[Cite as Burr v. Nationwide Mut. Ins. Co., 2013-Ohio-4406.]


STATE OF OHIO                    )                            IN THE COURT OF APPEALS
                                 )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

MARC H. BURR                                                  C.A. No.   12CA010231

        Appellant

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
NATIONWIDE MUTUAL INSURANCE                                   COURT OF COMMON PLEAS
CO.                                                           COUNTY OF LORAIN, OHIO
                                                              CASE No.   08CV158085
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: October 7, 2013



        MOORE, Presiding Judge.

        {¶1}    Appellant, the Estate of Raymond Long (“the Estate”), appeals from the judgment

of the Lorain County Court of Common Pleas. We reverse and remand this matter to the trial

court for further proceedings consistent with this opinion.

                                                      I.

        {¶2}    In 2006, William Price was driving an automobile which collided with a

motorcycle on which Raymond Long and Patricia Morgan were riding. Mr. Long suffered fatal

injuries, and Ms. Morgan was seriously injured. At the time of the accident, Mr. Price was

covered by an insurance policy issued by Nationwide Insurance (“Nationwide”).

        {¶3}    Marc H. Burr was appointed as the administrator of Mr. Long’s estate. Ms.

Morgan brought suit against Mr. Price and the Estate in the Geauga County Court of Common

Pleas. During those proceedings, counsel for the Estate and counsel for Ms. Morgan began

negotiations with Nationwide employees Anita Washington, who was assigned as the bodily
                                                2


injury adjuster, and Ed Megyesi, who was assigned as the property loss adjuster. The Estate

contends that Mr. Megyesi offered $17,030 to settle the Estate’s property loss claim. The Estate

further contends that, during a conference call between counsel for the Estate, counsel for Ms.

Morgan, and Ms. Washington, the parties agreed to settle the bodily injury claim for the

$300,000 bodily injury policy limit, splitting these funds evenly between the Estate and Ms.

Morgan. Nationwide acknowledges that it engaged in negotiations with the Estate and Ms.

Morgan, but disputes that a settlement agreement had been reached.

       {¶4}    At some point after the suit was filed in the Geauga Court, American International

Group, Inc. (“AIG”) contacted counsel for Ms. Morgan regarding settlement of the claim against

Mr. Price; although the nature of AIG’s insurance relationship with Mr. Price is not clear from

the record in the present case. Thereafter, the Estate and Ms. Morgan settled with AIG for a total

of $1,525,000, with $900,000 apportioned to Ms. Morgan, and the remaining $625,000 to the

Estate. Mr. Burr and Mr. Long’s sisters, as his heirs, signed a release to AIG. After settling with

AIG, the Estate claims that Nationwide refused to pay the settlement funds as purportedly had

been agreed.

       {¶5}    The Estate and Ms. Morgan brought suit against Nationwide in the trial court,

alleging fraudulent inducement, breach of contract, promissory estoppel, and unjust enrichment.

Nationwide moved to dismiss or transfer the action on the basis that Lorain County was not the

proper venue. The trial court denied the motion. Thereafter, Nationwide moved for summary

judgment. In a journal entry dated April 27, 2012, the trial court granted Nationwide’s motion

for summary judgment.
                                                 3


        {¶6}    The Estate timely appealed from the April 27, 2012 journal entry, and it now

presents four assignments of error for our review.1 We have consolidated the assignments of

error to facilitate our discussion.

                                                 II.

                                      ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN FINDING THAT THE AIG SETTLEMENT,
        WHICH WAS REACHED SEVEN DAYS AFTER THE NATIONWIDE
        SETTLEMENT, PRECLUDES [THE] ESTATE’S CLAIMS AGAINST
        NATIONWIDE FOR FRAUDULENT INDUCEMENT.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN FINDING THAT THE AIG SETTLEMENT
        PRECLUDES [THE] ESTATE’S CLAIMS AGAINST NATIONWIDE FOR
        BREACH OF CONTRACT.

                                  ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED IN FINDING THAT THE AIG SETTLEMENT
        PRECLUDES [THE] ESTATE’S CLAIMS AGAINST NATIONWIDE FOR
        PROMISSORY ESTOPPEL.

                                  ASSIGNMENT OF ERROR IV

        THE TRIAL COURT ERRED IN FINDING THAT THE AIG SETTLEMENT
        PRECLUDES [THE] ESTATE’S CLAIMS AGAINST NATIONWIDE FOR
        UNJUST ENRICHMENT.

        {¶7}    In its assignments of error, the Estate argues that the trial court erred in

determining that the AIG release operated to preclude the estate from proceeding on its claims

against Nationwide for fraudulent inducement, breach of contract, promissory estoppel, and

unjust enrichment. We agree.



