake Structure alone
was $750,000, while the Well house was approximately $120,000. Yet, on the portion of
the policy that Disch allegedly read it only indicated the value of the “Intake Well House”
at approximately $140,000. Had he read the policy, these facts would have raised red
flags as to whether there was coverage for what was allegedly to be insured. This is not
akin to Gerace Flick where the facts indicated the insured was asking questions about
Case No. 20 CO 0009– 23 –
the insurance and explaining to the insurance company what was occurring in a manner
that was clear he was trying to obtain the correct insurance for the house and its
belongings that were in his daughter’s name and also contained his personal belongings
(that were destroyed in a house fire).
{¶71} Consequently, considering the facts at hand, the trial court did not err in
granting summary judgment for Appellees on the reformation claim.
B. Estoppel
{¶72} The trial court also granted summary judgment to Appellees on the City’s
equitable estoppel claim. The reasoning was also Disch’s failure to read the policy.
Alternatively, the trial court stated there was no showing of any misleading factual
misrepresentation arising to the level of actual or constructive fraud.
{¶73} Once again, the City asserts this is a comparative negligence issue. It
claims Ohio law specifically holds an insurance company will be equitably estopped from
denying coverage where its agent has mistakenly mislead an insured into believing he
had coverage for a loss that the policy did not provide and the insured relied on this
mistake. It argues the coverage offered following the Stilson Report for the “Intake Well
House” was sufficient evidence of misrepresentation.
{¶74} Owners counters arguing it never made a factual representation to the City
regarding the Intake Structure and there is no evidence of any misleading factual
misrepresentation.
{¶75} Under the doctrine of equitable estoppel, “‘a representation of past or
existing fact made to a party who relies upon it reasonably may not thereafter be denied
by the party making the representation if permitting the denial would result in injury or
damage to the party who so relies.’” Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-
Ohio-4251, ¶ 20, quoting 4 R. Lord, Williston on Contracts, Section 8:3, 28-31 (4th
Ed.1992). “‘The purpose of equitable estoppel is to prevent actual or constructive fraud
and to promote the ends of justice.’” Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d
491, 2006-Ohio-2625, ¶ 43, quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d
143, 145 (1990). “‘A prima facie case of equitable estoppel requires proof of (1) a factual
representation that, (2) is misleading, (3) induces actual reliance that is reasonable and
Case No. 20 CO 0009– 24 –
in good faith, and (4) causes detriment to the relying party.’” Garb-Ko, Inc. v. Benderson,
10th Dist. Franklin No. 12AP-430, 2013-Ohio-1249, ¶ 17.
{¶76} As explained above, the Stilson Report was used for insurance purposes
for providing valuations. However, there is no indication in the testimony it was a request
for insurance of everything listed in it. Specifically, Keith Clark, the former Director of
Public Utilities, could not point to a communication indicating it was a request for
insurance of all structures listed in it. Clark Depo. 243-247, 250-253. Furthermore, there
is no evidence Appellees stated or indicated the Intake Structure was covered.
Accordingly, the trial court’s grant of summary judgment on the equitable estoppel claim
are upheld.
C. Negligence and Misrepresentation
{¶77} The trial court indicated the amended complaint alleged negligence and
misrepresentation on the part of Mega and Gauron for failure to obtain the requested
policy coverage. The trial court stated both claims were time barred by the four-year
statute of limitations. The court explained the delayed damages rule and the discovery
rule does not change the result. The court indicated, as to negligence, that the case at
hand was distinguishable from the Kunz case where the insured initially pursued
insurance to cover everything. Here, it held, the City did not initially purchase insurance
to cover the Intake Structure. As to misrepresentation, the court also stated, in addition
to being barred by the statute of limitations, Disch’s failure to read the policy was an
indication the City failed in its duty to know the contents of the policy. Furthermore, as
with the above arguments it also noted there is no evidence anyone provided any false
information to the City or the Board of Public Utilities prior to the damage occurring to the
Intake Structure.
{¶78} The City claims the trial court misconstrued both its negligence and
misrepresentation claims as requesting application of delayed damages. It contends it
was seeking damages for negligence and misrepresentation in connection with the 2015
renewal policy. Thus, it was not setting forth a claim under the delayed damages rule
and that rule would not be addressed.
{¶79} The City argues an action for negligent procurement of an insurance policy
or negligent misrepresentation of the terms of the policy begins to run when the policy is
Case No. 20 CO 0009– 25 –
issued and the renewal of insurance is a separate and distinct contract. It contends the
2015 contract is a separate contract having a beginning date of March 21, 2015 and an
ending date of March 21, 2016. The failure to procure the requested coverage in the
renewal policy is a separate act of negligence and misrepresentation.
{¶80} Mega and Gauron argue the trial court correctly determined the statute of
limitations barred the action and, alternatively, there was no evidence of
misrepresentation or negligence. Specifically, there was no evidence false information
was provided to the City stating the Intake Structure was covered under the policy.
Owners similarly argues the actions are barred by the statute of limitations. It claims the
statute of limitations should not be tolled simply because the policy is renewed year after
year. Furthermore, it claims there was no misrepresentation or negligence; there was no
statement or action indicating the Intake Structure was covered.
