[Cite as Arlington Bank v. United Ohio Ins. Co., 2011-Ohio-5938.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

THE ARLINGTON BANK                                         JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                                 Hon. Sheila G. Farmer, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-
                                                           Case No. CT11-0024
UNITED OHIO INSURANCE
COMPANY
                                                           OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                               Appeal from the Muskingum County Court
                                                       of Common Pleas, Case No. CH2010-0558


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                November 16, 2011


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


JACK D'AURORA                                          MICHAEL E. JACOBS
The Behal Law Group, LLC                               McGowan & Jacobs, LLC
501 S. High Street                                     246 High Street
Columbus, Ohio 43215                                   Hamilton, Ohio 45011
Muskingum County, Case No. CT11-0024                                                   2

Hoffman, P.J.


      (¶1)   Defendant-appellant United Ohio Insurance Company (“United Ohio”)

appeals the May 18, 2011 Nunc Pro Tunc Entry entered by the Muskingum County

Court of Common Pleas, which granted summary judgment in favor of Plaintiff-appellee

The Arlington Bank (“the Bank”), and ordered Appellant to pay Appellee $71,193.00 in

damages.

                          STATEMENT OF THE FACTS AND CASE

      (¶2)   The parties filed Stipulated Facts with the trial court on March 23, 2011.

For purposes of this appeal, the Stipulated Facts are summarized herein.

      (¶3)   James Dover owned a modular home and real property located at 11385

Claysville Road in Chandlersville, Muskingum County, Ohio. The Bank financed the

mortgage loan for the property. Dover insured the property against certain losses with a

policy of insurance issued by United Ohio. At issue herein is the policy period between

August 1, 2007, and August 1, 2008. On or about September 8, 2006, the Bank

requested United Ohio update the Bank’s address.

      (¶4)   Dover’s home was destroyed by fire on October 26, 2007. As of that date,

Dover owed the Bank approximately $147,000.00 on the mortgage. Dover notified his

insurance agent of the fire, who, in turn, filed a Property Loss Notice with United Ohio.

The Notice did not include or otherwise reference the Bank as the mortgagee. United

Ohio determined the fire was a covered loss under its policy. Via e-mail sent February

5, 2008, United Ohio and Dover agreed to a figure of approximately $186,000.00, as the

amount of the loss.
Muskingum County, Case No. CT11-0024                                                    3


      (¶5)    Between December 14, 2007, and October 7, 2008, United Ohio issued

four checks, totaling $187,340.00, to Dover.   United Ohio did not notify the Bank of its

intention to issue these checks for the fire loss. United Ohio did not include the Bank as

a joint payee on the checks. With the proceeds, Dover built a new home. The Bank did

not become aware of the fire until late February, 2010.

      (¶6)    Over the life of the mortgage, Dover had been in default several times, but

eventually made the principal and interest payments he had missed. However, after

Dover fell three months behind on the mortgage, the Bank initiated a foreclosure action

in June, 2009. The trial court issued judgment in favor of the Bank, and awarded

damages in the approximate amount of $145,000. The Bank successfully bid

$84,000.00 for the property at the Sheriff’s sale, and subsequently sold the property for

$68,750.00.

      (¶7)    On August 25, 2010, following the Sheriff’s sale and the reselling of the

property, the Bank initiated the instant action against United Ohio for breach of contract

on the home owner’s policy issued to Dover. United Ohio filed a motion to dismiss,

which the trial court denied. United Ohio filed its Answer asserting numerous defenses.

The matter proceeded through discovery.

