[Cite as Wencel v. Am. Family Ins. Co., 2011-Ohio-2290.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95926

DYONIZY WENCEL, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

AMERICAN FAMILY INSURANCE COMPANY

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-700354 

BEFORE: Rocco, J., Stewart, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: May 12, 2011 
2

ATTORNEY FOR APPELLANTS

Lawrence J. Rich 

Zashin & Rich Co., L.P.A. 

55 Public Square 

Fourth Floor 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE

Jamie L. Snow 

Wilkerson & Associates Co., L.P.A. 

1422 Euclid Avenue, Suite 248 

Cleveland, Ohio 44114 

KENNETH A. ROCCO, J.: 

{¶ 1} In this appeal brought upon the accelerated calendar pursuant to 

App.R. 11.1 and Loc.App.R. 11.1, plaintiffs-appellants Dyonizy and Alicia 

Wencel appeal from the trial court order that granted summary judgment to 

defendant-appellee American Family Insurance Company (“AmFam”) on 

causes of action for breach of contract and bad faith based upon AmFam’s 

rejection of a property loss claim they made under their homeowners’ 

insurance policy. 
3

{¶ 2} The purpose of an accelerated appeal is to allow the appellate court to render a 

brief and conclusory opinion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio 

App.3d 158, 463 N.E.2d 655; App.R. 11.1(E).

{¶ 3} The Wencels present five assignments of error. They argue 

summary judgment for AmFam was inappropriate because issues of material 

fact remained as to: 1) the cause of their property loss; 2) their right to rely on 

the agent’s representations; 3) the comprehensibility to a lay person of the 

policy’s terms; and 4) the meaning of the relevant policy terms. This court 

disagrees. 

{¶ 4} The Wencels alleged in their amended complaint that on June 29, 

2009, the concrete in-ground swimming pool on their property sustained 

damage in a rainstorm, that they had made a demand on AmFam for 

coverage of the loss under their homeowners’ insurance policy, but that 

AmFam acted in bad faith by denying their claim. 

{¶ 5} According to the evidence contained in the record, the Wencels’ 

homeowners’ policy contained the following relevant provisions: 

{¶ 6} “PERILS INSURED AGAINST - SECTION I 

{¶ 7} “COVERAGE A - DWELLING AND DWELLING 

EXTENSION
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{¶ 8} “We cover risks of accidental direct physical loss to property 

described in Coverage A - Dwelling and Dwelling Extension, unless the loss 

is excluded in this policy. 

{¶ 9} “LOSSES NOT COVERED

{¶ 10} “We do not cover loss * * * resulting * * * or caused by one or 

more of the following. Such loss is excluded regardless of any other cause or 

event contributing concurrently or in any sequence to the loss. 

{¶ 11} “1. Losses excluded under EXCLUSIONS - SECTION I. 

{¶ 12} “ * * * 

{¶ 13} “5. * * * Pressure or Weight of Water * * * , to: 

{¶ 14} “ * * * 

{¶ 15} “B. An outdoor swimming pool * * * . 

{¶ 16} “ * * *

{¶ 17} “EXCLUSIONS - SECTION I

{¶ 18} “PART A

{¶ 19} “The following exclusions apply to Coverage A * * * . We do not 

insure for loss caused * * * by any of the following. Such loss is excluded 

regardless of any other cause or event contributing concurrently or in any 

other sequence to the loss. 

{¶ 20} “ * * * 
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{¶ 21} “9. Water damage, meaning: 

{¶ 22} “ * * * 

{¶ 23} “c. regardless of its source, water below the surface of the ground. 

 This includes water which exerts pressure on * * * any part of a * * * 

swimming pool.” 

{¶ 24} After filing its answer and obtaining discovery, AmFam filed a 

motion for summary judgment on the Wencels’ amended complaint. AmFam 

argued the terms of the policy clearly excluded from coverage the loss the 

Wencels suffered. 

{¶ 25} AmFam supported its argument with verified copies of the 

reports submitted by the Wencels’ expert and by AmFam’s expert. Each of 

the experts opined that the Wencels’ empty swimming pool had been 

damaged when underground “water pressure” acted on it to raise the deep 

end above the surrounding ground. 

{¶ 26} The Wencels filed an opposition brief. They argued therein that 

they believed their policy covered the swimming pool because their agent told 

them so and because they “purchased the most expensive policy.” They 

further argued the damage had been caused by an equipment failure rather 

than by water pressure. The Wencels relied mainly upon Dyonizy’s 

deposition testimony to support their argument. 
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{¶ 27} After AmFam filed a reply brief, the trial court granted summary 

judgment to AmFam on the Wencels’ complaint.1

{¶ 28} The Wencels assert in their five assignments of error that the 

trial court acted improperly because genuine issues of material fact remain 

regarding: 1) the cause of the damage;2 2) representations made by their 

insurance agent that their swimming pool was covered under the policy;3 3) 

the comprehensibility to a layperson of the policy’s terms; 4 and 4) 

interpretation of the policy’s terms.5

{¶ 29} The Wencels’ first, fourth, and fifth assignments of error are 

overruled on the authority of Ho v. State Farm Fire & Cas. Co. (Oct. 13, 

2005), Cuyahoga App. No. 86217 and Bailey v. Progressive Ins. Co., Huron 

App. No. H-03-043, 2004-Ohio-4853. In clear, unambiguous terms the policy 

excluded from coverage any damage to property caused from water pressure, 

whether above or below ground; both the Wencels’ and AmFam’s experts 

 1This decision necessarily disposed of AmFam’s counterclaim, which alleged 

that the policy afforded the Wencels no coverage for this loss. 

2First and Fourth Assignments of Error. 

3Second Assignment of Error. 

4Third Assignment of Error. 

5Fifth Assignment of Error. 
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opined that the damage was due to underground water pressure. AmFam, 

therefore, had no duty to provide coverage under the policy. 

{¶ 30} The Wencels’ second and third assignments of error are overruled 

on the authority of Horak v. Nationwide Ins. Co., Summit App. No. CA 23327, 

2007-Ohio-3744 and Bailey; see, also, Cragett v. Adell Ins. Agency (1993), 92 

Ohio App.3d 443, 635 N.E.2d 1326. The Wencels were required to examine 

the policy to ensure that the extent of coverage it provided met their needs; 

AmFam was not accountable if the Wencels’ insurance agent made negligent 

oral misrepresentations about the policy terms. 

{¶ 31} For the foregoing reasons, the trial court order is affirmed. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 
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A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

________________________________ 

KENNETH A. ROCCO, JUDGE 

MELODY J. STEWART, P.J., and 

SEAN C. GALLAGHER, J., CONCUR