[Cite as E. Liverpool v. Owners Ins. Co. , 2021-Ohio-1474.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT COLUMBIAN A COUNTY

CITY OF EAST LIVERPOOL,
Plaintiff-Appellant,

v. OWNERS INSURANCE COMPANY et al.,
Defendants-Appellees.

OPINION AND JUDGMENT ENTRY Case No. 20 CO 0009

Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2018-CV-81

BEFORE: Carol Ann Robb, Gene Donofrio, Cher y l Waite, Jud g es.

JUDGMENT: Affirmed.

A tty. Charles L. Payne , Law Director, 617 St. Clair Ave, P.O. Box 114, East Liverpool, Ohio 43920 and Atty Thomas W. Connors, Warner Mendenhall, 190 N. Union St. Akron, Ohio 44304 for Plaintiff-Appellant and

A tty. Craig G. Pelini

, Atty. Nicole Richard, Pelini, Campbell & Williams LLC, Bretton Commons - Suite 400, 8040 Cleveland Avenue N.W., North Canton, Ohio 44720 and– 2 –

Case No. 20 CO 0009 A tt y

. Joseph F. Nicholas, Jr
., Atty . Frank H. Scialdone, Atty. George V. Pilat, Atty. Michae l P. Byrne, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139 for Defendants-Appellees.
Dated April 21, 2021

Robb, J.
{¶1} Plaintiff-Appellant City of East Liverpool (the City) appeals t he decision of the Columbiana County Common Pleas Court granting summary judgm ent for Defendants-Appellees Owners Ins. Co., Auto-Owners Ins. Co., Aut o-Owners Ins. Group (the three Owners Insurance Companies collectively referred to as Owners), John Gauron, Jack L. Mills Agency, Inc., and Mega Ins. Agency, Inc. (all Appellees collectively referred to as Appellees). Multiple assignments of error are r aised in this appeal. The first assignment of error is whether the term “intake well hous e” is plain and unambiguous. If it is not, then does the evidence indicate it is reasonably susceptible to more than one interpretation? Reasonably susceptible to more than one interp retation would create a genuine issue of material fact and thereby preclude the grantin g of summary judgment against the City. In the second assignment of error, the City asserts the trial court erred in granting summary judgment in Owners’ favor on the bad faith denial of coverage claim and failure to investigate claim. The third assignment of erro r raises issue with the trial court’s decision denying the City’s Civ.R. 56(F) motion for a c ontinuance of the summary judgment ruling so that it could conduct more discovery. The f inal assignment of error raises arguments concerning the trial court’s decision to grant summary judgment for Appellees’ on the reformation, equitable estoppel, and negligen ce claims. For the reasons discussed below, the tria l court’s ruling is affirmed.
Statement of the Facts {¶2} Many of the facts are undisputed in this case. In 1986, the Ci ty requested bids for insurance for Water Department buildings and equipment . Appellee Auto Owners submitted its bid in 1986 through agent Appellees Gauron and Me ga Ins. Group. The bid request listed the “Intake Well House” located at 2220 Michigan Avenue, East Liverpool, Ohio. The bid was accepted by the City in 1986.– 3 –

Case No. 20 CO 0009 {¶3} Appellee Owners asked the City to provide estimated values of t he buildings and equipment. The City hired Stilson & Associates, Inc. to pr ovide the estimated values and they issued a report in 1989. {¶4} The report defines and assigns a value for the “Intake Structur e.” It defines the structure as the point where the river water enters the sys tem. The structure is located
in the Ohio River and is constructed out of reinforced concrete . It contains several valves and piping from the river to the Well House, as well as minor e lectrical lighting for warning lights. The replacement value of the Intake Structure is liste d in the Stilson & Associates Report as $750,000. {¶5} The report also separately defines the “Well House.” It “recei ves water from the intake structure and acts as a suction well for the pumps i n the Pump Station.” The
Well House is 14 feet in diameter and is constructed of brick a nd contains ventilation, service electricity, and a one-ton crane. The replacement valu e of the Well House is listed at $115,800. {¶6} In 1990, a renewal policy was issued. The declarations pages o f the policy did not list the Intake Structure and Well House as separate st ructures. The renewal policy effective March 21, 2015 likewise does not list the Inta ke Structure and Well House separately. Instead, the 2015 policy, for example, listed “Int ake Well House” as being located at 2198 Michigan Avenue and the limit of insurance as $ 142,800. {¶7} On February 19, 2016, the water vessel Mary Artie Brannon owned by Defendant Crounse Corporation co llided with the Intake Structur e in the Ohio River. Following the collision, the City submitted a claim to Owners. That claim was denied on the basis that the Intake Structure was not covered by the term s of the policy; the assertion was the term “Intake Well House” only covered the Wel l House, not the Intake
Structure.
Statement of the Case {¶8} Following the denial of the claim, the City filed suit against Appellees and Defendant Crounse Corp. 2/15/18 Complaint; 3/28/19 Amended Com plaint. The City asserted causes of action sounding in breach of contract, refor mation of contract, equitable estoppel, misrepresentation, bad faith denial of a cl aim, failure to obtain the requested coverage, and negligence with a request for punitive damages. The– 4 –

Case No. 20 CO 0009 negligence claim was solely against Defendant Crounse Corp. Th e claim against John Gauron who was working for or doing business as Jack L. Mills A gency, Inc. and Mega Ins. Agency, Inc. was that Gauron failed to obtain the insuranc e the City requested. {¶9} All defendants filed answers. Crounse admitted that its vessel , the Mary Artie Brannon, collided with the Intake Structure located at Mi le Marker 40.2, but denied the nature and extent of the damage the City claimed was caused by the collision. 3/15/18 Answer of Crounse; 5/10/19 Crounse Answer of First Amended Comp laint. Owners Insurance Company answered and filed a cross claim against Crou nse. 3/22/18 Owners Insurance Company Answer and Cross Claim; 5/23/19 Answer of Own ers Insurance Company to First Amended Complaint. Appellees Mega Ins. Agency , Gauron, and Jack L. Mills Agency answered asserting the building insured was the Intake Well House located at 2220 Michigan Avenue, not the Intake Structure locat ed in the Ohio River. 4/2/18 Answer of Defendant Mega Ins. Agency; 4/20/18 Gauron and Jack L. Mills Agency Answer; 5/20/19 Answer of Gauron and Mega Ins. Agency to First Amended Complaint;
5/21/19 Answer of Gauron and Ja ck L. Mills Agency to First Amen ded Complaint. {¶10} Defendant Crounse Corp. answered the cross claim. 3/29/18 Answ er of Crounse Corp. to Cross Claim. {¶11} Following discovery, Owners filed a Motion for Summary Judgment asserting the language of the policy is clear that the Intake S tructure was not listed in the policy. The policy instead listed the “Intake Well House” loca ted at 2220 Michigan Avenue with a coverage limit of $142,800. (The 2015 policy actually l ists the location as 2198 Michigan Ave.). Similarly, Appellees Gauron, Jack L. Mills Age ncy and Mega Ins. Agency filed a motion for summary judgment asserting the Intake Well H ouse remained on the policy as a single item for over 20 years at a value ranging fr om approximately $120,000 to $140,000. 5/31/19 Motion for Summary Judgment. However, wh en the Stilson Report was completed in 1989 the replacement value listed on that repo rt for the Intake Structure was $750,000. Owners asserted the Stilson Report was not a req uest for coverage and the City failed to read the policy to ensure that there was cov erage for the Intake Structure. {¶12} The City filed motions in opposition to the motions for summary judgment asserting there was a genuine issue of material fact as to what the term “Intake Well– 5 –