      (¶8)    The parties filed Stipulated Facts on March 23, 2011. Thereafter, the

parties filed cross motions for summary judgment. Via Judgment Entry filed May 12,

2011, the trial court granted summary judgment in favor of “Defendant”, and granted

“Defendant” damages in the amount of $71,193.00. Via a second Judgment Entry also

filed May 12, 2011, the trial court denied “Plaintiff’s” motion for summary judgment. Via

Nunc Pro Tunc filed May 18, 2011, the trial court vacated the May 12, 2011 Entries,
Muskingum County, Case No. CT11-0024                                                   4


indicating “due to a Scrivner’s error, these Entries were improperly prepared.” The trial

court granted the Bank’s motion for summary judgment, and denied United Ohio’s cross

motion for summary judgment. The trial court ordered United Ohio to pay the Bank

$71,193.00, as damages.

      (¶9)   It is from this judgment entry United Ohio appeals, raising as error:

      (¶10) “I. THE TRIAL COURT ERRED IN DENYING UOIC’S MOTION TO

DISMISS FOR FAILURE OF THE COMPLAINT TO STATE A CLAIM FOR WHICH

RELIEF COULD BE GRANTED.

      (¶11) “II. THE TRIAL COURT ERRED IN DENYING UOIC’S MOTION FOR

SUMMARY JUDGMENT WHEN THERE WERE NO MATERIAL FACTS IN DISPUTE

AND UOIC WAS ENTITLED TO JDUGMENT AS A MATTER OF LAW.

      (¶12) “III. THE TRIAL COURT ERRED IN GRANTING BANK’S MOTION FOR

SUMMARY JUDGMENT AS UOIC ESTABLISHED BY UNDISPUTED FACTS BANK

COULD NOT PREVAIL ON ESSENTIAL ELEMENTS OF ITS CLAIMS.”

      (¶13) This case comes to us on the accelerated calendar. App. R. 11. 1, which

governs accelerated calendar cases, provides in pertinent part:

      (¶14) “(E) Determination and judgment on appeal.

      (¶15) “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

      (¶16) “The decision may be by judgment entry in which case it will not be

published in any form.”
Muskingum County, Case No. CT11-0024                                                       5


        (¶17) This appeal shall be considered in accordance with the aforementioned

rule.

                                                  I

        (¶18) In its first assignment of error, United Ohio contends the trial court erred in

denying its motion to dismiss.

        (¶19) Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551

N.E.2d 981. A motion to dismiss for failure to state a claim upon which relief can be

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.

Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378, 1992–

Ohio–73. Under a de novo analysis, we must accept all factual allegations of the

complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd. v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584.

        (¶20) SECTION I – CONDITIONS of the policy issued to Dover provides:

        (¶21) “G. Suit Against Us

        (¶22) “No action can be brought against us unless there has been full

compliance with all of the terms under Section I of this policy and the action is started

within two years after the date of loss.”

        (¶23) United Ohio asserts because the provision is unambiguous and not

unreasonable, the trial court should have enforced it against the Bank. United Ohio

argues the Bank had two years from the date of the loss, i.e., the fire which occurred on

October 26, 2007, in which to file the action. Because the Bank failed to do so timely,

the trial court should have dismissed its Complaint.
Muskingum County, Case No. CT11-0024                                                      6


       (¶24) We agree with United Ohio and find the provision is unambiguous and not,

per se, unreasonable. However, such a finding does not end our analysis. We must

determine when the limitations period began to run.

       (¶25) As stated, supra, United Ohio submits the limitations period commenced

on the date of the fire. The policy provision states an action must be “started within two

years after the date of loss.” We find using the date of the fire as “the date of loss” for

commencement of the limitations period would lead to unfair and inequitable results for

the Bank, the intended third-party beneficiary under the policy; thereby rendering the

limitation clause unreasonable as applied against the Bank. The Bank did not learn of

the fire until late February, 2010. The Bank did not incur its loss on the date of the fire.

The Bank incurred its loss after United Ohio failed to include the Bank as a co-payee on

the checks issued to Dover. The policy identified the Bank as the mortgagee of Dover’s

property. The policy provided, “any loss payable under Coverage A or B will be paid to

the mortgagee and will be paid to the mortgagee and you. The policy further provided

United Ohio with the option to “pay the mortgagee the whole principal on the mortgage

plus any accrued interest.” United Ohio issued 4 checks payable solely to Dover with

the last issued on October 7, 2008. The Bank filed its Complaint on August 25, 2010,

well within two years of either of these events.

