[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dillon v. Farmers Ins. Of Columbus, Inc., Slip Opinion No. 2015-Ohio-5407.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-5407
   DILLON, ET AL., APPELLEES, v. FARMERS INSURANCE OF COLUMBUS, INC.,
                                      APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Dillon v. Farmers Ins. of Columbus, Inc., Slip Opinion No.
                                   2015-Ohio-5407.]
Consumer Sales Practices Act—Application to insurance companies—R.C.
        1345.01(A) and 1345.81(E) are not irreconcilable—Insurer’s provision of
        an automobile-repair estimate to its customer is not a consumer transaction
        and does not occur in connection with a consumer transaction.
 (No. 2014-0451—Submitted February 24, 2015—Decided December 29, 2015.)
             APPEAL from the Court of Appeals for Coshocton County,
                          No. 2013CA0014, 2014-Ohio-431.
                               _____________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we address whether an insurer engages in a “consumer
transaction” as defined in the Ohio Consumer Sales Practices Act, R.C. Chapter
                                    SUPREME COURT OF OHIO




1345 (“CSPA”), when it issues a repair estimate in relation to its policy holder’s
claim for motor-vehicle damage. We hold that the insurer does not become a party
to a consumer transaction in this circumstance. Thus, we vacate the court of
appeals’ judgment modifying and affirming the trial court’s award of damages
under the CSPA, and we dismiss the cause.
                                   RELEVANT BACKGROUND
           {¶ 2} Appellees, Jerry Dillon (“Dillon”) and Nancy Dillon, damaged their
vehicle when they collided with a deer in the roadway. Appellant, Farmers
Insurance of Columbus, Inc. (“Farmers”), insured the Dillons’ automobile.
           {¶ 3} Following the accident, Dillon chose Mission Auto Connection, Inc.,
(“Mission Auto”) to repair the vehicle and contacted his Farmers agent concerning
coverage for the repairs. A Farmers claim representative inspected the damaged
vehicle and prepared a written estimate for repairs, which included the use of
aftermarket replacement parts that were not produced by the original equipment
manufacturer (“OEM”).
           {¶ 4} The claim representative initially provided the written estimate to
Mission Auto. A representative of Mission Auto telephoned Dillon and explained
that Farmers’ estimate called for the use of non-OEM parts. After his conversation
with the Mission Auto representative, Dillon called the claim representative. Dillon
told Farmers that he wanted only OEM parts used in the repair of his vehicle. Dillon
understood the difference between OEM and non-OEM parts and wanted OEM
parts because he believed that they would better maintain the value of his vehicle.
The claim representative replied that the Dillons’ insurance policy permitted the
use of non-OEM parts.1


1
    The contract between Farmers and Dillon included the following language:

           Our limits of liability for loss shall not exceed the lowest of * * * [t]he amount
           necessary to repair or replace the property or parts with others of like kind and
           quality; or with new property less an adjustment for physical deterioration and/or




                                                   2
                                       January Term, 2015




         {¶ 5} The claim representative mailed a copy of the paper estimate to
Dillon; it arrived about a week after their phone conversation. By that time, Dillon
had already instructed Mission Auto to move forward with repairing the vehicle
using OEM parts, which Dillon understood would cost approximately $1,500 more
than Farmers’ estimate.
         {¶ 6} During the repair process, Mission Auto called Dillon into its shop on
four occasions to endorse checks that Farmers had sent directly to Mission Auto to
pay for repair costs. Dillon endorsed the checks and entered into an oral agreement
with Mission Auto that he would be responsible for the additional cost resulting
from the use of OEM parts, unless it could be recovered through the instant
litigation.
The Lawsuit, the Trial Court Decision, and the Appeal to the Court of Appeals
         {¶ 7} The Dillons filed a complaint against Farmers containing eight causes
of action related to Farmers’ estimate and its refusal to pay for OEM parts. Farmers
moved for judgment on the pleadings and for summary judgment, both of which
were denied. The Dillons moved for summary judgment on one of their claims,
asking the trial court to find that Farmers violated the CSPA by failing to obtain
one of the Dillons’ signatures on the bottom of the estimate that was based on the
use of non-OEM parts, in violation of R.C. 1345.81(B)(1). The trial court granted
summary judgment to the Dillons on that claim, and the Dillons voluntarily
dismissed the remainder of their claims.2 Following a damages hearing and a nunc