Case No. 20 CO 0009 House” means. 8/5/19 Plaintiff’s Brief in Opposition to Motion for Summary Judgment. Appellees filed a reply in support of summary judgment. 8/19/1 9 Reply. {¶13} Defendant Crounse Corp also filed a motion for partial summary judgment. 8/7/19 Crounse Corp Motion for Partial Summary Judgment. {¶14} The trial court granted summary judgment for Appellees on the c laims the City asserted against them. 11/5/19 J.E. The judgment entry d id not address the claims the City asserted against Crounse. Thus, the decision was not a final appealable order. {¶15} Following the summary judgment ruling, the City and Crounse rea ched a settlement. The trial court then issued a judgment entry indic ating the November 5, 2019 grant of summary judgment for Appellees is a final appealable o rder. 2/20/20 J.E. {¶16} On April 29, 2020 the City and Crounse entered an agreed entry of dismissal stating, “The within action having been fully comprom ised and settled between Plaintiff City of East Liverpool and Defendant Crounse Corporat ion, Plaintiff’s Amended Complaint and all pending Motions may be and are hereby dismiss ed, with prejudice each party to bear its own costs.” 4/29/20 Agreed Entry of Dismissa l. {¶17} The notice of Appeal was filed prior to the Entry of Dismissal. 3/12/20 Notice of Appeal. Appellees filed a Motion to Dismiss. 3/20/20 Motio n to Dismiss. On May 4, 2020, days after the agreed entry of dismissal was filed with t he trial court, we granted the motion to dismiss indicating the order granting summary jud gment would not become final until the entry of dismissal was filed and other issues s uch as allocation of court costs were resolved. 5/4/20 J.E. (acknowledging the parties were gra nted until May 29, 2020 to file an agreed entry of dismissal or judgment). {¶18} On May 13, 2020 the City filed a second notice of appeal attach ing the April 29, 2020 Entry of Dismissal. 5/13/20 Notice of Appeal. A new appeal number was assigned. Standard of Review for the First, Second, and Fourth Assignment s of Error {¶19} An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thu s, we shall apply the same test as the trial court in determining whether summary judgment was proper. A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law ; and (3) the evidence can– 6 –

Case No. 20 CO 0009 only produce a finding that is contrary to the non-moving party . Civ.R. 56(C). “Trial courts should award summary judgment with caution, being careful to re solve doubts and construe evidence in favor of the nonmoving party.” Welco Industries, Inc. v. Applied Cos.

, 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993). {¶20} With that standard in mind, we review the first, second, and fo urth assignments of error. First Assignment of Error “The trial court erred by granting summary judgment dismissing the City’s breach of contract claims against Owners.” {¶21} This assignment of error addresses the breach of contract claim s asserted by the City against Owners and focuses on the phrase “Intake We ll House” found in the declarations pages of the insurance contract. The City contend s there is a genuine issue of material fact as to the meaning of “Intake Well House.” The City argues the phrase was meant to include the Intake Structure, while Appellees cont end it only covers the Well House. Thus, the City asserts the phrase “Intake Well House” i s ambiguous since it is reasonably susceptible of two meanings and/or has a special mea ning. Thus, according to it, extrinsic evidence can be considered to determine the me aning of the phrase. The City contends that while the insurance contract at issue is the 2015 renewal policy, the prior policies dating back to the request for the Stilson Repor t should be considered to determine the special meaning the City understood the phrase to mean. The City argues the trial court misapplied the test for determining the existen ce of a special meaning of
“Intake Well House.” It asserts the trial court did not determ ine whether there was evidence that reasonable minds could find the existence of a sp ecial meaning. Instead, it weighed the evidence regarding the meaning and invaded the p rovince of the jury. {¶22} The City argues the Stilson Report was commissioned to provide an evaluation of structures for insurance purposes and this report lists the Intake Structure as well as the Well House. This, according to it, is evidence that the Intake Structure was intended to be insured. Thus, the Intake Well House phrase in the declarations page
included both the Well House and the Intake Structure. The Cit y points to the testimony of Bob Disch, the City’s Public Utility Director at the time of the insurance contracts, that
the Intake Well House includes both the Intake Structure and th e Well House. The City– 7 –

Case No. 20 CO 0009 argues it was the tr ier of fact’s provinc e to weigh the evidenc e to determine the intent of the parties regarding the meaning of the phrase Intake Well Hou se. It asserts the trial court acted improperly when it would not consider the correctio ns Disch made to his deposition in the errata sheets. {¶23} Owners Insurance counters asserting the language of the policy is plain; the policy provides coverage for damage to the Intake Well House lo cated at 2220 Michigan Avenue. There was never a request to cover the Intake Structur e. It further contends the Intake Structure was specifically left off of the policy per th e instruction of Bob Disch. The intent to only cover the Well House is also evidenced by the ap preciably lower value listed in the policy that corresponds with the value of the Well House alone. The policy provided for coverage in the amount of roughly $140,000. The Intake Str ucture was valued at $750,000 in the 1989 Stilson Report. They also assert that the deposition testimony from
Bob Disch also indicates that the Intake Structure and the Well House were two separate structures. Owners further argues that the City is incorrect t hat the trial court did not
consider the statements Disch made to the errata sheets of his deposition. The trial court did consider them, but found them insufficient to create a genu ine issue of material fact because the corrections directly contradicted other statements in the deposition. {¶24} To succeed on a breach of contract claim, a plaintiff must demo nstrate (1) the existence of a contract, (2) plaintiff's performance, (3) d efendant's breach, and (4) damages or loss to the plaintiff. Thyssen Krupp Elevator Corp . v. Constr. Plus, Inc. , 10th Dist. Franklin No. 09AP-788, 2010-Ohio-1649, ¶ 13. The interpr etation of a written
contract is an issue of law. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm , 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). The purpose of contract construction is to realize and give effect to the parties' intent. Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. {¶25} “[T]he intent of the parties to a contract resides in the langu age they chose to employ in the agreement.” Shifrin v. Forest City Ents., Inc. , 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992). When “‘the terms in a contract are unam biguous, courts will not in effect create a new contract by finding an intent not expres sed in the clear language employed by the parties.’” Holdeman v. Epperson , 111 Ohio St.3d 551, 2006-Ohio-6209, 857 N.E.2d 583, ¶ 12, quoting Shifrin

. “A court will resort to extrinsic evidence in its effort– 8 –

Case No. 20 CO 0009 to give effect to the parties' in tentions only where the langua ge is unclear or ambiguous, or where the circumstances surrounding the agreement invest the language of the contract with a special meaning.” Kelly v. Medical Life Ins. Co. , 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987)

. {¶26} When extrinsi c evidence is used to re solve an ambiguity or unde rstand a special meaning, the court must first examine parol evidence to determine the parties'
intent. In re Estate of Taris, 10th Dist. Franklin No. 04AP-1264, 2005-Ohio-1516, citing
Cline v. Rose , 96 Ohio App.3d 611, 615, 645 N.E.2d 806 (1994). The extrinsic evidence may include: (1) the circumstances surrounding the parties at t he time the contract was made; (2) the objectives the parties intended to accomplish by entering into the contract; and (3) any acts by the parties that demonstrate the constructi on they gave to their agreement. Blosser v. Carter , 67 Ohio App.3d 215, 219, 586 N.E.2d 253 (4th Dist.1990). Ordinarily, courts should not grant summary judgment when an am biguity exists, however if the extrinsic evidence stands undisputed, then the court may take this step. Ma v. Cincinnati Children's Hosp. Med. Ctr. , 2020-Ohio-1471, 153 N.E.3d 866, ¶ 18 (1st Dist.), citing Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 13 (“It is generally the role of the finder of fact to resolve ambiguity.”) and Lewis
v. Mathes , 161 Ohio App.3d 1, 2005-Ohio-1975, 829 N.E.2d 318, ¶ 25 (4th Dist.) (“Ordinarily, summary judgment is inappropriate when contractua l language is ambiguous, because a question of fact remains. But if the extri nsic evidence demonstrates that no genuine issue of material fact exists, we conclude that summary judgment may still be appropriate.”). {¶27} When parol evi dence cannot resolve an ambiguity or special mean ing and show the intent of the parties, a court must apply the secondar y rule of contract construction whereby the ambiguous language/special meaning is strictly construed against the drafter. Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313, 667 N.E.2d 949 (1996) ; Reida v. Thermal Seal, Inc., 10th Dist. Franklin No. 02AP-308, 2002-Ohio6968. {¶28} Under the Building and Personal Property Coverage Form of the Insurance policy, it states:– 9 –

Case No. 20 CO 0009 A. Coverage We will pay for direct physical loss of damage to Covered Prope rty at the premises described in the Declarations caused by or resulting f rom any Covered Cause of Loss. 1. Covered Property Covered Property, as used in this Coverage Part, means the typ e of property described in Section A.1., and limited in A.2., Prope rty Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property. a. Building. M eaning the building or structure described in the Declarations, including: (1) Completed additions; (2) Fixtures, including outdoor fixtures; (3) Permanently installed: (a) Machinery; and (b) Equipment; (4) Building glass, meaning glass that is part of the building or structure; (5) Pers onal property owned by you that is used to maintain or service the building or structure or its premises, including: (a) Fire-extinguishing equipment; (b) Outdoor furniture; (c) Floor coverings; and (d) Appliances used for refrigerating, ventilating, cooking, dishwashing or laundering; and (6) If not covered by other insurance: (a) Additions under construction, alterations and

r epairs to the building or structure; and (b) Materials, equipmen t, supplies and temporary structures, on or within 1,000 feet of– 10 –

Case No. 20 CO 0009 the described premises, used for making additions, alterations or repairs to the building or
structure. 2015 Insurance Policy. {¶29} Location 003 in the Declarations Sections is the only declarati on being argued that could cover the Intake Structure. This declaration indicates there are no
additional forms for this location. The address listed for Loc ation 003 is “BLDG 001 3R 2198 Michigan Avenue, East Liverpool, OH 43920.” This declara tion labels this location as “Intake Well House” and limits the insurance to $142,800. {¶30} There is no plain and ordinary definition for “Intake Well Hous e”; dictionaries do define “intake” and “well house,” but there is no listed def inition for “Intake Well House.” Well House is defined as a “covered structure (as a house or ro om) built around the top
of a well.” https://www.merriam-webster.com/dictionary/well%20house . Intake is defined “an opening through which fluid enters an enclosure.” https://www.merriamwebster.com/dictionary/intake

. {¶31} In looking at just the policy declarations and those definition s, the plain and ordinary meaning of “Intake Well House” is the well house that connects to the intake.
The word “intake” modifies and describes the well house for whi ch the insurance policy provides coverage. This definition corresponds to the address listed for the well house that is connected to the Intake Structure. Thus, the label “In take Well House” describes that property. Furthermore, the address listed is not the mile marker in the Ohio River
where the Intake Structure is located. Had that address been l isted then possibly the
label “Intake Well House” would have included the Intake Struct ure. Moreover, the City was the first party to use the term “Intake Well House” and spe cify that it was located at 2220 Michigan Avenue. It did so in 1986 when it published its Notice for Bids and Request for Bid. Defendant’s Exhibit A and B to Disch Depo. The City cannot now claim that its own term, first used by it, is ambiguous. Therefore, this cou rt concludes the language is not ambiguous. It is plain that w hat is located at that Michig an Avenue address, the well house that connects to the intake, is all that is covered. {¶32} Even if this court were to conclude the term is ambiguous, the use of parol
evidence would still limit the cov erage to the one structure. The extrinsic evidence would– 11 –

Case No. 20 CO 0009 include, but not be limited to, the Stilson Report and Request for Bid. It is undisputed that the Stilson Report was done for purposes of insurance. It was prepared in response to new construction and renovations to existing structures. Disch Depo. Exhibit C. The Stilson Report stated the scope of the report was to provide th e City with a summary of information and estimated replacement costs for the major struc tures for the purpose of submitting to the insurance company. Disch Depo. Exhibit C. “ The insurance company will then be in a better position to evaluate and assess the ra tes to be charged for insurance protection to the City.” Disch Depo. Exhibit C. Howe ver, as Disch acknowledged, that report lists the two (Intake Structure and W ell House) separately. Disch Depo. 33. The replacement value of the Intake Structure listed in the Stilson Report is $750,000. The replacement value of the “Well House” in that same report is $115,800. Despite the Stilson Report’s separate listings, the insurance c ontract does not list the Well House and Intake Structure separately. The contract also did n ot insure the “Intake Well
House” for the combined amount of the Well House and Intake Str ucture. Instead, the contract covered the “Intake Well House” for an amount equivale nt to the amount of the Well House alone; the insurance coverage was for approximately $150,000. {¶33} Furthermore, the “Intake Well House” as described in the insura nce contract was for a Michigan Avenue address, not for a structure in the O hio River. As stated above, the Request for Bid that was sent out by the City in 198 6 states, “The Location of
Board of Public Utilities Buildin gs & Tanks to be bid are: * * * Intake Well House, 2220 Michigan Avenue, E.L.O.” Likewise, this bid request does not l ist the structures separately and only lists a Michigan Avenue address for the loc ation. {¶34} Given the difference in the values between what was covered and what the structures were worth, it is glaring as to what the intent of t he parties was by the use of the phrase intake well house. It was to only cover the Well Ho use where the intake connects. Had the intent been to cover the Intake Structure, i t would have been listed separately as it was in the Stilson Report or it would have bee n valued at a much higher
amount. {¶35} Admittedly, Disch did testify, “If you say to me ‘intake pier,’ that’s the cement thing out in the middle of the river. If you say ‘intake well house,’ it kind of tells me you’ve combined these two features into one.” Disch Depo. 32. The Ci ty focuses on Disch’s– 12 –

Case No. 20 CO 0009 deposition testimony and the corrections he made to his testimo ny to indicate he subjectively understood the insurance contract to insure the In take Structure and the Well House when it used the phrase “Intake Well House.” The City as serts the corrected testimony creates genuine issue of material fact as to what “In take Well House” means. We disagree and agree with the trial court’s reasoning. {¶36} The trial court explained that the statements on the errata she et of Disch’s deposition are little more than conclusory statements offered i n support of his subjective belief and understanding. 11/5/19 J.E. The trial court acknow ledged Civ.R. 30(E) permits a witness to make changes in form or substance to deposition te stimony, but it is not a safe harbor. 11/5/19 J.E. It stated self-serving deposition testimony is insufficient to
demonstrate a material issue of f act. The trial court determin ed:

The subjective belief or understanding of Mr. Disch as set fort h on the Eratta sheet to his deposition stands alone and is opposed by the obje ctive evidence in the record. This includes the Notice For Bids, the Request for Bid, the express limitation contained therein, the insurance qu ote of Mr. Gauron, the Stilson report, the Statement of Values signed by M r. Disch and his knowledge acquired during his long tenure with the City of East Liverpool and/or the Board of Public Utilities, and the unambiguous langu age of the Renewal Policy and Declarations, which Mr. Disch chose not to r ead for years. This evidence is not doubtful, uncertain, or ambiguous. All of it has been thoroughly analyzed, an appropriate activity at the stage of summary judgment.

Mr. Disch apparently never expressed his “understanding” or rai sed any concern to anyone for some 20 years before the collision at iss ue. During
this same time he continued to choose not to read the insurance policies that were renewed year after year. Had he read the insurance p olicies he
would have or should have discovered that Auto-Owners did not i nsure the intake structure as of September 19, 2016. Even when construin g the evidence most strongly in favor of the City of East Liverpool, the Eratta sheet to the deposition of Mr. Disch, supported only by his une xpressed– 13 –

Case No. 20 CO 0009 understanding cannot as a matter of law create a genuine issue of material fact that precludes summary judgment.

Based upon the entirety of the record before me, the only reaso nable
conclusion I can reach is that Auto-Owners insured the intake w ell house, but it did not insure the intake structure as of February 19, 2 016. This
conclusion is consistent with the intent of the Board of Public Utilities as expressed through the express limitation contained in the Notic e for Bids and Request for Bid. This conclusion is consistent with the in surance policies issued starting in 1986 and renewed annually thereafte r. It is consistent with the Renewal Policy that was in effect on Septem ber 19,
2016.

11/5/19 J.E. {¶37} Our sister districts have indicated, “changes in Errata sheet—w hich completely change the deposition testimony—cannot be used to de feat a Motion for Summary Judgment.” Musil v. Gerken Materials, Inc. , 6th Dist. Lucas No. L-19-1262, 2020-Ohio-3548, fn. 2, citing Christian v. Wal-Mart Stores East, LP , 5th Dist. Holmes No. 09CA014, 2010-Ohio-3040, ¶ 18, quoting Hambleton Bros. Lumber Co. v. Balkin Ents.,
Inc. , 397 F.3d 1217, 1225 (9th Cir.2005). {¶38} Specifically in the deposition testimony Disch was asked if he ever requested the Intake Structure located in the river be insured. Disch Depo. 103. He responded he did not. Disch Depo. 103. Then on the errata she et he changed his response to make it “clearer by adding” the city made the reque st prior to him being the director and that was the bid to insure all water department bu ildings including the intake well house, which he understood to mean the intake and the well house. 7/22/19 Filing. The five changes he made to his deposition were all similar to this one indicating that he
understood the Intake Well House to mean the Intake Structure a nd the Well House. {¶39} Considering that the major issue in this case is what is the me aning of Intake Well House, his changes in the errata sheet did change his answ ers substantially as to his subjective belief. Furthermore, during his tenure the poli cy was renewed and he admittedly did not read the policy except for the phrase “Intak e Well House.” When his– 14 –

Case No. 20 CO 0009 corrections are taken into consideration with his admission he did not read the insurance policy, the trial court correctly indicated it did not create a genuine issue of material fact. {¶40} In conclusion, when viewed in the light most favorable to the C ity, reasonable minds conclude that the language used was clear and unambiguous. The Intake Structure was not covered by the policy. Our analysis c ould end at that point. However, even if we were to conclude the term was ambiguous, th e only reasonable definition the extrinsic evidence suggests for “Intake Well Hou se” is the Well House connected to the intake. It does not reasonably suggest covera ge for the Intake Structure. The trial court’s analysis, even though reviewed de novo, was o n point and did not overstep by weighing the evidence. This assignment of error la cks merit. Second Assignment of Error “The trial court erred by granting summary judgment dismissing the City’s bad faith claims against Owners.” {¶41} This assignment of error specifically addresses the bad faith c laim. The City argues Owners had no lawful basis for denying the claim if the term “Intake Well House” has a special meaning that includes both the Intake Stru cture and the Well House or it is reasonably subject to such interpretation. It also co ntends that Owners had a duty to reasonably investigate the claim. Thus, they are raising a bad faith investigation and
bad faith denial claim. {¶42} As to the bad faith investigation, the City argues to survive s ummary judgment it was only required to show that the insurer had no r easonable justification for failing to determine whether its refusal had a lawful basis. I t asserts the claim was filed on March 9, 2016 and denied 9 days later on March 18, 2016 with a statement that the City could provide further information supporting coverage. {¶43} It claims Owners’ files were searched for photographs or inform ation regarding the intake, but none were located and Owners was unaw are of the Stilson Report in Gauron’s file. Further, Owners representative, John Biviano, a claims adjuster, would not answer questions at t he deposition concerning whether the Stilson Report and Intake Structure photograph would have been pertinent to the in vestigation of the claim
that the term “Intake Well House” referred to both the Intake S tructure and the Well– 15 –

