UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

GREAT AMERICAN INSURANCE 

COMPANY 

 Plaintiff 

 vs. 

GEMMA POWER SYSTEMS, LLC 

 Defendant 

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CASE NO. 1:18-cv-00213-TSB 

(Judge Timothy S. Black) 

(Magistrate Karen L. Litkovitz) 

INTERVENING PLAINTIFFS 

KRAMIG INDUSTRIAL, INC., 

KRAMIG, INC., R.E. KRAMIG & CO., 

INC., KRAMIG CORP., DIVERSIFIED 

INDUSTRIAL CAPITAL GROUP, INC. 

AND SOUTH WAYNE, LLC’S REPLY 

TO DEFENDANT GEMMA POWER 

SYSTEMS, LLC’S MEMORANDUM 

IN SUPPORT OF MOTION TO 

COMPEL ARBITRATION 

Oral Argument Requested 

I. INTRODUCTION 

Pursuant to the Joint Stipulation (Doc. 18), intervening plaintiffs Kramig Industrial, Inc. 

(“Kramig Industrial”), Kramig, Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified 

Industrial Capital Group, Inc. and South Wayne, LLC (hereinafter referred to as the “Kramig 

Entities”) submit the following reply brief to defendant Gemma Power Systems, LLC’s 

(“Gemma”) memorandum in support of motion to compel arbitration (“Gemma’s 

Memorandum”). (Doc. 24). 

Gemma admits that Kramig, Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified 

Industrial Capital Group, Inc. and South Wayne, LLC were not parties to the Insulation 

Subcontract. In fact, Christopher Kollmer, Senior Vice President of Gemma, admits that the 

Insulation Subcontract was only between Kramig Industrial and Gemma. (Doc. 24, Ex. 1, ¶2-4). 

Case: 1:18-cv-00213-TSB Doc #: 25 Filed: 10/05/18 Page: 1 of 6 PAGEID #: 895
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Therefore, as a matter of law, Gemma cannot force these entities to arbitration because they did 

not contractually agree to submit their disputes with Gemma to arbitration. 

Likewise, Gemma admits that the operative language in the arbitration provision of the 

Insulation Subcontract is “. . . arising under this Subcontract or out of or in connection with the 

Work or the performance thereof.” Gemma argues that this language is broad enough to 

encompass the Kramig Entities’ tort claims they have alleged in this action. However, Gemma 

cites to no case law supporting this conclusion because the case law is to the contrary. 

Similarly, Gemma admits that before arbitration may be initiated, the parties must 

informally resolve the dispute and that it did not do so. Gemma’s Memorandum states that 

“. . . given months without informal resolution amongst the Parties . . .” By the terms of the 

Insulation Subcontract, Gemma’s failure to informally resolve the dispute prior to invoking 

arbitration claims means the arbitration provision is not invoked. 

Gemma also fails to address that R.C. §4113.62(D) voids the arbitration provision. 

Gemma does not address this issue even though the Kramig Entities raised it in their motion for 

temporary restraining order (Doc. 16). Gemma apparently does not discuss this issue because it 

does not dispute that R.C. §4113.62(D) voids the arbitration provision. 

Finally, Gemma argues that the Court should deny the Kramig Entities’ motion to 

intervene. In making this argument, Gemma forgets that it stipulated that it did not object to 

Kramig Entities’ motion to intervene (Doc. 16, Joint Stipulation Regarding Motion to Intervene 

and Motion for Temporary Restraining Order, ¶3) and that the Court previously granted the 

Kramig Entities’ Motion to Intervene in its September 11, 2018 Notation Order. The Court 

should simply disregard Gemma’s argument. 

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II. ARGUMENT 

A. Kramig, Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified Industrial 

Capital Group, Inc. and South Wayne, LLC Did Not Agree to Arbitrate Their 

Claims With Gemma 

In its arbitration demand, Gemma specifically attempts to arbitrate claims against Kramig 

Industrial, R.E. Kramig & Co., Inc. and Kramig, Inc., and indirectly, the claims of Kramig Corp., 

Diversified Industrial Capital Group, Inc. and South Wayne, LLC. (Doc. 24, Ex. 2, Declaration 

Gregory Brunton, Ex. 1). However, Gemma admits that only Kramig Industrial is a party to the 

arbitration provision. (Doc. 24, Ex. 1, Declaration of Christopher Kollmer, ¶¶2-4). Gemma 

concedes that before it may force all of the Kramig Entities into arbitrating their claims, it must 

establish that a valid agreement to arbitrate exists between Gemma and all of the Kramig 

Entities. Tassy v. Lindsay Entertainment Enterprises, Inc., 2018 Westlaw 158226 (6th Cir. 

February 22, 2018); Bratt Enterprises, Inc. v. Noble Intern, Ltd., 338 F.3d 609, 612 (6th Cir. 

2003) (parties are only to be compelled to arbitrate matters within the scope of their agreement); 

Javitch v. First Union Securities, Inc., 315 F.3d 619, 624 (6th Cir. 2003) (same). This Gemma 

cannot do since there is no such agreement. To the contrary, the only arbitration agreement is 

between Gemma and Kramig Industrial, which Gemma concedes. Therefore, as a matter of law, 

Gemma cannot force R.E. Kramig & Co., Inc. and Kramig, Inc., Kramig Corp., Diversified 

Industrial Capital Group, Inc. and South Wayne, LLC to arbitrate the claims they have asserted 

against Gemma here. 

