Wencel v. Am. Family Ins. Co.

[Cite as Wencel v. Am. Family Ins. Co., 2011-Ohio-2290.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95926
DYONIZY WENCEL, ET AL.
PLAINTIFFS-APPELLANTS
vs.
AMERICAN FAMILY INSURANCE COMPANY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-700354
BEFORE: Rocco, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 12, 2011
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ATTORNEY FOR APPELLANTS
Lawrence J. Rich
Zashin & Rich Co., L.P.A.
55 Public Square
Fourth Floor
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Jamie L. Snow
Wilkerson & Associates Co., L.P.A.
1422 Euclid Avenue, Suite 248
Cleveland, Ohio 44114
KENNETH A. ROCCO, J.:
{¶ 1} In this appeal brought upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.App.R. 11.1, plaintiffs-appellants Dyonizy and Alicia
Wencel appeal from the trial court order that granted summary judgment to
defendant-appellee American Family Insurance Company (“AmFam”) on
causes of action for breach of contract and bad faith based upon AmFam’s
rejection of a property loss claim they made under their homeowners’
insurance policy.
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{¶ 2} The purpose of an accelerated appeal is to allow the appellate court to render a
brief and conclusory opinion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio
App.3d 158, 463 N.E.2d 655; App.R. 11.1(E).
{¶ 3} The Wencels present five assignments of error. They argue
summary judgment for AmFam was inappropriate because issues of material
fact remained as to: 1) the cause of their property loss; 2) their right to rely on
the agent’s representations; 3) the comprehensibility to a lay person of the
policy’s terms; and 4) the meaning of the relevant policy terms. This court
disagrees.
{¶ 4} The Wencels alleged in their amended complaint that on June 29,
2009, the concrete in-ground swimming pool on their property sustained
damage in a rainstorm, that they had made a demand on AmFam for
coverage of the loss under their homeowners’ insurance policy, but that
AmFam acted in bad faith by denying their claim.
{¶ 5} According to the evidence contained in the record, the Wencels’
homeowners’ policy contained the following relevant provisions:
{¶ 6} “PERILS INSURED AGAINST - SECTION I
{¶ 7} “COVERAGE A - DWELLING AND DWELLING
EXTENSION
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{¶ 8} “We cover risks of accidental direct physical loss to property
described in Coverage A - Dwelling and Dwelling Extension, unless the loss
is excluded in this policy.
{¶ 9} “LOSSES NOT COVERED
{¶ 10} “We do not cover loss * * * resulting * * * or caused by one or
more of the following. Such loss is excluded regardless of any other cause or
event contributing concurrently or in any sequence to the loss.
{¶ 11} “1. Losses excluded under EXCLUSIONS - SECTION I.
{¶ 12} “ * * *
{¶ 13} “5. * * * Pressure or Weight of Water * * * , to:
{¶ 14} “ * * *
{¶ 15} “B. An outdoor swimming pool * * * .
{¶ 16} “ * * *
{¶ 17} “EXCLUSIONS - SECTION I
{¶ 18} “PART A
{¶ 19} “The following exclusions apply to Coverage A * * * . We do not
insure for loss caused * * * by any of the following. Such loss is excluded
regardless of any other cause or event contributing concurrently or in any
other sequence to the loss.
{¶ 20} “ * * *
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{¶ 21} “9. Water damage, meaning:
{¶ 22} “ * * *
{¶ 23} “c. regardless of its source, water below the surface of the ground.
This includes water which exerts pressure on * * * any part of a * * *
swimming pool.”
{¶ 24} After filing its answer and obtaining discovery, AmFam filed a
motion for summary judgment on the Wencels’ amended complaint. AmFam
argued the terms of the policy clearly excluded from coverage the loss the
Wencels suffered.
{¶ 25} AmFam supported its argument with verified copies of the
reports submitted by the Wencels’ expert and by AmFam’s expert. Each of
the experts opined that the Wencels’ empty swimming pool had been
damaged when underground “water pressure” acted on it to raise the deep
end above the surrounding ground.
{¶ 26} The Wencels filed an opposition brief. They argued therein that
they believed their policy covered the swimming pool because their agent told
them so and because they “purchased the most expensive policy.” They
further argued the damage had been caused by an equipment failure rather
than by water pressure. The Wencels relied mainly upon Dyonizy’s
deposition testimony to support their argument.
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{¶ 27} After AmFam filed a reply brief, the trial court granted summary
judgment to AmFam on the Wencels’ complaint.1
{¶ 28} The Wencels assert in their five assignments of error that the
trial court acted improperly because genuine issues of material fact remain
regarding: 1) the cause of the damage; 2 2) representations made by their
insurance agent that their swimming pool was covered under the policy;3 3)
the comprehensibility to a layperson of the policy’s terms; 4 and 4)
interpretation of the policy’s terms.5
{¶ 29} The Wencels’ first, fourth, and fifth assignments of error are
overruled on the authority of Ho v. State Farm Fire & Cas. Co. (Oct. 13,
2005), Cuyahoga App. No. 86217 and Bailey v. Progressive Ins. Co., Huron
App. No. H-03-043, 2004-Ohio-4853. In clear, unambiguous terms the policy
excluded from coverage any damage to property caused from water pressure,
whether above or below ground; both the Wencels’ and AmFam’s experts
1This decision necessarily disposed of AmFam’s counterclaim, which alleged
that the policy afforded the Wencels no coverage for this loss.
2First and Fourth Assignments of Error.
3Second Assignment of Error.
4Third Assignment of Error.
5Fifth Assignment of Error.
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opined that the damage was due to underground water pressure. AmFam,
therefore, had no duty to provide coverage under the policy.
{¶ 30} The Wencels’ second and third assignments of error are overruled
on the authority of Horak v. Nationwide Ins. Co., Summit App. No. CA 23327,
2007-Ohio-3744 and Bailey; see, also, Cragett v. Adell Ins. Agency (1993), 92
Ohio App.3d 443, 635 N.E.2d 1326. The Wencels were required to examine
the policy to ensure that the extent of coverage it provided met their needs;
AmFam was not accountable if the Wencels’ insurance agent made negligent
oral misrepresentations about the policy terms.
{¶ 31} For the foregoing reasons, the trial court order is affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
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A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR