[Cite as Rentequip, Inc. v. Jacobs Vanaman Agency, Inc., 2013-Ohio-346.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


RENTEQUIP, INC.                                               JUDGES:
                                                              Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                                    Hon. John W. Wise, J.
                                                              Hon. Julie A. Edwards, J.
-vs-

JACOBS VANAMAN AGENCY, INC.,
ET AL.                                                        Case No. 12-CA-0006

        Defendants-Appellants                                 OPINION


CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 09-CI-0914


JUDGMENT:                                                     Affirmed in Part & Reversed in Part



DATE OF JUDGMENT:                                             February 1, 2013



APPEARANCES:

For Plaintiff-Appellee                                        For Defendants-Appellants

GARY T. MANTKOWSKI                                            MARK S. HURA
6294 Ridge Road                                               50 South Main Street
P.O. Box 189                                                  Suite 615
Sharon Center, OH 44274                                       Akron, OH 44308

DANIEL MCKAY, JR.                                             ANN MARIE O'BRIEN
550 Pacific Beach Drive, Apt. 1                               One Cascade Plaza, Suite 800
San Diego, CA 92109                                           Akron, OH 44308

                                                              COSHOCTON PROJECT, LLC
                                                              c/o Ohio Secretary of State
                                                              180 East Broad Street, 16th Floor
                                                              Columbus, OH 43215
Coshocton County, Case No. 12-CA-0006                                                   2

Farmer, P.J.

      {¶1}      On August 10 and October 5, 2007, Antique Wood and Salvage, LLC,

owned by Daniel McKay, Jr., entered into contracts to rent two pieces of equipment

from appellee, RentEquip, Inc., for a project he was working on called the Coshocton

Project, LLC.

      {¶2}      In April of 2008, Mr. McKay sought to purchase insurance for the rented

equipment from appellant, Jacobs Vanaman Agency, Inc. Appellee was listed as an

additional insured, and received an "Evidence of Property Insurance" form on May 9,

2008. However, Mr. McKay never signed the insurance application and never paid the

premium.

      {¶3}      Both pieces of equipment were subsequently damaged while in Mr.

McKay's care. Appellee repossessed the equipment in August of 2008, and made a

claim under the insurance policy. Said claim was denied.

      {¶4}      On June 18, 2009, appellee filed a complaint against appellant in the

Court of Common Pleas of Medina County, Ohio, alleging negligence and promissory

estoppel. Appellant filed a third-party complaint against Mr. McKay and Coshocton

Project. The case was subsequently transferred to the Court of Common Pleas of

Coshocton County, Ohio.

      {¶5}      On April 11, 2011, appellant received leave to file its motion for summary

judgment. By judgment entry filed June 6, 2011, the trial court denied the motion. An

amended complaint was filed on June 24, 2011.

      {¶6}      A jury trial commenced on February 27, 2012. The jury found in favor of

appellant on the promissory estoppel claim and in favor of appellee on the negligence
Coshocton County, Case No. 12-CA-0006                                                    3


claim in the amount of $6,286.65. The jury allocated the percentage of negligence to

appellee at 80% and to appellant at 20%. Because more than 50% was allocated to

appellee, the trial court informed the jury no money would be awarded to appellee.

         {¶7}   Following post-trial briefing, on March 26, 2012, the trial court entered

judgment for appellee as against appellant in the amount of $6,286.65. The trial court

also awarded judgment to appellant as against Mr. McKay and Coshocton Project,

finding the parties were jointly and severally liable for the $6,286.65.

         {¶8}   Appellant filed an appeal and assigned the following assignments of error:

                                              I

         {¶9}   "THE TRIAL COURT ERRED IN DENYING APPELLANT JACOBS

VANAMAN'S MOTION FOR SUMMARY JUDGMENT."

                                              II

         {¶10} "THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE INTENT OF

THE JURY BY NOT ENTERING A VERDICT FOR THE DEFENDANT/APPELLANT ON

THE NEGLIGENCE CLAIM."

