[Cite as Koscielak v. United Ohio Ins. Co. , 2020-Ohio-3224.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

ANGELA A. KOSCIELAK, PLAINTIFF-APPELLANT, CASE NO. 4-19-20

v. UNITED OHIO INSURANCE COMPANY, O P I N I O N DEFENDANT-APPELLEE.

Appeal from Defiance County Common Pleas Court Trial Court No. 18 CV 44410 Judgment Affirmed Date of Decision: June 8, 2020

APPEARANCES: 

### Ian A. Weber for Appellant 

### Christine N. Farmer for Appellee, United Ohio Insurance CompanyCase No. 4-19-20

-2- SHAW, P.J. {¶1} Plaintiff-appellant, Angela A. Koscielak (“Koscielak”), brings this appeal from the October 16, 2019 judgment of the Defiance Count y Common Pleas Court granting summary judgment to defendant-appellee, United O hio Insurance Company (“United”). On appeal, Koscielak argues that the trial court erred by finding that there were no genuine issues of material fact in t his case. Background {¶2} In January of 2015, Koscielak lived at 4163 Cicero Road in Hick sville with her husband, Jeff. Koscielak had an insurance policy thro ugh United covering the premises, a 60 x 80 “pole building,” and personal property. 1 On January 9, 2015, Jeff was working in the pole barn when he noticed heavy smoke c oming from the area above the sink. Jeff stated that he attempted to extingui sh the fire with an extinguisher, but was unsuccessful so he called the fire depart ment. 2 {¶3} A deputy sheriff was the first responder to arrive at the scene and by the time he arrived, the pole barn was “fully engulfed.” When the deputy sheriff arrived, he observed Jeff and Koscielak attempting to move a mo torcycle away from

the fire. {¶4} The Hicksville Fire Department, Edgerton Fire Department, and F armer Fire Department all arrived to fight the fire. Despite their e fforts, Koscielak would

1 The relevant policy covered the period of December 28, 2014, t o December 28, 2015. 2 Koscielak would later state that she came out and used fire ex tinguishers to try and put the fire out.Case No. 4-19-20

-3- later claim the pole building and all the personal property ins ide was a “total loss.” The deputy sheriff’s report indicated that the fire had an unde termined cause, and that it was still under investigation at that time. {¶5} Koscielak filed a claim with United for the policy limits relat ed to the pole building, which were $14,800 for other structure loss, $10 3,600 for personal property loss, and $29,600 for loss of use. {¶6} In the months after the fire, United investigated Koscielak’s c laim and the cause of the fire. United was also seeking an itemized lis t of the personal property purportedly lost. {¶7} While the investigation was occurring, in April of 2015 Kosciel ak and Jeff got into a serious argument that led to Jeff being charged with domestic

violence. Jeff would later claim that Koscielak told him on th e night of the altercation that she started the fire on purpose while he was i nside the pole barn. Koscielak and Jeff separated after this fight and were in the p rocess of a divorce at the inception of this case. {¶8} On August 18, 2015, Jeff was examined “under oath” by United. In the examination, Jeff stated that Koscielak’s friends had told him that Koscielak talked about starting a fire for the insurance money before she had do ne it, and that Koscielak later told people that she started the fire. Jeff st ated that eventually

Koscielak herself told him that she started the fire. Jeff cla imed that Koscielak hadCase No. 4-19-20

-4- indicated that since Jeff was in the pole building there was an added benefit because of a life insurance policy. {¶9} On September 1, 2015, United’s attorneys sent a letter to Kosci elak indicating that United wanted to have her examined under oath o n September 14, 2015. United’s letter cited language from the insurance policy detailing Koscielak’s duty to comply, which read as follows:

B. Duties After Loss In case of a loss to covered property, we have no duty to provi de coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, [a]n “insured” seeking coverage, or a representative of either: 5. Cooperate with us in the investigation of a claim; 6. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss

. Attach all bills, receipts and related documents that justify t he figures in the inventory; 7. As often as we reasonably require: (a) Show the damaged property; (b) Provide us with records and documents we request and permit us to make copies; and (c) Submit to examination under oath, while not in the presence of another “insured”, and sign the same.Case No. 4-19-20

-5- (Doc. No. 6, Ex. B). In addition to submitting to an examinatio n under oath, United requested that Koscielak provide, inter alia , copies of documents which related to any property lost in the fire. {¶10} Despite scheduling the examination under oath, the examination did not take place on September 14, 2015, and Koscielak did not pro vide the requested documentation. The examination was rescheduled for October 5, 2015. Koscielak requested that the rescheduled examination take place at the Hi cksville Police Department, but the department was unable to accommodate the re quest, thus the examination was scheduled to proceed per the prior letter. How ever, Koscielak did

not attend the second scheduled examination under oath and she still did not provide the requested documentation. {¶11} Another letter was sent to Koscielak on October 15, 2015, deman ding that Koscielak comply with the investigation. {¶12} On October 27, 2015, United’s attorneys sent Koscielak yet anot her letter demanding that she provide the requested documentation a nd advising her that if the documents were not received by November 4, 2015, her cla im would be denied for her failure to comply. {¶13} On November 16, 2015, Koscielak was sent a letter denying her c laim, “based upon the information and evidence discovered during our investigation to date, combined with a material lack of cooperation provided by you during ourCase No. 4-19-20

