Baber v. Ohio Mut. Ins. Co.

[Cite as Baber v. Ohio Mut. Ins. Co., 2021-Ohio-1625.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
LORMA BABER,
PLAINTIFF-APPELLANT, CASE NO. 17-20-10
v.
OHIO MUTUAL INSURANCE
COMPANY ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Shelby County Common Pleas Court
Trial Court No. 19CV000239
Judgment Affirmed
Date of Decision: May 10, 2021
APPEARANCES:
Stanley R. Evans for Appellant
Joseph F. Nicholas and Frank H. Scialdone for Appellee
Case No. 17-20-10
MILLER, J.
{¶1} Plaintiff-appellant, Lorma Baber, appeals the May 21, 2020 decision of
the Shelby County Court of Common Pleas granting the motion for summary
judgment of defendant-appellee, Allenbaugh Insurance Agency (“AIA”). For the
reasons that follow, we affirm.
I. Facts and Procedural History
{¶2} Baber is the owner of a farm and farmhouse located in Maplewood,
Ohio. On October 12, 2017, the farmhouse was severely damaged by a fire. While
the fire was still in progress, Baber contacted AIA to report the fire and to file an
insurance claim. Baber’s insurance policy, which was underwritten by United Ohio
Insurance Company, a subsidiary of Ohio Mutual Insurance Company (“OMIC”),
was procured for her by AIA. Under the terms of the insurance policy, Baber could
receive either the actual cash value of the damage caused by the fire or the costs to
repair or rebuild the farmhouse up to the policy limit of $284,000. However, the
policy included the following provision: “We pay no more than the actual cash
value of the damage unless and until actual repair or replacement is complete. If
repair or replacement of the damage is not completed within 180 days after loss, we
pay no more than the actual cash value of the damage.”
{¶3} On December 13, 2017, Baber received a letter from OMIC’s claims
adjuster, Leann Wente. Wente explained that OMIC had determined the actual cash
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value of the damage caused by the fire to be $201,506.05 and that Baber would be
issued a check in that amount. In addition, the letter restated the full text of the 180-
day provision. Wente instructed Baber that if Baber did not repair or rebuild the
farmhouse within 180 days from the date of the fire as required by the 180-day
provision, OMIC would pay no more than the actual cash value. Wente indicated
Baber thus had until April 10, 2018, to repair or rebuild the farmhouse. Enclosed
with Wente’s letter was an estimate of the costs to rebuild the farmhouse prepared
by OMIC’s chosen construction contractor.
{¶4} Shortly after receiving Wente’s letter, Baber contacted Greg Woolley,
AIA’s co-owner/insurance agent, to talk about the 180-day provision and to express
her concerns about rebuilding the farmhouse by the April 10, 2018 deadline.
Although Baber was inclined to rebuild the farmhouse, she was worried the work
would not be completed by the deadline, in part because she did not receive OMIC’s
estimate until two months after the fire. Baber was also concerned inclement winter
weather could delay completion of the rebuild. According to Baber, she
communicated these concerns to Woolley, and Woolley responded by telling her
OMIC would be “fair” with respect to the 180-day provision and the April 10, 2018
deadline. Baber said she understood Woolley’s statement as an assurance that
OMIC would be flexible with the 180-day provision and that she could still recover
the full policy limit of $284,000 even if the farmhouse was not rebuilt by the
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deadline. However, Woolley denied making any promises to Baber about the 180-
day provision or the deadline. Regardless, after Baber and Woolley’s December
2017 conversation, Baber decided to rebuild the farmhouse.
{¶5} In the months following Baber and Woolley’s December 2017
conversation, Baber arranged to have the farmhouse rebuilt. Baber hired her own
contractor, Nathan Persinger, to prepare an estimate for the construction work
required to rebuild the farmhouse. Baber had used Persinger for other projects, and
he was at the farmhouse a few days after the fire as he had previously been hired to
do repairs to the barn. The record does not indicate when Baber requested Persinger
to prepare the estimate, but it was not until March 7, 2018, that Baber received
Persinger’s estimate. Persinger proposed to rebuild the farmhouse for $331,620.
On March 9, 2018, Baber accepted Persinger’s proposal. Construction on the
farmhouse commenced shortly thereafter.
