UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DOROTHY MITCHELL,

Plaintiff,

vs.

CALIFORNIA CASUALTY GENERAL 

INSURANCE COMPANY OF 

OREGON,

Defendant.

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Case No. 3:18-cv-228

District Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

An insured homeowner—Plaintiff Dorothy Mitchell—brings this case against her 

insurer Defendant California Casualty General Insurance Company of Oregon. She 

alleges that California Casualty has improperly failed to fully pay for wind and water 

damage to her home that is covered by the parties’ agreed-upon insurance policy. Her 

Complaint advances four causes of action: (1) breach of contract, (2) bad faith, (3) unjust 

enrichment, and (4) declaratory judgment.

California Casualty presently seeks an Order dismissing Plaintiff’s unjustenrichment claim under Fed. R. Civ. P. 12(c). 

“Courts apply the same analysis to motions for judgment on the pleadings under 

Rule 12(c) as they apply to motions to dismiss under Federal Rules of Civil Procedure

12(b)(6).” Ayer v. Cmty. Mercy Health Partners, No. 3:18-cv-00327, 2019 WL 1902520, 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

*2 (S.D. Ohio April 29, 2019) (Rose, D.J.) (citing Warrior Sports, Inc. v. Nat'l Collegiate 

Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010)). All Plaintiff’s material and wellpleaded factual allegations are accepted as true. Hindel v. Husted, 875 F.3d 344, 346 (6th 

Cir. 2017). California Casualty’s Rule 12(c) Motion may be granted only if it is “‘clearly 

entitled to judgment as a matter of law.’” Id. (quoting JPMorgan Chase Bank, N.A. v. 

Winget, 510 F.3d 577, 581-82 (6th Cir. 2007) (other citation omitted)).

California Casualty argues that dismissal of Plaintiff’s unjust-enrichment claim is 

warranted because unequivocal Ohio law bars her from bringing a breach-of-contract 

claim under her homeowner’s policy together with her claim of unjust enrichment.

Plaintiff contends that although she brings a breach-of-contract claim, Ohio law 

does not foreclose her from pursuing her unjust-enrichment claim as an alternative theory 

of recovery in light of her allegations of bad faith.2

“An action for unjust enrichment will lie where a party retains money or a benefit 

that in equity or justice belongs to another.” Eyerman v. Mary Kay Cosmetics, Inc., 967 

F.2d 213, 222 (6th Cir. 1992) (citing Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 

923, 926-27 (1938)). But, “[u]nder Ohio law, a plaintiff may not recover under the 

theory of unjust enrichment when an express contract covers the same subject.” Bihn v. 

Fifth Third Mortg. Co., 980 F.Supp.2d 892, 904 (S.D. Ohio 2013) (Rose, DJ) (citing 

Wuliger v. Mfrs. Life Ins. Co. (USA), 567 F.3d 787, 799 (6th Cir. 2009)). 

 2 The parties are correct to apply Ohio substantive law to their present disagreement. “Under the longstanding Erie doctrine, in actions brought in federal court invoking diversity jurisdiction, a court must 

apply the same substantive law as would have been applied if the action had been brought in a state court 

of the jurisdiction where the federal court is located.” Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 

(6th Cir. 2007) (citations omitted). 
3

California Casualty emphasizes, “There is no dispute that [Plaintiff’s]

Homeowner’s Policy with [California Casualty] was in existence at all times relevant 

herein.” (Doc. #12, PageID #212). This tracks with Plaintiff’s allegations on the face of 

her Complaint in which she identifies the specific insurance policy issued by California 

Casualty to Plaintiff concerning her single-family home on Derby Road in Dayton, 

Montgomery County, Ohio. (Doc. #3, ¶s 1, 5). Further, Plaintiff’s unjust-enrichment 

theory centers upon the benefit she conferred upon California Casualty “by paying her 

policy premiums for the Derby Property covered by the [California Casualty] policy.” Id. 

¶59. Plaintiff’s unjust-enrichment theory continues:

60. [California Casualty] has retained the benefit which Plaintiff has 

conferred upon it by virtue of refusing to fully pay or underpaying the 

windstorm loss which occurred on or after June 22, 2016 and which 

was covered by [California Casualty] policy.

61. Under the circumstances, it would be unjust and inequitable for 

[California Casualty] to retain any value of such benefit without 

paying for it.

