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IN THE UNITED STATES DISTRICT COURT 

SOUTHER DISTRICT OF OHIO 

WESTERN DIVISION 

TRACY & KELLY AVERY, et al. : Case No. 1:17-cv-0562 

 :

 Plaintiffs, : Judge Susan J. Dlott 

 : 

 vs. : 

 : 

ERIE INSURANCE COMPANY : 

 :

 Defendant. : 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

NOW COME plaintiffs Tracy & Kelly Avery (the “Averys”) and Tamlin Exteriors, LLC 

(“Tamlin”), by and through counsel, and hereby move this Court, pursuant to Rule 56 of the 

Federal Rules of Civil Procedure, move this Court for an Order granting a summary 

judgment in their favor and against defendant Erie Insurance Company (“Erie”). This 

motion is supported by the parties’ Joint Stipulations, the Affidavits of Kelly Avery and 

Robert O’Brien, both filed herewith, and the case law cited herein. 

I. Statement of the Case

 This matter arises from the denial of the Averys’ claim, submitted pursuant to their 

homeowners’ policy with Erie, for replacement of their roof, parts of which were damaged 

by natural causes. On August 21, 2014, the Averys purchased the residence located at 

929 Virginia Avenue, Hamilton, Ohio (“Avery Residence”). Thereafter, effective November 

8, 2014, Erie issued Insurance Policy No. Q59 5802648 (“Insurance Policy”) covering the 

Avery Residence. 

 On August 27, 2016, there was a severe storm in the Hamilton, Ohio, area and the 

Avery Residence, which apparently still had its original roofing, suffered damage to several 

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roof tiles. The Averys filed a claim with Erie, being Claim No. 074-10740447170, and, on 

November 22, 2016, Erie’s claim adjuster, Geoffrey Saylor (“Saylor”) approved the claim for 

$2,696.50 in damages to the Avery Residence’s roof and fencing. Saylor, in his dealings 

with Kelly Avery alluded to “asbestos tiles” and attempted to steer her to a particular 

contractor, and she became leery of that settlement. Accordingly, she sought a second 

opinion from Tamlin. 

 On March 9, 2017, Tamlin inspected the Avery Residence and determined that roof 

tiles on the Avery’s existing roof was indeed made of asbestos. Tamlin then sent a sample 

taken from a damaged roof tile to ITEL Laboratories, Inc., a material laboratory, which 

confirmed the presence of asbestos. Under the O.A.C. 4101:8-9-01, sec. 907.3, a roof 

covering may not be installed without first removing the existing covering where the existing 

covering consists of, inter alia, asbestos-cement tile. Further, under O.A.C. 3901-1-

54(I)(1)(b), issued by the Ohio Department of Insurance, where a loss requires replacement 

of an item, the insurer must attempt to match the “quality, color or size” of the item suffering 

the loss. Since asbestos roof tiles are no longer manufactured; this means that the entire 

roof must be replaced. Consequently, Tamlin prepared an estimate for the removal of the 

existing, asbestos roof and the installation of a new, slate roof, as well as replacement 

fencing; the total estimate was for $62,698.96. 

 Subsequently, on March 29, 2017, and again on May 5, 2017, Saylor issued a letter 

denying the Averys’ resubmitted claim on the grounds that the claim was excluded under 

provisions of the Avery’s policy. The Averys could find no such exclusions in their policy. 

Then, on May 16, 2017, they received notice that Erie was cancelling the Insurance Policy 

on the grounds that the Averys had not repaired the damage to their existing roof 

themselves. 

 On August 25, 2017, the Averys and Tamlin initiated this action alleging three 

separate claims: (i) breach of contract, based upon Erie’s failure to allow the Averys’ claim 

submitted under the Insurance Policy [Count One]; (ii) breach of Erie’s common law duty to 

act fairly and in good faith towards the Averys [Count Two]; and that Erie acting in bad 

faith, in that the basis for its denial of the Averys’ claim was not predicated upon circumstances that furnished reasonable justification for that denial [Count Three]. (See 

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Complaint (doc. 1). at ¶¶17-29.) On June 1, 2015, defendants Maple Knoll and Bolin, and 

on October 18, 2017, defendant Erie filed its Answer denying each the Averys’ claims in 

their entirety. (See Answers to Complaint (docs. 3 and 4).) 

