[Cite as LGR Realty, Inc. v. Frank & London Ins. Agency, 2016-Ohio-5044.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

LGR Realty, Inc., : 

 Plaintiff-Appellant, : 

v. : No. 15AP-1072 

 (C.P.C. No. 15CV-3305) 

Frank & London Insurance Agency, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on July 21, 2016 

 

On brief: Hollern & Associates, and Edwin J. Hollern, for 

appellant. Argued: Edwin J. Hollern. 

On brief: Williams & Schoenberger, and Richard A. 

Williams, for appellee. Argued: Susan Petro. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Plaintiff-appellant, LGR Realty, Inc. ("LGR"), appeals from the October 28, 

2015 decision and entry granting the Civ.R. 12(B)(6) motion to dismiss of defendantappellee, Frank & London Insurance Agency ("Frank and London") on the basis that the 

complaint was barred by the statute of limitations. For the reasons that follow, we reverse 

the judgment of the trial court. 

Factual and Procedural Background 

{¶ 2} The following facts are taken from the complaint filed on April 17, 2015. 

{¶ 3} Frank and London was LGR's commercial insurance agent. (Apr. 17, 2015 

Compl. at ¶ 2, 6.) LGR procured a claims-made Real Estate Agents Errors and Omissions 
No. 15AP-1072 2 

Liability Insurance Policy from Continental Casualty Company ("Continental") through 

Frank and London. (Compl. at ¶ 7.) The policy's effective dates were May 12, 2010 

through May 12, 2011. Id. 

{¶ 4} A liability claim was made against LGR within the policy period, and LGR 

notified Continental and demanded that Continental provide a defense and indemnity to 

LGR pursuant to the policy. (Compl. at ¶ 9, 10.) However, Continental denied LGR's 

demand on April 26, 2011. (Compl. at ¶ 11.) LGR was forced to hire its own counsel and 

incurred in excess of $420,000 in attorney fees and expenses to defend itself in the 

subsequent lawsuit. (Compl. at ¶ 11, 12.) 

{¶ 5} LGR filed suit against Frank and London on April 17, 2015, alleging two 

claims: first, that Frank and London acted negligently in failing to secure the appropriate 

liability policy to protect LGR from the lawsuit referenced above; and second, that Frank 

and London negligently misrepresented that the Continental policy would cover LGR for 

the lawsuit referenced above and other claims that arose from the professional business 

activities of LGR. (Compl. at ¶ 14, 17.) 

{¶ 6} Frank and London moved for dismissal under Civ.R. 12(B)(6), arguing that 

the claims were barred by the four-year statute of limitations under R.C. 2305.09(D). The 

trial court found that the parties agreed that the four-year statute of limitations in R.C. 

2305.09(D) applied to LGR's claims. However, the parties disagreed as to the date the 

applicable statute of limitations began to run. LGR asserted the statute began to run on 

the date that Frank and London denied the claim under the policy, while Frank and 

London asserted the statute began to run on the date the insurance policy was issued. 

{¶ 7} The trial court found that LGR could not avail itself of the delayed damages 

rule that would have meant the statute of limitations did not begin to run until LGR's 

claim was denied. The trial court found that although the Supreme Court of Ohio has not 

expressly overruled Kunz v. Buckeye Union Ins. Co., 1 Ohio St.3d 79 (1982), the court has 

abrogated the rule in subsequent decisions, and therefore the four year statute of 

limitations began to run on May 12, 2010, the date the policy was issued. Since LGR did 

not file suit until April 17, 2015, almost five years after the policy was issued, the trial 

court determined that the claims were time-barred on the face of the complaint. 
No. 15AP-1072 3 

Assignment of Error 

{¶ 8} LGR filed a timely notice of appeal assigning the following as error: 

The trial court erred by granting defendant/appellee's motion 

to dismiss. 

Standard of Review 

{¶ 9} Our review of a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure 

to state a claim is de novo. Mason v. Bowman, 10th Dist. No. 09AP-995, 2010-Ohio2325, ¶ 7. A motion to dismiss for failure to state a claim is procedural and tests whether 

the complaint is sufficient. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 

Ohio St.3d 545, 548 (1992). In considering a Civ.R. 12(B)(6) motion to dismiss, a trial 

court may not rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. 

Alexander, 79 Ohio St.3d 206, 207 (1997). Rather, the trial court may only review the 

complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff can 

prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community 

Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. Moreover, the court must 

presume that all factual allegations in the complaint are true and draw all reasonable 

inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 

190, 192 (1988). 

{¶ 10} A complaint may be dismissed under Civ.R. 12(B)(6) as time-barred under 

the statute of limitations if the face of the complaint makes clear that the action is timebarred. Steiner v. Steiner, 85 Ohio App.3d 513, 518-19 (4th Dist.1993); Charles v. 