-6- investigation.” (Doc. No. 6, Ex. G). More specifically, the l etter cited Koscielak’s failure to provide an examination under oath, her failure to pr ovide an inventory of the personal property lost, and her failure to provide requeste d documentation to support her claim. ( Id .) The letter contained excerpts of provisions from the insurance policy that Koscielak did not comply with. {¶14} On June 4, 2018, Koscielak filed a complaint in the Defiance Co unty Common Pleas Court requesting that United pay her the policy li mits. 3 {¶15} On July 2, 2018, United filed a “motion for more definite state ment” requesting a more definite statement of the complaint. United also requested that Koscielak produce the insurance contract upon which Koscielak b ased her claims as it had not been attached to the complaint. {¶16} On July 12, 2018, Koscielak responded in writing to United’s mo tion

for a more definite statement and attached the insurance contra ct and the deputy sheriff’s police report from the date of the fire. {¶17} On February 19, 2019, United filed an answer to Koscielak’s complaint denying the allegations and asserting ten affirmative defenses including,

inter alia , that Koscielak failed to comply with terms and conditions of the insurance policy, thereby barring her claim.

3 Statements made in the record indicate that Koscielak had prev iously filed suit against United but voluntarily dismissed that claim, thus this case was a refiling of that claim.Case No. 4-19-20

-7- {¶18} On February 26, 2019, United filed a notice to take Koscielak’s deposition on Wednesday April 24, 2019. Despite not providing United with examinations under oath previously, Koscielak’s deposition was taken in this matter

on the scheduled date. {¶19} In her deposition, Koscielak stated that she was, in fact, aske d to complete the examinations under oath by United but she did not. She indicated that she missed the later-scheduled examination because she had gone to Tennessee with her daughter and she did not have her mail forwarded. She stat ed that by the time

she returned from Tennessee her claim was denied. {¶20} Koscielak testified that she thought the fire in the pole build ing was “electrical,” because she thought it started in a wall. She te stified that Jeff’s

statements that she started the fire were false and she indicat ed she helped Jeff attempt to fight the fire. {¶21} Koscielak additionally testified that the residence at 4163 Cic ero Rd had been foreclosed upon and she was no longer the owner. She still wanted reimbursed for all her personal property lost in the fire, for the price that it would cost to rebuild the pole building, and the loss of use of the p ole building. She acknowledged that United had provided her with a check for $27, 090 for the face value of the pole building itself but she had not cashed the ch eck.Case No. 4-19-20

-8- {¶22} The next filing in the record was on July 29, 2019. At that ti me United filed a motion for summary judgment arguing that despite numero us requests for documentation and a demand for an examination under oath, Kosci elak failed to substantially or meaningfully comply with United’s investigatio n. United cited case authority stating that an insurer was not obligated to perform under a contract until conditions precedent were satisfied such as submitting to an ex amination under oath if requested. See Savage v. Am. Family Ins. Co. , 10th Dist. Franklin No. 08AP-273,

2008-Ohio-4460 . In a ddition, United a rgued that Ko sciela k enga ged in intentional

misconduct and her claim should be denied for that reason. {¶23} Over the ensuing months, Koscielak did not file any response to United’s motion for summary judgment. {¶24} On October 16, 2019, the trial court filed an entry granting Un ited’s summary judgment motion finding generally that there were no ge nuine issues of material fact, that United was entitled to judgment as a matter of law, and that reasonable minds could reach only one conclusion, adverse to Ko scielak. It is from this judgment dismissing her complaint that Koscielak appeals, asserting the following assignment of error for our review. Assignment of Error The trial court abused its discretion in holding that there wer e no genuine issues of material fact and that the defendant [met] th e standard for summary judgment.Case No. 4-19-20

-9- {¶25} In her assignment of error, Koscielak argues that the trial cou rt erred by granting summary judgment to United. Specifically, she clai ms that genuine

issues of material fact existed in this case.