 Subsequently, the parties agreed that since most of the relevant facts we rot at 

issue, and could be stipulated, and that the legal issues were narrow in scope, that filing 

motions for summary judgment before engaging in extensive discovery was appropriate. 

Plaintiffs therefore submit the following Motion for Summary Judgment. 

II. Statement of the Facts

 The following facts in the evidentiary record are relevant to the issues raised in 

defendants’ Motions for Summary Judgment: 

 1. The Averys are citizens of the State of Ohio residing at 929 Virginia Avenue, 

Hamilton, Ohio, in Butler County, Ohio, within the Southern District of Ohio. The Avery 

Residence is a two story, single family dwelling, built before 2013. (Joint Stipulation No. 1; 

Affidavit of Kelly Avery (“K.Avery Aff.”) at ¶1.) 

 2. Erie is a corporation formed and existing under the laws of the 

Commonwealth of Pennsylvania engaged in the business of providing insurance to 

individuals and businesses. Erie is duly-licensed to issue, inter alia, homeowner and 

property insurance policies within the State of Ohio. (Joint Stipulation No. 2.) Erie and the 

Averys were parties to a homeowner’s insurance contract, policy number Q59 5802648 C, 

policy period November 8, 2014 through November 8, 2017. (Joint Stipulation No. 3; see

Insurance Policy, Joint Exhibit “1”). 

 3. The roof on the Avery Residence was constructed of 12x24 inch Philip Carey 

Careystone Scotch American No. 20 asbestos-cement tiles. (Affidavit of Rob O’Brien 

(“O’Brien Aff.”) at ¶3.) While Philip Carey technically remains in existence, it has not 

manufactured any new product since 1989. (Joint Stipulation No. 4; see O’Brien Aff. at ¶8.) 

 4. On August 27, 2016, there was a severe storm in the Hamilton, Ohio, area 

and the Avery Residence suffered wind damage: tree branches fell on the roof and on the 

fence bordering the property. Several roofing tiles were torn away. (Joint Stipulation No.

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5.) Kelly very also found a damaged roof tile in her yard, which she kept. (K.Avery Aff. at 

¶4.) 

 5. Thereafter, the Averys filed a claim with Erie, being Claim No. 074-

10740447170. (K.Avery Aff. at ¶5.) Subsequently, Geoff Saylor (“Saylor”), Erie’s claim 

adjustor, inspected the Averys’ residence. Saylor identified five roof tiles damaged from 

wing activity and/or falling branches. He further determined that portions of the fencing 

were rotting. (Joint Stipulation No. 6.) 

 6. Saylor asserts that he also contacted Premier Tri-State Roofing and 

confirmed the availability of roof tiles matching those found on the Averys’ roof. (Affidavit 

of Geoffery Saylor (“Saylor Aff.”) at ¶8.) Rob O’Brien (“O’Brien”) of Shamrock Restoration, 

an expert retained by the Averys, and who previously had identified the roof tiles on the 

Avery Residence roof as Philip Carey Careystone Scotch American No. 20, also contacted 

Premier Tri-State Roofing. He spoke with the manager, who stated that he did not have 

any Philip Cary products in stock. (O’Brien Aff. at ¶3; see Advertising Materials, Plaintiffs’ 

Exhibit “F”.) 

7. Subsequently, O’Brien, became aware that Saylor was asserting that a local 

firm, Premier Tri-State Roofing, had tiles matching those on the Averys’ residence in stock. 

 He contacted Premier Tri-State Roofing myself and inquired about Careystone asbestoscement tiles. He received a call back from the manager, who explained that his firm did not 

carry asbestos-cement roof tiles. (O’Brien Aff. at ¶4.) 

 8. The manager recommended that O’Brien contact Reclaimed Roofs, Inc., out 

of Greenville, Delaware. O’Brien did so, and the manager there at first stated that he had 

roof tiles that matched O’Brien’s description. However, when the manager emailed O’Brien 

a picture of the asbestos-cement tile he was referring to, O’Brien could see that it was flat, 

not tabbed like those on the Averys’ roof. (O’Brien Aff. at ¶5.) 