         depreciation. Property of like kind and quality includes, but is not limited to, parts
         made for or by the vehicle manufacturer. It also includes parts from other sources
         such as rebuilt parts, quality recycled (used) parts and parts supplied by non-
         original equipment manufacturers.
2
  After the trial court ruled in favor of the Dillons, the Dillons dismissed their remaining claims
without prejudice. Farmers appealed, but the Fifth District Court of Appeals dismissed the case for
lack of jurisdiction, finding that there was not a final, appealable order. The Dillons then dismissed
the remaining claims with prejudice, and Farmers again appealed. The Fifth District accepted
jurisdiction and issued a judgment on merits. This appeal arises from that judgment.




                                                   3
                                   SUPREME COURT OF OHIO




pro tunc judgment entry to correct a miscalculation, the trial court awarded the
Dillons $30,613.66 in actual damages, statutory treble damages, attorney fees, and
expenses.
         {¶ 8} Farmers appealed, asserting three assignments of error. Farmers
argued that the trial court erred in (1) denying its dispositive motions and granting
the Dillons’ motion for summary judgment, (2) awarding attorney fees and
determining the amount of the fees, and (3) awarding treble damages and
calculating the amount of the damages. The Fifth Appellate District rejected the
first two assignments of error but partially sustained the third, reducing the damages
award to $29,092.59.
         {¶ 9} In affirming the trial court’s judgment, the appellate court focused on
R.C. 1345.02, which provides that an unfair or deceptive act or practice in
connection with a consumer transaction violates the CSPA; on R.C. 1345.01, which
excludes transactions between insurers and their customers from the definition of a
consumer transaction; and on R.C. 1345.81, which imposes requirements on
insurers issuing motor-vehicle-repair estimates based on the use of non-OEM parts
and provides that “[a]ny violation of this section in connection with a consumer
transaction as defined in section 1345.01 of the Revised Code is an unfair and
deceptive act or practice as defined by section 1345.02 of the Revised Code.” The


   We recognized in Pattison v. W.W. Grainger, Inc. that Civ.R. 41(A) “does not allow for the
dismissal of a portion of the claims against a certain defendant.” (Emphasis sic.) 120 Ohio St.3d
142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 18. However, given that the Dillons repeatedly attempted
to dismiss their claims, neither the appellate court nor Farmers questioned the effectiveness of the
dismissal with prejudice, and neither party raised a claim about the propriety of the second dismissal
to either the Fifth District or this court, we do not pass judgment on whether either dismissal was
effective because the Dillons have waived any arguments concerning the effectiveness of the
dismissal with prejudice. See Toledo v. Reasonover, 5 Ohio St.2d 22, 34 O.O.2d 13, 213, N.E.2d
179 (1965), paragraph two of the syllabus (finding argument not raised in the appellate court is
waived).




                                                  4
                                 January Term, 2015




court found that “R.C. 1345.01 and R.C. 1345.02 conflict with R.C. 1345.81 with
respect to their application to insurers and cannot be applied so as to give effect to
all of the provisions.” 5th Dist. Coshocton No. 2013CA0014, 2014-Ohio-431, at
¶ 6. To resolve the conflict, the appellate court relied on R.C. 1.51, which instructs:


       If a general provision conflicts with a special or local provision, they
       shall be construed, if possible, so that effect is given to both. If the
       conflict between the provisions is irreconcilable, the special or local
       provision prevails as an exception to the general provision, unless
       the general provision is the later adoption and the manifest intent is
       that the general provision prevail.