B. The Parties Did Not Agree to Arbitrate Tort Claims Under the Terms of the 

Arbitration Provision of the Insulation Subcontract 

Gemma agrees that the operative language in the arbitration provision of the Insulation 

Subcontract regarding the provision’s scope is “. . . arising under this Subcontract or out of or in 

connection with the Work or the performance thereof.” Gemma states without citation to any 

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authority that this provision is “broad” and encompasses the tort claims the Kramig Entities have 

asserted here. Gemma did not cite to any authority because the authority is to the contrary; that 

is, by using this language, the parties agreed to limit arbitration to disputes regarding the 

meaning of the contract itself. General Power Products, LLC v. MTD Products, Inc., 2007 

Westlaw 901522 (S.D. Ohio March 27, 2007), Associated Indem. Corp. v. Home Ins. Co., 1994 

Westlaw 59001 (6th Cir. February 25, 1994), and Milan Express Co. v. Applied Underwriters 

Captive Risk Assurance Co., 590 Fed. Appx. 482, 486 (6th Cir. October 23, 2014). 

Moreover, any ambiguity as to the meaning of the language used in the arbitration 

provision should be construed against Gemma since it drafted the language. The language in the 

Insulation Subcontract is standard language Gemma inserts in its contracts with subcontractors. 

In Gemma Power Systems, LLC v. NAES Power Contractors, Inc., Case No. 

HHD-CV18-6097105-5, Connecticut Superior Court (July 5, 2018), the arbitration provision in 

the contract in dispute is identical to the language in the Insulation Subcontract. (Doc. 22, 

Exhibit 1, Exhibit B, pg. 13). Thus, any ambiguity in the arbitration provision of the Insulation 

Subcontract must be construed against Gemma. Savedoff v. Access Group, Inc., 524 F.3d 754, 

764 (6th Cir. 2008); Innomark Communications, LLC v. Marth, 2016 Westlaw 6822794 *2 (S.D. 

Ohio, November 18, 2016) (Black, J.). 

Accordingly, Gemma and Kramig Industrial, Inc. only agreed to arbitrate disputes 

regarding the meaning of the Insulation Subcontract and the performance by either party under 

that agreement, and did not agree to arbitrate tort claims similar to those asserted by the Kramig 

Entities. 

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C. Gemma Did Not Engage in Informal Resolution of Its Claim Before Instituting 

Arbitration 

Gemma does not dispute that it never submitted its claims to informal resolution before 

initiating arbitration. (Doc. 16, Motion for Temporary Restraining Order, Ex. B, Affidavit of 

Andrew Kulesza, ¶9). Because of this failure, Gemma failed to properly invoke the arbitration 

provision of the Insulation Subcontract. Therefore, the matter is not subject to arbitration. 

D. R.C. §4113.62(D) Voids the Arbitration Provision of the Insulation Subcontract 

In Gemma’s Memorandum, it did not address whether or not R.C. §4113.62(D) voids the 

arbitration provision of the Insulation Subcontract. Gemma did not address this issue even 

though the Kramig Entities raised it in their motion for temporary restraining order (Doc. 16). 

Although Gemma did not address this issue, in Gemma’s Memorandum, it claims that all the 

parties stipulated that any arbitration will be held in Ohio. This is simply incorrect. In the 

Stipulation, only Gemma agreed that the arbitration will take place in Ohio. (Doc. 18, Joint 

Stipulation, ¶2). 

E. Kramig Entities’ Motion to Intervene Has Already Been Granted 

Gemma requests that the Court deny the Kramig Entities’ motion to intervene. This 

request is nonsensical since Gemma previously stipulated that it did not object to Kramig 

Entities’ motion to intervene (Doc. 16, Joint Stipulation Regarding Motion to Intervene and 

Motion for Temporary Restraining Order, ¶3) and the Court previously granted the Kramig 

Entities’ Motion to Intervene in its September 11, 2018 Notation Order. The Court should 

simply disregard Gemma’s argument. 

II. CONCLUSION 

 For all the foregoing reasons, and for the reasons set forth in Kramig Industrial, Inc., 

Kramig, Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified Industrial Capital Group, Inc. 

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and South Wayne, LLC’s Memorandum regarding arbitrability of the dispute, the claims asserted 

by the Kramig Entities are not subject to arbitration. 

 /s/ C.J. Schmidt

C.J. Schmidt (0034030) 

Jeffrey R. Teeters (0061801) 

Wood & Lamping LLP 

600 Vine Street, Suite 2500 

Cincinnati, OH 45202 

(513) 852-6052 

(513) 419-6452 (Fax) 

cjschmidt@woodlamping.com

jrteeters@woodlamping.com 

Trial Attorneys for Intervening Plaintiffs Kramig 

Industrial, Inc., Kramig, Inc., R.E. Kramig & Co., 

Inc., Kramig Corp., Diversified Industrial Capital 

Group, Inc. and South Wayne, LLC

CERTIFICATE OF SERVICE 

I hereby certify that on the 5th day of October, 2018, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system, which will send notification of such filing 

to the following: 

James D. Houston 

Ulmer & Berne LLP 

600 Vine Street, Suite 2800 

Cincinnati, Ohio 45202 

jhouston@ulmer.com

and 

David Conrad Olson 

Frost Brown & Todd 

301 East Fourth Street 

3300 Great American Tower 

Cincinnati, Ohio 45202 

dolson@fbtlaw.com 

Counsel for Great American Insurance 

Company 

Gregory D. Brunton 

Gordon Rees Scully Mansukhani, LLP 

41 South High Street, Suite 2495 

Columbus, Ohio 43215 

gbrnton@grsm.com 

Counsel for Defendant Gemma Power 

Systems, LLC 

/s/ C.J. Schmidt 

2668906.1

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