         {¶11} Appellee filed a cross-appeal and assigned the following assignment of

error:

                           CROSS-ASSIGNMENT OF ERROR I

         {¶12} "THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE

INCONSISTENCY BETWEEN INTERROGATORY NO. 6 AND THE GENERAL

VERDICT."

         {¶13} This matter is now before this court for consideration.
Coshocton County, Case No. 12-CA-0006                                              4


                                          I

      {¶14} Appellant claims the trial court erred in denying its motion for summary

judgment as there was no meeting of the minds between the parties and therefore no

contract. We disagree.

      {¶15} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)   provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any

      material fact remains to be litigated, (2) the moving party is entitled to

      judgment as a matter of law, and (3) it appears from the evidence that

      reasonable minds can come to but one conclusion, and viewing such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶16} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).
Coshocton County, Case No. 12-CA-0006                                                 5




      {¶17} The gravamen of appellant's motion for summary judgment is best

summarized in the motion itself:



             RentEquip, Inc. contracted with Antique Wood.           The Jacobs

      Vanaman Agency, Inc. was prepared to issue an insurance policy to

      Coshocton Project, LLC. These are two distinct and different corporate

      entities. Plaintiff RentEquip, Inc. is legally prohibited from making a claim

      under a[n] "Evidence of Property Insurance" issued to Coshocton Project,

      LLC, when they had no dealings with Coshocton Project, LLC.

             Further, the two pieces of equipment listed on the "Evidence of

      Property Insurance" were not the two pieces of equipment rented by

      RentEquip, Inc. to Antique Wood.       The damaged equipment allegedly

      reposed by RentEquip, Inc. were not the pieces of equipment that were

      intended to be insured, as described, in the "Evidence of Property

      Insurance."



      {¶18} Appellant argues there was no meeting of the minds to establish an

insurance contract.    The attached exhibits to the motion for summary judgment

demonstrate that appellee leased its machinery to "Antique Wood" owned by Mr.

McKay. The "Evidence of Property Insurance" form issued by appellant covering the

equipment listed the named insured as "Coshocton Project LLC" which is also owned by

Mr. McKay. In its judgment entry filed March 26, 2012, the trial court found in favor of
Coshocton County, Case No. 12-CA-0006                                                   6


appellant on its third-party complaint against Mr. McKay and Coshocton Project, finding

the parties were jointly and severally liable for the amount awarded to appellee.

       {¶19} In response, appellee argues Mr. McKay contracted to rent equipment for

his company, "Coshocton Project, LLC," despite the obvious contradiction on the rental

invoice (Antique Wood). See, Affidavit of Appellee's President, James J. Brown at ¶2.

       {¶20} Appellant also argues there was a discrepancy with the description of the

rented equipment. Listed in the "Evidence of Property Insurance" were a 2008 ASV

Skidsteer and a 2008 Reach-All. In his affidavit at ¶2, Mr. Brown averred those were

the two pieces of equipment rented per the agreements attached to his affidavit as

Exhibits 1 and 2.

       {¶21} Under the summary judgment standard, the Brown affidavit created

genuine issues of material fact. Upon review, we find the trial court did not err in

denying appellant's motion for summary judgment.

       {¶22} Assignment of Error I is denied.

                                            II

       {¶23} Appellant claims the trial court erred in entering judgment for appellee in

the amount of $6,286.65 on the negligence claim contra to the "intent of the jury" as

demonstrated by the verdict forms, the interrogatories, and the trial court's statement to

the jury.