R.C. 1.51. R.C. 1.52(A) further instructs: “If statutes enacted at the same or
different sessions of the legislature are irreconcilable, the statute latest in date of
enactment prevails.” Finding that the legislature passed R.C. 1345.81 after R.C.
1345.01 and that R.C. 1345.81 is the more specific statute, the appellate court gave
full effect to R.C. 1345.81.
The Discretionary Appeal
       {¶ 10} We accepted review of Farmers’ discretionary appeal on the
following propositions of law:


       1. An insurer does not engage in a “consumer transaction” for the
       purposes of any provision of the Ohio Consumer Sales Practices Act
       (R.C. 1345.01 et seq.), when it adjusts an insured’s claim for motor
       vehicle damage, and issues a repair estimate.
       2. An insurer’s issuance of a repair estimate for the use of OEM and
       non-OEM parts is not an “unfair or deceptive act or practice”
       pursuant to any provision of the Ohio Consumer Sales Practices Act




                                          5
                                 SUPREME COURT OF OHIO




        (R.C. 1345.01 et seq.), where the estimate complies with the express
        terms of the applicable insurance policy; the insurer orally notifies
        the insured of the content of the estimate; and the insured chooses
        the repair facility.


        {¶ 11} Because we resolve the appeal based on the CSPA’s definition of
consumer transaction, we do not reach the second issue, whether an insurer’s
issuance of a repair estimate could constitute an unfair or deceptive act or practice.
                                          ANALYSIS
        {¶ 12} The CSPA prohibits suppliers from committing “an unfair or
deceptive act or practice in connection with a consumer transaction.” R.C. 1345.02.
The act sets out statutory remedies for violations of this section, including damages
and attorney fees. R.C. 1345.09(B), (F)(2). However, not all transactions in which
consumers purchase goods or services are consumer transactions for purposes of
the CSPA. The act specifically exempts transactions between insurers and their
customers from its definition of consumer transaction. R.C. 1345.01(A). Another
section of the CSPA imposes obligations on insurers who provide their customers
with automobile-repair estimates that are based on the use of non-OEM parts. R.C.
1345.81. Specifically, R.C. 1345.81 governs the use of non-OEM aftermarket crash
parts and sets forth the procedure for insurers to follow when providing a policy
holder with an automobile-repair estimate that is based on the use of non-OEM
parts. That procedure includes notifying the policy holder that non-OEM parts are
used in the estimate and if the estimate is written, obtaining the customer’s
signature acknowledging receipt and approval of the estimate.3 R.C. 1345.81(B).


3
  R.C. 1345.81 sets forth requirements concerning the preparation and delivery of estimates based
on the use of non-OEM replacement parts:

                 (B) Any insurer who provides an estimate for the repair of a motor
        vehicle based in whole or in part upon the use of any non-OEM aftermarket crash




                                               6
                                     January Term, 2015




The court of appeals found that Farmers violated R.C. 1345.81(B)(1) by failing to
obtain a signature from one of the Dillons on the estimate that included the use of
non-OEM parts. We do not need to decide if Farmers violated R.C. 1345.81(B)(1),
because this appeal centers on a different issue: whether the statute’s remedial
provision, R.C. 1345.81(E), applies to insurers.
       {¶ 13} R.C. 1345.81(E) provides, “Any violation of this section in
connection with a consumer transaction as defined in section 1345.01 of the
Revised Code is an unfair and deceptive act or practice as defined by section
1345.02 of the Revised Code.” R.C. 1345.02 provides, “No supplier shall commit
an unfair or deceptive act or practice in connection with a consumer transaction.
Such an unfair or deceptive act or practice by a supplier violates this section
whether it occurs before, during, or after the transaction.” The remedies available
for an unfair and deceptive act or practice under R.C. 1345.02 include damages and
attorney fees. R.C. 1345.09(B), (F)(2).


