[Cite as Leon v. State Farm Fire & Cas. Co., 2017-Ohio-8168.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105306

DUANE LEON, ET AL.

DEFENDANTS-APPELLANTS 

vs. 

STATE FARM FIRE AND CASUALTY COMPANY

PLAINTIFF-APPELLEE 

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-856047 

BEFORE: Laster Mays, P.J., Celebrezze, J., and Jones, J. 

RELEASED AND JOURNALIZED: October 12, 2017

-i- 
ATTORNEYS FOR APPELLANTS

George J. Argie 

Dominic J. Vitantonio 

Argie, D’Amico & Vitantonio 

6449 Wilson Mills Road 

Mayfield Village, Ohio 44143 

ATTORNEYS FOR APPELLEE 

James R. Gallagher 

Laura E. Plank 

Gallagher, Gams, Pryor, Tallan & Littrell L.L.P. 

471 East Broad Street, 19th Floor 

Columbus, Ohio 43215 
ANITA LASTER MAYS, P.J.: 

{¶1} Plaintiffs-appellants Duane Leon (“Leon”) and Terry May (“May”) appeal the 

trial court’s decision to grant the defendant-appellee State Farm Fire and Casualty 

Company’s (“State Farm”) motion for summary judgment. We affirm. 

I. Facts 

{¶2} On July 12, 2012, Leon was involved in a motorcycle accident where he 

claimed that an unidentified driver swerved in his lane, causing him to collide with a 

guardrail and sustain bodily injuries. The motorcycle was owned and insured by May 

under a State Farm policy. Leon was not a named insured on May’s policy. In late 

2012, Leon asserted a claim for uninsured motorist coverage under May’s policy. The 

policy contains a three-year contractual limitations clause that states that legal action 

cannot be brought against State Farm after three years of the date of the accident. 

{¶3} Through his attorney, Leon filed a claim in late 2012. On December 21, 

2012, State Farm drafted a letter to Leon’s attorney stating that State Farm may not have a 

duty to pay out Leon’s claims because Leon may not have had a state-mandated 

motorcycle endorsement on his Ohio driver’s license. In April 2013, Leon’s attorney 

wrote to State Farm that he was gathering bills and medical records to forward to State 

Farm in order to discuss a settlement. On June 4, 2014, almost two years after the 

motorcycle accident, Leon’s attorney corresponded with State Farm, seeking direction, 

and asked if there was anything they could do to protect the statute of limitations given 
that the unidentified driver was unknown. Leon’s attorney also stated that he and Leon 

were in the process of gathering Leon’s medical bills and records, and would submit them 

to State Farm shortly. State Farm responded on June 6, 2014, stating that since the 

driver was unknown, Leon had three years to file a claim against State Farm directly. 

{¶4} A little more than a year later, and more than three years after the accident, 

Leon’s attorney contacted State Farm on August 3, 2015, and enclosed itemized billing, 

the traffic crash report, medical records, and photographs. State Farm responded on 

August 14, 2015, explained that the statute of limitations for uninsured bodily injury 

claims is three years, and after July 12, 2015, Leon could not file a claim against State 

Farm. 

{¶5} On August 1, 2016, Leon filed a motion for summary judgment seeking a 

declaratory judgment on the bases that the provisions of the May’s car policy 983B were 

ambiguous and susceptible to more than one interpretation; that it was impossible to 

comply with the provisions of the policy; that the enforcement of the three-year 

limitations provision of the policy was unlawful and unconstitutional under Ohio law; and 

the statute of limitations for Leon to file an action against State Farm regarding uninsured 

motor vehicle coverage is 15 years under Ohio law. State Farm also filed a motion for 

summary judgment. 

{¶6} On November 30, 2016, the trial court denied Leon’s motion for summary 

judgment and granted State Farm’s motion for summary judgment. Leon filed this 

appeal assigning three errors for our review: 
I. The trial court erred in overruling the impossibility argument that 

was raised by appellants in their motion for summary judgment and 

in granting summary judgment in favor of State Farm, because the 

trial court failed to analyze the policy language and instead relied 

upon State Farm’s interpretation of the policy; 

II. The trial court erred in overruling the ambiguity argument that was 

raised by appellants in their motion for summary judgment and in 

granting summary judgment in favor of State Farm; and 

III. The trial court erred in failing to find ambiguity in the policy 

language that contemplates an agreement between State Farm and 

the insured concerning the amount of compensatory damages that the 

insured is legally entitled to recover from the uninsured motorist. 

