[Cite as Stuckman v. Westfield Ins. Co., 2011-Ohio-2338.]




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



CARL STUCKMAN, ET AL.,                                      CASE NO. 3-10-08

   PLAINTIFFS-APPELLANTS,

  v.

WESTFIELD INSURANCE COMPANY,                                   OPINION

   DEFENDANT-APPELLEE.


CARL STUCKMAN, ET AL.,                                      CASE NO. 3-10-16

   PLAINTIFFS-APPELLANTS,

  v.

WESTFIELD INSURANCE COMPANY,                                   OPINION

   DEFENDANT-APPELLEE.



               Appeals from Crawford County Common Pleas Court
                           Trial Court No. 08-CV-0580

                  Judgment Affirmed in Part and Reversed in Part
                      and Cause Remanded in Case 3-10-08;
                        Appeal Dismissed in Case 3-10-16

                              Date of Decision: May 16, 2011
Case Nos. 3-10-08, 3-10-16




APPEARANCES:

      Paul E. Hoeffel for Appellants

      Richard D. Sweebe for Appellee




ROGERS, P.J.

      {¶1} Plaintiffs-Appellants, Carl and Mona Stuckman (hereinafter “the

Stuckmans”), appeal the February 2010 judgment of the Court of Common Pleas

of Crawford County granting summary judgment in favor of Defendant-Appellee,

Westfield Insurance Company (hereinafter “Westfield”), in case 3-10-08. In case

3-10-16, the Stuckmans appeal the trial court’s judgment denying their motion to

reconsider or vacate the February 2010 judgment entry. In this consolidated

appeal, in conjunction with case 3-10-08, the Stuckmans argue that the trial court

erred in not determining that the appraisal provision of the insurance policy at

issue was ambiguous and unenforceable; that the trial court erred in not declaring

the procedures and issues to be decided in the appraisal; that the trial court erred

when it sua sponte entered judgment upon the appraisal award contrary to R.C.

2711.09 and R.C. 2711.14; that the trial court erred when it sua sponte modified

the appraisal award by amounts not in evidence; and, that the trial court’s

judgment entry was not a final order. In conjunction with case 3-10-16, the

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Case Nos. 3-10-08, 3-10-16



Stuckmans argue that the trial court erred when it prematurely denied their motion

without giving them the opportunity to request an oral hearing; that the court erred

in considering Westfield’s brief in opposition to vacate their motion to reconsider

or vacate the February 2010 judgment entry; and, that the judgment entry on

appeal denying their motion for reconsideration should not have any bearing on

the merit of case 3-10-08. Based upon the following, we affirm in part and reverse

in part the trial court’s judgment in case 3-10-08 and remand for further

proceedings consistent with this opinion, and dismiss the appeal in case 3-10-16.

       {¶2} In December 2008, the Stuckmans filed a “declaratory action” with

the trial court against Westfield, contending that they were insured under a policy

of insurance issued by Westfield; that they had suffered damages as a result of fire

at their residence; that they and Westfield were unable to agree on the amount of

the loss; that Westfield had demanded appraisal; that they and Westfield had

selected different appraisers; that they and Westfield disagreed as to the manner in

which the appraisal should be conducted; and, that Westfield was in breach of the

portions of the contract concerning payment for additional living expenses, debris

removal, reasonable repairs, and payment for removal of mold, fungus, wet rot,

bacteria, or other biological contaminants. Further, the Stuckmans requested that

the trial court declare the appraisal provision of the policy to be ambiguous and

unenforceable, or, in the alternative, for the trial court to appoint an umpire and


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Case Nos. 3-10-08, 3-10-16



declare the procedure to be used in the appraisal. Additionally, the Stuckmans

requested a declaration of their rights under the policy to recover for additional

living expenses, debris removal, reasonable repairs, and for removal of mold,

fungus, wet rot, bacteria, or other biological contaminants.

