[Cite as Erie Ins. Exchange v. Bullock, 2015-Ohio-5406.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
ERIE INSURANCE EXCHANGE                              :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. John W. Wise, J.
                         Plaintiff-Appellee          :       Hon. Craig R. Baldwin, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2015CA00112
SAMUEL E. BULLOCK, ET AL                             :
                                                     :
                  Defendants-Appellants              :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Stark County Court of
                                                         Common Pleas, Case No. 2014CV01601


JUDGMENT:                                                Affirmed


DATE OF JUDGMENT ENTRY:                                  December 21, 2015

APPEARANCES:

For Plaintiff-Appellee                                   For Defendants-Appellants

KENNETH CALDERONE                                        CHARLES HALL III.
DOUGLAS LEAK                                             Hall Law Firm
3737 Embassy Parkway, Ste. 100                           610 Market Avenue North
Akron, OH 44333                                          Canton, OH 44702
Stark County, Case No. 2015CA00112                                                       2

Gwin, P.J.

       {¶1} Appellants appeal the May 11, 2015 judgment entry of the Stark County

Court of Common Pleas granting appellee’s motion for summary judgment.

                                   Facts & Procedural History

       {¶2} In August of 2011, appellants Samuel and Annie Bullock moved to 6500

North Nickelplate Street in Louisville, Ohio. The lot consists of approximately 10.6

acres and the property includes a house, a barn, and a pool house. When appellants

purchased the property, they contacted the Vaughan Insurance Agency to obtain

insurance on the property. Appellants purchased a standard homeowner’s policy for the

Nickelplate property from appellee Erie Insurance Exchange through the Vaughan

Insurance Agency. This insurance policy was in effect from August 8, 2013 to August 8,

2014. Under the “Other Structures” portion of the policy, it states as follows:

         We do not pay for loss to structures:

       1. Used in whole or in part for business purposes (except rental or

          holding for rental structures used for private garage purposes); or

       2. Used to store business property. However, if the business property is

          solely owned by anyone we protect, we do provide coverage for the

          structure. The business property may not include gases or liquid fuel,

          unless the fuel is in a fuel tank that is permanently installed in a vehicle

          or craft which is part or stored in the structure.

The insurance policy defines “business” as “any full-time, part-time or occasional activity

engaged in as a trade, profession or occupation, including farming.”
Stark County, Case No. 2015CA00112                                                     3


      {¶3} In 2012, Annie surprised Samuel with a gift of chicken and turkey peeps.

Appellants purchased more chickens and turkeys in both 2013 and 2014. On March 20,

2014, the barn which housed the chickens, turkeys, and eggs burned down. Appellants

submitted a claim to appellee under the homeowner’s policy.

      {¶4} On July 7, 2014, appellee filed a complaint for declaratory judgment against

appellants. Appellee sought a judicial declaration regarding the rights of the parties;

specifically, that it owes no coverage for the burned-down structure. Appellants filed an

answer and counterclaim. Appellants also filed a third-party complaint against Timothy

Vaughan, Pamela Miller, and Douglas McGuire. In May of 2015, appellants voluntarily

dismissed both their counterclaims against appellee and their third-party complaint.

      {¶5} On April 10, 2015, appellee filed a motion for summary judgment. Appellee

submitted multiple depositions with exhibits in support of its motion for summary

judgment, including the depositions of Timothy Vaughan (“Vaughan”) Pamela Miller

(“Miller”), Douglas McGuire (“McGuire”), and Samuel Bullock (“Bullock”).

      {¶6} Vaughan, the principal of the Vaughan Insurance Agency, testified that

when appellants made the application for insurance, he personally inspected the

property and took photos of the property. Vaughan did not see any chickens, turkeys,

or any farming equipment during inspection. Vaughan stated that he had no indication

that appellants intended to raise chickens and sell eggs and, if he had known that, he

would have contacted the underwriter to see if appellants were eligible for coverage with

Erie. Vaughan testified that the first notification the agency had about the chickens and

eggs was on June 10, 2013. Vaughan personally called appellants on December 9,
Stark County, Case No. 2015CA00112                                                     4


2013 and left a message for appellants to please follow-up with him regarding the

chickens and eggs.