       (¶26) Based upon the foregoing, we find the Bank commenced the action within

two years of “the date of loss”, and the trial court did not err in overruling United Ohio’s

motion to dismiss.

       (¶27) United Ohio further argues the Bank’s breach of contract claim was

premised upon Dover’s defaulting on the mortgage. We disagree. United Ohio’s breach
Muskingum County, Case No. CT11-0024                                                     7


was the failure to protect the Bank’s rights as provided in its policy. By issuing the

payments solely to Dover, United Ohio deprived the Bank of the right it had under the

mortgage with Dover to use the insurance proceeds to satisfy Dover’s loan. The policy

United Ohio issued to Dover recognized Dover’s obligation to the Bank with the home

as collateral. The policy also acknowledged, in the event of a loss, the Bank’s collateral

might be impaired; therefore, the Bank was contractually made a payee of any benefits

to be paid under the policy.

       (¶28) United Ohio’s first assignment of error is overruled.

                                              II, III

       (¶29) In its second assignment of error, United Ohio submits the trial court erred

in denying its motion for summary judgment as there were no disputed material facts.

In its third assignment of error, United Ohio contends the trial court erred in denying its

motion for summary judgment as the Bank was unable to prevail on the essential

elements of its claims.

       (¶30) Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

       (¶31) Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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
Muskingum County, Case No. CT11-0024                                                    8


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.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      (¶32) It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
Muskingum County, Case No. CT11-0024                                                  9


      (¶33) As discussed in assignment of error I, supra, the Bank did not base its

claims of breach of contract on Dover’s default on the mortgage. The Bank alleged

United Ohio breached its contract by failing to make payments jointly to Dover and the

Bank, and such breach deprived the Bank of its right to use any payment under the

policy to satisfy the mortgage obligations of Dover. The Bank and Dover had the same

right to recovery under the policy. The Bank was entitled, to the same degree as Dover,

to the insurance proceeds for the loss. At the time of the fire, Dover was in default on

the mortgage. The Bank sent Dover a demand letter six weeks prior to the fire. If the

Bank had notice of the loss, the Bank could have demanded Dover use the proceeds to

satisfy the loan. The Bank could have objected to Dover’s using the proceeds to restore

the house.

      (¶34) Based upon the foregoing, we overrule United Ohio’s second and third

assignments of error.

      (¶35) The judgment of the trial court is affirmed.

By: Hoffman, P.J.

Delaney, J. concurs,

Farmer, J. dissents

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. SHEILA G. FARMER


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Muskingum County, Case No. CT11-0024                                                 10



Farmer, J., dissents

      {¶36} I respectfully dissent from the majority's opinion that the two year period

for filing a claim of loss began on October 7, 2008 when appellant issued its last check

to Mr. Dover.

      {¶37} It is my opinion that the two year period began when the fire occurred on

October 26, 2007.      As a "named insured" under the subject policy, appellee was

required to perfect its claim within a two year period. In June of 2009, within the loss

period, appellee initiated a foreclosure action on the property. This clearly indicates

knowledge of the premises.

      {¶38} I would find the trial court should have granted the motion to dismiss

based upon the contract provisions and grant Assignment of Error I.




                                        s/ Sheila G. Farmer _________
                                        HON. SHEILA G. FARMER
Muskingum County, Case No. CT11-0024                                           11


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


THE ARLINGTON BANK                       :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :        JUDGMENT ENTRY
                                         :
UNITED OHIO INSURANCE                    :
COMPANY                                  :
                                         :
       Defendant-Appellant               :        Case No. CT11-0024


       For the reasons stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         ___________________________________
                                         HON. SHEILA G. FARMER


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY
