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

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY

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 

Judgment: 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 (“Nationwide”), on two 

bifurcated cases. For the reasons set forth herein, the judgments 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, lime waste, and other 

chemicals. Shortly after purchasing the property, Mr. Jochum began to experience salt 
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problems in his basement, sump pump, and related systems issues. He discovered the 

previous owners had the same issues and in 2016 sued them for fraudulent concealment 

and won. The jury apparently awarded him only $5,000 in damages purportedly because 

his former attorney did not present expert testimony as to damages. He subsequently 

submitted a claim to his insurance company, Nationwide, who denied the claim stating 

that what is under his property are “contaminants” which are excluded from coverage 

under the terms of his policy, and that his claim was not timely 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 stayed 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 claim and its counterclaim, 

which the court granted, over Mr. Jochum’s objections, on February 4, 2021. Nationwide 

then, with leave of court, moved for summary judgment on the bad faith claims, which the 

court granted April 26, 2021. 

{¶4} It is from these two judgments that Mr. Jochum now appeals, assigning 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 ignoring 

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. 
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{¶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 evidence * * * 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 conducts 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 without 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 his house was 

improperly classified as a contaminant that is not covered by his insurance policy. Even 

if we were to agree with Mr. Jochum’s arguments on appeal, we could 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 his complaint 

and again in his deposition, Mr. Jochum did not file a timely action. The policy requires 

that any action against Nationwide be started within one year after 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 became aware of the 

damage to the property caused by the salt and other chemicals within 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 occurred, and the plaintiff was 

aware of the loss, at least by that date. As he did not file his complaint against Nationwide 
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until August 2019, it was not brought within one year of the loss 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 grounds alone, Mr. Jochum cannot 

be granted the relief he seeks. 

{¶11} Accordingly, Mr. Jochum’s first, fourth, and fifth assigned errors are without 

merit. 

{¶12} His second and third assigned errors are related and will be addressed 

together. They state: 

{¶13} 2. Whether the trial court granting Nationwide’s Motion to Bifurcate 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 normally 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 discovery issue involves an 

alleged privilege, it is a question 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 upon circumstances that 

furnish reasonable justification therefor.’” Stewart, supra, at ¶13, quoting Zoppo v. 
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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 denying 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 bad 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 coverage was resolved in favor 

of Nationwide, no discovery on Mr. Jochum’s bad faith claim could 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 Court of Common 

Pleas are affirmed. 

 

THOMAS R. WRIGHT, P.J., 

JOHN J. EKLUND, J., 

concur.