[Cite as Marshall v. Colonial Ins. Co., 2016-Ohio-8155.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

THOMAS G. MARSHALL AND ) CASE NO. 15 MA 0169

CHERYL MARSHALL, ) 

) 

PLAINTIFFS-APPELLANTS, ) 

) 

VS. ) OPINION 

) 

COLONIAL INSURANCE COMPANY ) 

OF CALIFORNIA, individually and/or ) 

d.b.a. and/or a.k.a. NATIONWIDE ) 

INSURANCE COMPANY, ) 

) 

DEFENDANT-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09 CV 4477 

JUDGMENT: Reverse and Remand. 

APPEARANCES: 

For Plaintiffs-Appellants: Atty. Angela J. Mikulka 

 Atty. Thomas L. Mikulka 

The Mikulka Law Firm, LLC 

134 Westchester Drive 

Youngstown, Ohio 44515 

For Defendant-Appellee: Atty. John C. Pfau 

Pfau, Pfau & Marando 

P.O. Box 9070 

Youngstown, Ohio 44513 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: December 9, 2016 

 
[Cite as Marshall v. Colonial Ins. Co., 2016-Ohio-8155.]

ROBB, J. 

{¶1} Plaintiff-Appellant Thomas G. Marshall and his wife, Cheryl, appeal the 

decision of the Mahoning County Common Pleas Court which granted summary 

judgment in favor of Defendant-Appellee Colonial Insurance Company of California. 

Appellant states there is a genuine issue of material fact as to whether Colonial acted 

with bad faith in handling his underinsured motorist claim. He recovered $50,000 in 

underinsured motorist benefits after filing suit and then electing to arbitrate his claim 

as permitted by the policy. Upon viewing the evidence, rational inferences, and 

doubts in the light most favorable to Appellant, this court concludes that some 

reasonable mind could find the underinsured motorist claim was denied/delayed 

without reasonable justification. Appellant’s assignment of error is sustained. 

Summary judgment is reversed, and the case is remanded for further proceedings. 

STATEMENT OF THE CASE 

{¶2} On July 18, 1997, Appellant was injured in a car accident caused by 

Anthony Grundy in Trumbull County. He went to the emergency room the next day 

complaining of neck pain. He was diagnosed with neck sprain and arthritis in the 

cervical spine. His physician (Dr. Ragheb) noted the accident and reported 

Appellant’s neck “still hurts” at the July 28, 1997 visit. 

{¶3} Appellant was seen by a neurosurgeon (Dr. Brocker) in August 1997. 

An MRI showed significant spinal cord compression due to cervical spondylosis 

(arthritis). The neurosurgeon recommended a cervical discectomy and fusion; he 

said there was evidence of spinal cord compression and warned of the risk of 

myelopathy upon a further trauma. 

{¶4} In October and November 1997, Appellant was seen by a physician in 

the neurology department at Mt. Sinai Medical Center (Dr. Chandar). Dr. Chandar 

believed Appellant’s headaches were the result of anxiety and opined other 

symptoms were indicative of early spinal cord compression. He said a minor trauma 

could result in disastrous results, including paralysis. He recommended surgery in 

the near future. 
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{¶5} Appellant continued to complain of neck pain during his visits to Dr. 

Ragheb in October 1997 and in March, August, and October of 1998. In May 1998, 

Appellant was evaluated by another neurosurgeon (Dr. Colombi), who diagnosed 

degenerative disc disease with disc osteophyte complexes with evidence of cord and 

root compression. He noted Appellant complained of neck pain, headaches, and 

numbness in his hand, which were reported to have been present for a year. Dr. 

Colombi performed Appellant’s surgery (cervical discectomy, osteophytectomy, and 

inter body fusion at two levels) on November 6, 1998. Dr. Colombi’s July 1999 “To 

Whom it May Concern” letter discussed the diagnosis and the surgery and 

concluded, “The history I have, that is a patient having three motor vehicle accidents 

and then developing neck and arm pain, it is probable that the symptoms were 

related to the motor vehicle accident.” 

{¶6} As to Appellant’s history, Dr. Ragheb’s records showed Appellant 

experienced neck issues after a 1993 car accident. Physical therapy records said 

Appellant reported he had neck pain prior to the 1993 accident. An X-ray from that 

time showed moderately advanced cervical spondylosis. Appellant saw Dr. Ragheb 

14 months prior to the 1997 accident for neck pain and headaches. A CT scan was 

reported as normal. Before that, Appellant saw a chiropractor for treatment of the 

neck area. The history given to Dr. Chandar indicated Appellant had been having 

intermittent neck pain for 10 years and constant neck pain for the past three years. 

The pain was worse after a car accident in 1993 and again after this accident. (There 

was also a car accident in 1974, which injured his shoulder and leg). 

{¶7} Appellant had $100,000 in underinsured motorist coverage with 

Colonial. He informed Colonial of the accident right after it happened; they closed 

the file after the tortfeasor accepted liability. In May 1999, Appellant called Colonial 

about his medical bills exceeding the tortfeasor’s limits at which time a claims 

adjuster set the reserve in the case at $50,000. A Colonial representative advised 

Appellant of an issue with his pre-existing condition, which the company learned from 

the tortfeasor’s liability insurer. Notwithstanding that knowledge, the tortfeasor’s 
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liability insurer offered its policy limits of $15,000.1 Colonial gave consent to settle 

with the tortfeasor. Appellant retained an attorney, who contacted Colonial in June 

1999. 

{¶8} In July 1999, Appellant filed an underinsured motorist claim in the 

Trumbull County Common Pleas Court against Colonial (and the tortfeasor). By 

February 25, 2000, Appellant had provided Colonial evidence that he had incurred 

over $26,000 in medical bills. 

{¶9} In April 2000, a nurse at Colonial reviewed Appellant’s medical records. 

She advised they should request prior medical treatment notes, depose Appellant, 

and consider an independent medical examination. She said it appeared Appellant 

had significant degenerative changes, including spondylosis, prior to the 1997 car 

accident. She also noted the prior car accident in 1993. 

{¶10} Also in April 2000, Colonial informed Appellant of the Ohio Supreme 

Court’s decision allowing an individual to collect on an underinsured motorist claim 

from his employer’s commercial policy. See Scott-Pontzer v. Liberty Mut. Fire Ins. 

