[Cite as Baker v. Nationwide Mut. Ins. Co., 2013-Ohio-1856.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

ROBERT BAKER                                               C.A. No.   12CA010236

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
NATIONWIDE MUTUAL, et al.                                  COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
        Appellee                                           CASE No.   11CV171455

                                 DECISION AND JOURNAL ENTRY

Dated: May 6, 2013



        HENSAL, Judge.

        {¶1}    Robert Baker appeals a judgment of the Lorain County Court of Common Pleas

that granted summary judgment to Nationwide Mutual Insurance Company. For the reasons set

forth below, this Court affirms in part and reverses in part.

                                                      I.

        {¶2}    Mr. Baker owns several rental properties that he insured with Nationwide. In

March 2007, the water pipes at an unoccupied multi-unit property burst, causing damage to the

building. Following the incident, Mr. Baker made repairs to the water lines in the basement and

to drywall on the first floor. Before finding new tenants, he decided to fix other parts of the

property as well. Between March 2007 and June 2010, he repaired or replaced the front porch

flooring, the roof on the back porch, ceiling tiles throughout the building, a broken toilet, drywall

and carpeting. He also did some painting. He intended to replace one of the hot water tanks and
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complete some other repairs, but sometime between June 8 and June 15, thieves broke into the

property and stripped it of its copper plumbing and fixtures.

       {¶3}    Mr. Baker reported the break-in to the police and filed a claim with Nationwide.

Nationwide denied the claim, however, because it determined that the property had been “vacant

for more than 60 consecutive days[.]” After receiving Nationwide’s decision, Mr. Baker sought

a declaratory judgment that the damage is covered because, under his policy, “[b]uildings under

construction or renovation are not considered vacant.” He also sued Nationwide and the adjuster

who processed his claim for damages for allegedly acting in bad faith.

       {¶4}    The trial court dismissed Mr. Baker’s claim against the adjuster because it

determined that he had failed to state a claim for relief under Civil Rule 12(B)(6). Following

discovery, Nationwide and Mr. Baker filed cross-motions for summary judgment. The court

granted Nationwide’s motion because it determined that Mr. Baker had not repaired the 2007

damage “as quickly as possible,” which it concluded was required under his policy and because

his intermittent repairs to the other parts of the property did not constitute “construction or

renovation.” Mr. Baker has appealed, assigning three errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO
       PROPERLY    CONSIDER   THE   PLANTIFF’S   REQUEST     FOR
       DECLARATORY JUDGMENT, IN FAILING TO GRANT SUMMARY
       JUDGMENT TO PLAINTIFF AND THE TRIAL COURT COMMITTED
       PREJUDICIAL ERROR IN GRANTING JUDGMENT TO DEFENDANTS;
       THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF’S
       MOTION FOR SUMMARY JUDGMENT SEEKING DECLARATION OF
       INSURANCE COVERAGE AND CONTRACTUAL LIABILITY UNDER THE
       POLICY; THE TRIAL COURT SHOULD HAVE DENIED DEFENDANTS’
       MOTIONS FOR SUMMARY JUDGMENT AS PLAINTIFF’S MOTION FOR
       SUMMARY JUDGMENT, PLAINTIFF’S DEPOSITION TESTIMONY, THE
       CONTRACTUAL LANGUAGE OF THE POLICY, THE DENIAL OF
                                                 3


       COVERAGE LETTER WRITTEN BY NATIONWIDE’S ADJUSTER AND ITS
       EXPLANATION OF REASONS FOR DENIAL OF INSURANCE COVERAGE
       WERE NOT IN ACCORD WITH POLICY LANGUAGE INDICATING
       COVERAGE, AND AFFIDAVITS OF ROBERT BAKER IN THE RECORD
       ESTABLISHED THE ABSENCE OF ANY GENUINE ISSUE AS TO ANY
       MATERIAL FACT; PLAINTIFF WAS ENTITLED TO JUDGMENT AS A
       MATTER OF LAW.