 9. In fact, O’Brien’s research had shown that Philip Carey Manufacturing 

Company, after several mergers, cease business operations in 1989 and in 2013 filed for 

protection under Chapter 11 of the U.S. Bankruptcy Code, so it was no surprise that such 

tiles were no longer available. (O’Brien Aff. at ¶8.) 

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 10. O’Brien also found the manufacturer’s specifications for installing Careystone 

Scotch American No. 20 roof tiles. Philip Carey, the manufacturer, recommended drilling 

holes through the roof tiles and that the fasteners need to be tightened down properly. This 

involved lifting the overlapping tile which would be impossible to do without damaging the 

old tile. (O’Brien Aff. at ¶4; see Philip Carey: Installation Manual at 58-60; Plaintiffs’ 

Exhibit “G”). 

 11. O’Brien additionally found references to installing asbestos-cement tiles using 

small, metal brackets attached to the lower edge. That method rises the bottom of the roof 

tile above the plane of the surrounding tiles, making it susceptible to wind damage. 

(O’Brien Aff. at ¶5.) 

 12. Nonetheless, on November 22, 2017, Saylor issued payment to the Averys in 

the amount of $2,696.50 (less the $500.00 deductible). This settlement included $1,308.00 

for materials (wooden fencing, 10 roofing tiles, and 2 ridge caps; $681.91 for labor). (Joint 

Stipulation No. 7; Joint Exhibit “2”) Thereupon, Erie issued Check No. NE29539 in the 

amount of $2,196.50 in settlement of that claim. (Joint Stipulation No. 8; see also 

Correspondence, dated November 22, 2017, Plaintiffs’ Exhibit “B”.) 

 13. Kelly Avery’s dealings with Saylor, however, aroused her suspicion. Saylor, 

when he inspected the roof of the Property, reported that the roof tiles contained asbestos, 

but that even though asbestos dust was highly toxic when inhaled, the roof could be safely 

repaired. Later, after approving the replacement of the damaged roof tiles, he advised the 

Averys to hire a particular contractor because he had experience dealing with asbestos 

tiles. (K.Avery Aff. at ¶6.) 

 14. Subsequently, the Averys contacted Tamlin to obtain a second opinion. On 

March 9, 2017, Tracy Avery entered into a contract with Tamlin whereby he assigned the 

proceeds of the Averys’ insurance claim to Tamlin; in return, Tamlin promised to use the 

proceeds from the settlement of that claim with Erie to replace the existing roof on the very 

Residence. (K.Avery Aff. at ¶7.). 

 15. That same day, Derek DeMolet (DeMolet”) and Jason Monday (“Monday”) of 

Tamlin inspected the Avery Residence, but did not actually climb up on the roof. They 

suspected that the roof tiles might be made of asbestos, and that the roof should be 

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replaced rather than repaired. Kelly Avery gave them the roof tile that she had collected 

from my yard. (K.Avery Aff. at ¶8.) Mr. DeMolet sent that damaged roof tile to ITEL 

Laboratories, Inc., of Jacksonville, Florida, a material evaluation laboratory, who confirmed 

the presence of asbestos. (Joint Stipulation No. 9.) 

 16. Mr. Monday prepared an estimate for the removal of the existing roof and the 

installation of a new roof, as well as replacement fencing. The total estimate was for 

$62,698.96. Subsequently, the Averys resubmitted their claim to Erie, including Tamlin’s 

estimate for replacing the existing roof. (Joint Stipulation No. 10; see Estimate, Joint Exhibit 

“3”.) 

 17. On March 29, 2017, Saylor responded to Tamlin’s submission and indicated 

that replacement of the entire roof was excluded under the Averys’ insurance contract, by 

exclusions effective November 8, 2016. (Joint Stipulation No. 11; see Correspondence, 

dated March 29, 2017, Joint Exhibit “4”.) 

 18. Thereafter, Erie retained Len Rudick (“Rudick”), of McClellan, Rudick & 

Affiliates, who inspected the Averys’ residence on April 16, 2016. On April 30, 2017, 

Rudick issued a report (“Rudick Report”) in which he claimed not to have found any 

evidence of wind damage, but did find possible damage to one cap tile and three slope 

tiles. He further determined that the roof could be repaired by replacing the damaged tiles. 

