        [Cite as Blue Ash Auto Body, Inc. v. Progressive Cas. Ins. Co., 2011-Ohio-5785.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



BLUE ASH AUTO BODY, INC.,                         :         APPEAL NO. C-110083
                                                            TRIAL NO. A-0907630
FINNEY AUTOMOTIVE COMPANY, :
INC.,                                                       O P I N I O N.
                             :
  and
                             :
VALLEY PAINT & BODY, INC.,
                             :
      Plaintiffs-Appellants,
                             :
  vs.
                             :
PROGRESSIVE CASUALTY
INSURANCE COMPANY,           :

PROGRESSIVE SPECIALTY                             :
INSURANCE COMPANY,
                                                  :
PROGRESSIVE PREFERRED
INSURANCE COMPANY,                                :

PROGRESSIVE DIRECT INSURANCE :
COMPANY,
                             :
ARTISAN & TRUCKERS CASUALTY
COMPANY,                     :

  and                                             :

UNITED FINANCIAL CASUALTY                         :
COMPANY,

   Defendants-Appellees.                          :
                    OHIO FIRST DISTRICT COURT OF APPEALS



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 10, 2011


Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, Joseph T.
Deters, W.B. Markovits, Terrence L. Goodman, Terence R. Coates and Erica L.
Eversman, for Plaintiffs-Appellants,

Baker & Hostetler LLP, Ernest E. Vargo, Michael E. Mumford, Ted T. Martin and
Robert T. Razzano, for Defendants-Appellees.




Please note: This case has been removed from the accelerated calendar.




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                       OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Judge.

       {¶1}       Blue Ash Auto Body, Inc., Finney Automotive Company, Inc., and

Valley Paint & Body, Inc., (collectively, “the auto-body shops”) appeal the trial court’s

judgment that granted summary judgment in favor of Progressive Casualty

Insurance Company, Progressive Specialty Insurance Company, Progressive

Preferred Insurance Company, Progressive Direct Insurance Company, Artisan &

Truckers Casualty Company, and United Financial Casualty Company (collectively,

“Progressive”).     We conclude that the trial court properly granted summary

judgment on the auto-body shops’ claims for breach of contract and unjust

enrichment. We therefore affirm the judgment of the trial court.

       {¶2}       The auto-body shops filed a class-action lawsuit against Progressive

that included claims for deceptive trade practices, breach of contract, unjust

enrichment, tortious interference, and civil conspiracy. The auto-body shops alleged

that Progressive illegally steered its insureds to its network of automobile repair

shops; that Progressive used unregistered, illegal repair shops; that Progressive

illegally suppressed prices; that Progressive interfered with the auto-body shops’

professional collision repair judgment; that Progressive misapplied cost-database

information; and that Progressive refused to pay the auto-body shops for necessary

repairs on behalf of its insureds. Progressive filed a motion for summary judgment

on the breach-of-contract and unjust-enrichment claims. The trial court granted

summary judgment to Progressive on those claims. The auto-body shops dismissed

their remaining claims and now appeal.

       {¶3}       In their first assignment of error, the auto-body shops assert that the

trial court erred when it granted Progressive’s motion for summary judgment with




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                     OHIO FIRST DISTRICT COURT OF APPEALS



respect to the claim for breach of contract. Summary judgment is proper when (1)

there remains no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion, and with the evidence construed in favor of the party against whom the

motion is made, that conclusion is adverse to that party. Civ.R. 56(C); Temple v.

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. We review the

trial court’s decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio

St.3d 388, 390, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶4}    The auto-body shops contend that, because they are third-party

beneficiaries of Progressive’s contracts with its insureds, the auto-body companies

are entitled to enforce the contracts’ requirement that Progressive pay to have

insured vehicles restored to pre-loss condition. According to the auto-body shops,

Progressive breached the contracts by failing to pay the auto-body shops the

reasonable costs of repair. The trial court concluded that the “no benefit to bailee”

clause in the insurance contracts between Progressive and its insureds

unambiguously precluded auto-body shops from benefitting from the policy. The

auto-body shops argue that the clause in the contracts is ambiguous at best and

should be construed against the drafter, Progressive. But we need not reach the issue

of whether the clause is ambiguous, because we conclude that the insurance

contracts did not evince a clear intention to benefit the auto-body shops.

       {¶5}    The   auto-body    shops   would    have   enforceable   rights   under

Progressive’s insurance contracts only if the companies were intended beneficiaries.

To distinguish intended beneficiaries from incidental beneficiaries, the Ohio

Supreme Court has adopted the statement of law in the Restatement of the Law 2d,

Contracts (1981), Section 302. Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Ohio St.3d 36, 40, 521 N.E.2d 780. According to the Restatement, “a beneficiary of

a promise is an intended beneficiary if recognition of a right to performance in the

beneficiary is appropriate to effectuate an intention of the parties and either (a) the

performance of the promise will satisfy an obligation of the promisee to pay money

to the beneficiary; or (b) the circumstances indicate that the promisee intends to give

the beneficiary the benefit of the promised performance.” Restatement of the Law

2d, Contracts (1981), Section 302. Absent meeting the requirements set out in the

Restatement, a third-party beneficiary is an incidental beneficiary without

enforceable rights under the contract. Id.

