[Cite as MacDonald v. Webb Ins. Agency, Inc., 2015-Ohio-4623.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




ROBERT E. MACDONALD, ET AL.,                                     CASE NO. 1-15-27

       PLAINTIFFS-APPELLANTS,

      v.

WEBB INSURANCE AGENCY, INC.,                                     OPINION

       DEFENDANT-APPELLEE.



                  Appeal from Allen County Common Pleas Court

                              Trial Court No. CV 2014 0223

                                    Judgment Affirmed

                          Date of Decision: November 9, 2015



APPEARANCES:

        Michael A. Rumer and Victoria Maisch Rumer for Appellants

        Robert B. Fitzgerald for Appellee
Case No. 1-15-27


ROGERS, P.J

       {¶1} Plaintiffs-Appellants, Robert E. MacDonald (“Robert”) and Jean E.

MacDonald (“Jean”) (collectively “the MacDonalds”), appeal the judgment of the

Court of Common Pleas of Allen County granting summary judgment in favor of

Defendant-Appellee, Webb Insurance Agency, Inc. (“Webb Insurance”).             On

appeal, the MacDonalds argue that the trial court erred by (1) determining that

they suffered no actual damages as necessary to establish a prima facie case for

negligence; (2) determining that their alleged damages were barred by the

economic loss rule; (3) determining that their alleged damages were precluded

under R.C. 2721.13(A)(1); and (4) granting Webb Insurance’s motion for

summary judgment and dismissing their claim for negligent misrepresentation.

For the reasons set forth herein, we affirm the judgment of the trial court.

       {¶2} The MacDonalds’ current claims stem from an earlier dispute between

the MacDonalds and their insurance company concerning the terms of the

MacDonalds’ insurance policy.        As both suits concern the same generally

undisputed facts, we refer, in relevant part, to the facts set forth in MacDonald v.

Auto-Owners, 3d Dist. Allen No. 1-12-25, 2012-Ohio-5949.

       {¶3} On March 23, 1961, the MacDonalds purchased a three-story home

(“the Spencerville home”) located at 547 North Broadway Street in Spencerville,

Ohio, where the couple lived and raised their four children. In 2006, Robert




                                         -2-
Case No. 1-15-27


retired. The following year, the MacDonalds moved to Michigan. Despite the

move, the MacDonalds continued to use the Spencerville home intermittently.

      {¶4} On or about December 8, 2008, Robert informed his insurance agent,

Roger Stokes (“Stokes”) of Webb Insurance, that the Spencerville home would be

leased for commercial purposes as of January 1, 2009. Stokes informed Robert

that he would need to obtain a commercial insurance policy to reflect the

property’s change in use. Thereafter, Owners Insurance issued a new commercial

insurance policy effective January 22, 2009. A few months later, on March 12,

2009, Stokes mailed a copy of the new commercial policy to Robert, which

included a provision excluding coverage for any water-related loss or damage if

the building remained vacant for more than 60 consecutive days preceding the loss

or damage.

      {¶5} On July 1, 2009, the Spencerville home’s lessee vacated the premises.

On or about September 25, 2009, Robert informed Stokes of the vacancy, and

Stokes cautioned Robert that, as a result of the vacancy, Owners Insurance might

not renew the commercial policy for the following year.

      {¶6} On January 11, 2010, Webb Insurance notified Owners Insurance that

the Spencerville home was vacant; nevertheless, Owners Insurance renewed the

commercial policy on January 22, 2010.




                                       -3-
Case No. 1-15-27


          {¶7} On June 2, 2010, Mike Sarno, another Webb Insurance agent, called

Robert for an update on the Spencerville home. Robert informed Sarno that the

home remained vacant.

          {¶8} On June 3, 2010, Owners Insurance notified Webb Insurance that they

would remain on the policy until January 22, 2011. Due to the Spencerville

home’s vacancy, however, Owners Insurance stated that they would not renew the

MacDonalds’ policy again.

          {¶9} A few days later, on June 23, 2010, Robert visited the Spencerville

home and discovered extensive water damage, originating from a water line

rupture in the attic space near the third floor bathroom. Robert reported the

damage to Webb Insurance.

          {¶10} On June 24, 2010, Owners assigned the loss to Crawford &

Company (“Crawford”), an adjusting company, who assigned the claim to their

employee, Shawn Burden (“Burden”).

          {¶11} Over the course of the next few months, the Spencerville home

underwent extensive demolition and repair.            During that time, Burden

continuously indicated to both the MacDonalds and their family that the

Spencerville home would be fully restored under the terms of their insurance

policy.