Id. These allegations are—in substance—a repeat of the basis for Plaintiff’s breach-ofcontract claim. See id. at ¶s 38-44. Because Plaintiff’s unjust-enrichment claims covers 

the same ground as her breach-of-contract claim, and because California Casualty does 

not dispute the existence of the parties’ insurance contract, Ohio’s general rule applies 

and forecloses Plaintiff from proceeding with a claim for unjust enrichment. See Bihn, 

980 F.Supp.2d at 904; see also Delahunt v. Cytodyne Technologies, 241 F.Supp.2d 827, 

841 (S.D. Ohio 2003) (Watson, D.J.) (“The equitable claim of unjust enrichment fails 

when a legal remedy is available.”); Randolph v. New England Mut. Life Ins. Co., 526 
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F.2d 1383, 1387 (6th Cir. 1975) (“The contract theory then being just as ‘adequate’ as the 

unjust enrichment, or quasi-contract, theories, founded in equitable principles..., the 

unjust enrichment, or quasi-contract, theories are unavailable ....” (citations omitted)); 

Wolfer Ent., Inc. v. Overbrook Dev. Corp., 132 Ohio App.3d 353, 357 (1999) (“A party 

seeking a remedy under a contract cannot also seek equitable relief under a theory of 

unjust enrichment or quantum meruit, because the terms of the agreement define the 

parties' relationship in the absence of fraud, bad faith or illegality.”).

Hold on, Plaintiff says, Ohio law in this area is not unequivocal. She maintains 

that Ohio law recognizes a bad-faith exception to the general rule. She finds this 

exception in Ullmann v. May, 147 Ohio St. 468, syllabus ¶4 (1947), which states, “‘In the 

absence of fraud or bad faith, a person is not entitled to compensation on the ground of 

unjust enrichment if he received from the other that which it was agreed between them 

the other should give in return.’” (Doc. #15, PageID #225 (emphasis omitted) (quoting 

Morton Bldgs., Inc. v. Correct Custom Drywall, Inc., 2007─Ohio─2788, ¶ 32, 2007 WL 

1641155, at *6 (Ohio App. 2007); Pacific Space Design Corp. v. PNC Equipment 

Finance, LLC, No. 1:13cv00460, 2014 WL 6603288, at *6 (S.D. Ohio 2014)).

The premise of Plaintiff’s argument is correct—Ohio law contains a bad-faith 

exception: “[A]bsent fraud, illegality, or bad faith, a plaintiff may not recover if the 

defendant retains the disputed money or benefit under the terms of an agreement between 

the parties.” Eyerman, 967 F.2d at 222 (citing Aultman Hosp. Ass'n v. Community Mut. 

Ins. Co., 46 Ohio St.3d 51 (1989); Ullmann, 147 Ohio St. 468, 72 N.E.2d at 67). But this 

exception pertains to bad faith (or fraud or illegality) “in the making of the agreement 
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....” Id. Or, in other words, a bad-faith challenge to the existence of a valid contract may 

permit a plaintiff to plead breach of contract and unjust enrichment in the alternative. See 

Eyerman, 967 F.2d at 222; see also Bihn, 980 F.Supp.2d at 904 (“Said another way, 

‘unjust enrichment claims may be pled in the alternative to a breach of contract claim 

when the existence of a contract is in dispute.” (quoting, in part, Carlquist v. Wells Fargo 

Bank, N.A., No. 1:12 CV 0203, 2012 WL 3815646 at *6 (N.D. Ohio Sept. 4, 2012)).

Plaintiff insists, “While the scope of the ‘bad faith’ exception described in Ohio 

caselaw is not specifically defined, it would certainly include the specific insurance bad 

faith allegations present in [her] Complaint, the sufficiency of which have not been 

challenged by [California Casualty].” (Doc. #15, PageID #225 (citations omitted)). Still, 

Plaintiff does not allege that the insurance contract between the parties is void because of 

California Casualty’s bad faith. Her bad-faith claim instead concerns California 

Casualty’s alleged misdeeds in delaying and denying insurance coverage without a lawful 

basis and “with respect to the investigation, evaluation and handling of the claims 

submitted by Plaintiff ....” Id. at 57. Because these allegations of bad faith do not go to 

the formation or validity of the insurance policy that existed between the parties, 

Plaintiff’s unjust-enrichment claim fails as a matter of law. See Kendell v. Phoenix Home 

Health Care Servs. Ltd., No. 2:15-cv-3009, 2016 WL 5871506, *2 (S.D. Ohio Oct. 7, 

2016) (Deavers, M.J.) (Ohio law “permits that where there is a dispute as to the existence 

or enforceability of a contract, a party may plead ... unjust enrichment in the alternative”

to a breach of contract claim); Eberhard v. Chi. Title Ins. Co., No. 1:11-cv-834, 2012 WL 

13029534, at *16 (N.D. Ohio March 31, 2012) (“The bad faith must be in inducing the 
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party to enter into the contract or terminating the contract.” (citation omitted).

Accordingly, California Casualty’s Motion for Judgment on the Pleadings as to 

Plaintiff’s unjust-enrichment claim is meritorious. 

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant California Casualty General Insurance Company of Oregon’s 

Motion for Judgment on the Pleadings as to Plaintiff’s Third Cause of 

Action—Unjust Enrichment (Doc. #14) be GRANTED; and

2. Plaintiff’s third cause of action—unjust enrichment—be dismissed.

December 17, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).