       {¶3} In January 2009, the trial court, upon Westfield’s motion, granted it

leave of court to answer, move, or otherwise respond to the Stuckmans’

declaratory action and any outstanding discovery.

       {¶4} In June 2009, the trial court appointed David Dolland to serve as the

umpire in the appraisal proceedings. The trial court specifically stated that “[t]he

manner in which the appraisal is to be conducted is set forth in the subject policy

of insurance.” (June 2009 Judgment Entry, p. 1). Additionally, the trial court

ordered that Westfield’s appraiser and the Stuckmans’ appraiser separately set the

amount of the loss on each of the issues to be determined by the appraisal, and, if

the two appraisers could not agree, to submit the issues to the umpire.

       {¶5} In February 2010, the trial court issued a judgment entry stating that

Dolland had acted as umpire and completed the appraisal in compliance with the

terms of the policy in formulating the following:

       A: DWELLING – Replacement cost repairs: $31,845.56
                     Depreciation:              -5,102.23

                            Actual Cash Value Loss:       $26,743.33



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Case Nos. 3-10-08, 3-10-16



        B. CONTENTS – Replacement cost to clean: $3,813.45
                      (Actual cash value loss)

        C. ADDITIONAL LIVING EXPENSE                                      $5,400.00

        TOTAL:                                                          $35,956.78

        {¶6} In its judgment entry, the trial court determined that the Stuckmans

were entitled to recover from Westfield, for dwelling coverage, $26,743.33 less

any amount previously paid by Westfield; for contents coverage, $3,813.45 less

any amount previously paid by Westfield; and, for additional living expense

coverage, $5,400.00 less the $1,000 deposit paid by Westfield to the Housing

Headquarters that was refundable to the Stuckmans.                         Further, the trial court

determined that the Stuckmans would be permitted to recover the depreciation

amount of $5,102.23 upon completion of repairs to the dwelling. The trial court

then stated that “[a]ll claims having been resolved pursuant to the Appraisal

Award and the above declaration, this matter is hereby dismissed1 with

prejudice[.]” (Feb. 2010 Judgment Entry, p. 3).

        {¶7} Later in February 2010, the Stuckmans filed a “Motion to Reconsider

or Vacate the Judgment Entry of February 3, 2010.” The Stuckmans made their

request on the basis that the trial court authorized deduction from the appraisal

award sums previously paid by Westfield, and argued that no evidence supported


1
  Although inartfully worded, it is clear that the trial court intended to award money damages and to only
dismiss all remaining claims. The parties have interpreted the dismissal in that manner, and we have
treated it accordingly.

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Case Nos. 3-10-08, 3-10-16



these deductions and that they were never given the opportunity to respond to

these deductions. Further, the Stuckmans argued that the trial court incorrectly

determined that all claims had been resolved, as the judgment entry did not

address their request for a declaration as to the procedure to be used in the

appraisal; a declaration that the appraisal provisions of the policy were ambiguous

and unenforceable; and, a declaration that Westfield was in breach of the contract

regarding additional living expenses, debris removal, reasonable repairs, and

payment for the removal of mold, fungus, wet rot, bacteria, or other biological

contaminants.     Finally, the Stuckmans stated the February 2010 award was

defective because it was subject to the Ohio statutes governing arbitration and no

application had been made to confirm the award pursuant to R.C. 2711.09.

       {¶8} On March 4, 2010, the Stuckmans appealed the February 2010

judgment entry, prior to the trial court ruling on the Civ.R. 60(B) motion/motion to

reconsider. On March 29, 2010, the Stuckmans moved this Court to remand the

case to the trial court for the purpose of allowing the trial court to rule on the

pending motion.

       {¶9} In April 2010, this Court granted the Stuckmans’ motion and

remanded the case to the trial court pending its consideration of the Civ.R. 60(B)

motion/motion to reconsider. Shortly thereafter, the trial court denied the motion

and returned case 3-10-08 to this Court for further consideration.


