[Cite as Hughes v. Nationwide Mut. Fire Ins. Co., 2015-Ohio-5119.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

David Hughes,                                       :

                Plaintiff-Appellant,                :
                                                                          No. 15AP-94
v.                                                  :                  (C.P.C. No. 14CV-883)

Nationwide Mutual Fire Insurance                    :                (REGULAR CALENDAR)
Company,
                                                    :
                Defendant-Appellee.
                                                    :

                                           D E C I S I O N

                                  Rendered on December 10, 2015


                Joquetta S. Wells, for appellant.

                Chad E. Dworkin, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Plaintiff-appellant, David Hughes, appeals from the February 11, 2015
judgment of the Franklin County Court of Common Pleas dismissing appellant's
complaint for failure to state a claim upon which relief can be granted. For the reasons
that follow, we reverse.
        {¶ 2} Appellant filed a complaint against defendant-appellee, Nationwide Mutual
Fire Insurance Company ("Nationwide"), on January 27, 2014.                          According to the
complaint, appellant sustained hail damage to his roof on October 4, 2006. (Complaint,
¶ 4.) Appellant had a homeowner's insurance policy with Nationwide that was in full
force and effect at the time his roof was damaged in the storm. (Complaint, ¶ 3-4.) The
parties disputed the extent of the damage with appellant contending the slate roof needed
to be replaced, and Nationwide contending that only repairs were necessary. (Complaint,
No. 15AP-94                                                                              2

¶ 7-8.) At some time not specified in the complaint, Nationwide denied appellant's request
for a new roof. (Complaint, ¶ 8.)
       {¶ 3} On April 4, 2008, appellant invoked the appraisal clause of his policy.
(Complaint, ¶ 9). Ultimately, Nationwide refused to replace appellant's roof or pay his
claim. (Complaint, ¶ 12.) Appellant contacted the Ohio Department of Insurance and the
Ohio Attorney General in an attempt to settle the dispute with Nationwide. (Complaint,
¶ 14.) The Ohio Department of Insurance found Nationwide in violation of the appraisal
clause and the Ohio Administrative Code. (Complaint, ¶ 14.)
       {¶ 4} In a two count complaint, appellant claimed Nationwide breached its
contract of insurance, violated Ohio Admin.Code 3901-1-54(F), and intentionally
maintained an ongoing practice of unfairness and deception for over seven years.
(Complaint, ¶ 18, 21-22.) Appellant did not attach a copy of the policy to the complaint,
but only attached the Homeowner Policy Declarations page to his complaint as an exhibit.
(Complaint, exhibit A.)
       {¶ 5} Nationwide filed a motion to dismiss pursuant to Civ.R. 12(B)(6), claiming
that appellant's claims were barred by the language of the policy which limited the time
for bringing any action to one year from the date of loss. Attached to the motion to
dismiss was a copy of a policy of insurance.
       {¶ 6} The relevant language was contained in a two-sentence "Suit Against Us"
clause on page E2 of the policy. The clause states as follows:
              No action can be brought against us unless there has been full
              compliance with the policy provisions. Any action must be
              started within one year after the date of loss or damage.

       {¶ 7} In response to the motion to dismiss, appellant denied that he ever received
or reviewed a copy of the Homeowner Policy prior to it being attached to the motion to
dismiss. He also argued that the motion to dismiss should be treated as a motion for
summary judgment pursuant to Civ.R. 12(B) because it presented matters outside the
pleadings.
       {¶ 8} The trial court rejected the contention that the Homeowner Policy attached
to the motion to dismiss was a matter outside the pleading and therefore outside the
scope of a Civ.R. 12(B)(6) motion to dismiss. The trial court found that appellant's claims
No. 15AP-94                                                                           3

were conclusively time barred by the clear and unambiguous language of the policy, and
granted the motion to dismiss.
      {¶ 9} This appeal followed, with appellant assigning the following as error:
              I. THE TRIAL COURT ERRED IN TREATING AS A
              MOTION TO DISMISS AND NOT AS A MOTION FOR
              SUMMARY JUDGMENT THE MOTION OF DEFENDANT-
              APPELLEE NATIONWIDE MUTUAL FIRE INSURANCE
              COMPANY TO DISMISS PURSUANT TO CIVIL RULE
              12(B)(6) TO WHICH WAS ATTACHED A MATTER OUTSIDE
              OF THE PLEADINGS.

              II. THE TRIAL COURT ERRED TO THE PLAINTIFF-
              APPELLANT'S    PREJUDICE   IN   GRANTING    THE
              DEFENDANT-APPELLEE'S DENOMINATED MOTION TO
              DISMISS, TO WHICH WAS ATTACHED A MATTER
              OUTSIDE OF THE PLEADINGS, BY FINDING THAT IT
              WAS BEYOND DOUBT THAT APPELLANT COULD PROVE
              NO SET OF FACTS AS WOULD ENTITLE HIM TO RELIEF.