       {¶5}     Mr. Baker argues that the trial court incorrectly denied his motion for summary

judgment and improperly granted Nationwide’s motion. We review a summary judgment order

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civil Rule 56(C),

summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains 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 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., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party

“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting

Civ.R. 56(E).

       {¶6}     The trial court granted Nationwide’s motion for summary judgment for two

reasons. First, noting that the policy required Mr. Baker to “[r]esume all or part of your

‘operations’ as quickly as possible” following a loss to covered property, the court determined

that, because Mr. Baker did not repair and resume renting the property for more than three years

after the March 2007 pipe-bursting incident, he did not have insurance coverage at the time of

the June 2010 loss. Second, it determined that there was no coverage because the property had
                                                 4


been vacant for more than 60 days before the June 2010 break-in and Mr. Baker’s miscellaneous

minor repairs did not constitute “construction” or “renovation” based on the plain and ordinary

meaning of those words.

       {¶7}    Mr. Baker argues that it was improper for the court to consider the “as quickly as

possible” language in the policy because Nationwide did not cite that language in the letter it sent

to him explaining why it had denied coverage for the June 2010 incident. He also argues that the

policy does not set any specific time limit for completing repairs following a loss event.

According to him, he was doing the best he could to get his units back on the market.

       {¶8}    Upon review of the insurance policy, we conclude that the trial court’s decision

was incorrect. Mr. Baker’s duty to resume operations “as quickly as possible” after a loss was

not a condition precedent to coverage, but a duty bearing on the amount of his recovery. Auto-

Owners Ins. Co. v. Hansen Housing Inc., 2000 SD 131, 604 N.W.2d 504, ¶ 43. Such provisions

merely place an obligation on the insured party to mitigate his damages. Lakeland True Value

Hardware, LLC v. Hartford Fire Ins. Co., 153 Idaho 716, 291 P.3d 399, 407 (2012). Also,

because the contract is devoid of explanation of the term “as quickly as possible” it does not

stand to reason that it is a condition precedent to coverage. See Mandat v. Reinecker’s Bakery,

9th Dist. No. 16241, 1993 WL 526653, *3 (Dec. 15, 1993) (concluding that ambiguous provision

in insurance policy was not a condition precedent). The policy does not mandate a determination

of what is ‘as quickly as possible’ in the objective sense, as it sets forth no standards by which

this determination can be objectively reviewed. In addition, the duty to resume operations

applies only if there has been a loss “to Covered Property.” In this case, Mr. Baker did not have

coverage for the March 2007 damage because the property had been vacant for more than 60

days before that incident. Accordingly, the pipe-bursting incident did not trigger a duty for Mr.
                                                 5


Baker to resume his operations as quickly as possible. The property had not had a tenant since

October 2006 so there were, in effect, no operations to resume.

       {¶9}    Furthermore, even if Mr. Baker had an obligation to resume operations as quickly

as possible, the policy does not contain any specific time limits. This Court has held that “an

insurance policy subject to different interpretations will be given that interpretation most

favorable to the insured, especially in the case of exclusions and exceptions.” Hicks v. Moore

Memorial United Methodist Church, 9th Dist. Nos. 11382, 11383, 1984 WL 6175, *2 (May 23,

1984). Mr. Baker has established that there is a genuine issue of material fact with respect to

whether he repaired the March 2007 damages as quickly as he was able to do so. He testified

that he was in fact working to repair and restore the premises as quickly as he was able, thereby

raising a material issue of fact whether or not he made the repairs as quickly as he was able to do

so. The trial court found that he was not working fast enough and denied coverage. In making

this determination, the court impermissibly made a finding of fact.