       {¶7} Miller, an insurance agent who used to work at Vaughan Insurance, testified

that she received a call from Bullock on June 10, 2013. Bullock told her that they were

raising animals and were going to sell the eggs. Bullock was concerned about potential

risk if someone got sick from the eggs. Miller stated that, during the conversation, she

told Bullock that his homeowner’s policy would not cover farm exposures.           Miller

checked with Mennonite Mutual Insurance regarding coverage for Bullock, but they

were not interested. Miller did not contact anyone else. Miller tried to call Bullock on

June 18, July 23, and August 13 and no one answered the phone. Miller did not send a

letter to Bullock notifying him that he faced additional risk.

       {¶8} McGuire, an insurance agent at Vaughan Insurance, testified that he left

several messages for Bullock starting in January of 2014 about discussing coverage for

farm animals. McGuire needed to know exactly what kind of animals were involved and

what Bullock was doing with the animals and eggs. McGuire sent a letter to appellants

on February 14, 2014 requesting that they call the office to discuss the animals and

eggs. The letter was not returned to the agency.

       {¶9} Bullock testified that when he bought the property in 2011, he had no intent

to have chickens or farm animals. In procuring homeowner’s insurance, appellants

completed a written application. The application required appellants to list any animals,

including farm animals, on the premises. Appellants stated that they had two dogs. No

farms animals were identified. Appellants also answered “no” to the question on the
Stark County, Case No. 2015CA00112                                                       5


application asking whether they were conducting any business, farming, or occupational

pursuits at the premises.

       {¶10} Bullock stated that in 2011, he made a claim with Vaughan for wind

damage to the poolhouse and that a person from Erie came to assess the damage.

According to Bullock, the representative from Erie was there after Bullock got the first

batch of chickens, so the chickens “were probably there” when Erie assessed the

damage.

       {¶11} In 2012, Bullock’s wife surprised him with baby chickens and turkeys. At

first, Bullock had about forty to fifty chickens and twenty-five to thirty turkeys. Bullock

bought food tanks, water trays, hay, wood chips, and feed for the animals. Bullock

stated that they originally intended to raise and eat the birds and the eggs. Bullock

began giving eggs away at church. In 2013, appellants purchased more chickens and

turkeys. They ordered three to four hundred more chickens and seventy-five more

turkeys. Appellants continued to give away the eggs and butchered the chickens and

turkeys. In the spring of 2014, appellants purchased more chickens and turkeys.

       {¶12} Bullock testified that they began selling the eggs and the animals in 2013.

Bullock stated that they sold the eggs at church, from out of the home, and at the

farmer’s market where they rented space to sell their eggs. Bullock testified that two to

three times per day people would call the house to order or request eggs. Bullock does

not keep track of what he sells or gives away and does not keep bills or receipts. At

one point, Bullock’s nephew told him a wholesale chicken butcher was willing to have

him raise chickens for them; however, Bullock declined the offer.
Stark County, Case No. 2015CA00112                                                        6


       {¶13} In 2013, appellants obtained a license from the Department of Agriculture

to sell chickens, turkeys, and eggs.         Appellants also obtained a “Retail Food

Establishment License” from the Stark County Health Department for “Nickel Plate

Farms,” the name of their operation.       Bullock testified that when he contacted the

Department of Agriculture to inquire whether he needed a license to sell eggs, chickens,

and turkeys, they told him he needed a license. Appellants labeled their egg cartons

with “Nickel Plate Farm: Eggs-Chickens-Turkeys.” The labels stated that the chickens,

turkeys, and eggs were “free range,” “heart smart,” and had “no chemicals.” The labels

also contained appellants’ address and phone number.

       {¶14} Bullock testified that his son told him to get insurance in case someone at

church got sick from the eggs. Bullock contacted Vaughan Insurance and spoke to a

female agent on the phone, who Bullock testified he asked to get insurance to protect

him in case someone got sick from the eggs. The agent told Bullock she would check

into it. Bullock testified that the agent did not tell him that his current homeowner’s

policy would not cover it if someone got sick from the eggs; rather, they did not talk

about the homeowner’s policy at all during the conversation. Bullock stated that the

agent never got back to him. Bullock did not call back to see if the agent had an answer

for him. Bullock testified that he never received the February 2014 letter from Vaughan

Insurance, though the letter had the correct name and address on it.