Conrad, 10th Dist. No. 05AP-410, 2005-Ohio-6106, ¶ 24; Mason at ¶ 8. Only where the 

complaint demonstrates conclusively on its face that the action is time-barred should a 

Civ.R. 12(B)(6) motion to dismiss based upon the statute of limitations be granted. 

Swanson v. Boy Scouts of Am., 4th Dist. No. 07CA663, 2008-Ohio-1692, ¶ 6. Schultz v. 

Univ. of Cincinnati College of Med., 10th Dist. No. 09AP-900, 2010-Ohio-2071, ¶ 36. A 

motion to dismiss a complaint under Civ.R. 12(B)(6) which is based on the statute of 

limitations is erroneously granted where the complaint does not conclusively show on its 

face the action is barred by the statute of limitations. Velotta v. Leo Petronzio 

Landscaping, Inc., 69 Ohio St.2d 376, 378 (1982). 
No. 15AP-1072 4 

Statute of Limitations, Discovery Rule, and Delayed Damages Rule 

{¶ 11} "Statutes of limitations serve a gate-keeping function for courts by '(1) 

ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of 

action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences 

engendered by delay—specifically, the difficulties of proof present in older cases.' " 

(Citations omitted.) Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co., 128 Ohio St.3d 

529, 2011-Ohio-1961, ¶ 7. Nevertheless, "statutes of limitations are remedial in nature 

and are to be given a liberal construction to permit cases to be decided upon their merits, 

after a court indulges every reasonable presumption and resolves all doubts in favor of 

giving, rather than denying, the plaintiff an opportunity to litigate." Flagstar at ¶ 7; 

Harris v. Reedus, 10th Dist. No. 15AP-181, 2015-Ohio-4962, ¶ 11. 

{¶ 12} LGR's negligence claims against Frank and London are governed by R.C. 

2305.09(D), which sets forth a general limitations period for tort actions not specifically 

covered by other statutory sections. R.C. 2305.09(D) provides, in pertinent part, as 

follows: 

Except as provided for in division (C) of this section, an action 

for any of the following causes shall be brought within four 

years after the cause thereof accrued: 

* * * 

(D) For an injury to the rights of the plaintiff not arising on 

contract nor enumerated in sections 1304.35, 2305.10 to 

2305.12, and 2305.14 of the Revised Code[.] 

{¶ 13} The question then becomes when does a cause of action accrue for purposes 

of determining when the statute of limitations begins to run? The general rule is that a 

cause of action accrues at the time the wrongful act is committed. Flagstar Bank at ¶ 13; 

Collins v. Sotka, 81 Ohio St.3d 506, 507 (1998); Harris v. Liston, 86 Ohio St.3d 203, 205 

(1999). "However, in situations where the wrongful act does not immediately result in 

injury or damage, strict application of the general rule can lead to an unjust result." Id. at 

205-06. 

{¶ 14} The discovery rule and the delayed damages rule are exceptions to the 

general rule designed to avoid this type of unjust result. Although somewhat similar in 
No. 15AP-1072 5 

concept, one rule tolls the running of the statute of limitations and the other rule adjusts 

when the cause of action accrues. The discovery rule does not alter the fact that a cause 

of action in tort accrues when the wrongful conduct occurs. Instead, it tolls the running of 

the statute of limitations until the plaintiff discovers, or should have discovered, the 

negligent act or the resulting injury. Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198 

(1972), syllabus ("Where a metallic forceps and a nonabsorbent sponge are negligently 

left inside a patient's body during surgery, the running of the statute of limitation 

governing a claim therefor is tolled until the patient discovers, or by the exercise of 

reasonable diligence should have discovered, the negligent act.") 

{¶ 15} The delayed damages rule alters the general rule as to when a cause of 

action in tort accrues, because the Supreme Court of Ohio has ruled that cause of action 

does not accrue until actual injury or damage ensues. Velotta at paragraph two of the 

syllabus. ("When negligence does not immediately result in damages, a cause of action for 

damages arising from negligent construction does not accrue until actual injury or 

damage ensues.") In Velotta, the plaintiff alleged that the builder of his new home 

negligently installed underground drainage tile. Five years after the tile was installed, 

Velotta began experiencing serious water drainage problems. The Supreme Court of Ohio 

held that "where the wrongful conduct complained of is not presently harmful, the cause 

of action does not accrue until actual damage occurs." Id. at 379. In other words, the tort 

was not complete until the actual damage occurred. Thus, even though the builder's 

allegedly negligent construction occurred more than four years earlier, the cause of action 

did not accrue and the statute of limitations did not begin to run until actual injury or 

damage occurred. Id. 

LGR Claims Kunz Controls 

{¶ 16} LGR's argument is premised upon the Supreme Court of Ohio's ruling in 

Kunz, another delayed damages case, decided six months after Velotta. In Kunz, the 

plaintiffs brought suit against their insurance agent for negligently failing to provide the 

business equipment coverage they requested. 