 (Joint Stipulation No. 12; see Report, dated April 30, 2017, Joint Exhibit “5”.) 

 19. On May 23, 2017, Saylor responded to the Averys’ resubmission, referencing 

both Rudick Report and the Insurance Policy, indicating that replacement of the entire roof 

was excluded under the “Exclusions” section of the Insurance Policy. He did not specify, 

however, on which particular paragraph he was relying to deny the Averys’ damage claim. 

(Joint Stipulation No. 13; see Report, dated May 23, 2017, Joint Exhibit “6”.) 

 20. Then, on May 16, 2017, Erie notified the Averys that, effective June 20, 2017, 

due to “poor conditions/maintenance of property regarding your failure to complete repairs 

paid for as a result of your 8/27/16 claim.” (K.Avery Aff. at ¶11.; see Notice of Cancellation, 

Plaintiffs’ Exhibit “E”.) 

 21. The Ohio Residential Code is the controlling law governing repairs to the 

Averys’ property. (Joint Stipulation No. 14.) 

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III. Summary Judgment Standard 

 Both plaintiffs and defendant have filed cross-Motions for Summary Judgment. A 

summary judgment is appropriate where there is no material issue of fact and the 

moving party is entitled to a judgment in his favor as a matter of law. RULE 56(c), FED. 

R. CIV. PROC.; Celatex Corp. v. Catlett, 477 U.S. 317, 322, 106 Sect. 2548, 91 

L.Ed.2d 256 (1986). 

 The moving party bears the initial burden of proving the absence of any 

genuine issue of material fact as to each essential element of his claim or claims. Id. at 

321; Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1245 (6th Cir. 1995). If the moving 

party meets this burden, the non-moving party must "present some significant, probative 

evidence which makes it necessary to resolve the parties' differing versions of the dispute 

at trial." Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987); Harris 

v. Adams, 873 F.2d 929, 931 (6th Cir. 1989). Such evidence need not be dispositive of the 

ultimate issue, but only need be sufficient that when construed most strongly in favor of the 

non-moving party, "the evidence presents a sufficient disagreement to require submission 

to a jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 

L.Ed.2d 202; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992). 

Only where there exists no genuine issue of material fact and the moving party is entitled to 

a judgment in its favor as a matter of law may the trial court properly grant a motion for a 

summary judgment. RULE 56(c), FED. R. CIV. PROC. 

 As set forth below, the uncontested facts in evidence establish that Erie wrongfully, 

and without justification, denied the Averys’ claim submitted under the Insurance Policy for 

replacement of their asbestos-cement tile roof. These facts, which are uncontested, 

mandate the entry of a summary judgment in their favor. 

IV. Law and Argument 

 Erie, In the course of dealings with the Averys regarding Claim No. 074-

10740447170, has articulated two separate bases for denying that claim: First, as set forth 

in the Rudick Report and in the Answer filed in this action, Erie asserts that under the Ohio 

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Residential Code, it need only replace several damaged tiles to satisfy that claim. And 

second, in the correspondence from Saylor, dated March 29, 2017, and May 23, 2017, Erie 

asserts that the claim falls under one of various exceptions set forth in the Insurance Policy. 

 Each of these arguments are addressed in turn. 

A. Under Relevant Provisions of the Ohio Residential Code, Erie Cannot Simply 

Replace the Individual, Damaged Roof Tiles, but Must Replace the Entire Roof.

(1) Provisions of the Ohio Residential Code specifically governing cement-asbestos 

roofing prevail over provisions dealing with minor repairs in general. 

 The parties have stipulated that the roof on the Avery Residence is constructed with 

12x24 inch Philip Carey Careystone Scotch American No. 20 asbestos-cement tiles. (Joint 

Stipulation No. 4.) The parties have also stipulated that this matter is governed by the Ohio 

Residential Code, O.A.C. §4101:8-9-01, et seq. (Joint Stipulation No. 14.) 