II. Summary Judgment 

A. Standard of Review 

{¶7} “This court’s review of a trial court’s decision on summary judgment is de 

novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 

767 N.E.2d 707, ¶ 24.” Anderson v. Ohio Bell Tel. Co., 8th Dist. Cuyahoga No. 104858, 

2017-Ohio-7318, ¶ 5.

B. Law and Analysis 

{¶8} In Leon’s first assignment of error, he argues that the trial court erred in 

overruling his argument, granting summary judgment to State Farm, because it was 

impossible for him to perform according to the plain language of the policy. 

Summary judgment is appropriate only when the moving party 

demonstrates that (1) no genuine issue of material fact exists, (2) the 

moving party is entitled to judgment as a matter of law, and (3) reasonable 

minds could 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 most strongly construed in its 
favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 

Ohio St. 3d 181, 183, 677 N.E.2d 343 (1997). 

Id. 

{¶9} In addition, 

[t]he party moving for summary judgment on the ground that the 

nonmoving party cannot prove its case bears the initial responsibility of 

informing the trial court of the basis for the motion, and identifying those 

portions of the record before the trial court which demonstrate the absence 

of a genuine issue of fact on a material element of the nonmoving party’s 

claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). 

The moving party must specifically point to evidence of the type listed in 

Civ.R. 56(C) that affirmatively demonstrates the nonmoving party has no 

evidence to support its claims. Id. 

Once the moving party has met its initial burden, the nonmoving party must 

produce competent evidence establishing the existence of a genuine issue 

for trial. Id. at 293. The nonmoving party may not rest on the mere 

allegations of the pleading, but must set forth specific facts, by affidavit or 

otherwise, demonstrating that there is a genuine triable issue. Jackson v. 

Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027 

(1991). When determining what is a “genuine issue,” the court decides if 

the evidence presents a sufficient disagreement between the parties’ 

positions. Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 

(1993). 

In reviewing a grant of summary judgment, we are mindful of the Ohio 

Supreme Court’s admonition that “[s]ummary judgment is a procedural 

device to terminate litigation and to avoid a formal trial where there is 

nothing to try. It must be awarded with caution, resolving doubts and 

construing evidence against the moving party, and granted only when it 

appears from the evidentiary material that reasonable minds can reach only 

an adverse conclusion as to the party opposing the motion.” Norris v. 

Ohio Std. Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982). 

Pappas v. Ippolito, 177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 36- 38 

(8th Dist.). 

C. Impossibility
{¶10} Leon contends that it was impossible for him to comply with the plain 

language of the policy, given the fact that the driver who caused his motorcycle accident 

could not be identified. Paragraph 14 of the General Terms, entitled Legal Action 

Against Us, of the insurance policy states, 

Legal action may not be brought against us until there has been full 

compliance with all the provision of this policy. In addition, legal action 

may only be brought against us regarding: 

c. Uninsured Motor Vehicle coverage if the insured or that 

insured’s legal representative within: 

(1) three years immediately following the date of the 

accident; or 

(2) one year after the date the insure received notice of 

insolvency if the insurer of the uninsured motorist is 

declared insolvent. 

[P]resents as an Uninsured Motor Vehicle Coverage claim to us, and files a 

lawsuit in accordance with the Deciding Fault and Amount provision of the 

Uninsured Motor Vehicle coverage. 

No legal action may be brought against us relating to Uninsured Motor 

Vehicle Coverage for any cause of action that arises out of or is related to 

that coverage until there has been full compliance with its Consent to 

Settlement and Deciding Fault and Amount provisions. 