Co., 85 Ohio St.3d 660, 710 N.E.2d 1116 (1999). Colonial noted its policy provided 

pro-rata coverage. In order to determine if other insurance applied, Colonial asked 

Appellant to identify his employer’s commercial policy. 

{¶11} Appellant’s deposition was taken in September 2000. In December 

2000, Appellant amended the complaint to add his employer’s insurance carrier, 

Kemper Insurance Company. The Kemper policy contained $1,000,000 in 

underinsured motorist coverage. Kemper filed a declaratory action and sought 

summary judgment arguing any Scott-Pontzer coverage was excess rather than 

primary. 

{¶12} In January 2001, Colonial asked Appellant to sign medical releases. 

Via an April 2001 letter, Appellant refused to sign broad releases for “any and all” 

medical history and insisted the releases be limited to records “causally or historically 

 1 Colonial’s claims adjuster testified that setting the reserve involved: “estimating potential 

loss exposure as driven by statutory accounting needs for the company as a whole in terms of rate 

regulation and solvency.” (Hardesty Depo. at 51). See also (Tucci Depo. at 27). 
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related” to the injured body part. The releases were revised to Appellant’s 

satisfaction, and subpoenas for medical records were issued in June 2001. 

{¶13} Both the Colonial and the Kemper policies had an arbitration clause. 

On May 31, 2001, Appellant demanded arbitration under the Colonial policy; the 

demand requested verification of Colonial’s receipt of the demand and advised that 

Appellant would await instruction as to how to further proceed in scheduling 

arbitration. There was no response to this request. A note shows Colonial was 

“insisting” Appellant was entitled to one arbitration against both insurers, as opposed 

to one arbitration with each insurer under each policy. 

{¶14} The Trumbull County case was mediated in June 2001. There was an 

indication Appellant wanted to recover the policy limits from Colonial ($85,000 after 

considering the setoff from the tortfeasor). Colonial says it believed a settlement 

offer would be futile at that time. 

{¶15} On June 20, 2001, a claims adjuster noted that although there was a 

clear and prevalent history of neck complaints, Appellant’s medical experts have 

proximately related the surgery to the subject car accident. He noted the medical 

bills were over $25,000 and the wage loss was $7,000. The reserve was increased 

to $75,000. 

{¶16} In November 2001, the Trumbull County Common Pleas Court found 

Colonial and Kemper would share any liability on a pro-rata basis. As a result, 

Colonial decreased the reserve to $10,000. 

{¶17} On November 23, 2001, Appellant sent a letter to Kemper and Colonial 

about scheduling arbitration since the trial court had ruled any coverage would apply 

pro-rata. On January 3, 2002, Appellant sent another letter to both insurers, 

reiterating the demand for immediate arbitration and arguing Kemper’s appeal of the 

trial court’s decision did not affect Appellant’s right to arbitration. 

{¶18} On April 18, 2002, Kemper proposed a private agreement wherein 

Appellant would arbitrate the case with the two insurance companies to establish 

whether his injuries were proximately caused by the accident, while Kemper could 

maintain its appeal; the parties would be bound by the arbitrator’s award after the 
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coverage issues were decided in the appellate court (and possibly the Supreme 

Court). Colonial signed this agreement and returned it to Kemper. There is no 

indication as to why arbitration did not proceed. 

{¶19} On June 3, 2002, Appellant issued a demand for settlement to Colonial 

in the amount of $85,000. This prompted no response from Colonial. A file note 

shows Colonial was awaiting a decision on the Kemper appeal. Colonial reassigned 

the claim to a different claims adjuster in October 2002. 

{¶20} On May 12, 2003, the Eleventh District affirmed the trial court’s decision 

finding Scott-Pontzer coverage under the Kemper policy. The court concluded both 

policies were primary, requiring the insurers to share the costs pro-rata. Marshall v. 

Colonial Ins. Co. of California, 11th Dist. No. 2001-T-0145, 2003-Ohio-2367, ¶ 41-44. 

Kemper appealed to the Ohio Supreme Court; the appeal was declined, and a motion 

to reconsider was filed. 

{¶21} The new claims adjuster reviewed the file in August 2003, noting that 

no offer would be made until the Supreme Court made a decision. Yet, in answering 

an interrogatory, Colonial reported it did not delay the claim because of the possible 

existence of other insurance. (Colonial’s Answer to Interrogatory 13). 

{¶22} On November 5, 2003, the Ohio Supreme Court overruled its ScottPontzer decision in part, finding an employee is not covered by the employer’s policy 

unless the loss was sustained within the course and scope of employment. Westfield 

Ins. Co. v. Galatis, 100 Ohio St.3d 216, 217, 2003-Ohio-5849, 797 N.E.2d 1256. 

Two weeks later, Colonial spoke of dismissing Kemper from the suit. As Kemper was 

no longer liable, Colonial increased its reserve to $45,000. 

{¶23} In March 2004, Colonial ordered another internal medical review, 

asking a company nurse (with a two-year nursing degree) for an opinion as to 

whether the surgery was the direct result of the accident. The nurse’s report was 

completed in April 2004. She listed as concerns: Appellant had significant 

degenerative disc disease prior to this accident; he complained of neck pain, 

headaches, and numbness prior to the accident; 1993 X-rays revealed moderately 
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severe degenerative changes at the same levels operated on in 1998; and the 

surgical notes disclosed degenerative osteophytes were causing impingement. 

{¶24} The nurse said the surgeon indicated that three past car accidents 

probably contributed to Appellant’s condition; she did not believe he indicated the 

1997 accident was the reason for the surgery. The nurse concluded the records 

showed an aggravation of a pre-existing condition. She opined the treatment in 1997 

appeared related to the accident, but the treatment beginning in March 1998 

appeared related to Appellant’s ongoing and pre-existing degenerative condition. 

She wished to develop questions for Dr. Colombi in order to clarify his position. This 

was not done. 

{¶25} On April 29, 2004, Colonial contacted Appellant’s counsel, noting that 

Kemper was no longer part of the case, and asked if a status conference should be 

canceled in the court case as the matter would be proceeding to binding arbitration. 