Case No. 20 CO 0009 House. The City asserts this evidence is sufficient to find th at a reasonable mind would have concluded Owners did not adequately investigate. {¶44} Owners counters, arguing the Stilson Report and findings confir m the position of no coverage. Thus, not reviewing it prior to denyi ng coverage does not amount
to bad faith. {¶45} As to the denial claim, a bad faith denial claim hinges on the success of the
breach of contract claim. As this court found no merit with th e first assignment of error, this argument fails. However, this court will still address th e issues. {¶46} The City asserts the court must consider the evidence in the re cord showing a special meaning. Those are the 2015 renewal policy; the 1986 bid request; 1989 Stilson Report; and the statement by Tim Clark, the City representative , that the purpose of the Stilson Report was to identify all water department structures and have those insured. {¶47} Owners counters, asserting the breach of contract claim fails a nd thus, this claim also fails. However, it also asserts a lack of good fait h is more than just bad judgment or an incorrect decision. A result adverse to the ins ured does not mean the
insurer acted in bad faith. {¶48} The Ohio Supreme Court has determined that an insurer “fails to exercise good faith in processing a claim of its insured where its refus al to pay the claim is not predicated upon circumstances that furnish reasonable justifica tion therefor.” Zoppo v. Homestead Ins. Co. , 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of th e syllabus. Reasonable justification does not exist where an ins urer's refusal to pay a claim is arbitrary or capricious. Hart v. Republic Mut. Ins. Co. , 152 Ohio St. 185, 188, 87 N.E.2d 347 (1949). {¶49} The Sixth Appellate District has explained:

“[A]n 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, 452 N.E.2d 1315 (1983), paragraph one of the syllabus. Whe re an insurer refuses to pay a claim without providing reasonable jus tification, the insurer fails to act in good faith. McNair at ¶ 124, citing Zoppo v. Homestead Ins. Co. , 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of th e– 16 –

Case No. 20 CO 0009 syllabus. Failure to act in good faith gives rise to a claim ag ainst the insurer.
Hoskins at paragraph one of the syllabus.

Watkins v. Allstate Vehicle & Property Ins. Co. , 6th Dist. Lucas No. L-19-1235, 2020- Ohio-3397, ¶ 53, appeal not allowed, 160 Ohio St.3d 1409, 2020-Ohio-4574, 153 N.E.3d 113, ¶ 53. {¶50} The City’s assertion of the facts is correct concerning the amo unt of time to investigate and the consideration of the Stilson report. Howev er, (as stated above) given the facts either there is a dispute as to what “Intake Well Hou se” means or it is plain that
it does not mean both the Intake Structure and the Well House. The division of the structures used in the Stilson Report and the different valuati ons does clearly support Owner’s position that intake and well house are two separate st ructures and “Intake Well House” is not a combination of the both. At most, the claim is fairly debatable. As the City points out, “’Where a claim is fairly debatable the insure r is entitled to refuse the claim * * *as long as such refusal is premised on a genuine dispute o ver either the status of the law at the time of the denial or the facts giving rise to the c laim.’” Marshall v. Colonial Ins.
Co. , 7th Dist. Mahoning No. 15 MA 0169, 2016-Ohio-8155, ¶ 80. A f ailure to reasonably investigate before arriving at a legal or factual position can give rise to liability. Marshall
, citing Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 554, 644 N.E.2d 397 (1994) (finding evidence from which the jury could conclude the insure r failed to conduct an adequate investigation on cause of fire and was not reasonably justified in denying the insured's claim). {¶51} Had the Stilson report defined Intake Well House differently an d the values set forth in the report for the total of both structures been e quivalent to the value insured, the result of not looking at that report may have been differen t. However, as it stands given the facts, the Stilson Report creates a further indicatio n the two are separate structures and, by using the phrase “Intake Well House,” the wo rd “intake” does not mean the Intake Structure but rather is a descriptor of the well hou se being insured. This further supports the position that even if there is a genuine issue as to what “Intake Well House” means and Owners incorrectly determined the definition, they ar e not necessarily liable for a bad faith claim. The actions and interpretation of Owner s as described by the City
do not amount to bad faith. Even an incorrect result does not mean bad faith.– 17 –

Case No. 20 CO 0009 {¶52} This assignment of error is meritless. Preliminary Issue for Third and Fourth Assignments of Error {¶53} Mega and Gauron’s brief only addressed the Third and Fourth Ass ignments of Error asserting that as Owners’ agents these are the only as signments that relate to them. They address these assignments of error together. They start by asserting the City waived its claims against them because following its settl ement with Crounse, the City voluntarily dismissed all its claims instead of just dismi ssing its claims against Crounse. Therefore, the interlocutory summary judgment order t hat would not become final until the claims against Crounse were resolved did not be come final because the claims against everyone were dismissed. Effectually, they are asserting there is no order for this court to review because the interlocutory summary judg ment ruling was dismissed along with all claims against all parties. {¶54} The Agreed Entry of Dismissal states the following, “The within action having been fully compromised and settled between Plaintiff Cit y of East Liverpool and Defendant Crounse Corporation, Plaintiff’s Amended Complaint an d all pending Motions may be and are hereby DISMISSED, with prejudice, each party to bear its own costs.” 4/29/20 J.E. This dismissal was signed by the Judge and attorn eys for the City and
Crounse. {¶55} The April 29, 2020 dismissal does not indicate which subsection of Civ.R. 41 the parties intended to dismiss in the matter. The dismissa l in this case was titled “Agreed Entry of Dismissal,” and not a notice of dismissal or s tipulation of dismissal. Notices and stipulations are covered by Civ.R. 41(A)(1). Civ.R . 41(A)(2) is the By Order of the Court provision and states, “Except as provided in divis ion (A)(1) of this rule, a claim shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper.” Given th at the order was signed by the court and the parties settling, this was a Civ.R. 41(A)( 2) dismissal. {¶56} Two months prior to the entry, the trial court was made aware o f the settlement agreement between the City and Crounse. In February 2020, the trial court issued a decision indicating that due to the settlement agreeme nt, the November 5, 2019 grant of summary judgment became a final appealable order. 2/2 0/20 J.E. It is clear the trial court was only dismissing the claims pending against Crou nse, not any other claims.– 18 –

