[Cite as Maurer v. Wayne Cty. Bd. of Cty. Commrs., 2015-Ohio-5318.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

THOMAS MAURER, et al.                                     C.A. No.    14AP0039

        Appellants

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
WAYNE COUNTY BOARD OF COUNTY                              COURT OF COMMON PLEAS
COMMISSIONERS, et al.                                     COUNTY OF WAYNE, OHIO
                                                          CASE No.   13-CV-0361
        Appellees

                                DECISION AND JOURNAL ENTRY

Dated: December 21, 2015



        SCHAFER, Judge.

        {¶1}    Appellants, Toni and Thomas Maurer, appeal the judgement of the Wayne County

Court of Common Pleas granting Wayne County Board of County Commissioners’ and Aetna

Insurance Company’s (collectively, “Appellees”) respective motions for summary judgment.

For the reasons set forth below, we reverse.

                                                     I.

        {¶2}    Thomas Maurer was sworn into his fourth term as sheriff of Wayne County in

January of 2009. At the time of his swearing in, Mr. Maurer was married to Toni Maurer and

both were insureds under a group healthcare plan administered for the benefit of Wayne County

employees and their dependents.

        {¶3}    The Wayne County Board of County Commissioners subsequently enacted

Resolution No. 2011-453, which changed certain terms of the healthcare plan that Wayne

County provides to its employees and their dependents. Relevant to this appeal, one of those
                                               2


changes excluded from coverage any surgical procedures and/or devices related to the

improvement of hearing.      Specifically, the County’s new healthcare plan, which became

effective January 1, 2012, contained the following exclusion:

       Hearing:

       ***

       Any tests, surgeries, procedures, appliances, and devices for the improvement of
       hearing (including hearing aids and amplifiers), or to enhance other forms of
       communication to compensate for hearing loss or devices that simulate speech.


Additionally, the new healthcare plan contained an express exclusion which stated:

              The plan will not cover expenses and charges for, or expenses related to:

              ***

              ●       Cochlear implants;
              ●       Any device meant to restore, enhance or replace your
                      hearing.

       {¶4}   In 2011, Mrs. Maurer developed a medical condition that affected her hearing.

Mrs. Maurer sought treatment and was diagnosed with Meniere’s disease, a condition of the ear

which exacerbated her hearing loss.     After months of treatment, Mrs. Maurer’s physicians

recommended that she receive a cochlear ear device, a surgically implanted medical device that

is intended to help an individual regain their hearing. Mrs. Maurer elected to undergo the

surgery to have the cochlear device implanted during the summer of 2012, after the changes

articulated in Resolution No. 2011-453 had taken effect.

       {¶5}   The Maurers submitted a request for coverage under their insurance plan to Aetna

Life Insurance Company,1 which Aetna initially approved on March 13, 2012. However, a


       1
         Starting in 2012, Aetna Life Insurance Company served as the third party administrator
of the County-provided healthcare plan.
                                                3


Wayne County Administrator subsequently informed Mr. Maurer that the County-provided

insurance plan did not cover expenses related to cochlear ear devices. The following week,

Aetna sent the Maurers’ a denial of coverage letter for the surgery.               The Maurers

administratively appealed this denial, but Aetna ultimately denied that appeal.

       {¶6}    Despite the denial of coverage from their insurance provider, Mrs. Maurer still

decided to proceed with the surgery for the cochlear implant. After numerous demands for

payments and unsuccessful discussions with the Wayne County Prosecutor, the Maurers filed a

complaint in the Wayne County Court of Common Pleas on June 27, 2013 seeking a declaratory

judgment that their health insurance plan covers Mrs. Maurer’s cochlear device implant surgery.

At the close of discovery, the parties submitted cross-motions for summary judgment. On

September 11, 2014, the trial court granted the Wayne County Board of County Commissioners’

and Aetna’s respective motions for summary judgment and denied the Maurers’ motion for

summary judgment.

       {¶7}    The Maurers timely appealed the trial court’s judgment, raising one assignment of

error for our review.

                                                II.

                                      Assignment of Error

       The trial court erred in granting declaratory judgment in favor of the
       appellees, without taking into consideration the ability of the Wayne County
       Board of County Commissioners to change the health insurance coverage of
       an elected official during his term.

       {¶8}    In their sole assignment of error, the Maurers argue that the trial court erred by

granting the Appellees’ respective motions for summary judgment without first considering

whether the Wayne County Board of County Commissioners had the right to modify their

insurance coverage. We agree.
                                                4


       {¶9}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is only appropriate where (1) no

genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law;

and (3) the evidence can only produce a finding that is contrary to the non-moving party. Civ.R.

56(C). Before making such a contrary finding, however, a court must view the facts in the light

most favorable to the non-moving party and must resolve any doubt in favor of the non-moving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).

       {¶10} Summary judgment consists of a burden-shifting framework. To prevail on a

motion for summary judgment, the party moving for summary judgment must first be able to

point to evidentiary materials that demonstrate there is no genuine issue as to any material fact,

and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio

St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R.

56(E) provides that the non-moving party may not rest upon the mere allegations or denials of

the moving party's pleadings.     Rather, the non-moving party has a reciprocal burden of

responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to

be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

       {¶11} In this case, the trial court granted summary judgment in favor of Appellees on

the basis that the County-provided health insurance plan that became effective on January 1,

2012 unambiguously stated that expenses for or related to cochlear implants were not covered

expenses. However, the trial court did not address the argument put forth by the Maurers in their

motion for summary judgment. Their argument asserted that the County’s inter-term alteration

of the health insurance coverage constituted a change to an elected official’s salary in violation
                                                 5


of Article II, Section 20 of the Ohio Constitution. As we are a reviewing court, we will not

consider the issues relevant to the motion for summary judgment in the first instance. Price v.

Carter Lumber Co., 9th Dist. Summit No. 26243, 2012-Ohio-6109, ¶ 22. As the trial court did

not address this issue in its judgment entry, we are compelled to reverse and remand the matter to

the trial court to consider the Maurers’ argument in the first instance. Harris-Coker v. Abraham,

9th Dist. Summit No. 26053, 2012-Ohio-4135, ¶ 7.

       {¶12} Accordingly, the Maurers’ assignment of error is sustained solely to the extent

that the trial court failed to properly address their argument before granting summary judgment

to Appellees.

                                                III.

       {¶13} The Maurers’ sole assignment of error is sustained. The judgment of the Wayne

County Court of Common Pleas is reversed and this matter is remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

WILLIAM ANFANG, III, Attorney at Law, for Appellants.

PAUL L. JACKSON and KAREN D. ADINOLFI, Attorneys at Law, for Appellee.

ROBERT J. FOGARTY, Attorney at Law, for Appellee.
