[Cite as Berry v. Progressive Direct Ins. Co., 2018-Ohio-3570.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 106621




                                       STACY L. BERRY

                                                             PLAINTIFF-APPELLANT

                                                       vs.

        PROGRESSIVE DIRECT INSURANCE COMPANY

                                                             DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-17-877831

        BEFORE: Jones, J., E.A. Gallagher, A.J., and Keough, J.

        RELEASED AND JOURNALIZED: September 6, 2018
ATTORNEYS FOR APPELLANT

Thomas M. Wilson
John J. Wargo, Jr.
Wargo and Wargo Co., L.P.A.
P.O. Box 332
Berea, Ohio 44017


ATTORNEYS FOR APPELLEE

Christoher Ankuda
Paul R. Morway
Ankuda, Stadler & Moeller Ltd.
1100 Superior Avenue, Suite 1120
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

       {¶1} Plaintiff-appellant Stacy L. Berry (“Berry”) appeals from the trial court’s

November 15, 2017 decision granting summary judgment in favor of defendant-appellee

Progressive Direct Insurance Company. For the reasons that follow, we affirm.

I. Procedural and Factual History

       {¶2} Berry initiated this action against Progressive in March 2017, with a

three-count complaint.   In Count 1, she alleged that she was the owner of a 2008 Scion

vehicle, which was insured under a Progressive policy. Berry alleged that in January

2017 the vehicle was stolen and that she immediately contacted Progressive to inform it of

the theft; she also filed a police report with the Cleveland Police Department.1

       {¶3} In accordance with her reporting, Progressive opened a claim, and she

“provided all pertinent information as required under the Policy to Progressive,” which

“included a recorded sworn statement.”     According to Berry’s complaint, despite having

had “all necessary and pertinent information for the settlement of the Claim, Defendant

has intentionally and maliciously refused to settle the Claim, has requested Plaintiff to

provide additional irrelevant and unnecessary information which delves deeply into the

Plaintiff’s personal life, and has utilized its special investigation unit to needlessly

investigate and harass Plaintiff.”   In accordance with her allegations, in Count 1 of her


       1
         The record demonstrates that Berry contacted Progressive about one week after she
discovered the alleged theft.
complaint, Berry alleged that Progressive had intentionally and maliciously breached its

contractual obligation under the policy.

       {¶4} In Count 2, Berry alleged that Progressive acted in bad faith, and in Count 3,

she alleged that Progressive’s actions allowed her to recover punitive damages against it.

The complaint also provided notice of deposition of Progressive’s claim adjuster assigned

to the case or another company representative, to take place in May 2017.    Additionally,

Berry set forth a first request for production of documents from Progressive, which

generally requested any and all documents related to Berry, the subject policy, the subject

claim, payments made to Berry under the policy, and “all auto theft claims rejected or not

paid in response to claims made by Progressive insured[s] for auto theft from 2010 to the

present.”

       {¶5} Progressive answered Berry’s complaint. It admitted that it insured the Scion

vehicle at the time in question and that it opened a claim based on Berry’s report that the

vehicle was stolen, but denied the remaining substantive allegations of the complaint.

Progressive also set forth numerous defenses, including that Berry had “failed to abide by

all terms and conditions precedent for recovery contained within the policy of insurance.”

Progressive attached the insurance policy as an exhibit to its answer.

       {¶6} The parties engaged in pretrial discovery.    A review of the record before us

demonstrates that Progressive:   (1) produced documents to Berry pursuant to her request,

which consisted of 185 pages of what Progressive deemed “discoverable documents”; (2)
provided to Berry a compact disc of a “recorded statement of Stacy Berry/Tony Berry”;2

and (3) propounded upon Berry requests for answers to interrogatories, production of

documents, and admissions.       The record further demonstrates, relevant to this appeal,

that Berry responded to the requests for admissions, but did not answer 19 out of the 34

requests.   Rather, for those 19 requests, she stated that she was unable to admit or deny

the requests because “Progressive has not provided a copy of the documents referred to in

its Requests for Admission.”

       {¶7} On September 7, 2017, Progressive filed a motion to have the subject

admissions deemed admitted on the ground that Berry had failed to respond to the

requests. On September 28, 2017, Progressive filed a motion for summary judgment.