                                         -4-
Case No. 1-15-27


        {¶12} On September 10, 2010, Owners Insurance sent a letter to the

MacDonalds denying their insurance claim on the grounds that loss was excluded

from coverage by application of the policy’s vacancy provision.

        {¶13} On September 14, 2010, Robert called Stokes regarding the denial

letter. Stokes informed Robert that he would be reimbursed for only the work

Burden authorized.

        {¶14} On January 25, 2011, the MacDonald’s filed a complaint in the Court

of Common Pleas of Allen County seeking, in relevant part, a declaration from the

trial court that Owners Insurance was obligated to cover the cost of repairs under

the terms of their policy.1

        {¶15} Ultimately, the trial court granted summary judgment in favor of the

MacDonalds finding that Owners Insurance was estopped from asserting the

vacancy provision due to the misrepresentations of its agent. On review, the trial

court’s judgment was affirmed. MacDonald, 2012-Ohio-5949 at ¶ 60.

        {¶16} Based on these events, on April 7, 2015, the MacDonalds filed a

complaint in the Court of Common Pleas of Allen County asserting claims of

negligence and negligent misrepresentation against Webb Insurance.                                The

complaint alleged that Webb Insurance was liable to the MacDonalds for money




1
  The complaint named several other defendants and alleged various theories of relief against each. The
trial court stayed all claims pending resolution of the issue of coverage.

                                                 -5-
Case No. 1-15-27


damages caused by the negligent acts of its agents, Stokes and Sarno.

Specifically, the MacDonalds averred that, but for the negligent conduct of Stokes

and Sarno, they would not have incurred the expense of litigating the issue of

coverage against Owners Insurance.


           {¶17} On May 20, 2014, Webb Insurance filed its answer denying liability

and raising several affirmative defenses.

           {¶18} Due to the nature of the MacDonalds’ claims, on January 27, 2015,

the trial court ordered that discovery from the MacDonalds’ earlier suit against

Owners Insurance be transferred and incorporated into the present suit against

Webb Insurance.2

           {¶19} On February 6, 2015, Webb Insurance filed a motion for summary

judgment. In its motion, Webb Insurance argued that the MacDonalds’ alleged

damages (i.e., attorney fees accrued in connection with seeking declaratory relief)

were purely economic and therefore barred under the well-established economic

loss rule. Attached to Webb Insurance’s motion was (1) the trial court’s entry

granting summary judgment in favor of the MacDonalds in their earlier suit

against Owners Insurance; (2) this court’s opinion and entry affirming the trial

court’s judgment; and (3) supporting case law.




2
    Thereafter, discovery from case CV 2011 0048 was transferred and incorporated into case CV 2014 0223.

                                                    -6-
Case No. 1-15-27


       {¶20} On March 9, 2015, the MacDonalds filed their response arguing that

summary judgment was improper because they had established a prima facie case

for negligence and negligent misrepresentation and genuine issues of material fact

remained. More specifically, the MacDonalds averred that their attorney fees

were recoverable damages.

       {¶21} On March 19, 2015, Webb Insurance filed a reply noting the

MacDonalds had an independent duty to read the terms of their policy, including

the vacancy provision, and again reemphasizing that there was no legal basis for

the recovery of their attorney fees.

       {¶22} On April 23, 2015, the trial court granted summary judgment in favor

of Webb Insurance. In doing so, the trial court found that (1) the MacDonalds

lacked actual damages because the damage to their home was fully covered under

the terms of their insurance policy; (2) their alleged damages were purely

economic and therefore barred by the economic loss rule; and (3) irrespective of

the economic loss rule, the MacDonalds were not entitled to attorney fees under

R.C. 2721.16.

       {¶23} It is from this judgment that the MacDonalds appeal, presenting the

following assignments of error for our review.




                                       -7-
Case No. 1-15-27


                           Assignment of Error No. I

      THE TRIAL COURT ERRED IN FINDING, AS A MATTER
      OF LAW, THAT NO GENUINE ISSUES OF MATERIAL
      FACT EXISTED IN THE CASE AT BAR SINCE “DAMAGE
      NO LONGER EXIST” AS TO PLAINTIFFS’ NEGLIGENCE
      CLAIM.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED IN DETERMINING THAT THE
      ECONOMIC-LOSS    RULE   PREVENTS   PLAINTIFFS’
      RECOVERY OF DAMAGES UNDER THEIR NEGLIGENCE
      CLAIM BECAUSE “[T]HE LOSS SUFFERED BY THE
      ALLEGED NEGLIGENCE OF DEFENDANT WAS PURELY
      ECONOMIC.”