        1
          Ms. Morgan did not challenge the trial court’s judgment and is not a party to this
appeal. Therefore, the Estate is the sole appellant in this matter, and, thus, the foregoing decision
is limited to the Estate. Green v. Helms, 9th Dist. Summit No. 26371, 2013-Ohio-2075, ¶ 5,
citing App.R. 3(D) (“notice of appeal shall specify the party or parties taking the appeal”).
                                                   4


        {¶8}       The trial court determined this matter on summary judgment. We review an

award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). We apply the same standard as the trial court, viewing the facts of the case in the light

most favorable to the non-moving party and resolving any doubt in favor of the non-moving

party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

        {¶9}       Pursuant to Civ.R. 56(C), summary judgment is proper only if:

        (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 party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden,

the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this

burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material

fact exists. Id.

        {¶10} In its motion for summary judgment, Nationwide argued that the claims against it

were precluded based upon (1) the terms of the AIG release, (2) res judicata, (3) the failure of the

Estate to follow the requirements of R.C. 3929.06, (4) the absence of a duty, an element required

to prevail on the fraudulent misrepresentation claim, (5) the non-existence of a settlement

agreement between the Estate and Nationwide, (6) the absence of reasonable reliance, an element

required to prevail on the promissory estoppel claim, and (7) the absence of a conferred benefit,

an element required to prevail on the unjust enrichment claim. The trial court concluded that the
                                                5


first three of these bases prevented the Estate from recovering irrespective of the merits of its

claims. We will separately address the bases relied upon by the trial court in granting summary

judgment to Nationwide.

The AIG Release

       {¶11} In its motion, Nationwide argued that it was entitled to judgment because, in the

settlement agreement between AIG and the Estate, the Estate expressly released all claims

against Mr. Price’s insurers.

       {¶12} “[A] settlement agreement is a contract designed to terminate a claim by

preventing or ending litigation[.]” (Citations omitted.) Wochna v. Mancino, 9th Dist. Medina

No. 07CA0059-M, 2008-Ohio-996, ¶ 11. “The meaning of a contract is to be gathered from a

consideration of all its parts[.]” Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, ¶

8, quoting German Fire Ins. Co. v. Roost, 55 Ohio St. 581 (1897), paragraph one of the syllabus.

“The intent of the parties is presumed to reside in the language they chose to use in their

agreement.” Hare v. Isley, 9th Dist. Summit No. 26078, 2012-Ohio-3668, ¶ 9, quoting Graham

v. Drydock Coal Co., 76 Ohio St.3d 311, 313 (1996).           Accordingly, when that language

contained within the contract is unambiguous, “a court may look no further than the writing itself

to find the intent of the parties.” Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d

397, 2011-Ohio-2720, ¶ 37. Ambiguity refers to “the condition of admitting of two or more

meanings, of being understood in more than one way, or of referring to two or more things at the

same time[.]” Robinson v. Beck, 9th Dist. Summit No. 21094, 2003-Ohio-1286, ¶ 25, quoting

Boulger v. Evans, 54 Ohio St.2d 371, 378 (1978). Where an ambiguity exists, the intent of the

parties must be determined by the trier of fact. Walsh v. Marsh Bldg. Prods., Inc., 12th Dist.
                                                 6


Warren No. CA2009-10-130, 2010-Ohio-729, ¶ 11, citing Amstutz v. Prudential Ins. Co., 136

Ohio St. 404, 408 (1940).

       {¶13} Here, in support of its motion, Nationwide produced a copy of Mr. Burr’s

deposition testimony, during which he authenticated the AIG release as a deposition exhibit. The

release pertains to the “incident,” which is described as follows:

       WHEREAS, the Estate[ ]has presented a claim against [Mr.] Price regarding an
       incident that took place on August 13, 2006 (hereinafter referred to as the
       “incident”) which claims were contained in Geauga County Common Pleas case
       number 06 P 921 entitled Patricia A. Morgan v. William J. Price et al., which was
       dismissed without prejudice[.]

       {¶14} The release then provides, in relevant part:

       NOW, THEREFORE, the Estate[ and Mr. Long’s sisters] hereby release, settle,
       cancel and forever discharge, and acknowledge to be fully and fairly satisfied, any
       and all claims, demands, rights and causes of action of every nature and
       description, including, but not limited to, claims for wrongful death or personal
       injury, pain and suffering, medical, hospital, nursing or burial expenses, damage
       costs, loss of services or society, expenses and compensation of any nature
       whatsoever including punitive damages, which the Estate[ and Mr. Long’s sisters]
       may have had in the past, or now has, or hereafter may have or assert against
       Releasees for claimed damages to the Estate[ and Mr. Long’s sisters] arising out
       of the aforesaid incident.