{¶6} On or about March 13, 2018, Wente sent a second letter to Baber. In
this letter, Wente indicated that the April 10, 2018 deadline had been extended and
that “the 180 day replacement cost clause [would] expire May 26, 2018.” While
Baber acknowledged the topic of extending the April 10, 2018 deadline had been
raised during previous conversations with Wente, Baber insisted she did not
specifically request an extension. Once she received Wente’s second letter, Baber
talked to Persinger and asked him whether the work on the farmhouse could be
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completed by the new May 26, 2018 deadline. Persinger told Baber it would be
impossible to finish rebuilding the farmhouse by May 26, 2018. Although Persinger
continued working on the farmhouse after Baber informed him of the new deadline,
construction was not completed by May 26, 2018.
{¶7} On or about May 31, 2018, Wente sent a third and final letter to Baber.
In this letter, Wente confirmed that “because the repairs were not completed by May
26, 2018, [OMIC would] be unable to pay the replacement cost difference and
therefore there [would] be no further payments for the dwelling.” Thus, Baber
received only the $201,506.05 check for the actual cash value of the damage caused
by the fire. Baber has used most of the money she received from OMIC to pay
Persinger for his work on the farmhouse, which remains unfinished.
{¶8} On October 11, 2019, Baber filed a complaint against OMIC and AIA.
Baber’s complaint stated a cause of action for breach of contract against OMIC and
a cause of action for promissory estoppel against both OMIC and AIA.1 In her
complaint, Baber alleged Woolley had represented that she was not required to
completely rebuild the farmhouse on or before April 10, 2018, in order to receive
the full policy limit of $284,000. Baber further alleged she relied to her detriment
on Woolley’s representations because she failed to negotiate a contract with
1
On March 18, 2020, all “existing and potential claims” against OMIC were dismissed with prejudice by
agreement of the parties.
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Persinger requiring Persinger to rebuild the farmhouse on or before April 10, 2018.
On November 14, 2019, AIA filed its answer to Baber’s complaint.
{¶9} On March 13, 2020, AIA filed a motion for summary judgment on
Baber’s claim of promissory estoppel. Thereafter, Baber filed her memorandum in
opposition to AIA’s motion for summary judgment, and AIA filed a reply brief in
support of its motion for summary judgment.
{¶10} On May 21, 2020, the trial court granted AIA’s motion for summary
judgment. The trial court concluded that even if Woolley did promise Baber that
OMIC would be “fair” concerning the 180-day provision and the April 10, 2018
deadline, Woolley’s promise was not clear and unambiguous. The trial court found
that Woolley’s alleged promise was not sufficiently specific to induce the reliance
necessary to sustain a claim for promissory estoppel.
II. Issue Raised on Appeal
{¶11} On June 19, 2020, Baber timely filed a notice of appeal asserting one
assignment of error:
The trial court erred in awarding summary judgment against
Appellant, Lorma Baber, and in favor of Appellee, Allenbaugh
Insurance Agency.
{¶12} In her assignment of error, Baber contends the trial court erred by
granting AIA’s motion for summary judgment. Specifically, Baber argues the trial
court erred by focusing solely on the words of Woolley’s alleged promise when it
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determined Woolley’s alleged promise was not clear and unambiguous. Baber
maintains that when determining whether a promise is clear and unambiguous,
courts are “obligated to review the evidence in its totality, which necessarily
includes facts and circumstances, rather than snippets and ‘sound bites.’” She
contends when all the facts and circumstances surrounding Woolley’s alleged
promise are taken into account, there is a genuine issue of material fact as to whether
Woolley’s alleged promise was clear and unambiguous.
III. Discussion
A. Standard of Review for Summary Judgment
{¶13} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
{¶14} Summary judgment is proper where there is no genuine issue of
material fact, the moving party is entitled to judgment as a matter of law, and
reasonable minds can reach but one conclusion when viewing the evidence in favor
of the non-moving party, and the conclusion is adverse to the non-moving party.
Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio
St.3d 217, 219 (1994). Material facts are those facts “‘that might affect the outcome
of the suit under the governing law.’” Turner v. Turner, 67 Ohio St.3d 337, 340
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(1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505(1986). “Whether a genuine issue exists is answered by the following inquiry:
[d]oes the evidence present ‘a sufficient disagreement to require submission to a
jury’ or is it ‘so one-sided that one party must prevail as a matter of law[?]’” Id.,quoting Anderson at 251-252.