       part in the repair of the motor vehicle and any repair facility or installer who
       intends to use a non-OEM aftermarket crash part in the repair of a motor vehicle
       shall comply with the following provisions, as applicable:
                 (1) If the person requesting the repair chooses to receive a written
       estimate, the insurer, repair facility, or installer providing the estimate shall
       identify, clearly in the written estimate, each non-OEM aftermarket crash part and
       shall contain a written notice with the following language in ten-point or larger
       type: “This estimate has been prepared based upon the use of one or more
       aftermarket crash parts supplied by a source other than the manufacturer of your
       motor vehicle. Warranties applicable to these aftermarket crash parts are provided
       by the parts manufacturer or distributor rather than by your own motor vehicle
       manufacturer.” Receipt and approval of the written estimate shall be
       acknowledged by the signature of the person requesting the repair at the bottom
       of the written estimate.
                 (2) If the person requesting the repair chooses to receive an oral estimate
       or no estimate at all, the insurer, repair facility, or installer providing the estimate
       or seeking the person’s approval for repair work to commence shall furnish or
       read to the person a written notice as described in division (B)(1) of this section
       at the time that the oral estimate is given or when the person requesting the repair
       gives his approval for the repair work to commence. If the person has chosen to
       receive an oral estimate or no estimate, the written notice described in division
       (B)(1) of this section shall be provided with the final invoice for the repair.




                                                  7
                             SUPREME COURT OF OHIO




       {¶ 14} A “consumer transaction” is defined in R.C. 1345.01(A) as “a sale,
lease, assignment, award by chance, or other transfer of an item of goods, a service,
a franchise, or an intangible, to an individual for purposes that are primarily
personal, family, or household, or solicitation to supply any of these things.” R.C.
1345.01(A). The statute further states that a “ ‘consumer transaction’ does not
include transactions between persons, defined in sections 4905.03 and 5725.01 of
the Revised Code, and their customers.” An insurance company is a person defined
in R.C. 5725.01(C).
       {¶ 15} Farmers contends that because transactions between insurers and
their customers are explicitly exempt from the definition of consumer transaction
set forth in R.C. 1345.01, insurers cannot be liable for damages under the CSPA,
R.C. 1345.81(E) notwithstanding. While the Fifth District Court of Appeals agreed
that transactions between insurers and their customers are exempt from R.C.
1345.01’s definition of consumer transaction, it concluded that R.C. 1345.01 and
R.C. 1345.81 are irreconcilable and thus require the court to consider the nature
and age of the statutes in order to deduce the General Assembly’s intent. The
appellate court found that the legislature intended R.C. 1345.81(E) to apply to
insurers because it is the more specific statute and because the legislature enacted
R.C. 1345.81 after it enacted R.C. 1345.01.
       {¶ 16} We find that no such statutory construction is necessary because the
laws are not irreconcilable.    We reject the Fifth District Court of Appeals’
interpretation of R.C. 1345.81(E) and hold that an insurer does not engage in a
consumer transaction when it furnishes to an insured a written estimate that is based
on the use of non-OEM parts.
Consumer Transaction
       {¶ 17} Reconciling R.C. 1345.01 and 1345.81 does not require the statutory
interpretation undertaken by the court of appeals. Indeed, “ ‘[a] guiding principle
of statutory interpretation is that the statute must be construed as a whole and each