Standard of Review {¶26} We review a trial court’s decision on a motion for summary judgment de novo

. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Thus, this Court conducts an indepe ndent review of the evidence and arguments that were before the trial court wit hout deference to the

trial court’s decision. See State ex rel. Sunset Estate Properties, L.L.C. v. Lodi , 142 Ohio St.3d 351, 2015-Ohio-790, ¶ 6. {¶27} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the following circumstances: (1) no genuine issue of mate rial fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving pa rty, reasonable minds can come to but one conclusion, that conclusion being adv erse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66 (1978). “When seeking summary judgment on grounds that the non- moving party cannot prove its case, the moving party bears the initial burde n of informing the trial court of the basis for the motion and identifying those portion s of the record that demonstrate the absence of a genuine issue of material fact on an essential elementCase No. 4-19-20

-10- of the non-moving party’s claims.” Lundeen v. Graff , 10th Dist. Franklin, 2015- Ohio-4462, ¶ 11, citing Dresher v. Burt , 75 Ohio St.3d 280, 293 (1996). Once the moving party meets its initial burden, the nonmovant must set f orth specific facts demonstrating a genuine issue for trial. Dresher at 293. Analysis {¶28} At the outset, we note that after reciting the summary judgment standard in her brief, Koscielak spends two total paragraphs ar guing that the trial court erred in this matter, citing no case authority whatsoever in support. While a lengthier, quantitative argument does not equate to a qualitati ve argument, App.R. 16(A)(7) requires an appellant’s argument to contain citations to authorities or parts of the record that the appellant relies upon. “It is not the obligation of an appellate court to search for authority to support an appellant’s argumen t as to an alleged

error.” Harris v. Nome , 9th Dist. Summit No. 21071, 2002-Ohio-6994, ¶ 15, citing

Kremer v. Cox , 114 Ohio App.3d 41, 60 (9th Dist.1996). {¶29} Moreover, we emphasize that Koscielak did not even file a respo nse to United’s summary judgment motion at the trial court level. See Whitt v. Wolfinger , 4th Dist. Ross No. 14CA3455, 2015-Ohio-2726, ¶ 47, citing Shover v. Cordis Corp ., 61 Ohio St.3d 213, 220 (1991) (“It is axiomatic that a litig ant’s failure to raise an issue at the trial court waives the litigant’s righ t to raise that issue onCase No. 4-19-20

-11- appeal.”). Nevertheless, we will review the argument that Kosc ielak does make in the interest of justice. {¶30} In her brief, Koscielak claims broadly that the trial court err ed by finding that the evidence was undisputed that Koscielak failed to comply with the

terms of the insurance contract and that United was therefore e ntitled to summary judgment. Koscielak contends that, “An allegation that terms a nd conditions were not complied with, absent further evidence, is not enough to sa tisfy the rigorous test required to grant summary judgment.” (Appt.’s Br. at 2). {¶31} Contrary to Koscielak’s argument, the only evidence in the record, including Koscielak’s own 2019 deposition, establishes that Kos cielak repeatedly failed to comply with United’s demands for her to appear for an examination under oath and for her to provide documentation regarding the persona l property losses.

Koscielak herself testified that she was aware of United’s earl ier requests for the examination under oath, and despite the ongoing investigation, Koscielak claimed she went to Tennessee with her daughter. Koscielak then claime d that she did not

have her mail forwarded and that she was thus unaware of commun ications regarding the denial of her claim until months after-the-fact. Even accepting all of Koscielak’s statements as true, she still admitted to willfully ignoring United’s ongoing investigation despite the numerous and stern letters sh e received from United’s attorneys. It is perfectly reasonable given the state ments Jeff made in hisCase No. 4-19-20

-12- examination under oath that United would want to investigate th e matter further, and it was also perfectly reasonable that United would want a l ist of items lost in the fire and their relative value before paying for them. {¶32} Furthermore, legal authority does support a trial court grantin g summary judgment in favor of an insurer where the insured fails to comply with an investigation pursuant to the contract. See Savage v. Am. Family Ins. Co. , 10th Dist. Franklin No. 08AP-273, 2008-Ohio-4460, ¶¶ 24-25; Joseph v. State Farm Fire and

Cas. Co. , 2013 WL 663623 (S.D. Ohio); Luntz v. Stern , 135 Ohio St. 225, 236-237 (“Cooperation with the insurer is one of the conditions of the policy and where there has been a failure to fulfill a condition upon which the obliga tion is dependent, the obligation ceases.”); Gabor v. State Farm Mut. Auto. Ins. Co. , 66 Ohio App.3d 141 (8th Dist.1990) (summary judgment granted in favor of insurer a ffirmed where insured did not cooperate with investigation); Doerr v. Allstate Ins. Co. , 121 Fed. Appx. 638, 641 (6th Cir.2005) (summary judgment granted in favo r of insurer affirmed where insured did not cooperate with investigation); Johnson v. Allstate

Ins. Co. , 11th Dist. Trumbull No. 2001-T-0127, 2002-Ohio-7165 (summary judgment granted in favor of insurer affirmed where insured did not cooperate with investigation). {¶33} Based on the foregoing we find that the trial court correctly d etermined that no genuine issue of material fact existed in this case, th at United was entitledCase No. 4-19-20

-13- to judgment as a matter of law, and that reasonable minds could reach but one conclusion, adverse to Koscielak. Therefore, her assignment of error is overruled.

Conclusion {¶34} For the foregoing reasons Koscielak’s assignment of error is ov erruled and the judgment of the Defiance County Common Pleas Court is a ffirmed. Judgment Affirmed PRESTON and ZIMMERMAN, J.J., concur. /jlr