{¶15} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
B. Promissory Estoppel and the Requirement of a Clear, Unambiguous
Promise
{¶16} “Promissory estoppel is an equitable doctrine for enforcing the right
to rely on promises.” Ringhand v. Chaney, 12th Dist. Clermont Nos. CA2013-09-
072 and CA2013-09-076, 2014-Ohio-3661, ¶ 20. “‘The doctrine of promissory
estoppel comes into play where the requisites of contract are not met, yet the
promise should be enforced to avoid injustice.’” Olympic Holding Co., L.L.C. v.
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ACE Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, ¶ 39, quoting Doe v. Univision
Television Group, Inc., 717 So.2d 63, 65 (Fla.App.1998).
{¶17} The Supreme Court of Ohio has summarized the doctrine of
promissory estoppel as follows: “‘A promise which the promisor should reasonably
expect to induce action or forbearance on the part of the promisee or a third person
and which does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.’” Hortman v. Miamisburg, 110 Ohio
St.3d 194, 2006-Ohio-4251, ¶ 23, quoting 1 Restatement of the Law 2d, Contracts,
Section 90, at 242 (1981). “To prevail on a claim for promissory estoppel, a party
must establish four elements: (1) there must be a clear and unambiguous promise,
(2) the party to whom the promise was made must rely on it, (3) the reliance must
be reasonable and foreseeable, and (4) the party relying on the promise must have
been injured by the reliance.” Zapata Real Estate, L.L.C. v. Monty Realty, Ltd., 8th
Dist. Cuyahoga No. 101171, 2014-Ohio-5550, ¶ 35.
{¶18} A promise is “‘a manifestation of intention to act or refrain from acting
in a specified way, so made as to justify a promisee in understanding that a
commitment has been made.’” Stull v. Combustion Engineering, Inc., 72 Ohio
App.3d 553, 557 (3d Dist.1991), quoting 1 Restatement of the Law 2d, Contracts,
Section 2(1), at 8 (1981). In the context of a claim for promissory estoppel, a
promise is “clear and unambiguous” if it is “the type that a promisor would expect
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to induce reliance.” Casillas v. Stinchcomb, 6th Dist. Erie No. E-04-041, 2005-
Ohio-4019, ¶ 19. “‘This element is not satisfied by vague or ambiguous
references.’” Moellering Indus., Inc. v. Nalagatla, 12th Dist. Warren No. CA2012-
10-104, 2013-Ohio-3995, ¶ 15, quoting Hitchcock Dev. Co. v. Husted, 12th Dist.
Warren No. CA2009-04-043, 2009-Ohio-4459, ¶ 24. If an alleged promise is so
indefinite that the parties are unsure that a commitment has been made or are unable
to determine what the commitment requires, the promise is not enforceable under
the doctrine of promissory estoppel. See Zapata at ¶ 40.
C. The Alleged Promise
{¶19} In support of its motion for summary judgment, AIA submitted
Woolley’s and Baber’s deposition transcripts. As indicated earlier, Woolley
persistently denied he made any promises to Baber, and his deposition testimony is
consistent with this position. (See Woolley Depo. at 24-27, 32-33). In contrast,
Baber in her deposition repeatedly testified that Woolley made a promise to her that
OMIC would be “fair” about the 180-day provision and the April 10, 2018 deadline.
However, she described Woolley’s promise differently at different points during her
deposition. For example, Baber stated she contacted Woolley about the 180-day
provision and recalled Woolley telling her the company would be fair given the time
period it took in getting an estimate for repairs. (Baber Depo. at 41). Later in her
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deposition, Baber attempted to elaborate on her understanding of the alleged
promise as follows:
[Q]: [Y]ou can’t be more specific than – other than [Woolley]
telling you * * * the company will be fair with you?
[A]: That’s correct.
[Q]: Did he say to you that the company will waive [the 180-day
provision], words to that effect?
[A]: I had the impression they would work with me on that date.
[Q]: Okay. Let’s explore that. You said you had the assumption
that they would work with you. What was that assumption
based on?
[Baber’s Counsel]: Objection.
[Q]: Let me be more specific.
[Baber’s Counsel]: Go ahead and answer.
[Q]: [Woolley] indicated to you or words to the effect of * * * the
company will be fair with you. From that conversation, you
assumed the company would waive the 180-day provision in
the policy?