The release defines “Releasees” to include Mr. Price and AIG, and it defines Mr. Price to include

his “insurers.” From this language, Nationwide maintains that the instant action is barred

because Nationwide was an insurer of Mr. Price, and the Estate agreed to release claims against

Mr. Price’s insurers.

       {¶15} After review of the release, we conclude that there exists a question of fact as to

whether the parties intended the release to operate to bar actions against Mr. Price’s insurers

arising from the actions of the insurers in settlement negotiations. The release provides that the

Estate would release the claims “arising out of the aforesaid incident.” The incident pertains to

the incident which occurred on August 13, 2006, the date of the accident, for which Ms. Morgan
                                                 7


brought claims in the Geauga County Court of Common Pleas. There is no dispute that those

claims pertain to the actions of Mr. Price. The actions complained of in the instant complaint

pertain to the actions of Nationwide in which it engaged when conducting settlement

negotiations pertaining to Mr. Price’s actions. Accordingly, we conclude that there exists a

question of fact as to the intent of the parties relative to the scope of the release. See Walsh,

2010-Ohio-729 at ¶ 27 (concluding that a question of fact existed as to parties’ intent relative to

the scope of the release where release included provisions precluding all claims arising from

defendant’s “products installed at the [plaintiff’s] premises,” but specifically referenced products

installed “in or about 1989” in other provisions (Emphasis omitted.)). Therefore, summary

judgment was inappropriate to Nationwide on this basis.

Res Judicata

       {¶16} Nationwide further argued in its motion that the doctrine of res judicata barred the

Estate from bringing suit against Nationwide. Under the doctrine of res judicata, “[a] valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim arising out

of the transaction or occurrence that was the subject matter of the previous action.” (Emphasis

added.) Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995), syllabus. “However, res judicata

only applies as a bar to subsequent actions between the parties to the original action or those in

privity with them.” Singfield v. Yuhasz, 9th Dist. Summit No. 22432, 2005-Ohio-3636, ¶ 8

(citing Brown v. Dayton, 89 Ohio St.3d 245, 247 (2000)).

       The doctrine of res judicata encompasses the two related concepts of claim
       preclusion, also known as res judicata or estoppel by judgment, and issue
       preclusion, also known as collateral estoppel. * * * Claim preclusion prevents
       subsequent actions, by the same parties or their privies, based upon any claim
       arising out of a transaction that was the subject matter of a previous action. * * *
       Where a claim could have been litigated in the previous suit, claim preclusion also
       bars subsequent actions on that matter. * * *
                                                    8


         Issue preclusion, on the other hand, serves to prevent relitigation of any fact or
         point that was determined by a court of competent jurisdiction in a previous
         action between the same parties or their privies. * * * Issue preclusion applies
         even if the causes of action differ.

(Citations omitted.) O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 61, 2007-Ohio-1102,

¶ 6–7.

         {¶17} Nationwide argues that because the AIG release also released Mr. Price, and

because Nationwide was in privity with Mr. Price, the release bars the Estate from seeking

recovery from Nationwide. However, as set forth above, the actions complained of in the instant

litigation are the actions of Nationwide representatives.         The actions complained of in the

Geauga litigation were those of Mr. Price. Therefore, the instant claims do not involve the same

claims or issues as the Geauga litigation. Therefore, settlement of the Geauga claims does not

preclude suit against Nationwide.

         {¶18} Accordingly, Nationwide’s argument that res judicata barred the instant action

lacks merit, and summary judgment in its favor was inappropriate on this basis.

R.C. 3929.06

         {¶19} Nationwide further argued that R.C. 3929.06 barred the instant action because the

Estate did not comply with its provisions.

         {¶20} R.C. 3929.06 states, in relevant part, that:

         (A)(1) If a court in a civil action enters a final judgment that awards damages to a
         plaintiff for injury, death, or loss to the person or property of the plaintiff or
         another person for whom the plaintiff is a legal representative and if, at the time
         that the cause of action accrued against the judgment debtor, the judgment debtor
         was insured against liability for that injury, death, or loss, the plaintiff or the
         plaintiff’s successor in interest is entitled as judgment creditor to have an amount
         up to the remaining limit of liability coverage provided in the judgment debtor’s
         policy of liability insurance applied to the satisfaction of the final judgment.

         (2) If, within thirty days after the entry of the final judgment * * *, the insurer that
         issued the policy of liability insurance has not paid the judgment creditor an
                                                9


       amount equal to the remaining limit of liability coverage provided in that policy,
       the judgment creditor may file in the court that entered the final judgment a
       supplemental complaint against the insurer seeking the entry of a judgment
       ordering the insurer to pay the judgment creditor the requisite amount. * * *
       [T]he civil action based on the supplemental complaint shall proceed against the
       insurer in the same manner as the original civil action against the judgment
       debtor.