Colonial asked if Appellant had selected an arbitrator and provided Colonial’s 

selection and the town where that arbitrator was located. 

{¶26} On June 3, 2004, Colonial proffered its first settlement offer of $15,000. 

Appellant did not respond to the offer. On June 18, 2004, Appellant’s counsel said 

she wanted to complete discovery to prepare for arbitration and asked to take the 

depositions of the claims adjuster and the claims manager. The depositions of the 

two Colonial employees were taken in September 2004. 

{¶27} On January 18, 2005, Appellant provided the name of an arbitrator from 

Akron, Ohio. Colonial asked to re-depose Appellant. Colonial also asked for the 

arbitrator’s exact address. Colonial’s attorney had the address from another source 

but told Colonial’s selected arbitrator not to contact Appellant’s arbitrator until he 

deposed Appellant. Appellant provided the arbitrator’s address on June 15, 2005. 

{¶28} Appellant then asked to depose four more Colonial employees (the 

prior claims adjuster, the prior claims supervisor, and the two nurses who conducted 

medical reviews). Colonial denied this request, positing the testimony of these 

employees was irrelevant to the arbitration case involving what injuries were 

proximately caused by the accident. In a July 25, 2005 response, Appellant noted 
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that Colonial re-deposed him. He asserted the right to obtain evidence on the 

position of a contracting party; he anticipated Colonial would assert positions and 

defenses at arbitration based upon medical reviews of the two company nurses. 

{¶29} Colonial then retained an orthopedic surgeon to review the medical 

records. Dr. Brodell issued a report on August 9, 2005. He opined the car accident 

caused soft tissue cervical strain which healed within three months. Arbitration 

proceeded on November 4, 2005. The arbitrators awarded Appellant $65,000; 

Colonial was thus obligated to pay Appellant $50,000 in underinsured motorist 

coverage (due to the setoff of the $15,000 received from the tortfeasor’s insurer). 

{¶30} On October 13, 2005, Appellant and his wife filed a bad faith action in 

the Mahoning County Common Pleas Court against Colonial (and/or Colonial dba or 

aka Nationwide Insurance Company), whose office was located in Canfield, Ohio. 

The case was voluntarily dismissed and then refiled in November 2009. The 

complaint stated Appellant was entitled to access his underinsured motorist coverage 

due to his losses exceeding the limits of the tortfeasor’s insurance, a claim Colonial 

permitted them to settle; it also stated he was entitled to arbitration on the 

underinsured motorist claim. The complaint provided examples of the alleged bad 

faith: failing to timely extend a settlement offer; failing to respond to Appellant’s 

demand of settlement for two years; failing to act in good faith leading up to the 

arbitration; refusing to participate in full discovery by refusing to produce employees 

for deposition; and, failing to resolve the claim on the basis that other coverage may 

have existed (in violation of the Ohio Administrative Code). 

{¶31} Colonial was permitted to incorporate the filings from the 2005 case, 

where discovery had been conducted. Colonial filed a motion for summary judgment. 

Colonial urged the Ohio Administrative Code does not provide a basis for a bad faith 

claim. Ohio Adm. Code 3901–1–54(B) (“Nothing in this rule shall be construed to 

create or imply a private cause of action for violation of this rule.”). Colonial also 

pointed out the pertinent portion of the Code states, “except as otherwise provided by 

policy provisions, an insurer shall settle first party claims upon request by the insured 
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with no consideration given to whether the responsibility for payment should be 

assumed by others.” (Emphasis added). Ohio Adm. Code 3901-1-54(G)(3).2 

{¶32} The Colonial policy contained a pro-rata clause. Colonial valued the 

claim with the belief there was coverage from the Kemper policy; with pro-rata 

coverage, its liability would be 10%. Kemper successfully appealed the pro-rata 

decision. Colonial said it encouraged the arbitration process and made a settlement 

offer once it was ruled Colonial was solely liable. As to the amount of the offer, 

Colonial claimed it would have been justified in making no offer. Colonial said it was 

reasonably justified in believing the surgery was the result of a pre-existing condition 

and not the proximate result of the accident. 

{¶33} Colonial also suggested Appellant was unreasonable in failing to 

negotiate the $15,000 offer, characterizing the arbitrator’s award (requiring them to 

pay $50,000) as being mid-way between Colonial’s opening offer of $15,000 and the 

amount sought by Appellant of $85,000. The motion for summary judgment said 

Appellant delayed signing medical authorizations and choosing an arbitrator. 

Appellant’s arbitration demand did not name an arbitrator; the policy said in the event 

of an arbitration demand, “the insured person will select an arbitrator and we will 

select another.” Colonial construed the failure to exercise the choice of an arbitrator 

within the arbitration demand as an incomplete demand. Colonial noted their 

correspondence in April 2004 reminded Appellant of the need to select an arbitrator. 

Appellant did not respond with a selection until January 2005 and did not provide the 

arbitrator’s street address until June 2005. 

{¶34} Appellant filed a memorandum in opposition to summary judgment, 

urging the totality of the circumstances surrounding the refusal to pay or delay in 

payment supported a claim for bad faith. As to Colonial’s mention of Appellant’s 

delay in signing the medical release, Appellant urged the refusal to sign overly broad 

medical authorizations was justified and Colonial’s attempt to obtain a broad release 

was not reasonably justified, citing R.C. 2317.02(B). Appellant said Colonial’s refusal 

 2 Appellant does not maintain an argument concerning the Ohio Administrative Code.
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to produce additional employees for deposition in preparation for arbitration was 

evidence of a lack of good faith and fair dealing in handling the claim. 

{¶35} As further evidence of bad faith in handling the claim, Appellant pointed 

to Colonial’s failure to obtain a medical expert until August 2005, just prior to 

arbitration. Appellant claimed no prior medical evidence supported the determination 

that the accident was not a proximate cause of the surgery, noting his surgeon 

related the accident to the surgery. He concluded there was no credible effort to 

ascertain if the collision proximately caused the need for surgery. 