[A]: Waive it totally, I can’t say that I assumed that.
[Q]: Okay.
[A]: There was, you know, an emphasis on completion, and I
questioned whether that – as far as their – they wanted to make
sure that the property would be completed, that I just wouldn’t
take the money and run.
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At some point – and I’m not sure whether [Wente] or
[Woolley] said that, but that pictures would be taken and
decision made accordingly.
[Q]: Did Mr. Woolley ever represent to you at any time * * * that
all repairs did not have to be made before April 10th of 2018
in order for you to receive the full replacement cost?
[A]: He said they would be fair.
[Q]: That’s not the question. You already told me that he told you
they would be fair. My question to you specifically is – and
I’m not trying to be difficult. That is your claim against the
agency.
[A]: Yes.
[Q]: You’ve essentially alleged that the agency wronged you
somehow, was negligent somehow, promised you something
that wasn’t delivered on, okay? So, I want to know from your
own testimony sitting here today: Did Mr. Woolley tell you *
* * that all repairs to your property did not have to be made
before April 10th in order for you to receive the full
replacement cost of the policy? * * * He didn’t say that, did
he?
[A]: He said it, but he didn’t put it into those exact words. In other
words, in being fair, taking – what photos were being done and
what had been completed, that considerations would be made.
(Baber Depo. at 63-66).
{¶20} In a later exchange, Baber again attempted to describe Woolley’s
alleged promise that OMIC would be “fair”:
[Q]: Did you tell [OMIC], specifically Leann Wente, that [Woolley]
represented to you that all the repairs did not have to be made
by April 10th in order for you to receive full replacement cost?
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[A]: I told her that he told me that [OMIC] would be fair.
[Q]: Right. So you didn’t tell her that [Woolley] represented to you
that all repairs didn’t have to be made by April 10th? You
didn’t tell her that, did you?
[A]: I did not state it in that way.
[Q]: Why wouldn’t you tell her that?
[A]: That isn’t exactly what he said. I told her what he said. * * *
Okay. He said they’d be fair and that amount would not have
to be completed by that date, with considerations being made
because of the weather and because of the type of structure
with the company.
***
[Q]: He told you repairs did not have to be made within 180 days of
the fire in order for you to get full replacement cost? Is that
what he told you?
[A]: His specific words were that the company would be fair.
[Q]: I understand that. You alleged different than that though in the
complaint. You’re aware of that, right?
[A]: That was the way I took that wording to be, that the dates were,
although they would not change in writing, that they would be
considering the other things.
[Q]: Okay. So now you’re telling me when he told you they would
be fair, you took from that statement that you didn’t have to
worry about the 180-day time period, correct?
[A]: Not that you wouldn’t have to worry about it. You still work
toward that.
(Baber Depo. at 95-97).
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{¶21} Only once in her deposition did Baber claim that Woolley’s alleged
promise went beyond an assurance that OMIC would be “fair.” When asked
whether Woolley specifically represented to her that “all repairs to the residence did
not have to be made on or before April 10, 2018, in order for [her] to receive
additional replacement value,” Baber responded, “Yes.” (Baber Depo. at 67).
Baber also suggested that Woolley was lying when he said that he did not make
such an explicit promise. (Baber Depo. at 69-70). However, later in her deposition
when pressed on these statements, Baber backtracked and stated:
[Q]: You’re going to have to have eight jurors believe you when
you claim that what * * * Woolley represented to you was that
all repairs to the residence did not have to be made on or before
April 10th in order for [you] to receive additional replacement
value. Did he say that to you?
[A]: Yes.
[Q]: He did say that to you?
[A]: He did say that because he said they would be fair in getting,
considering the other things that were, so, yes, he did say that.
[Q]: He used those words?
[A]: Did he say exactly that wording, no.
[Q]: Well, paraphrase it for me. What did he tell you?
[A]: He would be fair, or the company would be fair, that they
wouldn’t put it in writing, but they would be fair in assessing
what was being done and what was done at that time so that a
decision could be made at that point in time.
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(Baber Depo. at 97-98).
D. The promise is so ambiguous that the promisor could not reasonably
expect it to induce action or forbearance.