                                        -6-
Case Nos. 3-10-08, 3-10-16



      {¶10} In May 2010, in case 3-10-16, the Stuckmans appealed the trial

court’s decision denying their Civ.R. 60(B) motion/motion to reconsider the

February 2010 judgment entry.

      {¶11} It is from these judgments in cases 3-10-08 and 3-10-16 that the

Stuckmans appeal.

      {¶12} The Stuckmans present the following assignments of error in case 3-

10-08 for our review.

                                Assignment of Error No. I

      THE COURT ERRED IN NOT DETERMINING THAT THE
      “APPRAISAL” PROVISION OF THE POLICY WAS
      AMBIGUOUS AND UNENFORCEABLE.

                             Assignment of Error No. II

      THE COURT ERRED IN NOT DECLARING THE
      PROCEDURES AND ISSUES TO BE DECIDED IN THE
      APPRAISAL.

                             Assignment of Error No. III

      THE COURT ERRED IN, SUE [SIC] SPONTE, ENTERING
      THE JUDGMENT OF 2/3/2010 UPON THE “APPRAISAL
      AWARD” CONTRARY TO RC 2711.09 AND RC 2711.14

                             Assignment of Error No. IV

      THE COURT ERRED IN, SUE [SIC] SPONTE, MODIFYING
      THE “APPRAISAL AWARD” BY AMOUNTS NOT IN
      EVIDENCE.




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Case Nos. 3-10-08, 3-10-16



                               Assignment of Error No. V

      THE COURT’S JUDGMENT ENTRY WAS NOT A FINAL
      ORDER AS THERE REMAINED OTHER CLAIMS.

      {¶13} Additionally, in case 3-10-16, the Stuckmans present the following

assignments of error for our review.

                               Assignment of Error No. I

      THE COURT ERRED IN PREMATURELY DENYING THE
      PLAINTIFFS’ MOTION WHERE THE PLAINTIFFS WERE
      NOT GIVEN THE OPPORTUNITY TO REQUEST AN ORAL
      HEARING PURSUANT TO THE COURT’S LOCAL RULES.

                               Assignment of Error No. II

      THE COURT ERRED IN CONSIDERING THE DEFENDANT
      WESTFIELD INSURANCE COMPANY’S BRIEF IN
      OPPOSITION TO VACATE THE JUDGMENT ENTRY OF
      FEBRUARY 3, 2010 WHICH WAS FILED WHILE THE CASE
      WAS ON APPEAL.

                              Assignment of Error No. III

      THE JUDGMENT ENTRY ON APPEAL DENYING
      PLAINTIFFS’ MOTION FOR RECONSIDERATION SHULD
      [SIC] NOT HAVE ANY BEARING ON THE MERIT OF THE
      SUBSTANTIVE ISSUES IN APPELLATE CASE NO. 3-10-08

                                 I. Case 3-10-08

                             Assignments of Error Nos. I & II

      {¶14} In their first assignment of error, the Stuckmans contend that the trial

court erred in not determining that the appraisal provision of the insurance policy

at issue was ambiguous and unenforceable. Specifically, the Stuckmans argue that

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Case Nos. 3-10-08, 3-10-16



the appraisal provision is ambiguous because it simply provides that the “amount

of loss” be “set” without specifying how the losses should be determined; that the

appraisal award did not comply with the “loss settlement” provisions in the policy;

that the policy provided “replacement cost” coverage, but the appraisal process

was developed to determine “actual cash value” coverage; and, that the amount of

the replacement cost could not yet be ascertained because a determination of

which was the lesser amount could not be made until the Stuckmans spent the

money regardless of the “estimate” of the “replacement cost.” Westfield responds

that the phrase “set the amount of loss” is unambiguous because it is not

susceptible to multiple reasonable interpretations, and because the trial judge

implicitly found the policy was unambiguous. Further, Westfield argues that the

Stuckmans never asked the trial court to give the appraisers and umpire more

specific directions and never objected to the trial court’s holding that the policy set

forth the manner in which the appraisal was to be conducted.

