[Cite as Allstate Property & Cas. Ins. Co. v. Am. Family Ins. Co., 2015-Ohio-3978.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Allstate Property & Casualty                            :
Insurance Company,
                                                        :
                 Plaintiff-Appellant,                                      No. 14AP-955
                                                        :              (C.P.C. No. 13CV-13556)
v.
                                                        :           (REGULAR CALENDAR)
American Family Insurance Company,
                                                        :
                 Defendant-Appellee.
                                                        :



                                            D E C I S I O N

                                   Rendered on September 29, 2015


                 Hollern & Associates, and Edwin J. Hollern, for appellant.

                 Todd J. McKenna, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, Allstate Property & Casualty Insurance Company
("Allstate"), appeals from a judgment of the Franklin County Court of Common Pleas
granting summary judgment in favor of defendant-appellee, American Family Insurance
Company ("American Family"), on Allstate's claims for breach of contract and unjust
enrichment. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} This insurance dispute arises from an automobile collision involving Brenda
Shope and Patricia A. Rowland, which occurred on April 13, 2009. Rowland was cited for
the accident. As pertinent here, Allstate insured Shope with underinsured motorist limits
No. 14AP-955                                                                                2


of $100,000 per person, and American Family insured Rowland with liability limits of
$25,000 per person. Because Shope's damages exceeded Rowland's $25,000 liability
limits with American Family, Shope submitted an underinsured motorist claim with her
own carrier, Allstate. Allstate and Shope were initially unable to settle the underinsured
motorist claim. As a result, Shope initiated an action against Allstate in the Franklin
County Court of Common Pleas on April 5, 2011. The matter was docketed as Franklin
C.P. No. 11CV-4321. In the original complaint, Shope named only Allstate as a party
defendant, even though she alleged negligence by Rowland. On May 6, 2011, Shope filed
an amended complaint adding Rowland as a party defendant. On May 13, 2011, Shope
filed a second amended complaint, adding the allegation that Rowland was absent from
the state of Ohio or otherwise concealed herself for a period in excess of 30 days. On
May 17, 2011, Allstate filed a cross-claim against Rowland.
       {¶ 3} Prior to Shope initiating the lawsuit against Allstate, American Family
offered $25,000 to Shope, contingent on a full and final release of Rowland. In response,
counsel for Shope sent a letter, dated October 7, 2010, to American Family stating that his
client accepted American Family's offer of $25,000, but that he had requested "Allstate to
conduct the assets check to determine whether they will allow [him] to execute the release
and waive their med pay subrogation which should be in the area of $10,000.00."
American Family sent a letter, dated October 13, 2010, to counsel for Shope confirming in
writing its offer of $25,000 in exchange for a full and final release of all claims. By letter
dated December 2, 2010, Shope's counsel informed American Family that Allstate had
"chosen to advance the $25,000.00 and retain [its] subrogated rights." Shope's counsel
included with the December 2010 letter a copy of the Allstate "Trust Agreement for Pre-
Payment of Tortfeasor's Bodily Injury Liability Limit/Offer Under Underinsured
Motorists Coverage." That agreement, between Allstate and Shope, indicates that Allstate
provided $25,000 to Shope as "pre-payment of the bodily injury liability limits available"
to Shope under the American Family policy insuring Rowland.
       {¶ 4} During the pendency of Franklin C.P. No. 11CV-4321, Allstate settled the
underinsured motorist claim with Shope. Allstate then demanded that American Family
pay Allstate the $25,000 that Allstate advanced to Shope. American Family refused to
pay Allstate the $25,000. As a result, in December 2013, Allstate filed suit against
No. 14AP-955                                                                               3


American Family alleging breach of contract and, in the alternative, unjust enrichment.
In September 2014, both Allstate and American Family moved for summary judgment.
On October 23, 2014, the trial court issued its decision granting American Family's
motion for summary judgment and denying Allstate's motion for summary judgment.
The trial court concluded that Allstate's breach of contract claim failed because there was
no contract between American Family and Allstate, and that Allstate's alternative claim of
unjust enrichment failed because Allstate knowingly accepted the risk of not being
reimbursed when it advanced the $25,000 to Shope. Accordingly, the trial court awarded
judgment to American Family.
       {¶ 5} Allstate timely appeals.
II. Assignment of Error
       {¶ 6} Allstate assigns the following error for our review:
               The trial court erred by granting defendant/appellee's motion
               for summary judgment and overruling the motion for
               summary judgment filed by plaintiff/appellant.