Berry did not oppose either motion.           On November 14, the trial court granted

Progressive’s motion to have the admissions deemed admitted; on November 15, the trial

court granted Progressive’s motion for summary judgment. This appeal ensues, with

Berry raising the following three assignments of error:

       I. The trial court erred when it deemed admitted Plaintiff’s Responses to
       Defendant’s First Set of Requests for Admission Propounded upon Stacy L.
       Berry, Request for Admission Nos.: 11-22, 24, 28-32 & 34 even though
       Plaintiff responded to these requests for Admissions as follows: “Plaintiff
       can neither admit nor deny Request for Admission No. ____ as Progressive
       has not provided a copy of the document referred to in its Request for
       Admission.”

       II. The trial court further erred by relying upon improperly admitted
       admissions as contained in Plaintiff’s Responses to Defendant’s First Set of

       Tony Berry is Stacy Berry’s husband.
       2
                                              The vehicle was allegedly parked at the apartment
complex where the Berrys’ son lived.
      Requests for Admissions Propounded upon Stacy L. Berry, Request for
      Admissions Nos.: 11-22, 24, 28-32 & 34, in granting summary judgment in
      favor of Defendant Progressive Direct Insurance Co.

      III. The trial court erred, as a matter of law, in granting summary judgment
      in favor of Defendant Progressive Direct Insurance Co.

      {¶8} Further facts will be discussed as necessary below.

II. Law and Analysis

      {¶9} As an initial matter, Progressive contends that the first two assignments of

error, relative to the trial court’s judgment granting Progressive’s motion to have certain

requests for admissions deemed admitted, are not properly before this court because Berry

did not appeal from the court’s November 14, 2017 judgment granting the motion; rather,

she appealed from the trial court’s November 15, 2017 judgment granting Progressive’s

motion for summary judgment.        Progressive is correct.      In the interest of justice,

however, we nonetheless briefly consider the first and second assignments of error.

      {¶10} Civ.R. 36 governs requests for admissions and provides in relevant part as

follows:

      (A) Availability; Procedures for use. A party may serve upon any other
      party a written request for the admission, for purposes of the pending action
      only, of the truth of any matters within the scope of Civ.R. 26(B) set forth in
      the request, that relate to statements or opinions of fact or of the application
      of law to fact, including the genuineness of any documents described in the
      request. Copies of documents shall be served with the request unless they
      have been or are otherwise furnished or made available for inspection and
      copying. * * *

      (1) The matter is admitted unless, within a period designated in the request,
      not less than twenty-eight days after service of the request or within such
      shorter or longer time as the court may allow, the party to whom the request
      is directed serves upon the party requesting the admission a written answer
      or objection addressed to the matter, signed by the party or by the party’s
      attorney.

      (2) If objection is made, the reasons therefor shall be stated. The answer
      shall specifically deny the matter or set forth in detail the reasons why the
      answering party cannot truthfully admit or deny the matter. A denial shall
      fairly meet the substance of the requested admission, and when good faith
      requires that a party qualify his or her answer, or deny only a part of the
      matter of which an admission is requested, the party shall specify so much of
      it as is true and qualify or deny the remainder. An answering party may not
      give lack of information or knowledge as a reason for failure to admit or
      deny unless the party states that the party has made reasonable inquiry and
      that the information known or readily obtainable by the party is insufficient
      to enable the party to admit or deny. A party who considers that a matter of
      which an admission has been requested presents a genuine issue for trial may
      not, on that ground alone, object to the request; the party may, subject to the
      provisions of Civ.R. 37(C), deny the matter or set forth reasons why the
      party cannot admit or deny it.

      ***

      (B) Effect of admission.       Any matter admitted under this rule is
      conclusively established unless the court on motion permits withdrawal or
      amendment of the admission. * * *

      {¶11} This court has previously summarized the requirements of Civ.R. 36 as

follows:

      Pursuant to Civil Rule 36, when requests for admission are made the matters
      are admitted unless the party to whom the requests are directed serves upon
      the party requesting the admissions written answers or objections. Thus, an
      answer or an objection is required under Civil Rule 36. If no answer or
      objection is filed the matter is admitted. Further, a general objection also
      amounts to an admission. For an objection to be valid reasons must be
      stated, otherwise the matter is admitted.

      An answer may admit or deny the request for admission. Naturally, if there
      is a direct admission the matter is resolved and proof at trial is expedited.
      However, if the answer is in the form of a denial, it shall be specific and
      meet the substance of the requested admission. A general denial is not
      sufficient and results in an admission.
      If the responding party cannot truthfully admit or deny the matter, he [or she]
      shall set forth in detail in his [or her] answer the reasons why he [or she]
      cannot truthfully admit or deny. Failure to comply with this requirement
      will result in an admission.