{¶36} Appellant pointed out that Colonial’s answer to an interrogatory said the 

offer was not delayed due to the possible existence of other coverage, but evidence 

showed it was part of the delay. The policy’s pro-rata clause did not mention the 

ability to delay until other coverage was litigated. Appellant noted it took five months, 

from January to June of 2004, for Colonial to answer interrogatories. He also urged 

his expert’s opinion provided sufficient reasons to defeat the request for summary 

judgment. For instance, the expert said to a reasonable degree of professional 

certainty, there was not good faith and fair dealing; the expert pointed to the reserves 

that indicate an awareness of the claim value, the failure to obtain a medical expert 

during most of the time the claim was pending, the value involved when a preexisting condition was aggravated, and the failure to acknowledge the initial requests 

for arbitration. 

{¶37} Colonial replied it was justified in refusing additional depositions. As to 

its attempt to gain broad medical authorizations, Colonial said the clause in its policy 

requiring the insured to provide medical records governed over the statute and was 

not limited in scope. Although a medical expert was retained to assist the insurer’s 

position at arbitration, Colonial argued it was not necessary to retain a medical 

examiner to overcome a later bad faith claim because they had the statement of 

Appellant’s physicians reporting degenerative disc disease and past problems. 

Colonial urged they did not delay processing the claim, positing a pro-rata offer would 

have been futile due to Appellant’s demand at mediation. Colonial concluded 
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Appellant’s presentation of an expert opinion did not preclude summary judgment, 

asserting various issues with the expert’s opinion. 

{¶38} A magistrate granted summary judgment. See Apr. 15, 2015 Mag. Dec. 

See also May 29, 2015 Findings of Fact and Conclusions of Law. Appellant filed 

objections generally arguing the magistrate failed to construe the evidence in the light 

most favorable to the non-movant and failed to recognize the expert’s affidavit raised 

a genuine issue for trial. Appellant presented various specific arguments as well, 

including: medical privilege applied, and the request for records must be reasonable; 

the handling of a claim was relevant in an underinsured motorist claim (so Colonial’s 

refusal to produce additional employees for depositions was improper); the court is 

not permitted to weigh the medical evidence; the first settlement offer was untimely; 

Appellant was justified in not accepting a low offer; and an insurer should respond to 

arbitration demands. 

{¶39} On September 4, 2015, the trial court overruled the objections and 

granted summary judgment. The within appeal followed. 

LAW: BAD FAITH & SUMMARY JUDGMENT 

{¶40} Due to the insurer-insured relationship, an insurer has a duty to act in 

good faith in the handling and payment of an insured's claim. Hoskins v. Aetna Life 

Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983). The breach of this duty will 

give rise to a cause of action in tort against the insurer: a bad faith claim. Id. Mere 

refusal to pay insurance is not, in itself, conclusive of bad faith. Id. at 270. 

{¶41} An insurer fails to exercise good faith in processing a claim of its 

insured where the refusal to pay the claim was not based on circumstances that 

furnish reasonable justification for the refusal. Zoppo v. Homestead Ins. Co., 71 Ohio 

St.3d 552, 554, 644 N.E.2d 397 (1994) (finding evidence from which the jury could 

conclude the insurer failed to conduct an adequate investigation on cause of fire and 

was not reasonably justified in denying the insured's claim). Intent is not an element 

of the reasonable justification standard. Id., overruling in part Motorists Mut. Ins. Co. 

v. Said, 63 Ohio St.3d 690, 700, 590 N.E.2d 1228 (1992). The portions of Said and 

other cases which suggested intent was a required element were overruled. “The 
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reasonable-justification standard set forth in Zoppo lessened the standard of proof 

necessary to show that an insurer acted in bad faith, as proof of actual intent was no 

longer required.” Wagner v. Midwestern Indem. Co., 83 Ohio St.3d 287, 290, 699 

N.E.2d 507 (1998). 

{¶42} The Zoppo Court noted the reasonable justification standard was first 

announced in Hart; a decision explicitly “approved and followed” in Zoppo. The Hart

Court explained that where the insurer attempts to justify its conduct by saying it 

believed there was no liability for the injuries, “such a belief may not be an arbitrary or 

capricious one.” Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185, 188, 87 N.E.2d 

347 (1949). See also Staff Builders, Inc. v. Armstrong, 37 Ohio St.3d 298, 302, 525 

N.E.2d 783 (1988) (also approved by Zoppo). In general, an arbitrary and capricious 

decision is one made without consideration of or regard for facts, circumstances, 

fixed rules, or procedures. Black's Law Dictionary (10th Ed.2014). 

{¶43} In other words, the insurer’s handling of a claim must be predicated on 

circumstances that furnish a reasonable justification for the conduct. In discussing 

whether there is reasonable justification, the Court previously explained: “Where a 

claim is fairly debatable the insurer is entitled to refuse the claim as long as such 

refusal is premised on a genuine dispute over either the status of the law at the time 

of the denial or the facts giving rise to the claim.” Said, 63 Ohio St.3d at 700. See 

also Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 630, 605 

N.E.2d 936, 943 (1992).3 This principle would appear to remain intact even after 

Zoppo overruled the portions of these decisions inserting an intent element. See, 

e.g., Toman v. State Farm Mut. Auto. Ins. Co., 8th Dist. No. 102483, 2015-Ohio3351, ¶ 33. 

{¶44} Furthermore, as a bad faith claim can entail the handling and payment 

of a claim, a refusal to pay a claim is not limited to outright denial of payment; it can 

 3 These cases also spoke of two types of bad faith claims: (1) where the insurer had no lawful 

basis for its refusal of the claim or (2) where the insurer failed to determine whether there was a lawful 

basis for the refusal. Said, 63 Ohio St.3d at 700. See also Tokles, 65 Ohio St.3d at 630. It has been 

stated the first type involves the merits of the contract claim. See Ballard, 7th Dist. No. 14 MA 85 at ¶ 
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also arise from an insurer's “foot-dragging” in the handling or evaluation of a claim 

(even if a claim is ultimately paid) or an unreasonably low settlement offer. Id. at ¶ 

29. “An insurer cannot avoid a bad faith claim simply by establishing that its claims 

decision was based on the personal opinion of a seasoned adjustor. Rather, the 

purpose of a bad faith inquiry is to determine whether the adjustor lacked a 

reasonable justification for that ‘personal opinion’.” Id. 