       {¶15} In their second assignment of error, the Stuckmans contend that the

trial court erred in not declaring the procedures and issues to be decided in the

appraisal. Specifically, the Stuckmans argue that it was necessary for the trial

court to declare the procedures to be used by the appraisers; and, that such a

declaration was necessary because even Westfield admitted that the appraisal




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Case Nos. 3-10-08, 3-10-16



clause did not specify how the appraisers and umpire would accomplish the tasks

or the process by which they should set the amount of loss.

       {¶16} Here, in their December 2008 declaratory action, the Stuckmans

sought a declaration that the appraisal provision was ambiguous and

unenforceable, or, alternately, for appointment of an umpire and declaration of the

procedure to be used in the appraisal. The appraisal provision at issue in the

policy provided that:

       E. Appraisal

       If you and we fail to agree on the amount of loss, either may
       demand an appraisal of the loss. In this event, each party will
       choose a competent and impartial appraiser within 20 days after
       receiving a written request from the other. The two appraisers
       will choose an umpire. If they cannot agree upon an umpire
       within 15 days, you or we may request that the choice be made
       by a judge of a court of record in the state where the residence
       premises is located. The appraisers will separately set the
       amount of loss. If the appraisers submit a written report of an
       agreement to us, the amount agreed upon will be the amount of
       the loss. If they fail to agree, they will submit their differences to
       the umpire. A decision agreed to by any two will set the amount
       of loss. Each party will:

       1. Pay its own appraiser; and

       2. Bear the other expenses of the appraisal and umpire equally.

(Personal Fire Policy, p. 16). Thereafter, in June 2009, the trial court appointed an

umpire and found that “[t]he manner in which the appraisal is to be conducted is

set forth in the subject policy of insurance.” (June 2009 Judgment Entry, p. 1).


                                        -10-
Case Nos. 3-10-08, 3-10-16



Additionally, the trial court ordered that Westfield’s appraiser and the Stuckmans’

appraiser separately set the amount of the loss on each of the issues to be

determined by the appraisal, and, if the two appraisers could not agree, to submit

the issues to the umpire. The record does not reflect that the Stuckmans objected

to the trial court’s June 2009 appointment of an umpire or finding that the

appraisal should be conducted as set forth in the policy, without further

elaboration.

       {¶17} “Insurance policies are contracts and their interpretation is a matter

of law for the court.” Niemeyer v. W. Res. Mut. Cas. Co., 3d Dist. No. 12-09-03,

2010-Ohio-1710, ¶9, citing Sharonville v. Am. Employers Ins. Co., 109 Ohio St.3d

186, 2006-Ohio-2180, ¶6. Additionally, contract terms are to be given their plain

and ordinary meaning. Id.

       {¶18} The appraisal provision at issue was not unique, as many other

jurisdictions have examined very similar provisions. See Cousino v. Stewart, 6th

Dist. Nos. F-05-011, F-05-004, 2005-Ohio-6245, ¶¶21-24 (examining a virtually

identical appraisal provision and finding that it was not unique in light of

provisions examined in Auto-Owners Ins. Co. v. Kwaiser (1991), 190 Mich.App.

482, 486; Reyes v. Allstate Ins. Co., Conn.Super. No. CV9503777255, 1996 WL

157306; PHC, Inc. v. North Carolina Farm Bur. Mut. Ins. Co. (1998), 129

N.C.App. 801, 804-805; Allstate Ins. Co. v. Suarez (2002), 833 So.2d 762, 765.


