[Cite as Kelley v. State Farm Mut. Auto. Ins. Co., 2013-Ohio-585.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98749


                                         ANN KELLEY
                                                   PLAINTIFF-APPELLANT

                                                      vs.

                STATE FARM MUTUAL AUTOMOBILE
                   INSURANCE COMPANY, ET AL.
                                                   DEFENDANTS-APPELLEES



                                            JUDGMENT:
                                             AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-758078

            BEFORE:           Blackmon, J., S. Gallagher, P.J., and McCormack, J.

            RELEASED AND JOURNALIZED:                                February 21, 2013
ATTORNEYS FOR APPELLANT

Daniel J. Klonowski
50 Public Square, Suite 920
Cleveland, Ohio 44113

James L. Deese
Western Reserve Building
1468 West 9th Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEES

James R. Gallagher
Gallagher, Gams, Pryor, Tallan
& Littrell, L.L.P.
471 East Broad Street, 19th Floor
Columbus, Ohio 43215-3872
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Ann Kelley appeals the trial court’s decision granting summary

judgment in favor of State Farm Mutual Automobile Insurance Company, et al. (“State

Farm”), and denying her cross-motion for summary judgment.          Kelley assigns the

following errors for our review:

      I. The trial court committed prejudicial error when it granted State
      Farm’s motion for summary judgment.

      II. The trial court committed prejudicial error when it denied plaintiff
      Ann Kelley’s motion for summary judgment.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

      {¶3} On June 21, 2011, Kelley filed a complaint for declaratory judgment and

bad faith against State Farm. In the complaint, Kelley alleged that on June

26, 2007, she was walking towards her car in a parking lot at University Suburban Health

Center, in South Euclid, Ohio, when another parked vehicle began backing out as she was

passing behind the parking space.

      {¶4} Kelley alleged that she struck the back of the vehicle with her wooden cane

in an attempt to alert the driver, but was thrown off balance and fell to the ground.

Kelley further alleged that as a result of the fall, she sustained an intertrochanteric

fracture of her right hip, had to have open reduction hip surgery, and incurred medical

bills totaling more than $100,000.
       {¶5}    On August 2, 2011, State Farm filed its answer acknowledging that it had

issued a policy of insurance to Kelley containing uninsured motorist coverage with a limit

of $100,000 and medical payments coverage with a limit of $25,000.              State Farm

submitted that Kelley waited over two-and-one half years to report the incident and then

filed suit within 60 days of the late reporting in violation of the policy’s prompt notice

requirement.

       {¶6} Thereafter, the parties conducted extensive discovery that included taking

Kelley’s deposition as well as the depositions of individuals who were present at the

scene in the aftermath of the fall. Discovery revealed that on June 27, 2007, Kelley, then

age 79, had driven to the University Suburban Health Center to have her blood pressure

checked due to longstanding problems with balance, dizziness, and synocope. Kelley

indicated that the vehicle did not hit her, that the driver spoke with her briefly after she

fell, and that the unidentified driver then left the scene.

       {¶7}    Nurses Mary O’Hanlon, Deborah Petti, Marge Lehner, and Shannon L.

Smith, who came to Kelley’s assistance after she fell, all indicated that they did not

witness the incident and had no personal knowledge of how or why Kelley fell. Kelley

also indicated that she had broken her cane when she attempted to alert the unidentified

driver, but of the four nurses present after the fall, only Nurse Smith remembered the

condition of the cane, and Nurse Smith indicated that the cane was neither broken nor

damaged.
       {¶8} Between May and June 2012, the parties filed cross-motions for summary

judgment. Kelley argued that she was entitled to medical payments coverage, because,

pursuant to the policy definition, she was “occupying” her vehicle at the time of the fall.

Alternatively, Kelley argued that in the event she was deemed not to have been occupying

her vehicle, she was entitled to medical payments coverage as a pedestrian because she

was holding a cane that made physical contact with the vehicle.

       {¶9} For its cross-motion, State Farm argued that Kelley had violated the

policy’s “prompt notice” provision by waiting more than two-and-one-half years to

provide notice of the claim.

       {¶10} On July 5, 2012, the trial court granted summary judgment in favor of State

Farm and denied Kelley’s cross-motion for summary judgment. Kelley now appeals.

                                  Summary Judgment

       {¶11} We will address both assigned errors together because of their common

basis in fact and law. Kelley argues the trial court erred when it granted State Farm’s

motion for summary judgment and denied her cross-motion for summary judgment.

       {¶12} We review an appeal from summary judgment under a de novo standard of

review.   Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987), N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.
       {¶13} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is adverse

to the nonmoving party.

       {¶14} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264 (1996).         If the movant fails to meet this burden,

summary judgment is not appropriate; if the movant does meet this burden, summary

judgment will be appropriate only if the nonmovant fails to establish the existence of a

genuine issue of material fact. Id. at 293.

       {¶15} In granting State Farm’s motion for summary judgment, the trial court made

the following findings, stated in pertinent part as follows:

       The Court finds that plaintiff’s two-and-a-half year delay in reporting
       her insurance claim to defendant State Farm is a violation of the
       prompt notice requirement of the State Farm policy and such delay
       was prejudicial to defendant. Ferrando v. Auto-Owners Mut. Ins. Co.,
       98 Ohio St.3d 186 (2002). Summary judgment is therefore entered in
       favor of defendant and against plaintiff. Journal Entry, July 5, 2012.

       {¶16}     In Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186,

2002-Ohio-7217, 781 N.E.2d 927, the Ohio Supreme Court outlined an analysis for cases

involving an alleged breach of a prompt-notice condition.         In Ferrando, the Ohio

Supreme Court specifically held:
       When an insurer’s denial of [uninsured or] underinsured motorist
       coverage is premised on the insured’s breach of a prompt-notice
       provision in a policy of insurance, the insurer is relieved of the
       obligation to provide coverage if it is prejudiced by the insured’s
       unreasonable delay in giving notice. Id. at paragraph one of the syllabus.