{¶45} Civ.R. 56 must be construed in a manner that balances the right of the 

non-movant to have a jury try claims and defenses that are adequately based in fact 

with the right of the movant to demonstrate, prior to trial, that the claims and defenses 

have no factual basis. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 

N.E.2d 47, ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 

91 L.Ed.2d 265 (1986). “Summary judgment is a procedural device to terminate 

litigation and to avoid a formal trial where there is nothing to try. It must be awarded 

with caution * * *.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 604 N.E.2d 

138 (1992). 

{¶46} Summary judgment can only be granted when there remains no 

genuine issue of material fact and when reasonable minds can only conclude the 

moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In determining 

whether there exists a genuine issue of material fact to be resolved at trial, the court 

is to consider the evidence and all reasonable inferences to be drawn from the 

evidence in the light most favorable to the non-movant. See, e.g., Jackson v. 

Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11. Doubts are 

to be resolved in favor of the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio 

St.3d 266, 269, 617 N.E.2d 1068 (1993). 

{¶47} The movant has the initial burden to show that no genuine issue of 

material fact exists. Byrd, 110 Ohio St.3d 24 at ¶ 10, citing Dresher v. Burt, 75 Ohio 

St.3d 280, 294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal 

burden. Id. The non-movant’s response, by affidavit or as otherwise provided in 

 18. Here, Appellant recovered on his contract claim through binding arbitration; receiving $50,000 in 

underinsured motorist benefits.
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Civ.R. 56, must set forth specific facts showing that there is a genuine issue for trial 

and may not rest upon mere allegations or denials in the pleadings. Civ.R. 56(E). 

{¶48} “Summary judgment is appropriately granted to the defendant on a 

claim of bad faith where the record is devoid of any evidence tending to show a lack 

of good faith on the part of the defendant.” Mentor Chiropractic Ctr., Inc. v. State 

Farm Fire & Cas. Co., 139 Ohio App.3d 407, 411, 744 N.E.2d 207 (11th Dist.2000). 

If there is evidence from which reasonable minds could differ on whether the insurer 

lacked good faith in denying coverage or handling the claim, summary judgment 

cannot be granted. A court “may not weigh the proof or choose among reasonable 

inferences.” Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 

1187 (1980). 

{¶49} We consider the propriety of granting summary judgment under a de 

novo standard of review. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 

2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5; Comer v. Risko, 106 Ohio St.3d 185, 2005-

Ohio-4559, 833 N.E.2d 712, ¶ 8. In accordance, we apply the same legal standards 

binding the trial court. A de novo review is conducted without deference to the lower 

court’s decision. Dixon v. Conrad, 7th Dist. No. 04 MA 114, 2005-Ohio-6932, ¶ 35 

(“In reviewing an appeal from an award of summary judgment, an appellate court 

reviews the matter de novo, without deference to the trial court's decision.”).4

ASSIGNMENT OF ERROR 

{¶50} Appellants’ assignment of error provides: 

 4 Due to this standard of review, we need not delve into Appellant’s argument that the trial 

court’s entry shows flawed reasoning on its face and evidences a weighing of the evidence, which is 

improper at summary judgment. For instance, the court held the actions of Colonial were reasonably 

justified. As discussed further infra, the test is not whether the actions were reasonably justified but 

whether any reasonable person could find they were not reasonably justified (i.e. whether reasonable 

minds could only find the claims handling reasonably justified). Still, the court’s statement was 

followed by mention of summary judgment standards. In any event, we are reviewing de novo. 

Appellant questions why the trial court mentioned an “independent review.” See Reply Brief at 

p.5. This was a mere reference to the language in Civ.R. 53(D)(4)(d), which provides: “In ruling on 

objections, the court shall undertake an independent review as to the objected matters to ascertain 

that the magistrate has properly determined the factual issues and appropriately applied the law.” 

Appellant also complains there was no mention of his expert’s opinion in the entry. He cites nothing 

requiring the court to detail its ruling on each objection. Even if a request for findings of fact and 
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“The trial court erred in granting summary judgment to Nationwide as a result 

of its weighing of the evidence and conclusion that Nationwide’s actions were 

justified.” 

{¶51} Appellant contends his expert’s opinion, expressed in an affidavit and at 

deposition, created a genuine issue of material fact regarding Colonial’s handling of 

his claim. He states where an expert opinion raises a genuine issue of material fact 

as to the defendant’s conduct, a motion for summary judgment must be denied. 

Citing Shultzaberger v. Prince & Izant Co., 8th Dist. No. 88584, 2007-Ohio-3084, ¶ 

13. The Shultzaberger case reviewed the expert’s opinion in conjunction with other 

evidence to find a genuine issue of material fact as to an employer intentional tort 

action. Id. at ¶ 23-27. Colonial responds the expert’s affidavit did not create a 

material issue of fact on the bad faith claim. 

{¶52} Appellant’s claims handling expert submitted an affidavit opining to a 

reasonable degree of professional certainty that the claim was not handled in good 

faith. He also believed the overall delay was intentional. He noted the original claims 

adjuster recognized that Appellant’s physician indicated a causal relationship 

between the surgery and the accident; the claim package indicated damages over 

$26,000 at that time. He said Colonial was aware Appellant’s claim had value as the 

reserve was opened at $50,000 and increased to $75,000. He believed the new 

claims adjuster retreated from the original position. He chastised her for coming to 

her own opinion that Appellant would have needed the surgery anyway without 

having the medical issue reviewed by a licensed physician. Appellant’s expert 

emphasized this claims adjuster admitted at deposition the accident aggravated a 

prior condition and the surgery resolved the aggravation. 

{¶53} The expert’s affidavit pointed out: Appellant made his first demand for 

settlement on June 3, 2002; the claims adjuster did not evaluate the claim until March 

or April 2004; Colonial’s offer contained in a June 3, 2004 letter was less than 

Appellant’s medical bills and lost wages; and the offer was made more than four 

 conclusions of law had been filed with the trial court, Civ.R. 52 permits a court to refuse such a request 

on a summary judgment ruling. 
-15-

years after the medical bills were submitted (February 2000). The expert said 

$15,000 was a “minimal” offer and the insurer did not take a realistic view of the 

overall value of the claim. He added his view that an aggravation of a pre-existing 

condition has a higher value as the injury tends to be more severe and recovery 

longer. He mentioned Appellant asked for arbitration in 2001, but arbitration was not 

conducted until November 2005. 