Case No. 20 CO 0009 Thus, the April 29, 2020 dismissal did not dismiss claims again st Appellees. Mega and Gauron’s preliminary argument fails. Third Assignment of Error “The trial court erred by denying the City’s motions to compel deposition testimony and production of claims file from Owners and Mega.” {¶57} The City’s argument focuses on the discovery of materials from Owners and Mega. It asserts Owners refused to provide a witness on the his tory of the relationship between Owners and the City. Owners did produce John Biviano, a claims adjuster, to testify about the investigation and the denial of the claim. T he City contends this representative was not prepared or refused to answer deposition questions. Mega, Owners agent, provided its president Tom Minor as its represent ative. He also refused to answer questions. The City then moved the trial court to co mpel discovery of Owners’ claim file and the testimony it sought from both Owners and Meg a. That request was part of Civ.R. 56(F) motion to continue the decision on the summary judgment motions to allow the further requested discovery. {¶58} The trial court denied the motion when issuing its summary judg ment ruling. 11/5/19 J.E. It indicated the discovery in the case was alread y comprehensive, Fed.Civ.R. 30(b)(6) was not applicable, and additional discover y would not change the
facts: Moreover, additi onal discovery will not change many of the fact s already recited herein, including that the intake structure is in the O hio River and has never been located on Michigan Avenue, even according to th e City of East Liverpool and/or the Board of Public Utilities. Additiona l discovery will not change the fact that Mr. Disch did not read the insurance p olicies that were issued. Additional discovery will not change the many con clusions springing from the repeated failure to read the insurance polic ies and the resulting impact on the City of East Liverpool. Finally, addit ional discovery will not change the fact that, as a matter of law, the City of East Liverpool is presumed to be familiar with the contents of its insurance poli cy. 11/5/19 J.E.– 19 –

Case No. 20 CO 0009 {¶59} The City focuses on the denial of allowing additional discovery , while Appellees focus on the denial of the continuance. Civ.R. 56(F) states:

Should it appear from the affidavits of a party opposing the mo tion for summary judgment that the party cannot for sufficient reasons s tated present by affidavit facts essential to justify the party's opp osition, the court may refuse the application for judgment or may order a continua nce to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

Civ.R. 56(F). {¶60} We have previously explained:

[A] review of the trial court’s decision regarding the motion t o stay judgment on Appellants’ motion for summary judgment (construed as a Civ. R. 56(F) motion) is for abuse of discretion. State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, 784 N.E.2d 99, ¶ 31. An abuse o f discretion reflects more than an error of judgment, but that th e trial court acted unreasonably, arbitrarily or unconscionably in making its
determination. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Taylor v. Burkhart , 7th Dist. Monroe No. 19 MO 0013, 2020-Ohio-3632, ¶ 19. {¶61} As Appellees point out, the questions the City claims it was en titled to answers and the questions deponents did not answer were questio ns asking for legal conclusions. They were: 1. “Whether Owners had a lawful basis for its denial of the claim?” 2. “Whether it was reasonable to investigate what ‘int ake well house’ mean?” 3. “Whether the City’s belief that ‘intake well house refers to th e intake and the well house is information pertinent to Owners investigation?” 4. “Whethe r the City’s understanding
that ’intake well house’ refers to the intake and the well hous e, is reasonable under the
circumstances?” 5. “Whether ther e were ambiguities in the poli cy?” {¶62} Appellees are right. The majority, if not all, of these questi ons ask for legal conclusions. For instance, whether the term “Intake Well House ” is ambiguous is a– 20 –

Case No. 20 CO 0009 question for a court to decide. Also, it is noted there were a pproximately 20 depositions filed in this case. Thus, there was extensive discovery. As s uch, the trial court is correct that allowing further discovery would not have changed the resu lt. {¶63} Also, as referenced above, Disch testified he did not read the policy. His deposition testimony indicated the only portion he read was the portion dealing with the Intake Well House. Disch Depo. 32. Considering this statement , this means he did not look at the remainder of the policy. Had the policy listed the Intake Structure separately he would not have seen it. Had it listed the Well House separa tely he also would not have seen it. Therefore, the City’s conclusion that by reading only “Intake Well House” and its description indicated he read enough to draw the conclu sion the Intake Structure
and the Well House were both covered is an overbroad conclusion . An insured has a duty to examine the coverage provided and is charged with knowl edge of the contents of his or her own insurance policies. Fry v. Walters & Peck Agency, Inc., 141 Ohio App.3d 303, 310, 750 N.E.2d 1194 (6th Dist.2001); Jacubenta v. Cadillac Ranch , 8th Dist. Cuyahoga No. 98750, 2012-Ohio-586, ¶ 15; Craggett v. Adell Ins. Agency, 92 Ohio App.3d 443, 453, 635 N.E.2d 1326 (8th Dist.1993); Nickschinski v. Sentry Ins. Co., 88 Ohio App.3d 185, 195, 623 N.E.2d 660 (8th Dist.1993). Reading one portion to draw the
conclusion the Intake Structure was covered is insufficient bec ause more could have been in the policy. Thus, reading one portion of the policy is insufficient to conclude the policyholder met the duty to read the policy. {¶64} For all the above stated reasons, the trial court did not abuse its discretion in denying the Civ.R. 56(F) motio n. This assignment of error l acks merit. Fourth Assignment of Error “The trial court erred in granting summary judgment dismissing the City’s reformation, estoppel, negligence and misrepresentation claims against Owners and Owners’ agents.” {¶65} This assignment of error addresses the trial court’s decision t o grant summary judgment to Appellees on the reformation, equitable est oppel, negligence, and misrepresentation claims.– 21 –

Case No. 20 CO 0009 A. Reformation {¶66} As to reformation, the City argues the trial court improperly h eld Disch’s acknowledgment that he did not read the insurance contract in i ts entirety against him.
He cites our Gerace Flick v. Westfield Nat. Ins. Co . decision to support his position. {¶67} In Gerace Flick , we held that the failure to read the insurance contract did not, given the facts of that case, prohibit the insured from co verage:
Admittedly, [the insured’s] failure to ever read the Westfield Homepak policy, and thus determine on his own that the coverage may be inadequate, is remarkable. It is axiomatic that one receiving a written ins trument in a business transaction is presumed to be familiar with its conten ts. Slovak v. Adams, supra at 845, 753 N.E.2d 910; and Atlas Realty, Inc. v. Ladies Auxiliary to Broth. of R.R. Trainmen (1960), 111 Ohio App. 396, 397, 171 N.E.2d 382; citing, 31 Corpus Juris Secundum, page 838, § 150.