       {¶15} Bullock stated that the raising and selling of the chickens, turkeys, and

eggs was a hobby and kept him from having nightmares due to post-traumatic stress

disorder. Bullock testified that the poultry raising is part of his ministry and that he was

not making any money from it based upon the costs of the operation. Bullock stated
Stark County, Case No. 2015CA00112                                                       7


that buying chickens that produced different kinds and colors of eggs was “just fun.”

Bullock testified that he went to the farmer’s market to teach his children how to be

independent.

       {¶16} Appellants filed a memorandum in opposition to appellee’s motion for

summary judgment on April 24, 2015 and appellee filed a reply on May 1, 2015. On

May 11, 2015, the trial court issued a judgment entry granting appellee’s motion for

summary judgment. The trial court found that appellants’ poultry operation was, at the

very least, an occasional occupation or trade that occupied or engaged appellants’ time

and attention. Further, that it is clear from the record that appellants carried on the

poultry farming for the purpose of profit or gain and that profit or gain does not preclude

business loss.    The trial court concluded that appellants were clearly operating a

business through the raising of the poultry and sale of the eggs. Thus, since appellants

were operating a business within the definition of the policy, the barn is not covered

property under the homeowner’s insurance because it falls under the exclusion

language in the policy.

       {¶17} Appellants appeal the trial court’s May 11, 2015 judgment entry and assign

the following as error:

       {¶18} “I. THE TRIAL COURT IMPROPERLY DECIDED THE FACTUAL

QUESTION OF WHETHER THE APPELLANTS’ POULTRY ACTIVITY WAS A

‘BUSINESS’ AND NOT A ‘HOBBY.’

       {¶19} “II. THE TRIAL COURT TOOK THE QUESTION AWAY FROM THE JURY

BY NARROWLY FOCUSING ON ONLY ONE FACTOR OF DISTINGUISHING A

‘BUSINESS’ FROM A ‘HOBBY’ AND IGNORING ALL OF THE OTHER FACTORS.”
Stark County, Case No. 2015CA00112                                                      8


                                              I. & II.

                        Summary Judgment Standard

      {¶20} Civ.R. 56 states, in pertinent part:

       “Summary judgment shall be rendered forthwith if the pleadings,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence, and written stipulations of fact, if any, timely filed

      in the action, show that there is no genuine issue of material fact and that

      the moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable

      minds can come to but one conclusion and that conclusion is adverse to

      the party against whom the motion for summary judgment is made, that

      party being entitled to have the evidence or stipulation construed mostly

      strongly in the party’s favor. A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶21} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474
Stark County, Case No. 2015CA00112                                                      9


N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

        {¶22} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶23} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).

                                       Insurance Policy

        {¶24} The construction of an insurance contract is a matter of law to be

determined by the court. Chicago Title Ins. Co. v. Huntington Nat’l Bank, 87 Ohio St.3d

270, 719 N.E.2d 955 (1999). In interpreting the contract, a court is to give effect to the

intent of the parties to the agreement. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
Stark County, Case No. 2015CA00112                                                      10


2003-Ohio-5849, 797 N.E.2d 1256 (2003). In doing so, “[w]e examine the insurance

contract as a whole and presume that the intent of the parties is reflected in the

language used in the policy. We look to the plain and ordinary meaning of language

used in the policy unless another meaning is clearly apparent from the contents of the

policy. When the language of a written contract is clear, a court may look no further

than the writing itself to find the intent of the parties.” Id. The general rule of liberal

construction cannot be employed to create an ambiguity where there is none.

Progressive Max Ins. Co. v. Grange Mut. Cas. Co., 8th Dist. Cuyahoga No. 81656,

2003-Ohio-4564. “Only where a contract of insurance is ambiguous and, therefore,

reasonably susceptible to more than one meaning must the policy language be

construed liberally in favor of the insured who drafts the instrument.” Id.