      A responding party may not give lack of information or knowledge as a
      reason for failing to admit or deny unless he [or she] states in his [or her]
      answer that he [or she] has made reasonable inquiry, and that the information
      known or readily obtainable by him [or her] is insufficient to enable him [or
      her] to admit or deny.

      In addition to employing the foregoing language of the Rule, when citing
      lack of information or knowledge, the responding party must specifically
      describe in written detail the actual efforts that he [or she] has made which
      constitute such an alleged reasonable inquiry, and further, he [or she] must
      state why the information known or readily obtainable by him [or her],
      despite his [or her] reasonable inquiry, is insufficient to enable him [or her]
      to admit or deny. The responding party may not merely rest upon a
      perfunctory recitation of the rule’s language. Failure to incorporate in the
      response the language mandated by Civil Rule 36 and failure to detail in
      writing both the actual effort made and the reasons why the known
      information is insufficient to enable the responding party to admit or deny
      will result in an admission.

St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio App.2d 261, 269-270, 337 N.E.2d 806

(8th Dist.1975).

      {¶12} As mentioned, for the admissions at question here, Berry responded that she

was unable to admit or deny them because “Progressive has not provided a copy of the

documents referred to in its Requests for Admission.” She did not state what efforts she

made that would constitute a reasonable inquiry about what Progressive sought or why the

information she knew or was readily obtainable by her, despite her reasonable inquiry, was

insufficient to enable her to admit or deny Progressive’s requests.     Further, the record

demonstrates that she did not employ any of the discovery methods available to her,
specifically, a motion to compel, to attempt to obtain the documents she claimed she

needed to respond to the insurer’s request for admissions.

       {¶13} Further, a review of the disputed admissions demonstrates that the

“documents” referred to in them were documents that Berry had, or reasonably should

have had.     Specifically, the documents consisted of emails between Berry and

Progressive representatives and written correspondence sent from Progressive to Berry

during the investigative stage of her claim.

       {¶14} On this record, the disputed admissions were properly deemed admitted.

       {¶15} The first and second assignments of error are overruled.

       {¶16} Thus, we now consider the crux of this appeal, as set forth in the third

assignment of error:   whether the trial court erred in granting summary judgment in favor

of Progressive.

       {¶17} We review the grant of a motion for summary judgment de novo, applying

the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where

(1) no genuine issue as to any material fact exists; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,

and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d

64, 66, 375 N.E.2d 46 (1978).

       {¶18} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio

St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to

some evidence in the record in the form of “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292 – 293.

 The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact does exist. Dresher at 293. If the nonmoving party does

not so respond, summary judgment, if appropriate, shall be entered against the nonmoving

party. Civ.R. 56(E).

       {¶19} Progressive sought summary judgment against Berry because of her lack of

cooperation in its investigation into the alleged theft of the subject vehicle. In support of

its motion for summary judgment, Progressive submitted the insurance policy at issue,

which contained the following provision:

       A person seeking coverage must: (1) cooperate with us in any matter
       concerning a claim or lawsuit; (2) provide any written proof of loss we may
       reasonably require, [and] (3) allow us to take signed and recorded
       statements, including sworn statements and examinations under oath, which
       we may conduct outside the presence of you or any other person seeking
       coverage, and answer all reasonable questions we may ask as often as we
       may reasonably require.

       {¶20} This court has held that a cooperation clause in an insurance policy is a fully

enforceable contract provision, and the violation of a cooperation clause may relieve the

insurer of any liability to pay benefits under the policy. Gabor v. State Farm Mut. Auto.

Ins. Co., 66 Ohio App.3d 141, 143, 583 N.E.2d 1041 (8th Dist.1990). Requests for
cooperation can include documents necessary for investigation into theft claims, including

title records, loan records, phone records, and keys to the vehicle. Id. at 142.

       {¶21} Progressive submitted in support of its motion for summary judgment the

requests it made upon Berry in investigating the claim, which included authorization

documents, the keys to the vehicle, records regarding the financials for the vehicle, and

cell phone records.   Additionally, the company submitted the warnings it gave Berry that

her failure to cooperate with its investigation would result in the denial of her claim.

       {¶22} As mentioned, Berry failed to respond to Progressive’s motion for summary

judgment.    She therefore failed to present to the trial court any evidence demonstrating

that there was any genuine issue of material fact in dispute.   On this record, therefore, the

trial court properly granted summary judgment in favor of Progressive.              The third

assignment of error is overruled.

       {¶23} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.
LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