Nevertheless, [the insured’s] failure to read the policy is typ ically the subject of a comparative negligence defense which is generally addresse d at trial and not on a motion for summary judgment. See, Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 681, 693 N.E.2d 271 (the question as to whether plaintiffs' contributory neglig ence is the proximate cause of his injury is an issue of fact for the jury to decide pursuant to the comparative negligence provisions of R.C. § 231 5); and
Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 39, 518 N.E.2d 1226 (contributory negligence is generally an issue of fact unl ess the evidence shows that plaintiff's negligence was so extreme as a matter of law that no reasonable person could conclude plaintiff was enti tled to recover). Thus, Appellees themselves raise a factual issue that a jury ought
to decide.

Gerace Flick v. Westfield Nat. Ins. Co. , 7th Dist. Columbiana No. 01 CO 45, 2002-Ohio5222, ¶ 66-67. {¶68} We held there was a genuine issue of material fact as to whethe r the insurance company was negligent in securing the insurance cover age sought. Id . at ¶– 22 –

Case No. 20 CO 0009 95. We explained a jury could determine the failure to review the policy forecloses the ability to recover and thus, the issue is for trial. Id . at ¶ 97. Accordingly, the trial court erred when it granted summary judgment with respect to the requ est for equitable reformation of the insurance policy. Id . at ¶ 97. {¶69} While we decline to overrule our prior decision, we recognize o ur sister districts do indicate a court should not reform an insurance po licy where the party seeking reformation has failed to fulfill his duty to read the policy. LG Mayfield LLC v. United States Liab. Ins. Group , 2017-Ohio-1203, 88 N.E.3d 393, ¶ 63 (11th Dist.) (explaining, “Reformation is a remedy in equity, and ‘[e]quity aids the vigi lant.’ Marconi v. Savage , 8th Dist. Cuyahoga No. 99163, 2013-Ohio-3805, 2013 WL 4774506, ¶ 23 (discussing the equitable doctrine of laches and explaining that ‘a person is n ot entitled to relief when there has been an “[u]nreasonable delay; neglect to do a thing or to seek to enforce a right at a proper time’”), quoting Russell v. Fourth Natl. Bank , 102 Ohio St. 248, 265, 131 N.E. 726 (1921). See also Jacubenta v. Ranch , 8th Dist. Cuyahoga No. 98750, 2013- Ohio-586, ¶ 15 (‘An insurance policyholder has a duty to read i ts insurance policy.’); Hts. Driving School v. Motorists Ins. Co. , 8th Dist. Cuyahoga No. 81727, 2003-Ohio-1737, ¶ 38 (charging a policyholder with knowledge about the contents o f his insurance policy);
Allstate Ins. Co. v. Croom , 8th Dist. Cuyahoga No. 95508, 2011-Ohio-1697, ¶ 11. {¶70} The City is correct the trial court does cite the Gerace Flick decision. However, the City fails to acknowledge the decision was based o n those unique facts. The facts here are different, which the trial court acknowledge d when it made its reformation ruling. Disch indicated he did not read the insura nce contract other than the phrase “Intake Well House.” He claims to have taken that phras e to mean both the Intake Structure and the Well House. He also acknowledged he saw the Stilson Report. That report was prepared for insurance purposes and listed the Intak e Structure and the Well House separately. What is even more telling is the value of th e Intake Structure alone was $750,000, while the Well house was approximately $120,000. Yet, on the portion of the policy that Disch allegedly read it only indicated the valu e of the “Intake Well House” at approximately $140,000. Had he read the policy, these facts would have raised red flags as to whether there was coverage for what was allegedly t o be insured. This is not
akin to Gerace Flick where the facts indicated the insured was asking questions abo ut– 23 –

Case No. 20 CO 0009 the insurance and explaining to the insurance company what was occurring in a manner that was clear he was trying to obtain the correct insurance fo r the house and its belongings that were in his daughter’s name and also contained his personal belongings (that were destroyed in a house fire). {¶71} Consequently, considering the facts at hand, the trial court di d not err in granting summary judgment for Appellees on the reformation clai m. B. Estoppel {¶72} The trial court also granted summary judgment to Appellees on t he City’s equitable estoppel claim. The reasoning was also Disch’s failu re to read the policy. Alternatively, the trial court stated there was no showing of a ny misleading factual misrepresentation arising to the level of actual or constructiv e fraud. {¶73} Once again, the City asserts this is a comparative negligence i ssue. It claims Ohio law specifically holds an insurance company will be equitably estopped from denying coverage where its agent has mistakenly mislead an insu red into believing he had coverage for a loss that the policy did not provide and the insured relied on this mistake. It argues the coverage offered following the Stilson Report for the “Intake Well House” was sufficient evidence of misrepresentation. {¶74} Owners counters arguing it never made a factual representation to the City regarding the Intake Structure and there is no evidence of any misleading factual misrepresentation. {¶75} Under the doctrine of equitable estoppel, “‘a representation of past or existing fact made to a party who relies upon it reasonably maynot thereafter be denied by the party making the representation if permitting the denial would result in injury or damage to the party who so relies.’” Hortman v. Miamisburg , 110 Ohio St.3d 194, 2006- Ohio-4251, ¶ 20, quoting 4 R. Lord, Williston on Contracts, Sec tion 8:3, 28-31 (4th Ed.1992). “‘The purpose of equitable estoppel is to prevent act ual or constructive fraud and to promote the ends of justice.’” Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 43, quoting Ohio State Bd. of Pharmacy v. Frantz , 51 Ohio St.3d 143, 145 (1990). “‘A prima facie case of equitable estoppel re quires proof of (1) a factual representation that, (2) is misleading, (3) induces actual reli ance that is reasonable and– 24 –

Case No. 20 CO 0009 in good faith, and (4) causes detriment to the relying party.’” Garb-Ko, Inc. v. Benderson

, 10th Dist. Franklin No. 12AP-430, 2013-Ohio-1249, ¶ 17. {¶76} As explained above, the Stilson Report was used for insurance p urposes for providing valuations. However, there is no indication in t he testimony it was a request for insurance of everything listed in it. Specifically, Keith Clark, the former Director of Public Utilities, could not point to a communication indicating it was a request for insurance of all structures listed in it. Clark Depo. 243-247, 250-253. Furthermore, there is no evidence Appellees stated or indicated the Intake Structu re was covered. Accordingly, the trial court’s grant of summary judgment on the equitable estoppel claim are upheld. C. Negligence and Misrepresentation {¶77} The trial court indicated the amended complaint alleged neglige nce and misrepresentation on the part of Mega and Gauron for failure to obtain the requested policy coverage. The trial court stated both claims were time barred by the four-year statute of limitations. The court explained the delayed damage s rule and the discovery rule does not change the result. The court indicated, as to ne gligence, that the case at hand was distinguishable from the Kunz case where the insured initially pursued insurance to cover everything. Here, it held, the City did not initially purchase insurance to cover the Intake Structure. As to misrepresentation, the co urt also stated, in addition to being barred by the statute of limitations, Disch’s failure to read the policy was an indication the City failed in its duty to know the contents of the policy. Furthermore, as with the above arguments it also noted there is no evidence any one provided any false information to the City or the Board of Public Utilities prior to the damage occurring to the
Intake Structure. {¶78} The City claims the trial court misconstrued both its negligenc e and misrepresentation claims as requesting application of delayed d amages. It contends it was seeking damages for negligence and misrepresentation in con nection with the 2015 renewal policy. Thus, it was not setting forth a claim under t he delayed damages rule
and that rule would not be addressed. {¶79} The City argues an action for negligent procurement of an insur ance policy or negligent misrepresentation of the terms of the policy begin s to run when the policy is– 25 –