III. Standard of Review
       {¶ 7} An appellate court reviews summary judgment under a de novo standard.
Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. Summary
judgment is appropriate only when the moving party demonstrates: (1) no genuine issue
of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 8} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case;
the moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
No. 14AP-955                                                                                 4


nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56,
with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at
430; Civ.R. 56(E).
IV. Discussion
       {¶ 9} In its sole assignment of error, Allstate asserts the trial court erred in
granting American Family's motion for summary judgment and denying Allstate's motion
for summary judgment. Allstate argues the trial court erroneously concluded that a
contract for payment of the $25,000 by American Family did not exist between American
Family and Allstate, and that the doctrine of unjust enrichment does not apply. For the
reasons that follow, we find Allstate's arguments to be unpersuasive.
       A. Breach of Contract Claim
       {¶ 10} We first address Allstate's breach of contract claim. Generally, a contract is
defined as a promise, or a set of promises, actionable upon breach. Kostelnik v. Helper,
96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16. Essential elements of a contract include an offer,
acceptance, contractual capacity, consideration (the bargained-for legal benefit and/or
detriment), a manifestation of mutual assent and legality of object and of consideration.
Id. A meeting of the minds as to the essential terms of the contract is a requirement to
enforcing the contract. Id. In order to establish a claim for breach of contract, the
following elements must be demonstrated: the existence of a contract, performance by the
plaintiff, breach by the defendant, and damage or loss to the plaintiff. State of Ohio Dept.
of Dev. v. Matrix Centennial, L.L.C., 10th Dist. No. 14AP-47, 2014-Ohio-3251, ¶ 16.
       {¶ 11} Allstate argues American Family was contractually obligated to pay Allstate
the $25,000 that Allstate advanced to Shope. Allstate argues that it accepted American
Family's offer on behalf of Shope when it advanced the $25,000 and Shope signed the
Trust Agreement. Allstate essentially reasons that "when a liability insurer makes an offer
to an injured party to resolve the claim, and the underinsured carrier steps in and
substitutes its limits, the insurers have made an agreement that the liability carrier
(whose limits have been substituted) will at some later time repay the insurer who made
the substitution." (Allstate's Merit Brief, 9-10.) According to Allstate, this court's decision
No. 14AP-955                                                                                    5


in Great Am. Ins. Co. v. Colonial Ins. Co. of California, 10th Dist. No. 95APE04-495
(Nov. 28, 1995), requires a finding that a contract between Allstate and American Family
existed.
       {¶ 12} Allstate's reliance on Great American is misplaced.              Although Great
American also involved the issue of whether the underinsured motorist carrier accepted
an offer of the liability insurer relating to the tendering of the tortfeasor's policy limit, that
case is not controlling because the facts are distinguishable. In Great American, Colonial
Insurance Company of California ("Colonial") insured the tortfeasor in an automobile
accident with a policy limit of $12,500. Great American Insurance Company ("Great
American") insured the injured plaintiff under an underinsurance policy with a limit of
$300,000. Colonial offered to settle the plaintiff's claim arising out of the accident for the
limit of the tortfeasor's policy with Colonial, $12,500. Great American initially indicated
it intended to substitute Colonial's policy limit to the plaintiff, but had not made a
decision whether to waive its subrogation rights against the tortfeasor. Representatives of
Great American and Colonial corresponded regularly regarding Colonial's offer to pay its
policy limit of $12,500, and Great American continued to indicate it had not yet made a
final decision regarding the waiver of its subrogation rights. However, after the expiration
of the statute of limitations for bringing an action against the tortfeasor, Great American
indicated it would waive its subrogation rights against the tortfeasor and requested that
Colonial issue the check for $12,500. When Colonial refused to issue the check, Great
American sued for breach of contract. Id.
       {¶ 13} The trial court ruled in favor of Great American on its breach of contract
claim. On appeal, this court affirmed, determining in part that a contract did exist:
"Colonial promised to pay Great American $12,500 in exchange for Great American's
promise to forbear bringing an action against [the tortfeasor] based upon its subrogation
rights." Id. This court reasoned that the expiration of the statute of limitations did not
terminate or otherwise limit the offer made by Colonial because Colonial did not
communicate the offer would no longer be valid upon the expiration of the statute of
limitations. This court further reasoned that Great American's agreement not to bring an
action constituted sufficient consideration to support a contract, even though Great
No. 14AP-955                                                                                 6


