[Cite as Jochum v. Nationwide Gen. Ins. Co. , 2022-Ohio-756.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y MICHAEL JOCHUM, Plaintiff-Appellant,

- v - NATIONWIDE GENERAL INSURANCE COMPANY, Defendant-Appellee. CASE NO. 2021-L-055

Civil Appeal from the Court of Common Pleas

Trial Court No. 2019 CV 001265

O P I N I O N Decided: March 14, 2022 Jud g ment: Affirmed

Michael P. Harvey, Michael P. Harvey Co., LPA, 311 Northcliff Drive, Rocky River, OH 44116 ( For Plaintiff-Appellant )

. William H. Falin, Moscarino & Treu, LLP, 1422 Euclid Avenue, Suite 630, Cleveland , OH 44115 ( For Defendant-Appellee )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Michael Jochum, appeals the February 4 and April 26, 2021 orders of the Lake County Court of Common Pleas, which granted summary judgment in favor of appellee, Nationwide General Insurance Company (“Natio nwide”), on two bifurcated cases. For the reasons set forth herein, the judgme nts are affirmed. {¶2} Mr. Jochum purchased a home in Mentor, Ohio, which unbeknownst to Mr. Jochum at the time of purchase, was built on salt, fly ash, lim e waste, and other chemicals. Shortly after purchasing the property, Mr. Jochum b egan to experience salt2

Case No. 2021-L-055 problems in his basement, sump p ump, and related systems issues . He discovered the previous owners had the same issues and in 2016 sued them for f raudulent concealment and won. The jury apparently awarded him only $5,000 in damage s purportedly because his former attorney did not present expert testimony as to dama ges. He subsequently submitted a claim to his insurance company, Nationwide, who den ied the claim stating that what is under his property are “contaminants” which are ex cluded from coverage under the terms of his policy, and that his claim was not timel y made. {¶3} Mr. Jochum then filed a complaint against Nationwide for breach of contract and bad faith. Nationwide filed a counterclaim for declaratory judgment and moved to bifurcate the two issues. The court granted the motion and sta yed discovery on the bad faith claim pending resolution of the breach of contract claim. In due course, Nationwide moved for partial summary judgment on the breach of contract cl aim and its counterclaim, which the court granted, over Mr. Jochum’s objections, on Febru ary 4, 2021. Nationwide then, with leave of court, moved for summary judgment on the ba d faith claims, which the court granted April 26, 2021. {¶4} It is from these two judgments that Mr. Jochum now appeals, ass igning five errors for our review. Errors one, four, and five are related and will be addressed together: {¶5} 1. Whether the trial court’s decision to grant Summary Judgment to Nationwide was error. {¶6} 4. Whether the trial court’s granting of Summary Judgment by ig noring ambiguous contaminations exclusions was error. {¶7} 5. Whether permitting an insurance company to decide for itself what its own ambiguous clauses meant in the context of Summary Judgment makes the insurance contract illusory and a jury issue.3

Case No. 2021-L-055 {¶8} Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is “no genuine issue as to any material fact” to be litigated, (2) the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the e vidence * * * that reasonable minds can come to but one conclusion,” which is adverse to the nonmoving party. In reviewing a motion for summary judgment, the appellate court co nducts a de novo review and must construe the evidence in favor of the nonmoving party. Doe v. Shaffer , 90 Ohio St.3d 388, 390 (2000). “A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court witho ut deference to the trial

court’s decision.” Peer v. Sayers , 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶27. {¶9} Mr. Jochum’s only contention on appeal is that the salt under h is house was improperly classified as a contaminant that is not covered by h is insurance policy. Even if we were to agree with Mr. Jochum’s arguments on appeal, we c ould not grant him the relief he seeks as the judgment is supported on other separate and undisputed grounds. {¶10} The trial court found that based on the facts as admitted in hi s complaint and again in his deposition, Mr. Jochum did not file a timely a ction. The policy requires that any action against Nationwide be started within one year a fter the date of loss or damage. Though Mr. Jochum was unaware of the existence of the salt and other chemicals under his house when he purchased it in 2015, he beca me aware of the damage to the property caused by the salt and other chemicals w ithin the first year, a fact he readily admits. In fact, Mr. Jochum filed suit against the prior owners in September 2016. Thus, as the trial court correctly reasoned, the loss oc curred, and the plaintiff was aware of the loss, at least by that date. As he did not file h is complaint against Nationwide4

Case No. 2021-L-055 until August 2019, it was not brought within one year of the lo ss or damage. The court’s findings are supported by the record before us. Moreover, Mr. Jochum does not challenge the court’s findings in this regard on appeal. On these ground s alone, Mr. Jochum cannot be granted the relief he seeks. {¶11} Accordingly, Mr. Jochum’s first, fourth, and fifth assigned err ors are without

merit. {¶12} His second and third assigned errors are related and will be ad dressed together. They state: {¶13} 2. Whether the trial court granting Nationwide’s Motion to Bifu rcate over Objections was error. {¶14} 3. Whether the trial court’s refusal to permit the Plaintiff to proceed on any bad faith discovery was error. {¶15} “[A] trial court’s disposition of a discovery matter is normall y reviewed under

an abuse of discretion standard.” Stewart v. Siciliano , 11th Dist. Ashtabula No. 2011-A0042, 2012-Ohio-6123, ¶43, citing Simeone v. Girard City Bd. of Edn. , 171 Ohio App.3d 633, 2007-Ohio-1775, ¶21 (11th Dist.). “However, if the discov ery issue involves an alleged privilege, it is a ques tion of law and will be reviewed de novo.” Stewart, supra, citing Ward v. Summa Health Sys. , 128 Ohio St.3d 212, 2010-Ohio-6275, ¶13. Though Nationwide withheld several documents as privileged, appellant’ s arguments on appeal appear to be limited to not having enough time for discovery on the bad faith claim

because the issues were bifurcated. {¶16} “‘An insurer fails to exercise good faith in the processing of a claim of its insured where its refusal to pay the claim is not predicated up on circumstances that furnish reasonable justification therefor.’” Stewart, supra, at ¶13, quoting Zoppo v.5

Case No. 2021-L-055 Homestead Ins. Co. , 71 Ohio St.3d 552 (1994), at paragraph one of the syllabus. Though

in Stewart this court noted that even if an insurer is justified in denyi ng a claim, it can act in bad faith in other ways as well. Mr. Jochum does not argue Nationwide acted in bad faith in any way other than by denying his claim. Thus, his ba d faith claim hinged on the initial determination of the coverage issues, and no discovery on this issue was necessary until the coverage issues were resolved. Moreover, since cover age was resolved in favor of Nationwide, no discovery on Mr. Jochum’s bad faith claim cou ld support a finding that Nationwide’s denial was unjustified. See Dutch Maid Logistics, Inc. v. Acuity , 8th Dist. Cuyahoga No. 91932, 2009-Ohio-1783, ¶36. {¶17} Accordingly, Mr. Jochum’s second and third assigned errors are without

merit. {¶18} In light of the foregoing, the judgments of the Lake County Cou rt of Common

Pleas are affirmed.

THOMAS R. WRIGHT, P.J., JOHN J. EKLUND, J.,

concur.