                                         8
                                January Term, 2015




of its parts must be given effect so that they are compatible with each other and
related enactments.’ ” State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951
N.E.2d 1018, ¶ 25, quoting Brookwood Presbyterian Church v. Ohio Dept. of Edn.,
127 Ohio St.3d 469, 2010-Ohio-5710, 940 N.E.2d 1256, ¶ 26 (Brown, C.J.,
dissenting). Further, “we may not restrict, constrict, qualify, narrow, enlarge, or
abridge the General Assembly’s wording.” State ex rel. Carna v. Teays Valley
Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 967 N.E.2d 193, 2012-Ohio-
1484, ¶ 18. The plain meanings of R.C. 1345.01 and 1345.81 are not irreconcilable
and thus the Fifth District’s reinterpretation of R.C. 1345.01 is unnecessary.
       {¶ 18} R.C. 1345.81(A) defines an insurer as “any individual serving as an
agent or authorized representative of an insurance company, involved with the
coverage for repair of the motor vehicle in question.” R.C. 1345.81(B) and (D)
expressly require insurers to comply with their requirements for providing
estimates that incorporate non-OEM parts and for using salvage motor-vehicle
parts. But R.C. 1345.81(E), the statute’s remedial section, does not state that a
violation of R.C. 1345.81 by an insurer constitutes an unfair and deceptive act or
practice. Instead, R.C. 1345.81(E) expressly limits unfair and deceptive acts or
practices to violations “of this section in connection with a consumer transaction
as defined in section 1345.01 of the Revised Code.” (Emphasis added). As noted
above, consumer transactions as defined in R.C. 1345.01 do not include
transactions between insurance companies and their customers. Thus, because an
insurer cannot be a party to a consumer transaction, an insurer cannot commit an
unfair or deceptive act or practice under R.C. 1345.81(E).
       {¶ 19} Our reading does not render R.C. 1345.81(E) meaningless, nor R.C.
1345.81 ineffective, and therefore is consistent with the rules of statutory
construction. A cause of action remains under R.C. 1345.81(E) for damages against
repair facilities and installers, both of whom can be involved in consumer




                                         9
                             SUPREME COURT OF OHIO




transactions as defined in R.C. 1345.01(A), and both of whom are also governed
by R.C. 1345.81.
        {¶ 20} And a policy holder is not without remedy against an insurer who
violates R.C. 1345.81 simply because no remedy is provided by R.C. 1345.81(E).
A “consumer may seek a declaratory judgment, an injunction, or other appropriate
relief against an act or practice that violates” R.C. Chapter 1345. R.C. 1345.09(D).
The CSPA also permits consumers to bring a cause of action “under any other
theory of law” that would be applicable to the transaction. R.C. 1345.09(H).
        {¶ 21} This court “must presume that the General Assembly is aware of
previously enacted legislation.” State v. Conyers, 87 Ohio St.3d 246, 250-251, 719
N.E.2d 535 (1999). We therefore presume that when the General Assembly enacted
R.C. 1345.81(E)’s provision of remedies for “[a]ny violation of this section in
connection with a consumer transaction as defined in section 1345.01 of the
Revised Code,” it was aware that R.C. 1345.01’s definition of consumer transaction
excluded transactions between insurers and their customers.             The General
Assembly could have, as it has in at least four other CSPA provisions enacted both
before and after R.C. 1345.81, provided that a violation constitutes an unfair or
deceptive act or practice without referencing R.C. 1345.01. In R.C. 1345.31 and
1345.94, both enacted in 1996, the legislature categorized the prohibited activity as
an “unfair or deceptive act or practice in violation of section 1345.02” without any
reference to a consumer transaction. In R.C. 1345.28 and 1345.48, enacted in 1974
and 1976 respectively, the legislature stated that failure to comply with the sections
simply “constitutes a deceptive act or practice in connection with a consumer
transaction.” (Emphasis added.) Yet when it enacted R.C. 1345.81, the General
Assembly expressly incorporated R.C. 1345.01’s limiting language into the
statute’s remedy provision. Our decision in this case simply gives effect to the
statute as written.