       {¶24} In its judgment entry filed March 26, 2012, the trial court found the

following:
Coshocton County, Case No. 12-CA-0006                                                 7


             FINDS that as this Jury was instructed by the undersigned on Page

      13, "… [T]he Negligence of either Defendant Jacobs Vanaman Agency,

      Inc., or Plaintiff Rentequip, Inc., becomes important only if Negligence

      was a proximate cause of the monetary damages claimed by the

      Plaintiff." In other words, regardless of a finding by the Jury that either

      Plaintiff or Defendant was Negligent, and regardless of the percentage of

      Negligence of a party with respect to total combined Negligence equaling

      one hundred percent (100%), the particular Negligence of a party is of no

      legal significance or consequence if the Negligence is not a proximate

      cause of Plaintiff's monetary damages.



      {¶25} The verdict form on the negligence claim and Interrogatory Nos. 1, 2, 3, 4,

and 5 read the following, respectively:



             We the Jury, duly impaneled and sworn, find in favor of the Plaintiff,

      Rentequip, Inc., and against Defendant Jacobs Vanaman Agency, Inc.,

      pertaining to Plaintiff's Negligence Claim as follows: (Complete only

      after appropriate Interrogatories are answered)

             $6,286.65

             We render this verdict upon the agreement of at least six of our

      members that being at least three-fourths (3/4) or more.
Coshocton County, Case No. 12-CA-0006                                               8


            [1] Do you find, by a preponderance of the evidence, that

     Defendant Jacobs Vanaman Agency, Inc. was negligent in the business

     transaction involving Rentequip, Inc., in question?

            Yes

            [2] Do you find, by a preponderance of the evidence, that the

     negligence of Jacobs Vanaman Agency, Inc. was a proximate cause of

     monetary damages to Plaintiff, Rentequip, Inc.?

            Yes

            [3] Do you find, by a preponderance of the evidence that Plaintiff,

     Rentequip Inc., was negligent in the business transaction involving

     Jacobs Vanaman Agency Inc., in question?

            Yes

            [4] Do you find, by a preponderance of the evidence, that the

     negligence of Plaintiff, Rentequip Inc., was a proximate cause of monetary

     damages to Plaintiff?

            No

            [5] If your answers to Interrogatory Nos. 1 and 2 are Yes and

     regardless of your answers to Interrogatories No. 3 and 4, what amount

     of money will fully and fairly compensate Plaintiff for its Negligence Claim

     against Defendant Jacobs Vanaman Agency Inc.?

            $6,286.65

            Also, please allocate the percentage of negligence attributable to

     Plaintiff and Defendant relating to the business transaction in question.
Coshocton County, Case No. 12-CA-0006                                                       9


               Rentequip Inc.                      80%

               Jacobs Vanaman Agency Inc.          20%

                                           Total 100%



       {¶26} Following the polling of the jury, the trial court instructed the jury as follows

(T. at 507):



               Now, ladies and gentlemen, I am going to announce to you,

       because I believe this is the law, and the counsel can correct me if I am

       mistaken, that when you found that the percentage of negligence of the

       Plaintiff is greater than the amount or percentage of negligence of the

       Defendant in this case, the verdict of 6,286.65 will not be awarded. And

       that is because the negligence of the Plaintiff is greater than that of the

       Defendant, 51 percent or greater. And the law requires that that be the

       decision the judge makes concerning the verdict. You did your work. I, of

       course, am going to do mine as the law requires. I wanted you to know

       that so you were not surprised or upset or concerned that if there is any

       report on the outcome of the trial that somehow you would think the

       outcome is different from what you decided. Do you have any questions

       about what I have just said in that regard? Okay. All right.



