[Cite as Allstate Ins. Co. v. Electrolux Home Prods., Inc., 2012-Ohio-90.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97065



                          ALLSTATE INSURANCE CO.,
                                                             PLAINTIFF-APPELLANT

                                                       vs.

               ELECTROLUX HOME PRODUCTS, INC.,
                                                             DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                      Case No. CV-744324

        BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 12, 2012
ATTORNEY FOR APPELLANT

Patrick J. O’Malley
Keis George LLP
55 Public Square
Suite 800
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Joseph T. Dattilo
Christopher J. Carney
Alexandra V. Dattilo
Brouse McDowell
600 Superior Avenue East
Suite 1600
Cleveland, OH 44114




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the

appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping

Mall Assn. (1983), 11 Ohio App.3d 158, 463 N.E.2d 655; App.R. 11.1(E).

      {¶ 2} Plaintiff-appellant, Allstate Insurance Co. (“Allstate”), appeals the trial

court’s decision granting defendant-appellee, Electrolux Home Products, Inc.’s

(“Electrolux”), motion to dismiss. For the reasons that follow, we affirm.
       {¶ 3} In December 2010, Allstate filed a complaint against Electrolux seeking

subrogation of an insurance claim paid to Allstate’s insured who purchased a gas dryer

that ignited and caused damage. The complaint asserted claims for (1) design defect, (2)

manufacturer’s defect, (3) breach of express and implied warranties, (4) failure to warn,

and (5) negligence.

       {¶ 4} Electrolux moved for dismissal pursuant to Civ.R. 12(B)(6), which the trial

court granted concluding in its written decision that Allstate’s complaint failed to state a

claim upon which relief can be granted. Allstate appeals, raising two assignments of

error, which we find are interrelated for discussion and disposition.

       {¶ 5} In its assignments of error, Allstate contends that the trial court erred in

granting Electrolux’s motion to dismiss (1) by failing to properly apply the established

standard for granting a motion to dismiss, and (2) in finding that Allstate had failed to

properly plead a plausible claim against Electrolux.

       {¶ 6} This court’s review of a motion to dismiss pursuant to Civ.R. 12(B)(6) is de

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,

at 5. Accordingly, if the trial court improperly applied or considered an incorrect legal

standard in reviewing Electrolux’s motion to dismiss, any error would be harmless

because we review this matter de novo.

       {¶ 7} In resolving a Civ.R. 12(B)(6) motion, a court is confined to the allegations

contained in the complaint and, as an appellate court, we must independently review the

complaint to determine if dismissal was appropriate. McGlone v. Grimshaw (1993), 86
Ohio App.3d 279, 285, 620 N.E.2d 935. A complaint cannot be dismissed unless it

appears beyond all doubt from the complaint that the plaintiff can prove no set of facts

entitling him to recovery. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42

Ohio St.2d 242, 245, 327 N.E.2d 753.

       {¶ 8} It is well settled that “when a party files a motion to dismiss for failure to

state a claim, all the factual allegations of the complaint must be taken as true and all

reasonable inferences must be drawn in favor of the nonmoving party.” Byrd v. Faber

(1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, citing Mitchell v. Lawson Milk (1988), 30

Ohio St.3d 190, 192, 532 N.E.2d 753. While the factual allegations of the complaint are

taken as true, “[u]nsupported conclusions of a complaint are not considered admitted * *

* and are not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v.

Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639, citing Schulman v. Cleveland (1972),

30 Ohio St.2d 196, 198, 283 N.E.2d 175, and Mitchell at 193. Moreover, “‘[l]egal

conclusions, deductions, or opinions couched as factual allegations are not given a

presumption of truthfulness.’” Williams v. U.S. Bank Shaker Square, 8th Dist. No.

89760, 2008-Ohio-1414, at 9, quoting Crane & Shovel Sales Corp. v. Bucyrus-Erie Co.

(C.A.6, 1988), 854 F.2d 802, 810.