{¶22} Because we must construe AIA’s summary-judgment evidence in a
light most favorable to Baber, we assume that Woolley made a promise to Baber as
depicted in Baber’s deposition testimony. Even so, AIA has produced enough
evidence to demonstrate that there is no genuine issue of material fact that
Woolley’s promise was not clear and unambiguous—a showing that Baber has
failed to rebut.
{¶23} To begin with, Woolley’s promise is ambiguous on its face. Looking
only at the words of Woolley’s promise, it is impossible to discern what
commitment Woolley made or what OMIC would have been required to do in order
to satisfy its obligation to be “fair.” “Where * * * an alleged promise is sufficiently
vague or ambiguous that the parties do not have a clear understanding that a
commitment has been made and, specifically, what that commitment is or requires,
there is no promise to be enforced under the doctrine of promissory estoppel.”
Zapata, 2014-Ohio-5550, at ¶ 40.
{¶24} Further, Woolley’s promise that OMIC would be “fair” could be
interpreted in a variety of ways, including (1) that OMIC would completely waive
the 180-day provision, (2) that OMIC would extend the April 10, 2018 deadline, or
(3) that OMIC would pay Baber some amount of money in addition to the actual
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cash value even if the farmhouse was not rebuilt within the time required by the
180-day provision. Because there are multiple reasonable interpretations of
Woolley’s promise that OMIC would be “fair,” we cannot say that Woolley’s
promise was clear and unambiguous. See Prince v. Kent State Univ., 10th Dist.
Franklin No. 11AP-493, 2012-Ohio-1016, ¶ 42 (a promise to “waive” a required
college course was not clear and unambiguous because it was open to multiple
interpretations); Casillas, 2005-Ohio-4019, at ¶ 14-16, 21 (a provision in an
employee handbook did not constitute a clear and unambiguous promise because it
was subject to more than one reasonable interpretation).
{¶25} Importantly, Baber could not definitively explain what Woolley’s
promise that OMIC would be “fair” meant. As Baber testified in her deposition,
Woolley’s promise gave her “the impression” that OMIC would be flexible about
the 180-day provision, and she “took” Woolley’s promise to mean that the
farmhouse did not need to be rebuilt by April 10, 2018, in order to receive the full
policy limit of $284,000. Baber also agreed that she was “under the assumption”
that OMIC was going to pay her some amount of money for the work Persinger
performed even though the work was not completed by May 26, 2018. (Baber Depo.
at 83). Thus, Baber’s understanding of Woolley’s promise appears to have been
based entirely on her own interpretations and assumptions about the promise. The
evidence shows Baber herself did not have a definite, fixed understanding of
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Woolley’s promise. Because Baber could not articulate what she understood
Woolley’s promise to mean, AIA could not have expected that Woolley’s promise
would have induced action or forbearance by Baber. See Moellering, 2013-Ohio-
3995, at ¶ 25 (bank could not have anticipated that its statements would induce
action or forbearance where statements were vague and action was based on
“assumptions and conjectures”). As Woolley’s promise was not the type that AIA
would expect to induce action or forbearance, the promise was not clear and
unambiguous. Casillas at ¶ 19.
E. The factual circumstances do not explain the meaning of “fair.”
{¶26} Though Woolley’s promise is facially ambiguous, Baber contends that
there is a genuine dispute as to the meaning of the promise when the facts and
circumstances surrounding the promise are considered together with the words of
the promise. Baber identifies a number of facts and circumstances that supposedly
inform the meaning of Woolley’s promise, including that Woolley made his promise
to her directly, rather than through a communication addressed to all of AIA’s
customers. In addition, Baber notes that she had a longstanding relationship with
AIA, that she trusted Woolley, that Woolley characterized himself as “an advocate
for AIA’s customers,” and that AIA’s customers rely on Woolley’s advice. She also
notes that when Woolley promised OMIC would be “fair,” she was relying almost
exclusively on AIA due to Wente’s failure to respond timely to her inquiries.
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Further, Baber points to “the treacherous weather conditions” and to the fact that
OMIC had been “very fair” to her in resolving previous insurance claims. Baber
claims these surrounding facts and circumstances supply necessary context for
Woolley’s promise, in light of which the meaning of Woolley’s promise is arguably
clear and unambiguous.