{¶54} At deposition, the expert suggested the tortfeasor’s payment of his 

policy limits of $15,000 tends to indicate the other insurer’s acceptance of the claim 

that the surgery was proximately related to the injury. (DeFabio Depo. at 68). He 

also noted the lack of response to Appellant’s 2002 settlement demand and the 

failure to send a letter explaining the insurer’s position on the claim. He criticized the 

adjuster’s reliance on the opinion of a nurse for so many years. He emphasized the 

claims adjuster’s admission that she believed the surgery was the reason the 

aggravation was resolved, citing to the LeFever Deposition at 47. (DeFabio Depo. at 

44). 

{¶55} In arguing the expert’s opinion did not create a genuine issue of 

material fact, Colonial takes issue with various portions of the affidavit and claims the 

expert’s opinion was factually unfounded. Colonial says the opinion was based on 

the reserve amount, but the expert did not notice the reserves were decreased to 

$10,000 in November 2001. (DeFabio Depo at 37-38). However, they were also 

increased to $45,000 thereafter. Colonial also says the expert admitted at deposition 

the reserve is a “worst case scenario,” but he also said it should be the anticipated 

probable value of the claim. (DeFabio Depo at 39, 55). 

{¶56} Colonial complains the expert did not take into account the ScottPontzer issue and Appellant’s voluntary dismissal of Kemper in March 2004. 

Colonial says the expert was originally looking at the total time from the submission 

of the medical bills but then admitted at deposition that the pro-rata issue could affect 

how an insurer evaluates its exposure. (DeFabio Depo at 38). At deposition, the 

expert said he was not critical of Colonial for taking the position that Kemper had a 

pro-rata share. (DeFabio Depo. at 44). 
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{¶57} Colonial takes issue with the expert’s statement that the insurer 

disregarded the medical evidence on causation as there was medical evidence 

Appellant had a prior condition, e.g. the diagnoses involved degenerative disc issues. 

Colonial complains the expert failed to recognize the insurer’s position: the accident 

caused a soft tissue injury that healed on its own and therefore the surgery was not 

related to the accident. Colonial complains about the expert’s opinion that the insurer 

should “take the victim as you find him.” 

{¶58} Yet, this appears to be a reference to “well-accepted tort law that even 

though a plaintiff may have a pre-existing condition which makes the plaintiff more 

susceptible to injury, a defendant is liable for whatever aggravations of the condition 

that result from the defendant's conduct.” See, e.g., King v. Niswonger, 2d Dist. No. 

2013-CA-1, 2014-Ohio-859, ¶ 44. The underinsured motorist coverage arises from 

damages caused by the tortfeasor. The expert explained that in his experience, the 

insurer often places a higher value on a case involving aggravation of a pre-existing 

condition; Colonial opines this makes no sense. However, the expert explained such 

an injury can be more severe and the recovery longer. By way of example, he noted 

the insurer he worked for had a computer program that took this into account when 

assigning value to a claim. 

{¶59} In addition to the expert’s opinion and facts mentioned in the expert’s 

affidavit and at deposition, Appellant states the totality of the circumstances raise a 

jury question as to bad faith. Appellant urges Colonial lacked reasonable justification 

for attempting to receive broad medical authorizations and refusing to provide 

employees for deposition. Appellant points to the delay in the adjuster’s evaluation of 

the claim and the delay in providing a settlement offer. Appellant also points to the 

failure to timely obtain medical evidence contradicting the surgeon’s report. 

{¶60} Colonial separately responds to each of the various circumstances 

relied upon by Appellant. As to the parties’ 2001 dispute over the breadth of 

requested medical authorizations, Appellant directed Colonial to the privilege statute, 

which speaks of an exception where a communication to a physician is “related 

causally or historically to physical or mental injuries that are relevant to issues in the * 
-17-

* * civil action * * *.” R.C. 2317.02(B)(3)(a). There is also the exception where there 

has been an express waiver of the privilege. R.C. 2317.02(B)(1)(a)(i). 

{¶61} Colonial points to the policy language imposing a duty on the insured to 

cooperate and assist in any matter concerning the claim and a duty to “[a]uthorize 

[the insurer] to obtain medical and other records and make copies of these records if 

necessary.” Colonial says this places no limit on the scope of the authorization, 

noting that Appellant’s expert said a policy typically requires the insured to give any 

authorizations “required or requested.” (DeFabio Depo. at 71). 

{¶62} The first duty, to cooperate and assist, deals with matters “concerning a 

claim or suit.” This invokes a relevancy parameter. The second duty cited ends with 

“if necessary.” Colonial does not specifically claim this phrase only applies to making 

copies; however, this is essentially what their argument would mean. Appellant’s 

request for reformulated authorizations does not appear unreasonable, especially if 

there was a prior protest resolved in favor of a release limited to historically and 

causally related conditions. 

{¶63} In any event, the last issue with the medical authorizations was 

resolved by the parties in the first half of 2001. We are not faced with a question of 

whether the mere provision of a broad medical release can establish a bad faith 

claim. We are viewing the totality of the circumstances to ascertain if the insurer’s 

handling of this claim was reasonably justified as a matter of law; reasonable minds 

could only find the claims processing was performed in good faith. 

{¶64} As to Colonial’s refusal to make four employees (the prior claims 

adjuster, the supervisor, and two nurses) available for deposition in July 2005, 

Colonial distinguishes its prior production of a claims adjuster and a claims 

supervisor for deposition in September 2004 by noting the court case was still 

pending at the time of the prior depositions. Nevertheless, the same issue was at 

play between the parties at both times. Colonial says this was not a breach of 

contract action as the insurer chose to arbitrate; however, via arbitration, Appellant 

was still attempting to collect benefits owed under a contract. Appellant urges he had 
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the right to obtain evidence on the position of a contracting party by deposing its 

employees. 

{¶65} Colonial complains Appellant did not seek a ruling on the request from 

the arbitration panel or a court under R.C. 2711.07.5 We note the court case was 

dismissed in favor of arbitration at the time of the latest deposition request. As 

Appellant responds, seeking a discovery ruling would have delayed the upcoming 

arbitration. 

{¶66} Colonial insists the testimony of the personnel involved in handling 

Appellant’s claim was not relevant to the arbitration of the underinsured motorist 

claim where the issues involved liability for the accident and damages proximately 

caused by the accident. Discovery does not only encompass admissible evidence 

but also evidence reasonably calculated to lead to admissible evidence as to the 

claim or a defense of the claim. Civ.R. 26(B)(1). Colonial suggests Appellant wished 

to discover information for the future bad faith claim by disguising it as discovery in 

preparation for arbitration. 

{¶67} This court has stated: “Although appellants' cause of action only raises 

a contract dispute and does not allege the separate tort of bad faith handling of the 

insurance claim, the issue of appellee's good faith or bad faith in denying coverage is 

certainly related to the subject matter of this action.” Dennis v. State Farm Ins. Co., 

143 Ohio App.3d 196, 204, 757 N.E.2d 849 (7th Dist.2001) (regarding relevancy of 

the requested deposition of claims adjuster). Colonial says the claims handling 

process is not relevant or discoverable in the underinsured motorist proceeding, 

citing the Supreme Court’s Boone case. That case dealt with attorney privilege and 

work product as a response to a request to view a claims file in an underinsured 

motorist case with an accompanying bad faith claim. Boone v. Vanliner Ins. Co., 91 

Ohio St.3d 209, 213, 744 N.E.2d 154 (2001). Attorney privilege and work product 

were not raised in the case at bar. 

 5 R.C. 2711.01 provides: “Upon petition approved by the arbitrators, or by a majority of them, the court 

of common pleas in the county in which such arbitrators, or a majority of them, are sitting may direct the taking of 

depositions to be used as evidence before the arbitrators, in the same manner and for the same reasons as 

provided by law for the taking of depositions in suits or proceedings pending in such court.”
-19-

{¶68} Colonial notes that Appellant’s expert said the request for additional 

adjusters’ depositions “doesn’t have anything to do with the arbitration.” (DeFabio 

Depo. at 72). Yet, the expert also mentioned deposing the adjusters due to their 

contract knowledge and the need for discovery to see if there is information Appellant 

does not have. (DeFabio Depo. at 72-73). Plus, the question posed was about 

adjusters, not necessarily nurses. Two of the employees sought to be deposed were 

the nurses who conducted the medical reviews. Colonial’s reliance on their opinions 

was disclosed during the deposition of the last claims adjuster. Notably, Colonial’s 

only medical review at the time of the deposition request was performed by these 

nurses. 

{¶69} Colonial points to the opinion they eventually obtained from a physician 

(Dr. Brodell). He noted advanced spondylosis was discovered after a 1993 car 

accident. After that, Appellant had physical therapy and began seeing a chiropractor. 

A CT scan in May 1996 was interpreted as “within normal limits.” Dr. Brodell said Dr. 

Colombi operated on the arthritic condition, rather than the symptoms experienced by 

Appellant from a trauma. He opined Appellant sustained no permanent injury from 

the accident and his soft tissue injury should have healed in two to three months. 

{¶70} However, this report was not completed until August of 2005, which 

was less than three months before the scheduled arbitration and over a year after 

Colonial issued its first and only settlement offer. Notably, Colonial’s position was 

unsuccessful at arbitration; Dr. Brodell’s opinion was not accepted. Appellant 

concludes one could find Colonial lacked reasonable justification when relying on a 

nurse’s or claims adjuster’s construction of the medical records to justify a delay in 

authorizing a settlement offer, deciding on a settlement offer, and then waiting until 

August of 2005 to obtain a medical review by a surgeon. 

{¶71} Colonial urges it was entitled to rely on Appellant’s own physicians as a 

basis to dispute the value of the claim, e.g. whether the accident caused the need for 

surgery. They point out an independent medical evaluation is not required to avoid a 

bad faith claim. Colonial notes the statements of the various physicians as to 

Appellant’s degenerative condition. Dr. Colombi’s July 6, 1999 letter spoke of the 
-20-

completed surgery and concluded by stating: “The history I have, that is a patient 

having 3 motor vehicle accidents and then developing neck and arm pain, it is 

probable that the symptoms were related to the motor vehicle accident.” 

{¶72} Colonial says this can be read as failing to proximately relate the latest 

accident to the injury because the final statement did not say which motor vehicle 

accident of the three mentioned. However, the timing of the letter would suggest he 

was speaking of the accident prior to the surgery. Nevertheless, in seeking to 

increase the reserve to $75,000, a prior Colonial claims adjuster believed Appellant’s 

physicians did proximately relate the accident to the surgery. (Hardesty Depo. at 53). 

{¶73} Appellant says, “my doctors told me from the beginning that my surgery 

was necessitated by this collision.” (Interrogatory 15, submitted with Colonial’s 

original Motion for Summary Judgment). Appellant was deposed twice prior to 

arbitration, although his depositions were not provided here. A claims adjuster noted 

Appellant testified his seat broke from the force of the rear impact by a drunk driver; 

his vehicle was pushed forward into another vehicle; he immediately felt pain in his 

back; his neck pain became worse; and his neck issues after the 1993 accident 

resolved themselves by the time of the 1997 accident. 

{¶74} Furthermore, the causation issue was not addressed with Appellant’s 

surgeon or other physicians. This was in spite of the fact that the original nurse 

reviewer suggested this avenue in April 2000; she advised she would assist in 

drafting the questions to the surgeon. Additionally, the litigation management 

strategy proposed by a claim supervisor in September 2000 was to schedule the 

deposition of Appellant’s surgeon and then evaluate the case and determine if it 

could be resolved. This was never done. 

{¶75} Colonial suggests some of the delay in arbitration was due to Kemper. 

