[Cite as Nationwide Mut. Fire Ins. Co. v. Pusser, 2018-Ohio-3597.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

             NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,

                                          Plaintiff-Appellee,

                                                      v.

                                  BARBARA PUSSER ET AL.,

                                      Defendants-Appellants.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MA 0117.


                                      Motion to Certify a Conflict

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Denied.


Atty. Kirk Roman, 4125 Highlander Parkway, Suite 200, Richfield, Ohio 44286, for
Plaintiff-Appellee, and
Atty. Timothy Cunning, Scullin & Cunning, LLC, 940 Windham Court, Suite 4,
Boardman, Ohio 44512, for Defendants-Appellants.

                                                 Dated:
                                             August 30, 2018
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PER CURIAM.

       {¶1}   Plaintiff-appellee, Nationwide Mutual Fire Insurance Company, has filed a
motion asking this court to certify a conflict to the Ohio Supreme Court between this
Court’s judgment in Nationwide Mut. Fire Ins. Co. v. Pusser, 7th Dist. No. 17 MA 0117,
2018-Ohio-2781, and the following decisions: the Fourth District’s decision in Personal
Serv. Ins. Co. v. Clinton Lester, 4th Dist. No. 06CA12, 2006-Ohio-5199; the Sixth
District’s decision in Jaber v. Prudential Ins. Co. of Am., 113 Ohio App.3d 507, 681
N.E.2d 478 (6th Dist.1996); the Eighth District’s decision in Med. Protective Co. v.
Fragatos, 190 Ohio App.3d 114, 2010-Ohio-4487, 940 N.E.2d 1011 (8th Dist.); and the
Ninth District’s decision in Cincinnati Equitable Ins. Co. v. Sorrell, 9th Dist. No.
05CA008703, 2006-Ohio-1906.
       {¶2}   Appellee asks that we certify the following question:

       Where an insurer states that a policy may be held void ab initio based
       upon incorrect warranties by the insured in the application, does said
       language satisfy the second prong of Allstate v. Boggs, 27 Ohio St.2d 216
       (1971).

       {¶3}   A court of appeals shall certify a conflict when its judgment is in conflict
with the judgment pronounced upon the same question by any other court of appeals in
the state of Ohio. Section 3(B)(4), Article V, Ohio Constitution.
       {¶4}   In order to certify a conflict to the Ohio Supreme Court, we must find that
three conditions are met:

       First, the certifying court must find that its judgment is in conflict with the
       judgment of a court of appeals of another district and the asserted conflict
       must be “upon the same question.” Second, the alleged conflict must be
       on a rule of law-not facts.         Third, the journal entry or opinion of the
       certifying court must clearly set forth that rule of law which the certifying
       court contends is in conflict with the judgment on the same question by
       other district courts of appeals.




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Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
(Emphasis sic.)
       {¶5}    Moreover, a motion to certify a conflict “shall specify the issue proposed
for certification and shall cite the judgment or judgments alleged to be in conflict with the
judgment of the court in which the motion is filed.” App.R. 25.
       {¶6}    In this case we applied the two-part test set out by the Ohio State
Supreme Court in Allstate Ins. Co. v. Boggs, 27 Ohio St.2d 216, 271 N.E.2d 855 (1971).
Pursuant to Boggs, in order for a misstatement to be a warranty that voids an insurance
policy ab initio, (1) the representation must plainly appear on the policy or must be
plainly incorporated into the policy and (2) there must be a plain warning that a
misstatement as to the warranty will render the policy void from its inception.
       {¶7}    This court found the first prong of Boggs was satisfied.            We then
determined:

       The language employed by Nationwide in both the Application and the
       Policy is not a plain warning that a misstatement as to the warranty will
       render the policy void from its inception. Neither the Application nor the
       Policy states unconditionally that a misstatement as to a warranty will
       render the Policy void ab initio. Instead, the insurer chose to use the
       words “may” and “could” in the phrases “such a misstatement may void
       the policy”, “this policy may be held void ab initio”, and “[w]arranties which,
       if incorrect, could void the policy from the beginning.” The use of these
       words speaks of possibilities, not certainties. Thus, they do not provide a
       plain warning as required by Boggs.

Id. at ¶ 30.
       {¶8}    We went on to find that the words “may” and “could” did not clearly and
unambiguously put the insured on notice that a misstatement would render a policy void
ab initio as required by Boggs. Id. at ¶ 32. Finally, we found that Nationwide never
declared the Policy void nor did it return Lapaze's premium, which was required to void
the Policy. Id. at ¶ 33.




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       {¶9}   Because each of the four cases appellee cites is distinguishable from the
case at bar, we must deny the motion to certify a conflict.
       {¶10} In Lester, 2006-Ohio-5199, the Fourth District did not examine whether the
conditional word “may” clearly and unambiguously put the insured on notice that a
misstatement would render a policy void ab initio. And the policy in Lester did not use
the conditional word “could.” Instead, Lester examined whether the misstatement at
issue was indeed a “material” fact or circumstance as was required under the terms of
the policy. Id. at ¶ 18. Thus, Lester is not in direct conflict with the case at bar.
       {¶11} In Jaber, 113 Ohio App.3d 507, the Sixth District likewise did not consider
the effect of the conditional words “may” and “could.” Instead, the court examined the
language: “By accepting this policy, you agree that the statements on your Application
are true and correct. This policy is issued relying on the accuracy of these statements.”
(Emphasis sic.). Id. at 512. The court went on to point out that the policy included a
warning that such misstatements would render it void ab initio. Id. (As opposed to the
case at bar where the Policy stated that misstatements “could” void the Policy).
       {¶12} In Fragatos, 2010-Ohio-4487, the Eighth District considered policy
language reserving to the insurance company “the right to rescind this policy, or any
coverage provided herein, for any material misrepresentations made by the Insured”
along with the conditional phrase “may act to render any contract of insurance null and
without effect or provide the company with the right to rescind it.” Id. at ¶¶ 31-32. When
faced with policy language almost identical to the language in the case at bar, the
Eighth District reached the same conclusion as this court, that the Boggs test was not
satisfied. See Goodman v. Medmarc Ins., 8th Dist. No. 97969, 2012-Ohio-4061, 977
N.E.2d 128; James v. Safeco Ins. Co. of Illinois, 195 Ohio App.3d 265, 2011-Ohio-4241,
959 N.E.2d 599 (8th Dist.).
       {¶13} Finally, in Sorrell, 2006-Ohio-1906, the Ninth District pointed out that the
trial court granted summary judgment based on two separate legal conclusions: (1) the
insurance policy was void ab initio and (2) the appellant's daughter was excluded from
coverage because the policy excluded coverage for accidents involving household
residents where those residents were not reported to the company. Id. at ¶ 13. The
Ninth District held that based on the clear and unequivocal language in the insurance



Case No. 17 MA 0117
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application and the policy, the appellant's daughter was excluded from coverage
because she was not reported as a driver. Id. at ¶ 22. The appellate court never
addressed the trial court’s conclusion that the policy was void ab initio.
       {¶14} Because none of the judgments of cases cited by appellee are in conflict
with the judgment of this court upon the same question, we must deny appellee’s
motion.
       {¶15} For these reasons, appellee’s motion to certify a conflict is hereby denied.




JUDGE GENE DONOFIO

JUDGE CHERYL L. WAITE

JUDGE CAROL ANN ROBB

                                 NOTICE TO COUNSEL

This document constitutes a final judgment entry.




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