{¶27} While the facts and circumstances under which a promise is made
might clarify the meaning of a seemingly ambiguous promise in a different case, the
facts and circumstances highlighted by Baber do not illuminate the meaning of the
promise in this particular case. For example, we cannot find anything in the history
of Baber’s relationship with AIA, Woolley, and OMIC, as reflected in the summary-
judgment evidence, that renders Woolley’s promise any clearer. According to
Baber, the farmhouse had been insured through policies obtained by AIA for over
20 years. (Baber Depo. at 17-18). However, for much of this time, it was Baber’s
late ex-husband, rather than Baber, who handled insurance matters. (Baber Depo.
at 17, 19). Only in the five years prior to the fire did Baber deal directly with AIA.
On these occasions, she would typically call AIA with whatever questions she had
about her homeowners and automobile insurance policies. (Baber Depo. at 19-21).
When Baber called AIA with insurance-related questions, AIA “[s]atisfied whatever
questions [she] had” in a helpful, friendly, and professional manner. (Baber Depo.
at 21). Baber’s experiences with AIA appeared consistent with Woolley’s
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characterization of AIA as an “advocate” for its clients, who “normally” rely on
advice needed to buy an insurance policy. (See Woolley Depo. at 10-11, 13).
{¶28} However, when it came to the actual adjustment of insurance claims,
AIA assumed a less prominent role. For instance, Baber testified she submitted two
claims under her homeowner’s insurance between 2012 and October 2017. Baber
believed the first claim was submitted sometime in 2013 after her garage caught fire
when it was struck by lightning. (Baber Depo. at 22-23). Baber reported the fire to
AIA, after which OMIC “took care of adjustment of the particular claim.” (Baber
Depo. at 23). Baber thought OMIC was “very fair” in resolving this claim, and there
is no indication AIA intervened to help achieve this outcome. (See Baber Depo. at
23). The second insurance claim was submitted after a tree fell on her roof. (Baber
Depo. at 23-24). As with the first claim, Baber reported the incident to AIA, which
referred her to OMIC. (See Baber Depo. at 24). She then dealt directly with OMIC
regarding adjustment of this claim. With respect to these claims, Baber testified an
adjuster from OMIC reviewed the policy in detail with her. (Baber Depo. at 25-26).
Thus, as far as can be discerned from the record before us, AIA was little more than
an intermediary between Baber and OMIC during the claims-adjustment process.
Indeed, AIA’s apparent involvement with Baber’s two prior insurance claims is in
accord with Woolley’s description of AIA’s involvement in the claims-adjustment
process generally:
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We don’t answer claim questions as far as getting into the details of
what’s covered, the intricacies of the policy. That’s the claim
adjuster’s job or the claim department, if they have questions above
the adjuster level. That’s one thing that’s hammered to us as agents,
support the client however you can; but if there’s questions of
coverage, you have to defer to the claim adjuster.
(Woolley Depo. at 26).
{¶29} With respect to the claims-adjustment process following the October
2017 fire, the evidence supports that, notwithstanding Woolley’s promise that
OMIC would be “fair,” AIA again acted largely as an intermediary between Baber
and OMIC. After Baber’s claim was submitted to OMIC, Wente was assigned as
the claims adjuster. On occasions, Wente failed to promptly respond to Baber’s
inquiries, and Baber would call AIA and voice her displeasure to Woolley. (Baber
Depo. at 29). Woolley would, in turn, reach out to Wente and request that Wente
contact Baber. (Baber Depo. at 29-30); (Woolley Depo. at 28-29, 39). Thus,
although Baber contacted Woolley often throughout the claims-adjustment process,
the evidence indicates Woolley consistently directed Baber to Wente and helped to
facilitate this direct communication. Other than facilitating these communications,
there is no evidence in the record that AIA had any involvement in the claims-
adjustment process.
{¶30} It is undisputed that, during the early stages of the claims-adjustment
process, Wente repeatedly failed to respond to Baber’s inquiries, even on some
occasions when Woolley and AIA had intervened on Baber’s behalf. Yet, the
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claims-adjustment process did not stop during this period. Baber testified she
received a number of letters from Wente. (Baber Depo. at 36, 87-88). Throughout
October, November, and December 2017, Baber received multiple checks from
OMIC to pay for temporary hotel lodging, rental housing, and cleaning costs, among
other things. (Baber Depo. at 31-33). In addition, although Baber did not receive
OMIC’s estimate until mid-December 2017, the estimate was being completed
during this time, along with an engineering survey evaluating the structural integrity
of the surviving parts of the farmhouse. (Baber Depo. at 54-56).