       {¶10} Regarding whether the property was “vacant” at the time it was broken into in

June 2010, Mr. Baker has argued that the property was not vacant because it was “under

construction or renovation[.]” The policy does not define either of those terms. Webster’s Third

New International Dictionary defines “renovation” as “the act or process of renovating” or “the

state of being renovated.” It defines “renovate” as “to restore to life, vigor, or activity: revive,

regenerate” or “to restore to a former state (as of freshness, soundness, purity, or newness of

appearance): make over: renew < ~a house>[.]” Webster’s Third New International Dictionary

1922-1923 (1993). According to Mr. Baker, he worked on the house continuously from March

2007 through June 2010.       He repaired broken water lines, replaced damaged ceiling tiles,

changed a lock, repaired toilets, repaired drywall, replaced a hot water tank, repaired the front
                                                6


porch floorboards and the rear porch steps, and replaced the rear porch roof. He testified that he

had last worked on the house within a week before it was broken into and still had several more

projects to do before the building would be ready for new tenants.

       {¶11} Construing the insurance policy in a light most favorable to Mr. Baker and the

evidence in the record in a light most favorable to him as well, we conclude that Mr. Baker has

established that a genuine issue of material fact exists regarding whether his activities at the

house constituted “renovation” under the policy. See Belich v. Westfield Ins. Co., 11th Dist. No.

99-L-163, 2001 WL 20751, *3 (Dec. 29, 2000) (“The removal of a stage and some coat racks

would be sufficient to constitute renovation.”); see also The Farbman Group v. Travelers Ins.

Cos., E.D.Mich. No. 03-74975, 2006 WL 2805646, *8 (Sept. 28, 2006) (“[R]epairs that are

directed at the restoration of property to its former state are considered ‘renovations.’”);

Brouillette v. Phoenix Assur. Co., 340 So.2d 667, 671 (La.App. 1977) (concluding that the

meaning of the word “construction” was ambiguous and, therefore, had to be construed against

the insurer). To find otherwise would require an impermissible weighing of the evidence on

summary judgment. The trial court, therefore, incorrectly determined that Nationwide was

entitled to judgment as a matter of law.

       {¶12} Given the record before this Court, reasonable minds could come to different

conclusions about whether the property was “under renovation.”          See Milkovich v. Lorain

Journal Co., 65 Ohio App.2d 143, 149 (9th Dist.1979) (“[I]f the facts are undisputed, the issue is

one for the court; but, where the circumstances are such that reasonable minds might reach

different conclusions as to the inferences to be drawn from the undisputed evidence, there arises

a question of fact[.]”). Accordingly, although the trial court correctly denied Mr. Baker’s motion
                                                    7


for summary judgment, it incorrectly granted Nationwide’s motion. Mr. Baker’s assignment of

error is sustained in part and overruled in part.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       GRANTED GEORGE BISSELL’S MOTION TO DISMISS ALL CLAIMS
       MADE AGAINST HIM.

       {¶13} Mr. Baker also argues that the trial court should not have dismissed his bad faith

claim against the adjuster who processed his insurance claim.           He argues that individual

insurance adjusters should be liable if they personally acted in bad faith in processing a claim.

       {¶14} The Ohio Supreme Court has held that, “based on the relationship between an

insurer and its insured, an insurer has the duty to act in good faith in the handling and payment of

the claims of its insured.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276 (1983). “A

breach of this duty will give rise to a cause of action against the insurer,” which sounds in tort.

Id.

       {¶15} Mr. Baker argues that individual insurance adjusters also have a duty to act in

good faith. The duty of an insurer to act in good faith, however, arises out of its contractual

relationship with an insured. Id. at 275-76. According to the Ohio Supreme Court, it is

“immanent” in the parties’ contract. Id. at 276, quoting Gruenburg v. Aetna Ins. Co., 9 Cal.3d

566, 575 (1973). An individual insurance adjuster does not have a contractual relationship with

a policyholder and, consequently, does not have a corresponding personal duty to act in good

faith. Johnson v. State Farm Ins. Co., 8th Dist. No. 75497, 1999 WL 1206603, *3 (Dec. 16,