Colonial also blames the delay on Appellant’s 2001 and subsequent arbitration 

demands did not contain Appellant’s choice of an arbitrator, pointing out the policy 

said the insured was to choose the first arbitrator. Yet, Appellant’s original demand 

asked for verification of Colonial’s receipt of the demand and instructions on how to 

proceed to schedule arbitration. Relying on the lack of an arbitrator’s name in those 
-21-

demands as a basis to ignore the demands is of questionable dealing. It is also 

noteworthy that, upon receipt of the original demand, a Colonial employee opined in 

a case note that arbitration was not the preferred method of resolution. Yet, the 

policy did not permit Colonial to reject the insured’s demand. 

{¶76} Colonial points out a court ruled its potential liability would only be prorata with the Kemper coverage (of $1,000,000); Colonial thus believed its liability 

could not exceed $10,000. Regardless of Colonial’s initial anticipation of pro-rata 

liability, Appellant points to the package of circumstances, including the lack of 

response to the multiple arbitration demands, the reliance on opinions of company 

nurses and the failure to obtain a medical opinion by a surgeon during the main 

decision-making phases of claim processing, the length of time it took for the first 

settlement offer, the low amount of the only offer, and the failure to amend that offer. 

{¶77} Colonial says it promptly reevaluated the case once it was determined 

Kemper would not share pro-rata liability. It sent the file to another company nurse 

and then offered Appellant $15,000 to settle the case. Colonial blames their failure to 

offer a higher amount on Appellant’s failure to make a counter-offer, claiming they 

would have responded with a higher offer. In an affidavit, the claims representative 

who authored the letter containing the offer attested she had hoped to settle the case 

within her authority of $45,000 and would have proceeded toward that figure. 

(LeFever Aff. at ¶ 9). Appellant replies this is an admission that its employee offered 

a “low ball” figure of $15,000 at a point when she was valuing the claim at $45,000. 

Whether this valuation was realistic is also questioned. The case reserve was 

opened at $50,000 and increased to $75,000; it was decreased to $10,000 due to a 

pro-rata ruling, but after that protection was removed, the reserve was raised to 

$45,000. This figure was set prior to seeking a medical review by a surgeon. 

{¶78} Notably, even after the claims adjuster was deposed in September 

2004, the offer was not increased. As Appellant’s expert pointed out, parts of the 

LeFever Deposition could be seen as negative to Colonial’s position. She surmised 

Appellant was destined for surgery prior to the accident without a medical opinion so 

stating. She then admitted the accident may have accelerated the need for surgery. 
-22-

(LeFever Depo. at 48). She agreed the accident aggravated Appellant’s pre-existing 

condition. (LeFever Depo. at 44-45). She also believed the surgery resulted in a 

resolution of the aggravation of Appellant’s neck condition. (LeFever Depo. at 45, 

47). 

{¶79} There is some evidence showing a failure to ascertain whether the 

medical position taken by the insurer was supported by medical verification. The 

length of time between the making of the claim and the retention of a surgical opinion 

was great, regardless of the other occurrences weighing on the insurer’s evaluation. 

The lack of medical clarification amplifies Appellant’s position that the settlement offer 

was low. Furthermore, the opinion of Appellant’s insurance expert is not wholly 

conclusory or without factual support. 

{¶80} Although Colonial presents various good points in support of its 

position, this court concludes judgment cannot be granted as a matter of law in this 

case. As to the “fairly debatable” precedent, the case does not merely state: “Where 

a claim is fairly debatable the insurer is entitled to refuse the claim * * *;” the law 

continues: “as long as such refusal is premised on a genuine dispute over either the 

status of the law at the time of the denial or the facts giving rise to the claim.” 

Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690, 700, 590 N.E.2d 1228 (1992). A 

failure to reasonably investigate before arriving at a legal or factual position can give 

rise to liability. Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 554, 644 N.E.2d 

397 (1994) (finding evidence from which the jury could conclude the insurer failed to 

conduct an adequate investigation on cause of fire and was not reasonably justified 

in denying the insured's claim). 

{¶81} Furthermore, the applicable test for a judge or jury to apply at trial is not 

purely applicable at the summary judgment stage. The ultimate issue for trial is 

whether the insurer’s handling of the claim or refusal to pay the claim was done in 

good faith, meaning whether it was “predicated upon circumstances that furnish 

reasonable justification therefor.” Zoppo, 71 Ohio St.3d at 554. At the summary 

judgment stage, the issue is not whether Colonial proved it handled the claim in good 
-23-

faith and had reasonable justification for its conduct throughout the handling of its 

insured’s claim. 

{¶82} If the insured moved for summary judgment, the issue would be 

whether some reasonable mind could find the insurer did not handle the claim in 

good faith, i.e. whether some reasonable mind could find the insurer’s conduct was 

not reasonably justified. See Civ.R. 56(C). Surely, reasonable minds could find the 

claim was fairly debatable and the refusal was premised on a genuine dispute over 

either the status of the law at the time of the denial or the facts giving rise to the 

claim. However, Appellant was not seeking summary judgment; he was the nonmovant. 

{¶83} Considering the combination of acts and omissions, it cannot be said 

the record is devoid of any evidence tending to show a lack of good faith. See, e.g., 

Mentor Chiropractic Ctr., Inc. v. State Farm Fire & Cas. Co., 139 Ohio App.3d 407, 

411, 744 N.E.2d 207 (11th Dist.2000) (“Summary judgment is appropriately granted 

to the defendant on a claim of bad faith where the record is devoid of any evidence 

tending to show a lack of good faith on the part of the defendant.”). Even if certain 

circumstances would not individually qualify as bad faith conduct, the overall 

circumstances are relevant and must be viewed in the light most favorable to 

Appellant. 

{¶84} Rational inferences must be drawn and doubts must be resolved in 

Appellant’s favor. See, e.g., Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio1041, 883 N.E.2d 1060, ¶ 11; Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 

617 N.E.2d 1068 (1993); Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 

413 N.E.2d 1187 (1980) (a court “may not weigh the proof or choose among 

reasonable inferences.”). Upon doing so, this court concludes some rational trier of 

fact could find a lack of good faith in some aspects of Colonial’s claim handling in this 

case. 
-24-

{¶85} Appellant’s assignment of error is sustained. The entry of summary 

judgment is reversed, and the case is remanded for further proceedings. 

Donofrio, P.J., concurs. 

Waite, J., concurs.