{¶31} Furthermore, as Baber herself acknowledged, communication with
Wente “got a lot better at the end than they were earlier with her.” (Baber Depo. at
81). The evidence establishes that in 2018, after Woolley had promised that OMIC
would be “fair,” Baber talked directly with Wente about the 180-day provision.
According to Baber, during one of these conversations, she told Wente that Woolley
told her OMIC would be “fair in assessing what was being done and what was done
at that time so that a decision could be made at that point in time.” (Baber Depo. at
95, 98). When asked what Wente’s response was to this statement, Baber testified:
“I think she just said, well, we’ll see. I didn’t really get answers from her very
much, so I assume that’s what – I assume that’s the answer that she gave.” (Baber
Depo. at 98-99). Baber admitted she and Wente had at least one conversation
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wherein Wente expressed she was considering extending the April 10, 2018
deadline. (Baber Depo. at 72).
{¶32} Finally, after Baber learned that the April 10, 2018 deadline had been
extended, she and Wente discussed a completion date. Baber informed Wente that
Persinger would not be able to complete the work by the new May 26, 2018
deadline. (Baber Depo. at 81). Baber testified Wente “pushed” for a projected
completion date and asked whether Baber had talked with Persinger about the time
necessary to rebuild the farmhouse. (Baber Depo. at 81). Although Wente told
Baber that a firm completion date was “important,” Baber chose not to pursue the
matter with Persinger. (Baber Depo. at 91). Baber told Wente that she had not
talked to Persinger about a firm completion date “at [that] point because there’s a
tremendous amount to do and * * * weather is a big factor.” (Baber Depo. at 81).
When Baber failed to provide a projected completion date and told Wente that
Persinger could not finish by May 26, 2018, Wente responded that May 26, 2018,
was “the date.” (Baber Depo. at 82).
{¶33} After reviewing the evidence presented in favor of the motion for
summary judgment, several facts and circumstances are evident. While an extensive
relationship between Baber’s deceased ex-husband and AIA may have existed, the
relationship between Baber and AIA had only been in existence for five years prior
to the fire. During this period, Baber made two property insurance claims. In both
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instances, she initially contacted AIA to make the claims, after which subsequent
contacts were directly between Baber and OMIC’s adjuster. In the instant case,
other issues relating to the fire claim, such as payment for temporary housing and
cleaning, were addressed through Wente and timely handled by OMIC. Even after
the deadline to complete the rebuild had passed, OMIC held open other aspects of
the claim, such as payment for loss of personal items and housewares. The
procedure employed by AIA was to direct all inquiries about a claim to the adjuster.
Woolley followed this policy by contacting Wente and asking her to respond to
Baber on the occasions when Baber complained about a delay in communications.
{¶34} As illustrated by the preceding discussion, AIA submitted enough
evidence in support of its motion for summary judgment to give this court an
adequate understanding of the context in which Woolley’s promise was made. This
context, insofar as it is discernible from the record before us, does not clarify
Woolley’s promise. In response to AIA’s motion for summary judgment, Baber did
not introduce any evidence from which we could develop a more complete
understanding of the context in which the promise was made. That is, Baber
presented no evidence of her own that creates a genuine issue as to whether
Woolley’s promise was clear and unambiguous in light of the context in which it
was made. See Civ.R. 56(E). Simply stated, Baber has not identified anything that
would narrow the range of possible meanings of Woolley’s promise.
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{¶35} In sum, AIA carried its burden of producing evidence that, when
viewed in a light most favorable to Baber, demonstrates the absence of a genuine
issue of material fact. Even assuming Woolley promised Baber that OMIC would
be “fair,” the meaning of this promise is wholly ambiguous. Baber failed to rebut
AIA’s showing with specific facts establishing the existence of a genuine issue of
material fact. Because reasonable minds could only conclude that Woolley did not
make a clear and unambiguous promise, AIA is entitled to judgment as a matter of
law on Baber’s promissory-estoppel claim. Therefore, we conclude the trial court
did not err by granting AIA’s motion for summary judgment.
IV. Conclusion
{¶36} For the foregoing reasons, Baber’s sole assignment of error is
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Shelby County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr
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