       {¶27} Appellee did not object to what the trial court stated, but did object to

Interrogatory Nos. 4, 5, 6 and the verdict on promissory estoppel. T. at 509-510. The
Coshocton County, Case No. 12-CA-0006                                                10


trial court instructed counsel to file post-trial briefs on the issues. T. at 510. After

briefing, the trial court determined the following in its judgment entry filed March 26,

2012:



              FINDS that regardless of the answer to Interrogatory No. 5 by the

        Jury allocating eighty percent (80%) negligence to Rentequip, and twenty

        (20%) negligence to Jacobs Vanaman Agency, Inc., the fact that the Jury

        concluded that Rentequip, Inc.'s eighty percent (80%) negligence was

        not a proximate cause of Rentequip, Inc.'s monetary damages compels

        the legal conclusion that the twenty percent (20%) of the total negligence

        of Jacobs Vanaman Agency, Inc., found by the Jury, constitutes one

        hundred percent (100%) of the negligence proximately causing monetary

        damages to Rentequip, Inc.       Consequently, the Six Thousand Two

        Hundred Eighty-Six Dollars and 65/100 Cents ($6,286.65) Verdict returned

        by the Jury in favor of Rentequip, Inc., and against Defendant Jacobs

        Vanaman Agency, Inc., is appropriate and consistent with the Jury's

        answers to Interrogatories No. 1, 2, 3 and 4 relating to the negligence of

        Rentequip, Inc.

              ***

              FINDS that Defendant/Third-party Plaintiff Jacobs Vanaman

        Agency, Inc., has proved its Third Party Complaint against Third-Party

        Defendants Daniel W. McKay, Jr., and Coshocton Project, LLC., by a

        preponderance of the evidence, and, consequently, Judgment should
Coshocton County, Case No. 12-CA-0006                                                   11


       be awarded to Defendant/Third-Party Plaintiff Jacobs Vanaman Agency,

       Inc., and against Third-party Defendant Daniel W. McKay, Jr., and

       Coshocton Project, L.L.C., jointly and severally, in the amount of Six

       Thousand Two Hundred Eighty-Six Dollars and 65/100 Cents ($6,286.65)

       which should bear annual interest at the legal rate from the date of

       judgment.



       {¶28} A preliminary issue is the appropriateness of a comparative negligence

jury charge on a claim for negligence. A "tort action" is defined in R.C. 2315.18(A)(7) as

follows:



              "Tort action" means a civil action for damages for injury or loss to

       person or property. "Tort action" includes a civil action upon a product

       liability claim or an asbestos claim. "Tort action" does not include a civil

       action upon a medical claim, dental claim, optometric claim, or chiropractic

       claim or a civil action for damages for a breach of contract or another

       agreement between persons.



       {¶29} Although the amended complaint is couched in terms of negligence

against appellant, the true nature of the relationship of appellant was as an agent for Mr.

McKay and his companies. The negligence claim is viable against Mr. McKay, and the

cause of action against appellant by appellee is in contract or in the enforcement of the
Coshocton County, Case No. 12-CA-0006                                                  12


insurance agreement. Appellant's failure to notify appellee of the non-payment of the

insurance premium by Mr. McKay was not the cause of the injury to appellee's property.

       {¶30} Upon review, we find the trial court erred in charging the jury on

comparative fault and negligence.

       {¶31} Assignment of Error II is granted.

                          CROSS-ASSIGNMENT OF ERROR I

       {¶32} Appellee claims the trial court erred in entering judgment to appellant on

the promissory estoppel claim because the jury failed to award any damages. We

disagree.

       {¶33} The verdict form on the promissory estoppel claim and Interrogatory No. 6

read the following, respectively:



              We the Jury, duly impaneled and sworn, find in favor of the Plaintiff,

       Rentequip, Inc., and against Defendant Jacobs Vanaman Agency, Inc.,

       pertaining to Plaintiff's Promissory Estoppel Claim as follows: (Complete

       only after appropriate Interrogatories are answered)

              $0.00

              We render this verdict upon the agreement of at least six of our

       members that being at least three-fourths(3/4) or more.

              [6] Do you find, by a preponderance of the evidence, that Plaintiff

       has proved its Promissory Estoppel Claim against Defendant Jacobs

       Vanaman Agency Inc.?