{¶ 10} Our standard in evaluating an appeal of a trial court's granting of a motion to
dismiss is de novo. Fisher v. Mallik, 10th Dist. No. 14AP-140, 2015-Ohio-1008, ¶ 9.
              A motion to dismiss under Civ.R. 12(B)(6) for failure to state a
              claim is procedural and tests the sufficiency of the complaint.
              Volbers-Klarich v. Middletown Mgmt., 125 Ohio St.3d 494,
              2010-Ohio-2057, ¶ 11, 929 N.E.2d 434, citing Assn. for
              Defense of Washington Local School Dist. v. Kiger, 42 Ohio
              St.3d 116, 117, 537 N.E.2d 1292 (1989). Dismissal for failure to
              state a claim is proper if, after all factual allegations are
              presumed to be true and all reasonable inferences are made in
              favor of the non-moving party, it appears beyond doubt from
              the complaint that the plaintiff could prove no set of facts
              warranting the requested relief. State ex rel. Turner v. Houk,
              112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5, 862 N.E.2d 104;
              O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
              St.2d 242, 327 N.E.2d 753 (1975), syllabus. In considering a
              motion to dismiss under Civ.R. 12(B)(6), the court looks only
              to the complaint to determine whether the allegations are
              legally sufficient to state a claim. Springfield Fireworks, Inc.
              v. Ohio Dept. of Commerce, 10th Dist. No. 03AP-330, 2003-
              Ohio-6940, ¶ 12. We review the dismissal of a complaint
              pursuant to Civ.R. 12(B)(6) under a de novo standard. Woods
              v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689, 2012-
              Ohio-3139, ¶ 9.
No. 15AP-94                                                                                4

Id. at ¶ 9.
        {¶ 11} With respect to the first assignment of error, we must determine whether
the trial court made its ruling based upon the allegations contained in the complaint or
whether the judge based his rulings upon facts not contained within the complaint. Civ.R.
12(B) states in pertinent part:
               When a motion to dismiss for failure to state a claim upon
               which relief can be granted presents matters outside the
               pleading and such matters are not excluded by the court, the
               motion shall be treated as a motion for summary judgment
               and disposed of as provided in Rule 56. Provided however,
               that the court shall consider only such matters outside the
               pleadings as are specifically enumerated in Rule 56. All parties
               shall be given reasonable opportunity to present all materials
               made pertinent to such a motion by Rule 56.

        {¶ 12} The language of Civ.R. 12(B) is clear; if the trial court relied on facts from
other sources, the motion to dismiss under Civ.R. 12(B)(6) should have been converted to
a motion for summary judgment.
        {¶ 13} Nationwide's purpose in attaching the 34-page Homeowner's Policy to the
motion to dismiss was to provide evidentiary support for their contention that the suit
was untimely. Their motion was entirely based upon a clause in the attachment.
        {¶ 14} The statute of limitations for written contracts is 15 years. R.C. 2305.06.
Therefore, it was not apparent from the face of the complaint that appellant's claim was
time barred. The motion to dismiss should have been converted to a motion for summary
judgment. This would have allowed some discovery to be pursued and the development
of a clearer picture of whether, for example, Nationwide waived the limitations clause by
inducing appellant to delay filing a lawsuit until after the contractual limitations period
expired. See Dominish v. Nationwide Ins. Co., 129 Ohio St.3d 466 (2011)(an insurance
company may be deemed to have waived its right to enforce a limitation-of-action clause
if it either recognized liability or held out a reasonable hope of adjustment and by doing
so, induced the insured to delay filing a lawsuit until after the contractual period of
limitation expired).
        {¶ 15} The first assignment of error is sustained.
        {¶ 16} In his second assignment of error, appellant contends his complaint stated a
claim for bad faith and that the trial court erred in dismissing the claim.
No. 15AP-94                                                                             5

              Generally, an insurer has a duty to exercise good faith in the
              processing and payment of valid claims of its insured. Beever
              v. Cincinnati Life Ins. Co., Franklin App. No. 02AP-543, 2003
              Ohio 2942, at P20. An insured may assert a claim for bad faith
              if "[a]n insurer fails to exercise good faith in the processing of
              a claim of its insured where its refusal to pay the claim is not
              predicated upon circumstances that furnish reasonable
              justification therefor." Zoppo v. Homestead Ins. Co. (1994), 71
              Ohio St.3d 552, 1994 Ohio 461, 644 N.E.2d 397, paragraph
              one of the syllabus.

Gillette v. Estate of Gillette, 163 Ohio App.3d 426, 2005-Ohio-5247 (10th Dist.).
       {¶ 17} Here, the complaint states in pertinent part:
              Additionally, in the interim of Plaintiff's loss and Defendant's
              admissions of fault to both Plaintiff and the Ohio Department
              of Insurance, Defendant has made no attempt to perform
              according to the terms of the homeowner's policy or otherwise
              provide Plaintiff with redress, and therefore, have
              intentionally maintained an ongoing practice of unfairness
              and deception against Plaintiff for over seven years.

(Complaint, ¶ 22.)
       {¶ 18} Construing the complaint in the light most favorable to appellant, one could
reasonably infer that Nationwide engaged in a strategy of delay until the shorter
limitations period in the policy had run.
       {¶ 19} Nationwide argues that any such bad faith claim is also barred by the
limitations period in the policy, but we note the complaint has alleged an ongoing pattern
of unfairness and deception. These matters are not capable of being determined by a
motion to dismiss and would be more properly entertained by summary judgment
proceedings or a trial on the merits after a period of discovery.
       {¶ 20} The second assignment of error is sustained as well.
       {¶ 21} Having sustained appellant's two assignments of error, we reverse the
judgment of the Franklin County Court of Common Pleas and remand the matter for
further proceedings in accordance with this decision.
                                                        Judgment reversed; case remanded.

                       KLATT and LUPER SCHUSTER, JJ. concur.
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