                          Assignment of Error No. III

      THE TRIAL COURT ERRED IN APPLYING R.C. 2721.16 TO
      THE CASE AT BAR IN THAT THE INSTANT MATTER IS
      NOT A CLAIM OR PROCEEDING FOR DECLARATORY
      RELIEF.

                          Assignment of Error No. IV

      THE TRIAL COURT ERRED IN GRANTING DEFENDANT
      SUMMARY JUDGMENT AND DISMISSING PLAINTIFFS’
      CLAIM FOR NEGLIGENT MISREPRESENTATION WHEN
      THERE ARE GENUINE ISSUES OF MATERIAL FACT AS
      TO   WHETHER     DEFENDANT’S    AGENT   USED
      REASONABLE CARE IN COMMUNICATING POLICY
      INFORMATION     TO   PLAINTIFFS    REGARDING
      COVERAGE UNDER PLAINTIFFS’ 2009 AND 2010
      INSURANCE POLICIES.


      {¶24} Due to the nature of the MacDonalds’ assignments of error, we elect

to address some of them together and out of order.



                                       -8-
Case No. 1-15-27


                            Assignments of Error Nos. I & IV

       {¶25} In their first and fourth assignments of error, the MacDonalds argue

that the trial court erred in granting summary judgment in favor of Webb

Insurance. We disagree.

       {¶26} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination.      Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)

the moving party is entitled to judgment as a matter of law. Civ.R. 56(E). In

conducting this analysis the court must determine “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, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d

356, 358-359 (1992).

                                         -9-
Case No. 1-15-27


       {¶27} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶28} The fundamental question in this case is whether attorney fees

accrued in connection with a claim or proceeding for declaratory relief can serve

as sufficient damages in a subsequent action in negligence. As this is a case of

first impression, we necessarily must address the juxtaposition between the

American Rule governing the recovery of attorney fees and Ohio tort law.

       {¶29} “Ohio has long adhered to the ‘American Rule’ with respect to the

recovery of attorney fees: a prevailing party in a civil action may not recover

attorney fees as part of the costs of litigation.” Wilborn v. Bank One Corp., 121

Ohio St.3d 546, 2009-Ohio-306, ¶ 7. Exceptions to the rule allow for recovery

“when a statute or an enforceable contract specifically provides for the losing

party to pay the prevailing party's attorney fees, * * * or when the prevailing party

demonstrates bad faith on the part of the unsuccessful litigant * * *.” Id.




                                        -10-
Case No. 1-15-27


       {¶30} Up until recently, the General Assembly had yet to enact a statute

expressly disallowing the recovery of attorney fees accrued in connection with a

claim or proceeding for declaratory relief.       Courts were permitted to award

recovery under the authority of R.C. 2721.09, which provides, in relevant part, that

“whenever necessary or proper, a court of record may grant further relief based on

a declaratory judgment * * *. ” See e.g., Motorists Mut. Ins. Co. v. Brandenburg,

72 Ohio St.3d 157 (1995).

       {¶31} In 1999, in order to perpetuate adherence to the “American Rule,”

the General Assembly enacted R.C. 2721.16, which superseded R.C. 2721.09

insofar as it permitted the recovery of attorney fees accrued in connection with a

claim or proceeding for declaratory relief. Under R.C. 2721.16(A)(1), a court

shall not award attorney fees to “any party on a claim or proceeding for

declaratory relief * * * .” Recovery is allowed only where the Revised Code

explicitly authorizes such an award or where attorney fees are authorized by R.C.

2323.51, the Civil Rules, or by an award of punitive or exemplary damages against

the party ordered to pay attorney fees. Id.

       {¶32} In the case sub judice, the MacDonalds’ alleged damages consists

entirely of attorney fees accrued in connection with their pursuit of declaratory

relief against their insurance company concerning the extent of their policy’s

coverage. By application of the American Rule, the MacDonalds are responsible

for these fees unless a statute or contract provides otherwise.

                                        -11-
Case No. 1-15-27


       {¶33} As noted above, R.C. 2721.16 now governs the recovery of attorney

fees in declaratory relief actions and generally bars recovery unless a specific

statutory exception is triggered. Here, none of the exceptions carved out by the

General Assembly are applicable; there is neither a code section permitting

recovery nor an award of punitive or exemplary damages.          Thus, under the

American Rule, the MacDonalds are not entitled to recover their attorney fees

accrued in connection with their claim for declaratory relief.