              Yes
Coshocton County, Case No. 12-CA-0006                                                  13




       {¶34} In its judgment entry filed March 26, 2012, the trial court concluded the

following:



             FINDS that in the opinion of the undersigned, the Jurors had

       discretion and authority to conclude that Plaintiff had proved its claim of

       Promissory Estoppel by a preponderance of the evidence but that its

       monetary damages were Zero Dollars ($0.00). Thus, a Verdict in favor of

       Plaintiff rendering no monetary damages is consistent with the Jury's

       answers of "Yes" to Interrogatory No. 6 "Do you find, by a

       preponderance of the evidence, that Plaintiff has proved its Promissory

       Estoppel claim against Defendant Jacobs Vanaman Agency, Inc.?" and

       its answer of "$0.00" to Interrogatory No. 7 "If your answer to

       Interrogatory No. 6 is Yes, what amount of money will fully and fairly

       compensate Plaintiff for its Promissory Estoppel claim against

       Defendant Jacobs Vanaman Agency, Inc.?



       {¶35} Appellee argues pursuant to Civ.R. 49(B), the trial court could have

granted a judgment in accordance with the answer or reconvened the jury or ordered a

new trial. However, in reading all the interrogatories, it is clear in Interrogatory No. 7

that the jury determined no award of damages was appropriate:
Coshocton County, Case No. 12-CA-0006                                                  14


              If your answer to Interrogatory No. 6 is yes, what amount of

       money will fully and fairly compensate Plaintiff for its Promissory

       Estoppel Claim against Defendant Jacobs Vanaman Agency, Inc.?

              $0.00



       {¶36} This decision is consistent with the trial court's discussion of the verdicts

before he excused the jury.

       {¶37} Upon review, we find the trial court did not err in finding no award of

damages to appellee on its promissory estoppel claim.

       {¶38} Cross-Assignment of Error I is denied.

       {¶39} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed in part and reversed in part.

By Farmer, P.J.

Wise, J. concur and

Edwards, J. concurs in part and dissents in part.




                                             S/ Sheila G. Farmer________________



                                             S/ John W. Wise___________________



                                             _______________________________

                                                           JUDGES

SGF/sg 11/29
Coshocton County, Case No. 12-CA-0006                                                15


EDWARDS, J., CONCURRING IN PART AND DISSENTING IN PART OPINION

      {¶40} I agree with the majority that this case should be reversed but I disagree

as to the reason. Essentially, I find that, as between Rent Equipment and Vanaman,

this case should have proceeded solely on the negligent misrepresentation claim and

no other.

      {¶41} I would sustain the first assignment of error in part. I find that Vanaman’s

Motion for Summary Judgment should have been granted in part. It appears the trial

court considered the claims of promissory estoppel and negligent misrepresentation as

between Rent Equipment and Vanaman in its ruling on the Motion for Summary

Judgment.

      {¶42} I find that the Motion for Summary Judgment should have been granted to

Vanaman regarding the promissory estoppel claim. No promise to insure exists directly

between Vanaman Agency and Rent Equipment. Rent Equipment merely received an

Evidence of Property Insurance which would evidence an agreement and/or promise

between Vanaman Agency and the Coshocton Project.

      {¶43} In addition, any analysis of this case focusing on a contract analysis is

misplaced. As between Rent Equipment and Vanaman Agency, this is a case pleaded

as a negligent misrepresentation case. There clearly is no contract. None was ever

entered into between Antique Wood and Vanaman or between Coshocton Project and

Vanaman. No contract was ever intended to be entered into between Rent Equipment

and Vanaman even though Rent Equipment’s interest in the property rented to Antique

Wood would be protected by the insurance obtained by Antique Wood and/or

Coshocton Project for its use of the Rent Equipment property.
Coshocton County, Case No. 12-CA-0006                                                      16


       {¶44} The question is whether the Vanaman Agency in the course of its

business, supplied false information for the guidance of Rent Equipment in its business

transactions and whether the Vanaman Agency failed to exercise reasonable care in

obtaining and communicating this information to Rent Equipment and whether Rent

Equipment suffered losses caused by its justifiable reliance on this information. Delman

v. Cleveland Hts., 41 Ohio St.3d 1, 4, 534 N.E.2d 835 (1989).