Case No. 20 CO 0009 issued and the renewal of insurance is a separate and distinct contract. It contends the 2015 contract is a separate contract having a beginning date of March 21, 2015 and an ending date of March 21, 2016. The failure to procure the requ ested coverage in the renewal policy is a separate act of negligence and misrepresent ation. {¶80} Mega and Gauron argue the trial court correctly determined the statute of limitations barred the action and, alternatively, there was no evidence of misrepresentation or negligence. Specifically, there was no ev idence false information was provided to the City stating the Intake Structure was cover ed under the policy. Owners similarly argues the actions are barred by the statute o f limitations. It claims the statute of limitations should not be tolled simply because the policy is renewed year after year. Furthermore, it claims there was no misrepresentation or negligence; there was no statement or action indicating the Intake Structure was covered

. {¶81} To establish actionable negligence, one must show there was a d uty, the duty was breached, and an injury resulted from the breach. Mussivand v. David , 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). {¶82} The elements of negligent misrepresentation are:

“(1) one who, in the course of his or her business, profession, or employment, or in any other transaction in which he or she has a pecuniary interest; (2) supplies false information for the guidance of ot hers in their business transactions; (3) is s ubject to liability for pecuniar y loss caused to them by their justifiable reliance upon the information; and (4 ) if he or she fails to exercise reasonable care or competence in obtaining or communicating the information. Delman v. Cleveland Hts. (1989), 41 Ohio St.3d 1, 4, 534 N.E.2d 835, 837–838. A negligent misrepresentat ion claim
does not lie for omissions: there must be an affirmative false statement. Textron Fin. Corp. v. Nationwide Mut. Ins. Co. (1996), 115 Ohio App.3d 137, 149, 684 N.E.2d 1261, 1269; Zuber v. Ohio Dept. of Ins. (1986), 34 Ohio App.3d 42, 45-46, 516 N.E.2d 244, 246-248.” Martin v. Ohio State Univ.
Found. , 139 Ohio App.3d 89, 103-04, 742 N.E.2d 1198 (10th Dist.2000).

Jochum v. Howard Hanna Co. , 11th Dist. Lake No. 2020-L-077, 2020-Ohio-6676, ¶ 39.– 26 –

Case No. 20 CO 0009 {¶83} The Ohio Supreme Court in LGR Realty, Inc. recently addressed the fouryear statute of limitations for professional-negligence claims governed by R.C. 2305.09(D). LGR Realty, Inc. v. Frank & London Ins. Agency , 152 Ohio St.3d 517, 2018- Ohio-334, 98 N.E.3d 241. The issue in that case was when the ne gligent-procurement and negligent-misrepresentation claims accrued, triggering the start of the statute of
limitations. Id . at ¶ 12. The Ohio Supreme Court concluded the delayed damage s rule does not apply to a negligent procurement or negligent misrepre sentation claims where the terms of the policy when issued contains a provision specif ically excluding the type of claim that the insured alleges it believed was covered by the p olicy. Id . at ¶ 31. “The cause of action in such a case accrues on the date the policy i s issued.” Id

. {¶84} In LGR Realty, Inc., the Court indicated the general rule is the statute of limitations begins to run when the injurious act is committed. Id . at ¶ 26. The language used by the Court appears to indicate when negligent procuremen t and misrepresentation claims are alleged, the alleged damage occurs the moment the co ntract is entered and the insured becomes obligated to pay a premium for the insuranc e policy that provided less coverage than it believed it would receive. Id . at ¶ 29. The case law does not indicate if there is a distinction between a renewal or original issuanc e. This raises the question of whether the statute of limitations begins to run at every re newal or does it only begin to run at the first issuance? The Ohio Supreme Court has state d a renewal insurance contract can represent a new contract of insurance separate fro m the initial policy. See Shay v. Shay , 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591, ¶ 24 (“In Benson, we held that statutes pertaining to an insurance policy and its coverage that are enacted after the policy's issuance are incorporated into a renewal of the policy if the renewal represents a new contract of insurance separate from the initia l policy.”). {¶85} Whereas here, the renewal policy has a stated start date and en d date, the renewal may be a separate policy starting the statute of limita tions for negligence and misrepresentation claims when the policy is renewed. Therefore , the statute of limitations
would not bar this action. {¶86} Conversely, here the issue is the coverage and the policy had n ot changed as to coverage of the “Intake Well House” for the past 20 years , other than to slightly change the amount covered, Hence, there is an indication that i t is not a new contract.– 27 –

Case No. 20 CO 0009 The testimony indicated coverage did change over time. Gauron said items were added. However, none of those items appear to have added anything to t he “Intake Well House.” That portion of the policy remained unchanged. This seems to i ndicate that the action is barred by the statute of limitations. {¶87} Assuming without deciding that the claims are not barred by the statute of limitations, the claims cannot survive summary judgment for the reasons expressed under the estoppel analysis. There is no evidence in the record Appe llees ever stated the Intake
Structure was covered or the term “Intake Well House” meant to include coverage for both the Intake Structure and the Well House, or that the City specifically asked for coverage for the Intake Structure located in the Ohio River. {¶88} The trial court’s grant of summary judgment for Appellees on th e reformation, equitable estoppel, negligence, and misrepresentat ion claims is supported by the record. This assignment of error lacks merit.
Conclusion {¶89} All assignments of error lack merit and the trial court’s decis ion is affirmed in all respects. The language of the insurance contract is pla in and unambiguous; the
term “Intake Well House” does not mean Intake Structure and Wel l House, but rather means only the well house that is connected to the Intake Struc ture. Further, the trial court correctly determined there was not sufficient evidence to survive a summary judgment motion on the bad faith denial and failure to investig ate claims. The trial court also did not abuse its discretion in denying the Civ.R. 56(F) m otion to continue for further discovery. Lastly, the trial court’s grant of summary judgment for Appellees on the reformation, equitable estoppel, negligence, and misrepresentat ion claims is supported by the record.

Donofrio, P J., concurs.

Waite,.J., concurs.[Cite as E. Liverpool v. Owners Ins. Co. , 2021-Ohio-1474.]

For the reasons stated in the Opinion rendered herein, the assi gnments of erro r are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.