Paragraph 1 of the General Terms, entitled Deciding Fault and Amount, of the insurance 

policy states, 

1. a. The insured and we must agree to the answers to the 

following two questions: 

(1) Is the insured legally entitled to recover compensatory 

damages from the uninsured motorist? 
(2) If the insured and we agree that the answer to 1.a.(1) 

above is yes, then what is the amount of the compensatory 

damages that the insured is legally entitled to recover from the 

uninsured motorist? 

b. If there is no agreement on the answer to either question in 

1.a. above, then the insured shall: 

(1) file a lawsuit in the proper court against 

(a) us; and 

(b) the uninsured motorist unless we have consented to 

a settlement offer proposed by or on behalf of the 

uninsured motorist; 

(2) upon the filing of the lawsuit, immediately give us copies 

of the summons and complaints filed by the insured in that 

action; 

(3) consent to a jury trial if requested by us; 

(4) agree that we may contest the issues of liability and the 

amount of damages; and 

(5) secure a judgment in that action. The judgment must be 

the final result of an actual trial and any appeals, if any 

appeals are taken. 

{¶11} According to the language of the policy, Leon had three years from the date 

of his accident to file a claim with State Farm and file a lawsuit in accordance with the 

Deciding Fault and Amount section of the policy. Leon contends that it was impossible 

to follow the plain language of the policy, specifically the Deciding Fault and Amount 

section, because it required him to file a lawsuit against State Farm and the uninsured 

motorist. 

Impossibility of performance occurs where after the contract is entered into, 
an unforseen event arises rendering impossible the performance of one of 

the contracting parties. See Calamari and Perillo, Contract (1977), 476, 

Section 13. However, a contracting party will not be excused from 

performance merely because performance may prove difficult, dangerous or 

burdensome. State ex rel. Jewett v. Sayre, 91 Ohio St. 85, 109 N.E. 636 

(1914). 

Truetried Serv. Co. v. Hager, 118 Ohio App.3d 78, 87, 691 N.E.2d 1112 (8th Dist.1997). 

{¶12} We find that the trial court did not err in its determination that Leon was 

incorrect in his assertion that it was impossible to perform under State Farm’s policy. 

The record reveals that Leon’s attorney sent a letter to State Farm on June 4, 2014, asking 

if there was anything that he needed to do to protect the statute of limitations given that 

the other driver was unknown. State Farm responded on June 6, 2014 stating, “Since the 

tortfeasor in this case is unknown, Mr. Leon does not need to file a suit within 2 years to 

preserve his claim. He will only need to file within 3 years against State Farm 

directly * * *.” We find that State Farm clearly directed Leon’s attorney on how to 

proceed. However, Leon inaccurately claims that because this information is not in the 

policy, it was impossible for him to perform. 

{¶13} We find, as the trial court determined, that without the direction from State 

Farm, it was still possible for Leon to comply with the policy. According to Civ.R. 

15(D), 

[w]hen the plaintiff does not know the name of a defendant, that defendant 

may be designated in a pleading or proceeding by any name and description. 

When the name is discovered, the pleading or proceeding must be amended 

accordingly. The plaintiff, in such case, must aver in the complaint the fact 

that he could not discover the name. The summons must contain the words 

“name unknown,” and a copy thereof must be served personally upon the 

defendant. 
Schisler v. Columbus Med. Equip., 10th Dist. Franklin No. 15AP-551, 2016-Ohio-3302, ¶ 

20. 

{¶14} Leon could have filed against State Farm either using Civ.R. 15(D) or by 

following State Farm’s instruction. Leon was represented by counsel. It was not State 

Farm’s responsibility to provide legal advice to Leon or his attorney, nor are they allowed 

to provide legal advice or engage in the practice of law. 

The practice of law is not limited to the conduct of cases in court. It 

embraces the preparation of pleadings and other papers incident to actions 

and special proceedings and the management of such actions and 

proceedings on behalf of clients before judges and courts, and in addition 

conveyancing, the preparation of legal instruments of all kind, and in 

general all advice to clients and all action taken for them in matters 

connected with the law. Land Title Abstract & Trust Co. v. Dworken, 129 

Ohio St. 23, 193 N.E. 650, paragraph one of syllabus (1934). See also 

Cincinnati Bar Assn. v. Estep, 74 Ohio St.3d 172, 657 N.E.2d 499 (1995). 