       {¶45} Therefore, while I agree with the majority that this matter should have

survived summary judgment, it is because there were jury questions regarding, inter

alia, justifiable reliance by Rent Equipment on the documentation received from the

Vanaman Agency.

       {¶46} I concede that my position on negligent misrepresentation in this context

has changed since authoring the Opinion in LU-AN-DO, Inc. v. Kloots, 131 Ohio App.3d

71, 721 N.E.2d 507 (1999). In that case, this Court found that, as a matter of law, the

issuance of a Certificate of Insurance to a certificate holder who is not a customer of the

insurance agent issuing the certificate, fails to create a duty from the certificate issuer to

the certificate holder. Id. at 75.

       {¶47} I agree with the majority that the second assignment of error should be

sustained, but I do so because the trial court should not have entered judgment based

on the confusing answers to the interrogatories. The majority finds that the trial court

erred in charging the jury on comparative fault and negligence. I disagree. I find that

comparative negligence would be proper in a negligent misrepresentation case, which is

the nature of the claim by Rent Equipment against the Vanaman Agency.
Coshocton County, Case No. 12-CA-0006                                                   17


      {¶48} The problem with the jury instructions is not that they covered comparative

negligence, but that they were slightly confusing regarding comparative negligence in a

negligent misrepresentation case and that they also covered promissory estoppel,

which is a claim that never should have reached the jury. The Vanaman Agency had a

duty to exercise reasonable care in obtaining and communicating information to Rent

Equipment regarding whether items belonging to Rent Equipment had been insured,

what items of Rent Equipment had been insured and what business entity had

purchased the insurance.     Rent Equipment had a duty to examine the notice of

coverage to see if the notice indicated that the items rented from it had been insured by

the entity renting the items from Rent Equipment.          If both parties violated their

respective duties of care, and Rent Equipment suffered monetary losses because it

relied on the notice of insurance in not protecting itself from damage loss to its

equipment, the jury must determine which party was more at fault. The only time the

intended contract of insurance would come into play is in determining damages. In

other words, if Antique Wood and/or Coshocton Project had correctly purchased the

required insurance, what would Rent Equipment have been entitled to under the policy.

      {¶49} As to the first cross-assignment of error, I disagree with the majority. I find

there is an inconsistency with the jury’s determination that Rent Equipment proved its

claim of promissory estoppel against the Vanaman Agency but did not award damages.

Promissory estoppel by definition requires as one of its elements that the party claiming

estoppel must be injured by the reliance.            Sims v. Midvale, 5th Dist. No.

2012AP030021, 2012-Ohio-6081.
Coshocton County, Case No. 12-CA-0006                                               18


But, because I find that negligent misrepresentation is the only claim that should have

gotten to the jury as between Rent Equipment and the Vanaman Agency, and that this

case should be reversed and retried on that theory as between those parties, any

discussion on promissory estoppel is moot.




                        ____________________________________

                                   Judge Julie A. Edwards




JAE/rmn
[Cite as Rentequip, Inc. v. Jacobs Vanaman Agency, Inc., 2013-Ohio-346.]


           IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



RENTEQUIP, INC.                                       :
                                                      :
        Plaintiff-Appellee                            :
                                                      :
-vs-                                                  :           JUDGMENT ENTRY
                                                      :
JACOBS VANAMAN AGENCY, INC.,                          :
ET AL.                                                :
                                                      :
        Defendants-Appellants                         :           CASE NO. 12-CA-0006




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed in part

and reversed in part. Costs to be divided equally between appellant and appellee.




                                                      S/ Sheila G. Farmer________________



                                                      S/ John W. Wise___________________



                                                      _______________________________

                                                                       JUDGES