       {¶ 9} Ohio is a notice-pleading state, and Ohio law does not ordinarily require a

plaintiff to plead operative facts with particularity. Cincinnati v. Beretta U.S.A Corp., 95

Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶29. Under the notice pleading

requirements of Civ.R. 8(A)(1), the plaintiff need only plead sufficient, operative facts to
support recovery under his claims.        Doe v. Robinson, 6th Dist. No. L-07-1051,

2007-Ohio-5746, ¶17. Nevertheless, to constitute fair notice, the complaint must allege

sufficient underlying facts that relate to and support the alleged claim; the complaint may

not simply state legal conclusions.       Clemens v. Katz, 6th Dist. No. L-08-1274,

2009-Ohio-1461, ¶7; see, also, De Vore v. Mut. of Omaha (1972), 32 Ohio App.2d 36, 38,

288 N.E.2d 202.

       {¶ 10} In this case, we find that the trial court did not err in dismissing Allstate’s

complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could

be granted. Our review of the two-page complaint containing 12 enumerated paragraphs

reveals that Allstate has set forth only conclusory statements. Essentially, Allstate’s

complaint states that because Electrolux manufactures and designs gas dryers and

Allstate’s insured’s gas dryer caught fire, the dryer was defective, and therefore

Electrolux is liable for damages. Even under Ohio’s notice pleading standard, Allstate’s

complaint is insufficient.

       {¶ 11} Paragraphs 7 through 9 of the complaint allege design and manufacturing

defects. But the complaint merely recites the elements of the law governing these causes

of action as a legal conclusion. It does not contain any facts or allegations that support

its conclusions. Compare Beretta at ¶26 (design defect claim survives Civ.R. 12(B)(6)

dismissal because the complaint alleges design defect by not incorporating “feasible

safety devices that would prevent unauthorized use and foreseeable injuries”).
      {¶ 12} Paragraph 10 of the complaint alleges that “fire and resulting damages were

the direct and proximate result of the breach of express or implied warranties given to

Allstate’s insured.” The complaint contains no facts or allegations pertaining to the

warranties allegedly received by the insured, whether expressed or implied, nor does it

contain any facts as to how the gas dryer did not conform to such representations.

      {¶ 13} Paragraph 11 of Allstate’s complaint alleges that the “fire and resulting

damages were the direct and proximate result of the Defendant’s failure to warn

Plaintiff’s insured of the potential hazards and dangers associated with the operation of

the gas dryer which it manufactured.” Allstate does not state or allege any facts, hazards,

or dangers that existed that Electrolux should have warned the insured about or what risks

Electrolux should have known. Compare Beretta at ¶34 (failure to warn survives Civ.R.

12(B)(6) because the complaint alleged [Beretta] manufactured or supplied guns without

adequate warning of their dangerousness or instruction as to their use where specific facts

alleged unforeseeable risks of the firearm that were not open and obvious).

      {¶ 14} Paragraph 12 of Allstate’s complaint asserts that the “aforementioned fire

and resulting damages were the direct and proximate result of the negligence of the

defendant.” This general statement, without any supporting facts or an allegation that

Electrolux owed Allstate’s insured any duty and how it breached that duty, is insufficient

to survive a Civ.R. 12(B)(6) motion. Compare Beretta at ¶17 and 25 (negligence claim

survives Civ.R. 12(B)(6) dismissal because complaint alleges negligence “in failing to

exercise reasonable care in designing, manufacturing, marketing, advertising, promoting,
distributing, supplying, and selling their firearms without ensuring that the firearms were

safe for their intended and foreseeable use by consumers”).

       {¶ 15} Accordingly, we conclude that Allstate’s unsupported legal conclusions in

its complaint cannot survive a Civ.R. 12(B)(6) motion to dismiss. The trial court did not

err in granting Electrolux’s motion.

       {¶ 16} Allstate’s assignments of error are overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