       {¶34} With this in mind, we next consider whether the MacDonalds can

recover these fees through an action in negligence. It is well settled that the

elements of an ordinary negligence are (1) the existence of a legal duty, (2) the

defendant's breach of that duty, and (3) damages resulting proximately therefrom.

Hartings v. Xu, 3d Dist. Mercer No. 10-13-11, 2014-Ohio-1794, ¶ 72. Proof of

damages is also an essential element in a claim of negligent misrepresentation.

See, e.g., Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137,

150 (9th Dist.1996).

       {¶35} The MacDonalds aver that their attorney fees constitute sufficient

damages in a negligence action under a theory analogous to legal malpractice,

which permits the recovery of attorney fees where an attorney commits

professional misconduct.      Specifically, the MacDonalds allege that Webb

Insurance committed professional misconduct by indicating that their insurance

policy was effective despite the Spencerville home’s vacancy.

                                        -12-
Case No. 1-15-27


       {¶36} “[M]alpractice consists of ‘the professional misconduct of members

of the medical profession and attorneys.’      Such professional misconduct may

consist either of negligence or of breach of the contract of employment * * *.”

Wilkerson v. O’Shea, 12th Dist. Butler, No. CA2009-03-068, 2009-Ohio-6550, ¶

13, quoting Muir v. Hadler Real Estate Mgmt. Co., 4 Ohio App.3d 89, 90 (10th

Dist.1982). While a legal malpractice action can be rooted in tort, it is strictly

limited to a certain type of professional relationship (i.e., attorney-client). Quite

obviously, this type of relationship does not exist between the MacDonalds and

Webb Insurance. Nonetheless, the MacDonalds argue that because an insurance

agent owes a legal duty to an insured, a breach of that duty constitutes professional

misconduct, similar to the type alleged in a legal malpractice action, thereby

permitting the recovery of attorney fees.

       {¶37} The MacDonalds further argue that the trial court erred in dismissing

their claim for negligent misrepresentation. Specifically, the MacDonalds claim

that attorney fees are sufficient damages in a negligent misrepresentation action

pursuant to the Ohio Supreme Court’s finding in Haddon View Inv. Co. v. Coopers

& Lybrand, 70 Ohio St.2d 154 (1982). In Haddon View, the court found that “an

accountant may be liable for purely economic damages based upon negligent

misrepresentation to third parties ‘when that third party is a member of a limited

class whose reliance on the accountant's representation is specifically foreseen.’ ”

Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc., 106 Ohio St.

                                        -13-
Case No. 1-15-27


       {¶38} 3d 412, 2005-Ohio-5409, ¶ 7, quoting Haddon View at 157. Relying

on Haddon View, the MacDonalds maintain that their damages, although purely

economic, are recoverable because an insurance agent owes professional duties to

an insured.

       {¶39} However, the issue in this case is not whether the MacDonalds’

negligence claim is analogous to a malpractice action, or whether their alleged

damages are subject to an exception to the economic loss rule such as the one

delineated in Haddon View. Rather, the relevant inquiry is whether attorney fees

accrued in connection with seeking declaratory relief can, as a matter of law, serve

as sufficient damages in a later negligence-based action. The MacDonalds cite to

no case law supporting this proposition.

       {¶40} The General Assembly has made clear that attorney fees accrued in

connection with seeking declaratory relief are not recoverable. In enacting R.C.

2721.16, the General Assembly sought to preserve the American Rule and its

application to attorney fees accrued in connection with seeking declaratory relief.

In absence of case law indicating to the contrary, we cannot adopt a rule that

thwarts that purpose. Thus, we cannot find that attorney fees expressly barred

under R.C. 2721.16 serve as sufficient damages in a later negligence-based action.

       {¶41} In light of the foregoing, we cannot say that the trial court erred in

granting summary judgment in favor of Webb Insurance, as the MacDonalds




                                       -14-
Case No. 1-15-27


lacked sufficient damages to maintain actions in negligence. Accordingly, the

MacDonalds’ first and fourth assignments of error are overruled.

                            Assignments of Error Nos. II & III

       {¶42} In light of our disposition of the MacDonalds’ First and Fourth

Assignments of Error, their remaining assignments of error are rendered moot and

need not be considered. App.R. 12(A)(1)(c).

       {¶43} Having found no error prejudicial to the appellants, in the particulars

assigned and argued, we affirm the judgment of the trial court.



                                                                  Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hlo




                                       -15-