          {¶6}   To explain the Restatement’s rule, the Hill court adopted language in

Norfolk & W. Co. v. United States (C.A.6, 1980), 641 F.2d 1201, that outlined the

“intent to benefit” test. Hill, supra, at 40. Under the test, courts look to the intent of

the promisee to determine whether the promisee intended the third party to benefit

from the contract. Id., citing Norfolk, supra, at 1208.

          {¶7}   The Ohio Supreme Court has recently expounded on its application of

the “intent to benefit” test in Huff v. FirstEnergy Corp., Slip Opinion No. 2011-Ohio-

5083. In Huff, the court considered whether a person who was injured by a falling

tree that was located near a utility’s easement was a third-party beneficiary of the

contract between the utility and its service contractor. The analysis of the issue

began with the court’s recognition that “Ohio law * * * requires that for a third party

to be an intended beneficiary under a contract, there must be evidence that the

contract was intended to directly benefit that third party. Generally, the parties’

intention to benefit a third party will be found in the language of the agreement.” Id.

at ¶12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}     With this principle in mind, the Huff court concluded that the trial

court had properly granted summary judgment to the service contractor on the issue

of whether the injured person was an intended beneficiary of the contract because “it

[was] unambiguous that neither [the utility nor the service contractor] intended to

make the [plaintiffs] third-party beneficiaries under the contract.” Id. at ¶14. The

court was not convinced that a provision in the contract that the service contractor

would work “to adequately safeguard all persons and property from injury” was

sufficient to create a genuine issue of material fact about whether the injured person

was an intended beneficiary under the contract. Id. at ¶17-19. The court concluded

that the contract had not been entered into for the general benefit of the public.

Rather, the intent of the parties was to ensure that the utility’s lines would be free

from trees and vegetation. Importantly, “[t]he contract contain[ed] no language

establishing an ongoing duty to the general public on behalf of either [the utility or

the service contractor].” Id. at ¶14.

       {¶9}     Using Hill as guidance, we turn to the contracts between Progressive

and its insureds. As in Hill, the contracts here did not evince an intention on the part

of either Progressive or its insureds to benefit the auto-body shops. The purpose of

the contracts was to provide insurance coverage to the insureds for damage to their

covered vehicles. There is no indication in the contracts that the promisees—here,

the insureds—entered into the insurance contracts to benefit the auto-body shops.

Rather, any benefit to the auto-body shops was incidental to the insurance coverage

provided. Like in Hill, the contracts contain no language establishing an ongoing

duty to the auto-body shops. Their involvement is limited to the extent that they are

chosen by the insureds to repair a vehicle.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10}   The auto-body shops argue that Progressive’s relationships with auto-

body shops, its recognition of the significant role played by auto-body shops, and its

day-to-day processes used to ensure that a covered vehicle is returned to its pre-loss

condition demonstrate Progressive’s intent to benefit the auto-body shops.          But

where the contracts are unambiguous about their purpose and about the lack of

intent to benefit third parties, we need not look to extrinsic evidence of Progressive’s

relationships with the auto-body shops. We conclude that the auto-body shops are

incidental beneficiaries to the insurance contracts. The trial court properly granted

summary judgment to Progressive on the contract claim. The first assignment of

error is without merit.

       {¶11}   The auto-body shops’ second assignment of error alleges that the trial

court erred when it granted summary judgment to Progressive on the unjust-

enrichment claim.    To establish unjust enrichment, the auto-body shops had to

demonstrate “(1) a benefit conferred by [them] upon [Progressive]; (2) knowledge by

[Progressive] of the benefit; and (3) retention of the benefit by [Progressive] under

circumstances where it would be unjust to do so without payment ('unjust

enrichment')." Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465

N.E.2d 1298.

       {¶12}   The auto-body shops assert that their work done to restore

Progressive’s insureds’ vehicles to pre-loss condition benefited Progressive in that

the work fulfilled Progressive’s contractual obligations to its insureds. But the auto-

body shops could not demonstrate that retention of any benefit was unjust. The

shops voluntarily entered into repair contracts with the insureds and knew in

advance Progressive’s estimates for the work. The auto-body shops were free to

refuse to do the work.    We conclude that the trial court properly granted summary



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                      OHIO FIRST DISTRICT COURT OF APPEALS



judgment to Progressive on the auto-body shops’ unjust-enrichment claim. The

second assignment of error is without merit. And we therefore affirm the judgment of

the trial court.

                                                                 Judgment affirmed.

H ILDEBRANDT , P.J., and F ISCHER , J., concur.


Please Note:
        The court has recorded its own entry this date.




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