       (B) Division (A)(2) of this section does not authorize the commencement of a
       civil action against an insurer until a court enters the final judgment described in
       division (A)(1) of this section in the distinct civil action for damages between the
       plaintiff and an insured tortfeasor and until the expiration of the thirty-day period
       referred to in division (A)(2) of this section.

       {¶21} Subsection (B) above provides the “direct action” rule in that “[a]n injured person

may sue a tortfeasor’s liability insurer, but only after obtaining judgment against the insured.”

Chitlik v. Allstate Ins. Co., 34 Ohio App.2d 193, (8th Dist.1973), paragraph two of the syllabus;

see also W. Broad Chiropractic v. Am. Family Ins., 122 Ohio St.3d 497, 2009-Ohio-3506, ¶ 28

(“R.C. 3929.06(B) precludes an injured person from bringing a civil action against the

tortfeasor’s insurer until the injured person has first obtained a judgment for damages against the

insured and the insurer has not paid the judgment within 30 days.”).

       {¶22} Here, the Estate is not seeking to obtain Mr. Price’s benefits in the existing

lawsuit. Instead, it seeks to obtain damages from Nationwide based upon its purported actions.

Thus, here, Nationwide, not its insured, is the purported tortfeasor.        Compare W. Broad

Chiropractic at ¶ 30-31 (assignee of individual who had been injured in car accident with the

insured had no right to compensation from insurer because at time assignment was created

individual had not brought a civil action against the insured pursuant to R.C. 3929.06)        with

Whitacre v. Nationwide Ins., 7th Dist. Belmont No. 11 BE 5, 2012-Ohio-4557, ¶ 16

(distinguishing Chitlik in part because the plaintiff in Whitacre sought “to sue the [insurance]

company not for payment of his damages pursuant to the policyholder’s insurance policy, but
                                                 10


directly, under the verbal contract he claims to have with the company”). Accordingly, R.C.

3929.06 is inapplicable.

       {¶23} Having concluded that the trial court erred in rendering its summary judgment

decision on the above three bases, we reverse the decision granting summary judgment to

Nationwide. We note that Nationwide further maintains in its brief that summary judgment was

appropriate on the fourth through seventh bases set forth in its motion, listed above. However,

“[i]t does not appear from the trial court’s entry that it considered th[ese] argument[s] in granting

summary judgment. Because the trial court did not consider the[se] argument[s] in the first

instance, we decline to do so now.” Honabarger v. Wayne Sav. Community Bank, 9th Dist.

Wayne No. 12CA0058, 2013-Ohio-2793, ¶ 26, citing Schmucker v. Kurzenberger, 9th Dist.

Wayne No. 10CA0045, 2011-Ohio-3741, ¶ 14.

       {¶24} Based upon the foregoing, the Estate’s assignments of error are sustained.

                              CROSS-ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN REFUSING TO TRANSFER VENUE FROM
       LORAIN COUNTY TO EIT[H]ER FRANKLIN OR GEAUGA COUNTY[.]

       {¶25} In its cross-assignment of error, Nationwide argues that the trial court erred in

denying its motion to dismiss or to transfer due to improper venue.

       {¶26} Although Nationwide did not file a notice of appeal from the judgment of the trial

court, it attempts to raise a cross-assignment of error pursuant to R.C. 2505.22. R.C. 2505.22

provides, in relevant part:

       In connection with an appeal of a final order, judgment, or decree of a court,
       assignments of error may be filed by an appellee who does not appeal, which
       assignments shall be passed upon by a reviewing court before the final order,
       judgment, or decree is reversed in whole or in part.
                                                11


       {¶27} However, cross-assignments of error raised by appellees who have not filed a

notice of appeal only may be “used by the appellee as a shield to protect the judgment of the

lower court but may not be used by the appellee as a sword to destroy or modify that judgment.”

Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, ¶ 32, quoting

Parton v. Weilnau, 169 Ohio St. 145, 171 (1959).

       {¶28} Here, Nationwide’s argument pertaining to venue does not advance an alternate

basis to support the trial court’s grant of summary judgment in its favor. Nationwide failed to

file a notice of cross-appeal, as would have been required to argue that the trial court erred in

denying its motion to dismiss or transfer. Accordingly, this Court will not consider its argument.

See Schmucker at ¶ 16.

                                                III.

       {¶29} The Estate’s assignments of error are sustained. We decline to reach the merits of

Nationwide’s cross-assignment of error, as it attempted to challenge a ruling of the trial court and

was not properly raised in a cross-appeal. The judgment of the Lorain County Court of Common

Pleas is reversed, and this cause is remanded for further proceedings consistent with this

decision.


                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                12


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

DAVID A. HAMAMEY, II, Attorney at Law, for Appellant.

GREGORY E. O’BRIEN and ERIC J. WEISS, Attorneys at Law, for Appellee.