       {¶25} In their two assignments of error, appellants argue the trial court erred in

granting summary to appellee. Specifically, appellants argue the trial court improperly

focused on one factor in distinguishing a “business” from a “hobby,” and in finding that

appellants were operating a business. Further, that since appellants made less than

$500 from egg and poultry sales, there is no profit motive. We disagree.

       {¶26} The Erie policy defines business as “any full-time, part-time or occasional

activity engaged in as a trade, profession, or occupation, including farming.” Trade is

defined in case law as “any business carried on for the purpose of profit or gain or

livelihood” and occupation is defined as “any business, trade, profession, pursuit,

vocation or calling or as that which occupies, or engages, the time and attention.” Byers

v. Motorists Ins. Co., 169 Ohio App.3d 404, 2006-Ohio-5983, 863 N.E.2d 196 (4th Dist.

Vinton).
Stark County, Case No. 2015CA00112                                                          11


       {¶27} Courts applying Ohio law have held that in order for an activity to constitute

a “business,” two elements must be satisfied: continuity and profit motive. State Farm

Fire & Cas. Co. v. Hiermer, 720 F. Supp. 1310 (S.D. Ohio 1998), aff’d, 884 F.2d 850

(6th Cir. 1989); Lenart v. Doversberger, 8th Dist. Cuyahoga No. 65372, 65373, 1994

WL 189433 (May 12, 1994); Byers v. Motorists Ins. Co., 169 Ohio App.3d 404, 2006-

Ohio-5983, 863 N.E.2d 196 (4th Dist. Vinton).

       {¶28} Continuity is generally shown by a “customary engagement or stated

occupation.” Lenart v. Doversberger, 8th Dist. Cuyahoga No. 65372, 65373, 1994 WL

189433 (May 12, 1994). The business need not be the insured’s primary occupation or

employment. Id. However, the activities should be conducted on a “regular basis.”

West American Ins. Co. v. Sluder, 119 Ohio App.3d 211, 695 N.E.2d 7 (1st Dist.

Hamilton 1997).

       {¶29} The undisputed facts in this case establish the continuity element. Bullock

testified to maintaining a significant operation that included hundreds of chickens and

turkeys. Bullock had to acquire various supplies such as feeding trays, hay, water

bottles, and wood chips. Appellants began selling eggs and poultry in 2013 and sold

them at church, out of the home, and at a farmer’s market. Bullock testified that two to

three times per day people would call the house to order or request eggs.

       {¶30} With regards to “profit motive,” this does not necessarily require an actual

profit be realized, rather “an occupation or employment will not be excluded from the

classification of business merely because it actually results in loss instead of profit; but it

is essential that livelihood or profit be at least one of the purposes for which the

employment is pursued.”       Lenart v. Doversberger, 8th Dist. Cuyahoga No. 65372,
Stark County, Case No. 2015CA00112                                                     12


65373, 1994 WL 189433 (May 12, 1994). A profit motive does not necessarily require

an actual profit and, further, that actual profit need not be an immediate or even primary

consideration of a business pursuit. Id. The venture may be a side business or an

activity that the insured pursues primarily for purposes other than pecuniary gain. Id.

Further, the definition of “trade” does not require that the tradesperson be motivated

entirely by profit. Watkins v. Brown, 97 Ohio App.3d 601, 646 N.E.2d 485 (8th Dist.

Cuyahoga 1994).

      {¶31} Appellants argue that the poultry raising was a hobby because they were

not actually making any money from it based upon the costs of the operation. Further,

that they did not have a “profit motive,” as evidenced by Bullock’s testimony that he was

trying to teach his children to be independent. We disagree.

      {¶32} Bullock testified that they began selling eggs and chickens in 2013. They

sold them at church, out of their home, and at a farmer’s market. Bullock stated that

people would call two to three times per day to request or purchase eggs. Bullock

testified that they had hundreds of chickens and turkeys. Further, that they branded

their eggs as “Nickel Plate Farms.” Bullock obtained a license to sell eggs, chickens,

and turkeys through the Department of Agriculture and a “Retail Food Establishment

License” from the Stark County Health Department for Nickel Plate Farms, the name of

appellants’ operations. Appellants labeled the cartons of the eggs they sold with the

name “Nickel Plate Farms” and the labels had their name and address on it. The labels

also said “free range,” “heart smart,” and “no chemicals.”