                                         10
                                 January Term, 2015




In Connection with a Consumer Transaction
       {¶ 22} While R.C. 1345.01 establishes that transactions between insurance
companies and their customers are not consumer transactions, our prior precedent
establishes that an insurer’s provision of a repair estimate does not render the
insurer a party to the transaction between the consumer and the repair facility or
installer that will be fixing the vehicle and does not occur “in connection with” that
transaction.
       {¶ 23} In Anderson v. Barclay’s Capital Real Estate, we found that the
scope of R.C. 1345.01(A)’s “consumer transaction” definition is limited to the
parties to the transaction, not those who provide services closely related to the
transaction, despite the statute’s “in connection with a consumer transaction”
language. 136 Ohio St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, ¶ 17 (“A mortgage
servicer provides a service to a financial institution, but providing such a service to
a financial institution is neither analogous to transferring a service to a borrower nor
sufficient to impose liability under the CSPA”). Anderson involved a mortgage
servicer that dealt directly with consumers on matters including loss mitigation and
loan modification, consumer disputes concerning the mortgage, and purchasing
insurance if it believed that the consumer had not purchased coverage that was
adequate under the terms of the note and mortgage. Id. at ¶ 5. The plaintiff alleged
that the mortgage servicer committed “an unconscionable act or practice in
connection with a consumer transaction,” see R.C. 1345.03, and “an
unconscionable act or practice concerning a consumer transaction in connection
with a residential mortgage,” see R.C. 1345.031. In that case, we concluded that
the relevant transaction was between the mortgage provider and the homeowner.
Accordingly, we found that because “there is no sale, lease, assignment, award by
chance, or other transfer of a service to a consumer” by the mortgage servicer, there
can be no consumer transaction under R.C. 1345.01(A). Id. at ¶ 12. We also found
that the definition of “consumer transaction” was insufficient to cover services that




                                          11
                            SUPREME COURT OF OHIO




were closely related to the transaction, but were provided by an entity that was not
a party to the transaction. Id. at ¶ 17. A similar logic applies in this case, but
Farmers had even fewer interactions with the Dillons related to the repair than
Barclay’s had with Anderson related to the mortgage, so we see no reason to reach
a different outcome here.
       {¶ 24} The relevant transaction in this case is the automobile repair.
Farmers’ only role in the actual repair of the vehicle was writing checks to the
Dillons. The estimate was merely a means of determining—and informing the
Dillons and the repair shop of—what costs the insurance company would pay under
the insurance contract. Nothing in the record before us suggests that Farmers had
any other role in the transaction—Farmers did not sell the repair parts or require
them to be purchased from a given supplier, did not ask for any explanation of how
the repairs were conducted, and did not ask for confirmation that the repairs had
been completed.
       {¶ 25} The service provided by Farmers was the insurance coverage, and
the sale of that service happened well before the accident or subsequent repair and
was explicitly exempt from the application of the CSPA by R.C. 1345.01(A).
Provision of the estimate is analogous to the “collateral service” of mortgage
servicing that we described in Anderson and is not part of the consumer transaction
between the policy holder and the repair shop. Therefore, the insurer’s provision
of a repair estimate is not sufficiently connected with a consumer transaction to
constitute a violation under R.C. 1345.81(E).
                                  CONCLUSION
       {¶ 26} R.C. 1345.01 and 1345.81 are not irreconcilable. R.C. 1345.81(E)
incorporates R.C. 1345.01’s exclusion of transactions between insurers and their
customers from the definition of a consumer transaction. Farmers’ provision of a
repair estimate to the Dillons was not in connection with a consumer transaction
and therefore was not an “unfair or deceptive act or practice” pursuant to R.C.




                                        12
                                January Term, 2015




1345.02. We therefore vacate the judgment of the Fifth District Court of Appeals
and dismiss the cause.
                                                                   Judgment vacated,
                                                                and cause dismissed.
       O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
       PFEIFER and O’NEILL, JJ., dissent.
                                _________________
       O’NEILL, J., dissenting.
       {¶ 27} While I agree with almost everything said in the majority opinion, I
simply cannot agree that the Supreme Court of Ohio is in the business of
encouraging insurance companies to intentionally disregard the Consumer Sales
Practices Act to the detriment of their customers. Therefore, I respectfully dissent.
       {¶ 28} I agree with the majority that R.C. 1345.01 and 1345.81 are not
irreconcilable. I agree that the plain language of R.C. 1345.01 exempts transactions
between insurers and their insureds from that section’s definition of a consumer
transaction. Finally, and most importantly, I agree with the majority that the
relevant consumer transaction in this case is the automobile repair.
       {¶ 29} I do not take issue with the insurance-policy agreement between
appellees, Jerry and Nancy Dillon, and appellant, Farmers Insurance of Columbus,
Inc. And I agree that insurance-policy agreements are not consumer transactions
for purposes of the CSPA. Rather, this case is about a consumer’s ability to enforce
a clear and unambiguous provision of the CSPA. It is beyond dispute that R.C.
1345.81 requires an insurer, repair facility, or installer to obtain an
acknowledgment from a consumer that non-OEM parts are being used in an
estimate.
       {¶ 30} Farmers took it upon itself to prepare an estimate for the repair of
the Dillons’ car, and in so doing, Farmers subjected itself to the statutory duty under
R.C. 1345.81 to disclose the use of non-OEM parts and to get the Dillons’