                                       -11-
Case Nos. 3-10-08, 3-10-16



Further, “appraisal” is a common term used in an insurance contract, with Black’s

Law Dictionary defining “appraisal clause” as “[a]n insurance-policy provision

allowing either the insurer or the insured to demand an independent estimation of

a claimed loss.” Black’s Law Dictionary (9 Ed.Rev.2009) 117. Further, each

party had the ability to, and did, in fact, appoint its own appraiser. Accordingly,

we assume that each party instructed its appraiser as to what needed to be

considered, and that the umpire appointed by the trial court would address any

conflicts. Finally, the record does not reflect that the Stuckmans objected at the

trial court level to the trial court’s June 2009 finding that the appraisal should be

conducted as set forth in the policy without further elaboration. Based on the

preceding, we find that the trial court did not err in declining to find that the

appraisal provision of the insurance policy was ambiguous and unenforceable, and

further did not err in declining to declare specific procedures and issues to be

decided in the appraisal.

       {¶19} Accordingly, we overrule the Stuckmans’ first and second

assignments of error.

                            Assignments of Error Nos. III & IV

       {¶20} In their third assignment of error, the Stuckmans contend that the

trial court erred when it sua sponte entered judgment upon the appraisal award

contrary to R.C. 2711.09 and R.C. 2711.14, which govern arbitration proceedings.


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Case Nos. 3-10-08, 3-10-16



Specifically, the Stuckmans argue that R.C. 2711.04 equates an “umpire” with an

“arbitrator”; that, consequently, the use of the language “umpire” in the appraisal

provision brings the insurance policy within the arbitration statutes as determined

in Cousino, supra; and, that the arbitration statutes require an application to

confirm the award, which was not made. Westfield responds that Ohio law is

clear that an appraisal condition in an insurance policy is not subject to the

arbitration statutes, citing Royal Ins. Co. v. Ries (1909), 80 Ohio St. 272, 283-284,

and Rademaker v. Atlas Assur. Co. (1954), 98 Ohio App. 15, at syllabus.

       {¶21} In their fourth assignment of error, the Stuckmans contend that the

trial court erred when it sua sponte modified the appraisal award by amounts not in

evidence. Specifically, the Stuckmans contend that, because the appraisal award

was for the sum of $35,956.78, that Westfield should pay them this amount

without any reduction for an amount previously paid by Westfield; that the trial

court should not have ordered a $1,000 deduction based upon a refund from

Housing Headquarters, as it was a nonparty; and, that there was no authority for

the trial court to modify the award except as provided in R.C. 2711.14.

       {¶22} At issue, therefore, is whether the provision in the insurance policy

regarding the resolution of disputes over the amount of loss is an appraisal or an

arbitration provision. The provision at issue is entitled “Appraisal.” The wording

of the provision employs the language “appraisal” or “appraiser” seven times yet


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Case Nos. 3-10-08, 3-10-16



never employs the word “arbitration” nor refers to the arbitration statutes. We find

that there is nothing in the record to indicate that the provision at issue is anything

other than an appraisal. Accord Rademaker; Phifer-Edwards, Inc. v. Hartford

Fire Ins. (1994), 8th Dist. No. 65536, 1994 WL 236225 citing Guider v. LCI

Communications Holdings Co. (1993), 87 Ohio App.3d 412; Humphrey v. Scottish

Lion Ins. Co. Ltd. (1996), 11th Dist. No. 94-T-5099, 1996 WL 200567; Smith v.

Shelby Ins. Group (1997), 11th Dist. Nos. 96-T-5547, 96-T-5566, 1997 WL

799512. But, see, Cousino, supra, at ¶32.

       {¶23} Since there is no evidence to establish that this provision provides for

arbitration, we treat this provision as an appraisal provision and hold that the trial

court committed error prejudicial to Appellant by modifying the appraisal award.

The appraisal award was signed by Westfield’s appraiser and the umpire and was

submitted to the court.     The trial court then modified the award by making

deductions. The judgment entry stated, in pertinent part:

       Wherefore, the [c]ourt hereby determines and declares that
       Plaintiffs are entitled to recover from Westfield the following
       sums: $26,743.33, less any amount previously paid by Westfield,
       for Dwelling coverage; $3,813.45, less any amount previously
       paid by Westfield, for contents coverage; and $5,400.00, less the
       $1,000.00 deposit paid by Westfield to Housing Headquarters
       that is refundable directly to Plaintiffs, for Additional Living
       Expense coverage. If and when Plaintiffs complete repairs to the
       dwelling, they will be entitled to recover the Depreciation
       holdback of $5,102.23.