Middleton & Assocs. v. Weiss, 8th Dist. Cuyahoga No. 71416, 1997 Ohio App. LEXIS 

2667 (June 19, 1997). 

{¶15} Leon’s first assignment of error is overruled. 

D. Ambiguity 

{¶16} In Leon’s second assignment of error, he contends that the trial court erred 

in overruling the ambiguity argument that was raised by appellants in their motion for 

summary judgment, and in granting summary judgment in favor of State Farm. 

Specifically, Leon claims that the limitations clause contained in May’s State Farm policy 

is unenforceable against Leon because it is ambiguous and susceptible to multiple 

interpretations. 
A contract with clear and unambiguous terms leaves no issue of fact and 

must be interpreted as a matter of law. Inland Refuse Transfer Co. v. 

Browning-Ferris Industries, Inc., 15 Ohio St.3d 321, 322, 474 N.E.2d 271 

(1984). Where ambiguity exists, however, we must strictly construe those 

terms against the party who drafted the terms. Faruque v. Provident Life 

& Acc. Ins. Co., 31 Ohio St.3d 34, 508 N.E.2d 949, syllabus (1987). 

Militiev v. McGee, 8th Dist. Cuyahoga No. 94779, 2010-Ohio-6481, ¶ 29. However, 

“[a] contract is ambiguous if its terms cannot be clearly determined from a reading of the 

entire contract or if its terms are susceptible to more than one reasonable interpretation.

United States Fidelity & Guar. Co. v. St. Elizabeth Med. Ctr. 129 Ohio App.3d 45, 716 

N.E.2d 1201 (1998).” Id. at ¶ 30. 

{¶17} We find that this contract is not ambiguous. The language of the policy 

states “the insured shall: (1) file a lawsuit in the proper court against (a) us; and (b) the 

uninsured motorist unless we have consented to a settlement offer proposed by or on 

behalf of the uninsured motorist * * *.” Since the uninsured motorist was unknown, 

Leon could have filed against the uninsured motorist using “name unknown” in place of 

the name. 

The interpretation of an insurance contract is a matter of law. Nationwide 

Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 

N.E.2d 684 (1995). When interpreting an insurance contract, it is 

incumbent upon this court to “look to the plain and ordinary meaning of the 

language used in the policy unless another meaning is clearly apparent from 

the contents of the policy.” Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 

216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. 

Felton v. Nationwide Mut. Fire Ins. Co., 163 Ohio App.3d 436, 2005-Ohio-4792, 839 

N.E.2d 34, ¶ 15 (9th Dist.). 

{¶18} After a review of the record, we find that the trial court did not err in finding 
that the language of the policy was not ambiguous when it granted summary judgment in 

favor of State Farm. Therefore, Leon’s second assignment of error is overruled. 

Consequently, our findings in assignments of error one and two renders Leon’s contract 

argument to be without merit. 

{¶19} In Leon’s third assignment of error, he argues that the trial court erred in 

failing to find ambiguity in the policy language that contemplates an agreement between 

State Farm and the insured concerning the amount of compensatory damages that the 

insured is legally entitled to recover from the uninsured motorist. Leon contends that the 

language in paragraph 1 of the General Terms, entitled Deciding Fault and Amount, is 

ambiguous because it is unclear on how State Farm and the parties will reach an 

agreement concerning the amount of compensatory damages that the insured is legally 

entitled to recover from the uninsured motorist. Here, Leon is attempting to create 

ambiguity where there is none. “[I]t is clear that where common words appear in a 

written instrument, they will be given their ordinary meaning unless manifest absurdity 

results or unless some other meaning is clearly evidenced from the face or overall 

contents of the instrument.” (Citation Omitted.) Felton at ¶ 19. 

{¶20} The language from the policy is clear that if the insured and State Farm do 

not come to an agreement about compensatory damages, then the insured can file a 

lawsuit against State Farm and the uninsured motorist. Therefore, Leon’s third 

assignment of error is overruled. 

{¶21} Judgment is affirmed. 
It is ordered that the appellee recover from 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 common 

pleas 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. 

____________________________________________ 

ANITA LASTER MAYS, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

LARRY A. JONES, SR., J., CONCUR