                                          13
                             SUPREME COURT OF OHIO




acknowledgment of that disclosure. Any other reading of the statute completely
fails to give effect to the intent of the legislature. This is the same statutory duty
that is imposed on all repair facilities and installers that provide estimates that
include the use of non-OEM parts. R.C. 1345.81(B)(1). The plain language of
R.C. 1345.81(E) provides that failure to obtain the required acknowledgment in
connection with a consumer transaction—in this case, the automobile repair—is an
unfair and deceptive act or practice.
        {¶ 31} I agree with the majority that the consumer transaction in this case
is not the insurance-policy agreement between Farmers and Dillon. However, once
an insurance company undertakes the role of adjuster in a collision repair, there is
no justification to shield it from liability under the CSPA for its actions in
connection with that consumer transaction merely because it is an insurer. Doing
so is unfair to consumers and to the repair facilities and installers that follow the
law, and it ignores the intent of the Ohio General Assembly when it enacted the
CSPA.
        {¶ 32} I maintain my disagreement with this court’s holding in Anderson v.
Barclay’s Capital Real Estate, Inc. that “consumer transaction” as defined in R.C.
1345.01 is limited to the parties to the transaction and does not include those who
provide services closely related to the transaction. See 136 Ohio St.3d 31, 2013-
Ohio-1933, 989 N.E.2d 997, ¶ 17. The rule in Barclay’s is not relevant in this case,
however.
        {¶ 33} The relevant rule in this case is a statute. R.C. 1345.81 is part of the
Consumer Sales Practices Act, and the plain language of the statute requires the
insurer (or repair facility or installer) to get an acknowledgement that the consumer
knows which parts are non-OEM aftermarket crash parts. In this case, Farmers
failed to obtain this acknowledgment and in doing so violated R.C. 1345.81.
        {¶ 34} When any provider in Ohio provides an estimate for repairs that
includes non-OEM parts, it falls under the same statutory standard. This is true




                                          14
                                 January Term, 2015




irrespective of the fact that the provider of the estimate is also the provider of the
insurance policy. The General Assembly has done the work for us in this case. By
enacting R.C. 1345.81, it decided that the surreptitious installation of non-OEM
parts in the repair process is a prohibited act in Ohio. The General Assembly did
not say that it was alright for insurance companies and their agents to engage in
prohibited acts. This court’s role is to interpret the law. I dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                                _________________
       Smith, Rolfes & Skavdahl Co., L.P.A., Thomas F. Glassman, Mathew J.
Smith, and Andrew L. Smith, for appellants.
       Pomerene, Burns & Skelton, James M. Skelton, Robert A. Skelton, and
Joseph R. Skelton, for appellees.
       Dinkler Pregon, L.L.C., Jamey T. Pregon, and Lynnete Dinkler, urging
reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
       Thompson Hine, L.L.P., Stephanie M. Chmiel, and Elizabeth B. Wright;
and Kilpatrick, Townsend & Stockton, L.L.P., Adam H. Charnes, and Chris W.
Haaf, for amicus curiae Alliance of Automobile Manufacturers.
       Traska Kimbrell, Ltd., and Peter D. Traska, for amici curiae Automotive
Education Policy Institute and Choice Auto Body Repair Association.
       Willis & Willis Co., L.P.A., and Todd L. Willis, for amicus curiae Ohio
Association for Justice.
                                _________________




                                          15