      {¶33} Regardless of whether the business realized an actual profit, profit motive

is evident from the evidence submitted. While appellants started by giving away eggs,
Stark County, Case No. 2015CA00112                                                       13


they transitioned to selling eggs, chickens, and turkeys. They purchased more chickens

and turkeys, more supplies, branded their eggs, and obtained licenses to sell the eggs,

chickens, and turkeys. Simply because Bullock was utilizing the business to help teach

his children to be independent does not abrogate the business classification of the

operation.     As noted above, actual profit need not be an immediate or primary

consideration of a business pursuit. Further, a “trade” does not require that the person

be entirely motived by profit. Watkins v. Brown, 97 Ohio App.3d 601, 646 N.E.2d 485

(8th Dist. Cuyahoga 1994); Lenart v. Doversberger, 8th Dist. Cuyahoga No. 65372,

65373, 1994 WL 189433 (May 12, 1994).

       {¶34} Appellants also argue that Bullock’s testimony that the chickens, turkeys,

and eggs are a “hobby,” are “just fun,” and prevent him from having nightmares creates

a genuine issue of material fact as to whether the activities are a “business” or a

“hobby.” We disagree. Although Bullock testified that his farming operations were a

“hobby,” and “just for fun,” the evidence, as detailed above, shows otherwise. See

Mack v. Nationwide Mut. Fire Ins. Co., 6th Dist. Lucas No. L-04-1180, 2005-Ohio-2746.

Accordingly, regardless of Bullock’s characterization of his farming endeavors as merely

being a hobby, we find the evidence establishes that appellants’ poultry operation was a

“full-time, part-time or occasional activity engaged in as a trade, profession, or

occupation.”

       {¶35} Based upon the foregoing, we find that there is no genuine issue of

material fact as to whether appellants’ operation was a business pursuant to the

definition provided in the homeowner’s insurance policy, as it is a “full-time, part-time or

occasional activity engaged in as a trade, profession, or occupation.”
Stark County, Case No. 2015CA00112                                                      14


       {¶36} In addition, courts must interpret insurance contracts “to the end that a

reasonable interpretation of the insurance contract is consistent with the apparent object

and plain intent of the parties may be determined.” Lenart v. Doversberger, 8th Dist.

Cuyahoga No. 65372, 65373, 1994 WL 189433 (May 12, 1994). Vaughan testified that

he had no indication that appellants intended to raise chickens and sell eggs when they

applied for insurance. Bullock testified that, when he bought the property, he had no

intent to have chickens or farm animals.       No farm animals were identified on the

homeowner’s insurance application and appellants answered “no” to the question on the

homeowner’s insurance application asking whether they were conducting any business,

farming, or occupational pursuits at the premises. When appellants decided to sell the

eggs, Bullock called Vaughan Insurance and was concerned about the potential risk in

case someone got sick from the eggs. Bullock testified that he and Miller did not talk

about the homeowner’s policy at all during the phone conversation. In light of this

testimony, it is clear that Bullock did not purchase the homeowner’s insurance policy

with the intent to secure coverage for damages occurring as a result of the business of

raising poultry and selling eggs.

       {¶37} Having found that there is no genuine issue of material fact as to whether

appellants were operating a “business” within the definition of the homeowner’s policy,

we find the trial court did not err in finding that the barn falls under the exclusion

language in the policy and is not covered property. The “other structures” portion of the

policy specifically states that they do not pay for loss to structures “used in whole or in

part for business purposes” or “used to store business property.” Accordingly, the trial

court did not err in granting summary judgment to appellee.
Stark County, Case No. 2015CA00112                                            15


      {¶38} Based upon the foregoing, appellants’ first and second assignments of

error are overruled. The May 11, 2015 judgment entry of the Stark County Common

Pleas Court is affirmed.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