American's acceptance of the offer occurred after the expiration of the statute of
limitations. Id.
       {¶ 14} Allstate argues that, as in Great American, there is no evidence that
American Family conditioned its offer to pay the $25,000 on suit being filed against
Rowland before the expiration of the applicable statute of limitations. This argument
misses the mark. In Great American, the underinsured motorist carrier took under
advisement the tortfeasor's carrier's offer to pay the policy limit, in exchange for a release,
and then the underinsured motorist carrier ultimately accepted the offer. Because the
acceptance occurred after the expiration of the statute of limitations, the primary issue
was whether the offer remained open after that expiration. Here, American Family
offered its policy limits to Shope in exchange for a full and final release of Rowland. In
response to American Family's inquiry into the status of whether Shope was accepting its
offer, Shope's counsel sent a letter to American Family stating that Allstate had chosen to
advance the $25,000 and retain its subrogation rights, making particular reference to the
Trust Agreement between Shope and Allstate. Pursuant to the Trust Agreement, Shope
agreed to take any necessary and appropriate legal action to recover against the tortfeasor,
and to hold any monies recovered up to the advanced $25,000 in trust for Allstate, to be
immediately paid to Allstate. The Trust Agreement demonstrates Allstate and Shope
contemplated recovery of the advanced $25,000 through legal action against the
tortfeasor. Thus, the correspondence from Shope's counsel to American Family clearly
demonstrated Allstate did not agree to the release of Rowland. Thus, resolution of this
case is not controlled by Great American.
       {¶ 15} Here, Allstate essentially contends that American Family should be bound
by its offer to pay $25,000, despite there being no acceptance of the offer. Allstate
concedes neither it nor the tortfeasor can, directly or indirectly, recover the $25,000 from
the tortfeasor based on the claims against Rowland in Franklin C.P. No. 11CV-4321
because, according to Allstate, the claims against Rowland in that case were not timely
filed. Allstate is attempting to circumvent this apparent deficiency by alleging American
Family is bound by its conditional offer. But, as set forth above, the fundamental flaw in
this argument is that American Family's offer was not accepted. Instead of agreeing to a
release of the tortfeasor, Allstate advanced the $25,000 and preserved its subrogation
No. 14AP-955                                                                                7


rights against Rowland. Because there was no offer and acceptance between Allstate and
American Family, there was no contract.
       {¶ 16} For these reasons, the trial court did not err in finding that Allstate's breach
of contract claim failed as a matter of law because no contract existed between Allstate
and American Family.
       B. Unjust Enrichment Claim
       {¶ 17} We now turn to Allstate's unjust enrichment claim. The doctrine of unjust
enrichment applies when a benefit is conferred and it would be inequitable to permit the
benefitting party to retain the benefit without compensating the conferring party. Meyer
v. Chieffo, 10th Dist. No. 10AP-683, 2011-Ohio-1670, ¶ 16. Three elements comprise an
unjust enrichment claim: (1) the plaintiff conferred a benefit on the defendant, (2) the
defendant knew of the benefit, and (3) it would be unjust to permit the defendant to retain
the benefit without payment. Meyer at ¶ 37. This court has previously opined that
" '[o]ne factor in deciding whether there has been unjust enrichment is the party's
expectation when the loss was incurred.' " Johnson v. Lindquist, 10th Dist. No. 12AP-140,
2012-Ohio-5474, ¶ 10, quoting Concrete Designers, Inc. v. Demmler, 10th Dist. No.
95APE06-722 (Dec. 28, 1995); see Paugh & Farmer, Inc. v. Menorah Home for Jewish
Aged, 15 Ohio St.3d 44, 46 (1984) (finding party's "no expectation of payment" to be
significant in unjust enrichment analysis). "Thus, where a 'loss' resulted from a risk the
plaintiff knowingly undertook, and there was no evidence from which to infer that the
plaintiff had an expectation that the defendant would reimburse him for amounts
incurred, we have found it was not inequitable for plaintiff to bear the loss." Johnson at
¶ 10, citing Concrete Designers, Inc.
       {¶ 18} Allstate argues it has demonstrated the elements of its unjust enrichment
claim. Allstate asserts it conferred a benefit on American Family by advancing $25,000 to
Shope because American Family insured Rowland, the alleged tortfeasor, up to that
amount. Allstate also asserts American Family knew of this benefit and that it would be
manifestly unjust for American Family not to reimburse Allstate for the amount
advanced.
       {¶ 19} Like the trial court, we find that Allstate's unjust enrichment claim fails as a
matter of law. As discussed above, American Family offered to pay Allstate's insured,
No. 14AP-955                                                                               8


Shope, $25,000 in exchange for a full and final release of all claims. Allstate did not agree
to the release. As to the advanced $25,000, Allstate bore the risk that Rowland would not
be timely sued and that Allstate ultimately would not be reimbursed for the advanced
funds through litigation against the alleged tortfeasor.        As reflected in the Trust
Agreement between Allstate and Shope, in exchange for Allstate advancing the $25,000 to
Shope, Shope agreed to take any necessary and appropriate legal action to recover against
the tortfeasor, and to hold any monies recovered up to the $25,000 in trust for Allstate, to
be immediately paid to Allstate. That American Family's insured, Rowland, was not,
according to Allstate, timely sued does not confer an unfair benefit upon American
Family.    Thus, under these circumstances, application of the doctrine of unjust
enrichment is not warranted.
       {¶ 20} For these reasons, the trial court did not err in overruling Allstate's motion
for summary judgment and granting American Family's motion for summary judgment.
Accordingly, we overrule Allstate's sole assignment of error.
V. Conclusion
       {¶ 21} Having overruled Allstate's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                          BROWN, P.J., and SADLER, J., concur.