       {¶17} Furthermore, “an insured’s unreasonable delay in giving notice is presumed

prejudicial to the insurer absent evidence to the contrary.” Id.       See also Ruby v.

Midwestern Indem. Co., 40 Ohio St.3d 159, 161, 532 N.E.2d 730 (1988). Accordingly,

the determination as to whether a breach of the prompt-notice provision relieves the

insurer of its obligation to provide UM/UIM coverage involves a two-step process.

Ferrando.

       {¶18} First, the court must determine whether the insurer did not receive

reasonable notice, thereby resulting in a breach of the provision.       Id. at ¶16.   “A

provision in an insurance policy requiring ‘prompt’ notice to the insurer requires notice

within a reasonable time in light of all the surrounding facts and circumstances.” Ruby at

syllabus.

       {¶19} Second, if the court has determined that a breach of the prompt-notice

provision occurred, it must then determine whether the insurer suffered prejudice such

that UM/UIM coverage must be forfeited. Ferrando at ¶11. A presumption arises that

the unreasonable delay was prejudicial to the insurer.         Id. at ¶16; Ruby at ¶5.

Nevertheless, this presumption may be rebutted by the insured with evidence

demonstrating the contrary. Id.
       {¶20} In the instant case, State Farm’s policy provision regarding the insured’s

duty to report a claim states in pertinent part as follows:

       The insured must give us or one of our agents written notice of the
       accident or loss as soon as reasonably possible. The notice must give us:

       a. your name; and

       b. the names and addresses of all person involved; and

       c. the hour, date, place and facts of the accident or loss; and

       d. the names and addresses of witnesses. State Farm Policy Form 9835A.

       {¶21} The record indicates that Kelley fell on June 26, 2007, but reported the

claim on February 23, 2010, approximately two years and eight months later. Such a

delay in notification, by any standard, could not be considered reasonable.

       {¶22} An insured’s duty to give the liability insurer proper and timely notice of an

occurrence and to cooperate with her insurer is a condition precedent to coverage.

Beaver Excavating Co. v. United States Fid. & Guar. Co., 126 Ohio App.3d 9, 709

N.E.2d 858 (7th Dist.1998); Gabor v. State Farm Mut. Auto. Ins. Co., 66 Ohio App.3d

141, 583 N.E.2d 1041 (8th Dist.1990).

       {¶23} Notice provisions in insurance contracts allow the insurer to step in and

control the potential litigation, protect its own interests, maintain the proper reserves in its

accounts, and pursue possible subrogation claims. See Ormet Primary Aluminum Corp.

v. Emps. Ins. of Wausau, 88 Ohio St.3d 292, 2000-Ohio-330, 725 N.E.2d 646; Am. Ins.

Co. v. Fairchild Industries, Inc., 852 F.Supp. 1173, 1179 (E.D.N.Y.1994).
         {¶24} Kelley’s two-and-one-half year delay in asserting a claim for coverage

affected State Farm’s ability to control the litigation, including resolving potentially

covered damage claims in a timely and cost-efficient manner. As previously noted, State

Farm investigated the claim after being notified almost three years after Kelley fell. The

investigation revealed that Kelley had longstanding problems with balance, dizziness, and

synocope.

         {¶25} However, when State Farm deposed Nurse O’Hanlon, who took Kelley’s

blood pressure prior to the fall and who was one of the four nurses that attended to her

after the fall, Nurse O’Hanlon testified that blood pressure records are only kept for two

years.     Thus, State Farm could not determine whether Kelley’s blood pressure

contributed to her falling as opposed to the unidentified driver, whose vehicle Kelley

admitted had not struck her.

         {¶26} In addition to the deposition of the four nurses previously mentioned, State

Farm also deposed the medics that responded and transported Kelley to the hospital.

Neither the nurses nor the medics had any recollection of the details of the incident.

None could recall any statements Kelley made regarding how and why she fell, or any

statements about the unidentified driver of the vehicle Kelley alleged was backing out of

the parking space.

         {¶27} As previously noted, Kelley alleged that when she struck the vehicle with

her cane, to alert the now unidentified driver, it broke.       However, the subsequent

investigation revealed that only one person remembers anything about the cane, and that
person, Nurse Smith, refutes that the cane was broken. Nonetheless, when State Farm

sought to inspect the cane, Kelley indicated that her son had repaired the cane. Thus,

State Farm could not corroborate Kelley’s account of the fall.

       {¶28} We are convinced that but for Kelley’s unreasonable delay in asserting a

claim for coverage, State Farm could have stepped in at an earlier juncture and conducted

a more fruitful investigation. As such, Kelley’s unreasonable delay in notifying State

Farm of the incident was clearly prejudicial. Therefore, we conclude the trial court

properly found that Kelley’s two-and-one-half-year delay in asserting a claim for

coverage permitted State Farm to deny said coverage.

       {¶29} Further, an insured’s duty to give the liability insurer proper and timely

notice of an occurrence is a condition precedent to coverage. Beaver, 126 Ohio App.3d 9,

709 N.E.2d 858. Thus, Kelley’s contention that the trial court should have granted

summary judgment in her favor on her quest for coverage is not well taken, because of

her failure to fulfill the condition precedent to coverage.

       {¶30} Based on the foregoing, the trial court properly granted summary judgment

in favor of State Farm and properly denied Kelley’s cross-motion for summary judgment.

 Accordingly, we overrule both assigned errors.

       {¶31} Judgment affirmed.

       It is ordered that appellees recover from appellant their 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.




PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J. and
TIM McCORMACK, J., CONCUR