 The Averys, on the one hand, argue that the Ohio Residential Code directly 

references asbestos-cement tiles in Sec. 907.3, which reads: 

907.3. Recovering versus replacement. 

New roof coverings shall not be installed without first removing all existing 

layers of roof coverings where any of the following conditions exist: ... 

 2. Where the existing covering is wood shake, slate, clay, cement or 

cement-asbestos tile ... 

O.A.C. 4101:8-9-01, Sec. 907.3. Ostensibly, then, the Averys cannot simply replace the 

damaged asbestos-cement tiles with matching asbestos-cement tiles, but must replace the 

entire roof with new material. 

 Erie, on the other hand, contends that because the Avery Residence was built 

before 2013, it is an “existing structure” for purposes Sec. 102.7 of the Ohio Residential 

Code, and that: 

113.6. Replacement and Repairs to systems, components and 

materials. 

Replacement of residential building components, and repairs to existing 

systems and materials or building components not otherwise provided for in 

this section, shall not be required to meet the provisions for new construction, 

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provided such work is done in accordance with the conditions of the existing 

approval in the same manner and arrangement as was in the existing system 

... 

O.A.C. 4101:8-9-01, Sec. 113.6. Erie further contends that such minor repairs may be 

undertaken without oversight by local building officials. O.A.C. 4101:8-9-01, Sec. 102.10.2. 

 Erie would argue that no conflict exists between Secs. 113.6 and 907.3 of the Ohio 

Residential Code because the Avery Residence is an “existing structure”. Because Sec. 

907.3 specifically references “new roof coverings”, under Sec. 113.6 it would not apply to 

the Avery Residence. 

 Erie’s argument, however, ignores those regulations governing the administration of 

the Ohio Residential Code, and in particular that: 

102.1. General. 

Where, in any specific case, different sections of this code specify different 

materials, methods of construction or other requirements, the most restrictive 

shall govern. Where there is a conflict between a general requirement and a 

specific requirement, the specific requirement shall be applicable.

O.A.C. 4101:8-9-01, Sec. 102.1. Because Sec. 907.3 specifically applies to rooves with 

cement-asbestos roofing, while Sec. 113.6 does not reference any roofing material, the 

former prevails under Sec. 102.1, despite the fact that the Avery Residence is an existing 

structure under the Ohio Residential Code. 

(2) Erie cannot repair the damage to the roof of the Avery Residence by replacing the 

damaged roof tiles with matching tiles. 

 Even assuming, arguendo, that Sec. 113.6 of the Ohio Residential Code does 

govern the repairs to the Avery Residence, Erie still could not simply replace the damaged 

cement-asbestos roof tiles with matching tiles. Under the provisio to Sec. 113.6, repairs to 

an existing structure must be performed “in the same manner and arrangement as was in 

the existing system ...” O.A.C. 4101:8-9-01, Sec. 113.6. This accords with regulations 

issued by the Ohio Department of Insurance that, where a loss requires the replacement of 

an item, the insurer must match the “quality, color and size” of that item. O.A.C. 3901-1-

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54(I)(1)(b). The repairs contemplate by Erie cannot meet these conditions. 

 First, the Avery Residence must be repaired with Careystone Scotch American No. 

20 asbestos-cement tiles, or with matching tiles. Under the Ohio Residential Code, Erie 

could not use reclaimed tiles to match those on the Avery Residence: 

907.5. Reinstallation of materials. 

Existing slate, clay or cement tile shall be permitted for reinstallation, except 

that damaged, cracked or broken slate or tile shall not be reinstalled. 

Existing vent flashing, metal edgings, drain outlets, collars and metal 

counterflashings shall not be reinstalled where rusted, damaged or 

deteriorated. Aggregate surface materials shall not be reinstalled.

O.A.C. 4101:8-9-01, Sec. 907.5. This section does not specifically include cementasbestos tiles, and applying the rule of statutory construction, expressio unius est exclusio 

alterius, thereby prohibits the reinstallation of cement-asbestos roof tiles. Consequently, if 

Erie were to replace the individual, damaged tiles on the Avery Residence, it cannot use 

reclaimed Careystone Scotch American No. 20 tiles, only new roof tiles. Philip Carey has 

not manufactured any new product since 1989. (Joint Stipulation No. 4.) Moreover, no 

known dealer carries tiles matching those specifications. (O’Brien Aff. at ¶¶6-8.) 