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Case Nos. 3-10-08, 3-10-16



       {¶24} “A court’s review of an appraisal is extremely limited.” Smith at 4.

Generally, a court should not interfere with an appraisal award absent fraud,

mistake, or misfeasance. Id. citing Lakewood Mfg. Co. v. Home Ins. Co. of New

York, 24 Ohio Misc. 244, 422 F.2d 796, (C.A.6, 1970); see also Csuhran v.

Merrimack Mut. Fire Ins. Co. (1994), 11th Dist. No. 93-L-143, 1994 WL 102248.

Neither the judgment entry nor the record indicate any evidence of fraud, mistake,

or misfeasance on behalf of the appraisers. Therefore, the trial court erred when it

modified the appraisal award. Accordingly, we find Appellants’ third and fourth

assignments of error well-taken.

                                Assignment of Error No. V

       {¶25} In their fifth assignment of error, the Stuckmans contend that the trial

court’s judgment entry was not a final order. Specifically, they argue that the

appraisal award issued by the trial court did not resolve many of the issues in their

declaratory action, including resolution of issues as to setting the amount of the

loss, determination of other coverage of the policy, determination of whether the

appraisal clause was ambiguous and unenforceable, and failure of the award to set

a specific and certain amount to the Stuckmans.

       {¶26} As we have already determined these issues in our resolution of the

Stuckmans’ previous assignments of error, we find this assignment of error moot

and we decline to address it. App.R. 12(A)(1)(c).


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Case Nos. 3-10-08, 3-10-16



                                 II. Case 3-10-16

                          Assignments of Error Nos. I, II, & III

       {¶27} In case 3-10-16, the Stuckmans appeal the trial court’s decision

denying their motion to reconsider or vacate the February 3, 2010 judgment entry,

in which the Stuckmans argued that no evidence supported the trial court’s

deductions from the appraisal award of sums previously paid by Westfield, and

that they were never given the opportunity to respond to these deductions; that the

trial court incorrectly determined that all claims had been resolved, as the

judgment entry did not address their request for a declaration as to the procedure

to be used in the appraisal; that they were entitled to a declaration that the

appraisal provisions of the policy were ambiguous and unenforceable; that they

were entitled to a declaration that Westfield was in breach of the contract

regarding additional living expenses, debris removal, reasonable repairs, and

payment for removal of mold, fungus, wet rot, bacteria, or other biological

contaminants; and, that R.C. 2711, regarding arbitration, applied to the February 3,

2010 award, which was defective because no application had been made to

confirm the award pursuant to R.C. 2711.09.

       {¶28} We find that the Stuckmans’ appeal of the trial court’s denial of their

Civ.R. 60(B) motion in case 3-10-16 has raised the same issues as their appeal

from the trial court’s original decision in case 3-10-08. Consequently, as we have


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Case Nos. 3-10-08, 3-10-16



reversed the award at issue, we find the appeal in case 3-10-16 to be moot and

dismiss it. App.R. 12(A)(1)(c).

      {¶29} Having found no error prejudicial to the appellants in the first,

second, and fifth assignments of error in case 3-10-08, but having found error

prejudicial to the appellants herein, in the particulars assigned and argued in the

third and fourth assignments of error in case 3-10-08, the judgment of the trial

court is affirmed in part and reversed in part and the cause is remanded for further

proceedings consistent with this opinion.        Additionally, having found the

particulars assigned and argued in case 3-10-16 to be moot, we dismiss the appeal

in case 3-10-16.

                                  Judgment Affirmed in Part and Reversed in Part
                                          and Cause Remanded in Case 3-10-08;
                                               Appeal Dismissed in Case 3-10-16

SHAW and PRESTON, J.J., concur.
/jnc




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