{¶81} To establish actionable negligence, one must show there was a duty, the
duty was breached, and an injury resulted from the breach. Mussivand v. David, 45 Ohio
St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶82} The elements of negligent misrepresentation are:
“(1) one who, in the course of his or her business, profession, or
employment, or in any other transaction in which he or she has a pecuniary
interest; (2) supplies false information for the guidance of others in their
business transactions; (3) is subject to liability for pecuniary loss caused to
them by their justifiable reliance upon the information; and (4) if he or she
fails to exercise reasonable care or competence in obtaining or
communicating the information. Delman v. Cleveland Hts. (1989), 41 Ohio
St.3d 1, 4, 534 N.E.2d 835, 837–838. A negligent misrepresentation claim
does not lie for omissions: there must be an affirmative false statement.
Textron Fin. Corp. v. Nationwide Mut. Ins. Co. (1996), 115 Ohio App.3d 137,
149, 684 N.E.2d 1261, 1269; Zuber v. Ohio Dept. of Ins. (1986), 34 Ohio
App.3d 42, 45-46, 516 N.E.2d 244, 246-248.” Martin v. Ohio State Univ.
Found., 139 Ohio App.3d 89, 103-04, 742 N.E.2d 1198 (10th Dist.2000).
Jochum v. Howard Hanna Co., 11th Dist. Lake No. 2020-L-077, 2020-Ohio-6676, ¶ 39.
Case No. 20 CO 0009– 26 –
{¶83} The Ohio Supreme Court in LGR Realty, Inc. recently addressed the four-
year statute of limitations for professional-negligence claims governed by R.C.
2305.09(D). LGR Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-
Ohio-334, 98 N.E.3d 241. The issue in that case was when the negligent-procurement
and negligent-misrepresentation claims accrued, triggering the start of the statute of
limitations. Id. at ¶ 12. The Ohio Supreme Court concluded the delayed damages rule
does not apply to a negligent procurement or negligent misrepresentation claims where
the terms of the policy when issued contains a provision specifically excluding the type of
claim that the insured alleges it believed was covered by the policy. Id. at ¶ 31. “The
cause of action in such a case accrues on the date the policy is issued.” Id.
{¶84} In LGR Realty, Inc., the Court indicated the general rule is the statute of
limitations begins to run when the injurious act is committed. Id. at ¶ 26. The language
used by the Court appears to indicate when negligent procurement and misrepresentation
claims are alleged, the alleged damage occurs the moment the contract is entered and
the insured becomes obligated to pay a premium for the insurance policy that provided
less coverage than it believed it would receive. Id. at ¶ 29. The case law does not indicate
if there is a distinction between a renewal or original issuance. This raises the question
of whether the statute of limitations begins to run at every renewal or does it only begin
to run at the first issuance? The Ohio Supreme Court has stated a renewal insurance
contract can represent a new contract of insurance separate from the initial policy. See
Shay v. Shay, 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591, ¶ 24 (“In Benson,
we held that statutes pertaining to an insurance policy and its coverage that are enacted
after the policy's issuance are incorporated into a renewal of the policy if the renewal
represents a new contract of insurance separate from the initial policy.”).
{¶85} Whereas here, the renewal policy has a stated start date and end date, the
renewal may be a separate policy starting the statute of limitations for negligence and
misrepresentation claims when the policy is renewed. Therefore, the statute of limitations
would not bar this action.
{¶86} Conversely, here the issue is the coverage and the policy had not changed
as to coverage of the “Intake Well House” for the past 20 years, other than to slightly
change the amount covered, Hence, there is an indication that it is not a new contract.
Case No. 20 CO 0009– 27 –
The testimony indicated coverage did change over time. Gauron said items were added.
However, none of those items appear to have added anything to the “Intake Well House.”
That portion of the policy remained unchanged. This seems to indicate that the action is
barred by the statute of limitations.
{¶87} Assuming without deciding that the claims are not barred by the statute of
limitations, the claims cannot survive summary judgment for the reasons expressed under
the estoppel analysis. There is no evidence in the record Appellees ever stated the Intake
Structure was covered or the term “Intake Well House” meant to include coverage for
both the Intake Structure and the Well House, or that the City specifically asked for
coverage for the Intake Structure located in the Ohio River.
{¶88} The trial court’s grant of summary judgment for Appellees on the
reformation, equitable estoppel, negligence, and misrepresentation claims is supported
by the record. This assignment of error lacks merit.
Conclusion
{¶89} All assignments of error lack merit and the trial court’s decision is affirmed
in all respects. The language of the insurance contract is plain and unambiguous; the
term “Intake Well House” does not mean Intake Structure and Well House, but rather
means only the well house that is connected to the Intake Structure. Further, the trial
court correctly determined there was not sufficient evidence to survive a summary
judgment motion on the bad faith denial and failure to investigate claims. The trial court
also did not abuse its discretion in denying the Civ.R. 56(F) motion to continue for further
discovery. Lastly, the trial court’s grant of summary judgment for Appellees on the
reformation, equitable estoppel, negligence, and misrepresentation claims is supported
by the record.
Donofrio, P J., concurs.
Waite,.J., concurs.
Case No. 20 CO 0009[Cite as E. Liverpool v. Owners Ins. Co., 2021-Ohio-1474.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.