 Second, even if matching roof tiles could be found, they must be installed “in the 

same manner and arrangement as was in the existing system ...” This would involve 

drilling holes through those roof tiles to install fasteners. Such work could not be done 

without causing damaging to the overlapping tiles existing in place. (O’Brien Aff. at ¶4.) An 

alternative method sometimes suggested, of applying small metal brackets to the lower 

edge of he roof tile would not be “in the same manner”, as required under the provisio to 

Sec. 113.6, and would make that tile more susceptible to wind damage. (O’Brien Aff. at 

¶5.) Hence, the replacement cement-asbestos roof tiles could not be installed in the same 

manner and arrangement as the existing tiles on the Avery Residence. 

 In short, Erie cannot rely on Sec. 113.6 to exempt it form the effect of Sec. 907.3, 

that the Avery’s existing cement-asbestos roof must be replace rather than repaired 

because under Sec. 102.1, the more specific Sec. 907.3 controls over the more general 

Sec. 113.6; and because the unavailability of new Philip Carey roof tiles makes it 

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impossible for Erie to comply with the provisio in Sec. 113.6 that such tiles be installed “in 

the same manner and arrangement as was in the existing system ...” The bottom line is 

that, in order to comply with Sec. 907.3, Erie must replace the entire roof on the Avery 

Residence. 

B. Under Relevant Provisions of the Insurance Policy, Erie must Pay the Averys up to 

$20,000.00 for the Installation of a New Roof.

 Erie has also claims, through its agent, Saylor, that the Avery’s claim is not covered 

under the Insurance Policy. More specifically, in both his correspondence dated March 29, 

2017, and in that dated May 23, 2017, Saylor state that 

... [W]e have determined that coverage does not exist for replacement of the 

entire roof system pursuant to the terms. Limitations and conditions under 

[the Insurance Policy] 

 Specifically, please refer to the following provisions in your policy: 

EXCLUSIONS — What We Do Not Cover — Dwelling And Other Structures 

Coverages 

 “We” do not pay for loss resulting directly or indirectly from any of the 

following, even if other events or happenings contributed concurrently, or in 

sequence, to the loss ... 

5. caused by ... b. mechanical breakdown, deterioration, wear and tear, 

marring, inherent vice, latent defect, tree roots, rust or smog; 

20. by weather conditions if any peril excluded by this policy contributed to 

the loss in any way. 

21. caused by, resulting from, contribute to or aggravated by faulty or 

inadequate: 

a. planning, zoning, development; 

b. design, development of specification, workmanship, construction; 

c. materials used in construction; or 

d. maintenance 

of or related to property whether on or off the “residence premises” by any 

person, group, organization group or governmental body. 

22. of color mismatch because of weathering, fading, oxidizing, or wear 

and tear between the existing undamaged roof and/or siding on the welling 

and/or structure and new materials used to repair or replace the damaged 

roof and/or siding on the dwelling or structure. 

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23. by the existing undamaged roof and/or siding on the welling and/or 

structure and/or new mismatch because materials are unavailable, obsolete, 

or discontinued between the existing undamaged roof and/or siding on the 

dwelling and/or structure and new material used to repair or replace the 

damaged roof and/or siding on the dwelling and/or structure. 

24. by “fungi” wet or dry rot or bacteria, meaning the presence, growth,

proliferation, spread or any activity of “fungi” wet or dry rot, or bacteria other 

than as provided under ADDITIONAL PAYMENTS, Fungi Wet or Dry Rot Or 

Bacteria Coverage. 

(See Correspondence, dated March 29, 2017; Joint Exhibit “4”; Correspondence, dated 

May 23, 2017; Joint Exhibit “6” [citing Insurance Policy at 5-7, Joint Exhibit “1”].) 

 Yet neither correspondence identifies which of this myriad of exceptions applies to 

the Avery’s case, nor offers any evidence whatsoever to support exclusion under any of the 

identified exceptions. Saylor, in denying the Averys’ claim, has simply recited six 

paragraphs from the Insurance Policy and asserted, without more, those paragraphs justify 

his actions. There is simply no evidence I this correspondence, or in the grater evidentiary 

record, justifying the denial of the Averys’ claim. 

