Clendenin v. Ochmanek

[Cite as Clendenin v. Ochmanek, 2016-Ohio-737.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Kristi Clendenin, et al. Court of Appeals Nos. L-15-1180
L-15-1228
Appellants
Trial Court No. CI0201401819
v.
Brandon Ochmanek, et al. DECISION AND JUDGMENT
Appellees Decided: February 26, 2016
*****
Howard B. Hershman and Jeffrey C. Zilba, for appellants.
Justin D. Harris, for appellees Brandon Ochmanek and Compass
Insurance Services, LLC.
Joshua R. Bills, for appellee MutualAid eXchange.
*****
SINGER, J.
{¶ 1} Appellants, Kristi and Richard Clendenin, filed this accelerated appeal from
decisions of the Lucas County Court of Common Pleas granting summary judgment to
appellees, MutualAid eXchange (“MAX”), Brandon Ochmanek, and Compass Insurance
Services, LLC (“Ochmanek”). The trial court issued two separate decisions. For the
reasons that follow, we affirm the decision granting summary judgment to MAX, but
reverse the decision granting summary judgment to Ochmanek.
{¶ 2} Appellee Ochmanek is a licensed Ohio insurance agent with Compass
Insurance Services. His company represents multiple insurance carriers. In 2013,
appellants purchased homeowner’s insurance from Ochmanek. The insurance carrier was
appellee MAX. On November 4, 2013, MAX cancelled the policy citing the condition of
the property. Appellants received written notice of the cancellation from MAX.
Appellants remedied the conditions they believed resulted in the cancellation of the
policy and they assumed they remained insured. On January 7, 2014, appellants’ home
was destroyed by fire. When they attempted to make a claim on their MAX policy, they
were denied because the policy had remained cancelled since November 4, 2013.
{¶ 3} Appellants filed a declaratory judgment action against appellees. The trial
court granted summary judgment to appellees. Appellants now appeal setting forth the
following assignment of error:
I. The trial court erred in granting summary judgment to appellees
as genuine issues of material fact remain to be decided and appellees were
not entitled to judgment as a matter of law.
{¶ 4} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
2.
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 5} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,
3.
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
Ochmanek’s Version of Events
{¶ 6} The following is a summary of Ochmanek’s deposition. On September 9,
2013, Ochmanek issued appellants an insurance binder for their property. Following an
underwriting inspection by MAX, appellants received a letter from MAX, dated
October 2, 2013, notifying them that as of November 4, 2013, their policy will be
cancelled due to the condition of the property. MAX also issued them a refund check for
their premium. The notice specifically advised appellants to contact Ochmanek with
regard to any questions they might have about the cancellation.
{¶ 7} Appellant Richard Clendenin contacted Ochmanek after receiving the notice.
Ochmanek advised them to take care of the property concerns which resulted in the
cancellation notice and he told him he would attempt to reinstate the policy. Ochmanek
testified in his deposition that he made it clear to Clendenin that he would “attempt” to
get the policy reinstated, but that only MAX had the authority to reinstate the policy.
Ochmanek testified he did not advise Clendenin to look elsewhere for insurance.
Ochmanek acknowledged that it was reasonable for Clendenin to assume Ochmanek was
attempting to get the policy reinstated.
{¶ 8} On November 3, a Sunday, Clendenin called Ochmanek to tell him he had
remedied the property concerns. On Monday, November 4, Clendenin went to
Ochmanek’s office and gave him the endorsed refund check.
4.
{¶ 9} On November 5, Ochmanek sent MAX an electronic message telling them
that Clendenin had repaired his property. He asked “[C]an we get this policy back in
force?” A MAX representative responded, on November 5: “[t]he policy was cancelled
because the overall condition and maintenance of the home and property were not
favorable, not just the yard. We will not be offering any reinstatement on the property.”
The record shows that Ochmanek sent another message, also on November 5, asking
MAX to reconsider their decision. The MAX representative responded, on November 5
stating: “[I] have discussed this with my supervisor and we are not willing to offer a
reinstatement on this risk.” Ochmanek testified he did not personally relay this message
to Clendenin. Instead, on November 5, he sent appellants a letter informing them that
MAX had declined to reinstate the policy. The letter advised appellants to seek coverage
elsewhere or through the Ohio Fair Plan, a program that provides insurance for property
unable to obtain insurance through the voluntary market. Ochmanek enclosed appellants’
refund check from MAX. Ochmanek testified that appellants did not contact him
regarding the letter.
{¶ 10} Ochmanek testified that on or about January 8, 2014, Clendenin came to
his office to file an insurance claim because of the house fire. Ochmanek testified that he
told Clendenin that “[t]he claim would be filed and someone would be in contact with
him from MAX.” Ochmanek testified that he knew at the time that Clendenin had no
coverage. He testified that he lied because he was the only one in the office and
5.