1999) (“[T]here is no duty owed by an insurance adjuster, in his individual capacity, to a person

making a claim on their policy of insurance.”).
                                                 8


       {¶16} “Torts arise from the breach of certain duties of conduct that are imposed by law

for the protection of all persons within range of the harm or injury proximately resulting from

such breach.” Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98, 99 (1986). Even

accepting the allegations in Mr. Baker’s complaint as true, he can prove no set of facts that

would establish that the adjuster owed him a duty, in his individual capacity, to act in good faith

in processing Mr. Baker’s claim. See Civ.R. 12(B)(6). The trial court, therefore, correctly

dismissed his claim against the adjuster. Mr. Baker’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       FAILED TO CONDUCT AN IN CAMERA INSPECTION OF THE CLAIMS
       FILE AND IN DENYING THE INSURED DISCOVERY OF THE CLAIMS
       FILE      MATERIALS     CONTAINING      ATTORNEY-CLIENT
       COMMUNICATIONS RELATED TO THE ISSUE OF COVERAGE THAT
       WERE CREATED PRIOR TO THE DENIAL OF COVERAGE AS INSURED
       PLAINTIFF REQUESTED.

       {¶17} Mr. Baker also argues that the trial court incorrectly refused to order Nationwide

to produce its claims file. After Mr. Baker sought discovery of the file, Nationwide moved to

bifurcate his bad faith claim and stay any discovery related to it. The court granted its motion.

The court also denied, “at this time,” a motion to compel Mr. Baker had filed regarding the file.

       {¶18} The trial court did not deny Mr. Baker the right to access the claims file, it merely

stayed any issues regarding the file until the coverage dispute was resolved. In Boone v.

Vanliner Ins. Co., 91 Ohio St.3d 209 (2001), the Ohio Supreme Court held that, “[i]n an action

alleging bad faith denial of insurance coverage, the insured is entitled to discover claims file

materials containing attorney-client communications related to the issue of coverage that were

created prior to the denial of coverage.” Id. at syllabus. If, however, “the trial court finds that

the release of this information will inhibit the insurer’s ability to defend on the underlying claim,
                                                 9


it may issue a stay of the bad faith claim and related production of discovery pending the

outcome of the underlying claim.” Id. at 214.

       {¶19} Mr. Baker has not challenged the correctness of the trial court’s decision to

bifurcate his bad faith claim. Accordingly, we conclude that, because the court has not denied

Mr. Baker access to the file, but merely stayed it pending resolution of the coverage dispute, his

argument is not ripe for review. Mr. Baker’s third assignment of error is overruled.

                                                III.

       {¶20} The trial court incorrectly granted summary judgment to Nationwide.                The

judgment of the Lorain County Court of Common Pleas is affirmed in part and reversed in part,

and this matter is remanded for proceedings consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed equally to both parties.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT




MOORE, P. J.
CONCURS.

BELFANCE, J.
CONCURRING.

       {¶21} I concur. I write separately to point out that Mr. Baker’s argument in support of

his third assignment of error is very limited, focusing solely on whether the trial court should

have allowed him to conduct discovery on his bad faith claim. As the main opinion notes, the

trial court bifurcated Mr. Baker’s bad faith claim, and he has not challenged that decision.

Furthermore, Mr. Baker has not argued on appeal that any of the information he seeks is related

to his coverage action, nor does it appear from his motion to compel that he was seeking

discovery related to coverage. While some parts of an insurance company’s claim file would

likely be discoverable in a coverage action (e.g. phone call records, correspondence with the

insured), Mr. Baker has not made any such argument in this case. Thus, in light of Mr. Baker’s

limited focus on appeal, his third assignment of error is not ripe for review at this time.


APPEARANCES:

ROBERT J. GARGASZ, Attorney at Law, for Appellant.

GREGORY E. O’BRIEN and ERIC J. WEISS, Attorneys at Law, for Appellee.