 Moreover, Saylor, and through him Erie, has completely ignored portions of the 

Insurance Policy directly applicable to the Averys’ claim.: the ordinance upgrade provision: 

Ordinance Or Law Coverage 

If a loss by a PERIL WE INSURE AGAINS occurs to covered property, or the 

building containing the covered property, “we” will pay for the increased costs 

incurred due to the enforcement of any ordinance or law that is in force at the 

time of the loss up to an additional $20,000. 

“You” may use this coverage for: 

1. the construction, demolition, renovation or repair of the portion of the 

building damaged by a PERIL WE INSURE AGAINST; 

* * * * 

3. the removal or replacement of the undamaged portion of the building 

because the repair or replacement of the portion of the building damaged by 

a PERIL WE INSURE AGAINST; 

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(Insurance Policy at 11; Joint Exhibit “1”.) 

 Here, Erie has approved the Avery’s original claim to replace the roof tiles and 

fencing damages during the August 27, 2016 storm. Erie calculated the cost of such 

repairs to be $2,696.50 (less the $500.00 deductible), or $2,196.50. (Joint Stipulation Nos. 

7 and 8; see Correspondence, dated November 22, 2016, Plaintiffs’ Exhibit “B”.) As set 

forth above, Erie cannot undertake the simple repairs it had contemplated because the 

Ohio Residence Code prohibits the use of reclaimed cement-asbestos tiles; and because 

the tiles cannot be installed in a manner consistent with the construction of the undamaged 

portion of the roof. This is the very situation contemplated by the “Ordinance or Law 

Coverage” provision of the Insurance Policy. 

C. Erie is Liable to the Averys for Breaching the Insurance Policy, Breaching the 

Covenant of Good Faith and Fair Dealing; and for Acting in Bad Faith.

 The Averys and Tamlin have raised three separate claims in their Complaint: (i) 

breach of contract, based upon Erie’s failure to allow the Averys’ claim submitted under the 

Insurance Policy [Count One]; (ii) breach of Erie’s common law duty to act fairly and in 

good faith towards the Averys [Count Two]; and that Erie acting in bad faith, in that the 

basis for its denial of the Averys’ claim was not predicated upon circum-stances that 

furnished reasonable justification for that denial [Count Three]. (See Complaint (doc. 1). at 

¶¶17-29.) 

 Initially, Erie has breached its contract, i.e. the Insurance Policy, by refusing to honor 

the Avery’s claim for, not only the repair of the damage to their roof from the August 27, 

2016, storm, but also for the removal of the existing cement-asbestos roof on their 

residence. While Erie found the former to be covered (see Correspondence, dated 

November 22, 2016, Plaintiffs’ Exhibit “B”), it denied the latter, even though that claim is 

clearly covered by the “Ordinance or Law Coverage” provision of the Insurance Policy. 

(See Insurance Policy at 11, Joint Exhibit “1”). 

 Further, under Ohio law, “there is an implied duty of good faith and fair dealing in 

every contract.” Indemnity Co. v. Nicole Gas Production, Ltd. (10th Dist. 2008), 2008-Ohio5056, ¶13. Good faith is “a compact reference to an implies undertaking not to take 

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opportunistic advantage in a way that could not have been contemplated at the time of 

drafting ...” E. Schory & Sons, Inc. v. Society Nat’l Bank (1996), 75 Ohio St.3d 433, 443-

44, 662 N.E.2d 1074. Here, Erie violated that duty denying the Averys' claim by 

misrepresenting that the damaged roof tiles simply could be replaced, as set forth in the 

November 22, 2016 correspondence and in the Rudick Report, when in fact the Ohio 

Residential Code specifically precludes such repairs unless performed with new, matching 

cement-asbestos tile installed in the same manner as the undamaged portion of the roof, 

which in the Avery’s circumstance, would be impossible. 