Clendenin’s demeanor caused him to have safety concerns, specifically, Clendenin’s
aggressive stance and position.
Richard Clendenin’s Version of Events
{¶ 11} In his deposition, Clendenin testified that he contacted Ochmanek within a
week of receiving the cancellation notice. He asked Ochmanek why the policy was being
cancelled and he was told it was because specific repairs were needed, a trampoline
removed and debris cleared from the yard. The following week, Clendenin testified that
he called Ochmanek to tell him the repairs were completed. He did not speak to
Ochmanek. Not hearing back from him, Clendenin again called Ochmanek in the middle
of October to tell him about the repairs. According to Clendenin, Ochmanek told him
“[w]e were fine, what we repaired was good.” Clendenin testified that Ochmanek never
told him that MAX had to approve the repairs first. He testified: “[I] specifically asked
him, will my insurance be cancelled, he told me, no, I would still be insured, this isn’t the
first time he’s done this, he’s done it in the past.”
{¶ 12} The next time Clendenin had contact with Ochmanek was after appellants
received a refund check from MAX. The check was dated October 31, 2013. Clendenin
called Ochmanek to ask him why they had received the check. Ochmanek told him
“* * * it must have crossed in the mail.” He then told Clendenin to bring him a check in
the same amount. Clendenin asked if he could mail the check to Ochmanek and
Ochmanek agreed. Clendenin testified that he called Ochmanek around November 8,
6.
2013, to make sure he received the check. Ochmanek acknowledged receiving the check.
Clendenin further testified:
I said, so are we still covered? He said, yes. I said, well, by the
insurance letter, this letter it says that we’re cancelled. That’s when he told
me, trust me, I’ve been doing this long enough, I know what I am talking
about. I said, Okay.
Clendenin testified that was the last time he talked to Ochmanek before the fire. On the
day of the fire, he called Ochmanek and left him a message telling him of the fire.
Ochmanek called him back the next day and told him he would contact MAX, get him a
check, find somewhere for appellants to live and start the claim process. Clendenin
testified that Ochmanek told him to give him until the end of the day to work everything
out. When Clendenin could not reach Ochmanek at the end of the day, he went to the
Compass office the next morning, January 9, 2014. Ochmanek told him he put in a claim
and that it usually takes 24 hours. Ochmanek told him to check back in a couple hours.
When Clendenin again could not reach Ochmanek, he called MAX to check on his claim.
A MAX representative then informed him no claim could be filed because appellants
were not insured with MAX.
{¶ 13} Clendenin then went to Ochmanek’s office. Clendenin testified that
Ochmanek handed him the letter informing appellants that MAX had declined to reinstate
the policy and advising them to seek insurance elsewhere. Ochmanek also handed
Clendenin the refund check from MAX.
7.
MAX Decision
{¶ 14} The record in this case supports the trial court’s decision that MAX timely
notified appellants that their policy had been cancelled and there is no evidence that
anyone from MAX led appellants to believe otherwise. Accordingly, appellants’
assignment of error as it pertains to the MAX decision is found not well-taken.
Ochmanek Decision
{¶ 15} In their initial complaint, appellants alleged Ochmanek was negligent.
Specifically, they alleged that Ochmanek owed them a duty of good faith and reasonable
diligence in the acquisition of homeowner’s insurance. They alleged that Ochmanek
negligently represented that their policy would be reinstated and that their coverage
would remain in effect without interruption. They alleged that Ochmanek committed
fraud when he knowingly assured them they had homeowner’s insurance when he knew
that to be false.
{¶ 16} Negligent misrepresentation provides recovery where: 1) a party who, in
the course of his business, profession or employment, or in any other transaction in which
he has a pecuniary interest, provides false information; 2) for the guidance of another
party in its business transaction; 3) causing the other party to suffer pecuniary loss; 4) as
a result of justifiable reliance on the information; 5) if the one providing the information
failed to exercise reasonable care or competence in obtaining and communicating the
information. Delman v. City of Cleveland Hts., 41 Ohio St.3d 1, 4, 534 N.E.2d 835(1989).
8.
{¶ 17} In view of the differing accounts regarding Ochmanek’s representation of
the status of appellants’ homeowner’s policy, before their loss and after, we conclude that
there is a question of material fact as to whether Ochmanek negligently misrepresented
the fact that they were insured. Accordingly, appellants’ assignment of error as it
pertains to the Ochmanek decision is found well-taken.
{¶ 18} On consideration whereof, the judgments of the Lucas County Court of
Common Pleas are affirmed in part and reversed in part. This matter is remanded to said
court for further proceedings in conformity with this decision. Court costs of the appeal
are assessed against appellee Ochmanek pursuant to App.R. 24.
Judgments affirmed in part
and reversed in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
9.