 But more importantly, in the specific context of an insurance contract, Ohio law 

imposes upon an insurer a duty to act in good faith in the handling and payment of the 

claims of its insured. Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St.3d 272, syllabus ¶1, 

452 N.E.2d 1315. A insurer’s breach of this duty gives rise to a cause of action in tort, 

irrespective of any liablity that might arise from a breach of the underlying insurance 

contract. Staff Builders, Inc. v. Armstrong (1988), 37 Ohio St.3d 298, syllabus ¶1, 525 

N.E.2d 783. An insurer breaches its duty of good faith in attending to a claim when its 

failure to perform under the contract “is not predicated upon circumstances that furnish a 

reasonable justification therefore.” Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 

552, syllabus ¶1, 644 N.E.2d 397. 

 As set forth more completely above, Erie has breached its duty of good faith in 

dealing with the Averys by failing to provide a reasonable justification for the denial of their 

renewed claim calling for the replacement of the existing roof of their residence. Erie has 

asserted, through the Rudick Report, that the provisons of the Ohio Residential Code 

dealing with cement-asbestos roofing does not apply under the “minor repair” provisions of 

Secs. 202, or to the “existing structure” provisions of Sec. 113.6, when if fact, under the 

Sec. 102.1, the provisions of Secs. 907. 3 and 907.5, which deal specifically with cementasbestos roofing, control. Furthermore, Erie, acting though Saylor, has denied the Averys 

renewed claim under certain exceptions to coverage in the Insurance Policy, it has not 

offered any explanation or evidence as to just how those exceptions apply to the Avery 

Residence. 

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 Rather, the removal of the existing roof to bring the Avery Residence, which would 

comply with Sec. 907.3 of the Ohio Residential Code, are circumstances foreseen under 

the “Ordinance or Law Coverage” provision of the Insurance Policy. Erie has never 

explained just why it did not recognize the Averys’ claim under this provision. In short, 

Erie’s denial of the Averys; claim is not predicated upon circumstances that provide a 

reasonable justification for denying claim. 

 Erie has previously recognized the Averys’ claim for repairs to the roofing and 

fencing of their residence in the amount of $2,196.50. (Joint Stipulation No. 7). They 

should be owed an additional amount, up to $20,000.00, under the “Ordinance or Law 

Coverage” under their policy to cover the cost of removing the existing roof and installing a 

ne roof. (Insurance Policy at 11, Joint Exhibit “1”.) The Averys therefore claim 

compensatory damages totaling $22, 196.50. 

 Finally, “inasmuch as the breach of the duty to act in good faith is tortious in nature, 

punitive damages may be recovered against an insurer who breaches his duty of good faith 

in refusing a claim to pay upon adequate proof.” Hoskins v. Aetna Life Ins. Co., supra, 6 

Ohio St. 3d at 377, 452 N.E.2d at 1315. Accordingly, the Averys are entitle to an 

evidentiary hearing to determine whether punitive damages are appropriate. 

Case: 1:17-cv-00562-SJD Doc #: 15 Filed: 02/28/18 Page: 15 of 16 PAGEID #: 195
 

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V. Conclusion 

WHEREFORE, for all the reasons set forth above, plaintiffs Tracy & Kelly Avery and 

Tamlin Exteriors, LLC, demand a judgment in their favor and against defendant Erie 

Insurance Co., in the amount of $22,196.50. They further requests that this court enter an 

Order to that effect, and schedule a date for an evidentiary hearing on the issue of punitive 

damages. 

 

 Respectfully submitted, 

 /s/ John H. Forg_________________ 

John H. Forg (0041972)

 Law Office of John H. Forg 

 P.O. Box 72 

 West Chester, Ohio 45071-0072 

 (513) 379-5205 

 Attorney for Plaintiffs 

 Tracy & Kelly Avery, et al.

CERTIFICATE OF SERVICE 

 A copy of the foregoing Motion for Summary Judgment was served upon Gordon D. 

Arnold, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, 

Dayton, OH 45402-2017, by electronic U.S. Mail, on this 28th day of February, 2028.

 /s/ John H. Forg_____________ 

John H. Forg (0041972)

 

 Attorney for Plaintiffs 

 Tracy & Kelly Avery, et al.

Case: 1:17-cv-00562-SJD Doc #: 15 Filed: 02/28/18 Page: 16 of 16 PAGEID #: 196