{¶ 17} The policy at issue was purchased in 1970 and renewed in 1973. In 1975, the 

equipment, a hydro-crane, was involved in a job site accident, and Buckeye Union denied 

coverage. The plaintiffs filed suit two years after the accident in 1977. The trial court 
No. 15AP-1072 6 

granted summary judgment in favor of the insurance agent and agency on the basis that 

the four-year statute of limitations set forth in R.C. 2305.09 had expired because the 

statute of limitations began to run when the policy was issued, or at the latest, when it was 

renewed. The Supreme Court of Ohio reversed, applying the delayed damages rule and 

holding that the four-year statute of limitations set forth in R.C. 2305.09 applied, but the 

cause of action for negligence did not accrue until the plaintiffs suffered a loss to their 

equipment. The court reasoned that the tort was not complete until there had been a loss 

to the plaintiff's equipment, because until that event occurred, "such protection could 

avail appellants nothing." Kunz at 82. The court indicated that, in such cases, there must 

be an injury or harm to the plaintiff as a consequence of the defendant's negligence to 

serve as a basis for recovery of damages before the tort becomes actionable and before the 

period of limitation commences to run. Id. 

{¶ 18} Thus, Kunz stands for the proposition that without an invasion of a legally 

protected interest resulting in damages, a plaintiff has no valid cause of action for 

negligence against an insurer that breached a duty to secure the desired coverage for a 

client. Therefore, the statute of limitations for a claim against an insurance agent or 

agency for failing to procure appropriate coverage for a client does not begin to run until 

the insured suffers a loss that should have been covered by the policy placed by the agent. 

{¶ 19} The Supreme Court of Ohio has never expressly overruled Kunz. Ordinarily, 

as an intermediate appellate court, we are not free to disregard binding precedent from 

the Supreme Court of Ohio on a case that is directly on point. See generally Coniglio v. 

State Med. Bd. of Ohio, 10th Dist. No. 07AP-298, 2007-Ohio-5018, ¶ 8 (noting that "[w]e, 

as an appellate court, are [bound] to follow binding precedent from the Supreme Court of 

Ohio"); State v. McCoy, 1st Dist. No. C-090599, 2010-Ohio-5810, ¶ 62; State v. Burke, 

10th Dist. No. 04AP-1234, 2005-Ohio-7020, ¶ 26. 

Frank and London Contend Kunz Implicitly Overruled 

{¶ 20} Frank and London, however, assert that Kunz has been abrogated by 

subsequent decisions of the Supreme Court of Ohio in the context of professional 

negligence. In particular, Frank and London rely on Flagstar Bank, a certified conflict 

question asking when the statute of limitations begins to run against a property appraiser 

in a case involving professional negligence. In that case, the court held that a cause of 
No. 15AP-1072 7 

action for professional negligence against a property appraiser accrues on the date that 

the negligent act is committed, and the four-year statute of limitations begins to run on 

that date. Id. at syllabus. The court in Flagstar Bank explicitly rejected the delayed 

damages rule in that case, but stopped short of explicitly overruling Kunz. 

{¶ 21} In Flagstar Bank, the court discussed application of the delayed damages 

rule and characterized it as a timing issue; when all the elements of a cause of action have 

come into existence. Flagstar Bank at ¶ 19. The Flagstar Bank court cited Kunz for the 

proposition that a tort is ordinarily not complete until there has been an invasion of a 

legally protected interest of the plaintiff. Id. at ¶ 20, citing Kunz at 81. 

{¶ 22} The Supreme Court of Ohio then discussed cases from the Fifth and Sixth 

District Courts of Appeals that applied the delayed damages rule to claims for professional 

negligence involving accountants, negligent tax preparation, and a cause of action against 

a title agency for altering and recording a mortgage. Gray v. Estate of Barry, 101 Ohio 

App.3d 764 (6th Dist.1995)(certified public accountant); Fritz v. Cox, 142 Ohio App.3d 

664 (5th Dist.2001)(tax preparation); JP Morgan Chase Bank NA v. Lanning, 5th Dist. 

No. 2007CA00223, 2008-Ohio-893 (title agency). 

{¶ 23} It then contrasted those cases with a case from the First District Court of 

Appeals, Hater v. Gradison Div. of McDonald & Co. Sec., 101 Ohio App.3d 99 (1st 

Dist.1995) (involving investment dealers, accountants, an appraiser, and a builder), in 

which the court declined to apply the delayed damages rule. The Supreme Court of Ohio 

mentioned other courts that have rejected application of the delayed damages rule in the 

professional negligence context. Riedel v. Houser, 79 Ohio App.3d 546, 549 (3d. 

Dist.1992) (certified public accountants); Schnippel Constr. v. Profitt, 3d Dist. No. 17-09-

12, 2009-Ohio-5905 (sale of an employee benefit plan); Fronczak v. Arthur Andersen, 

L.L.P., 124 Ohio App.3d 240, 244 (10th Dist.1997)(accountants); Bell v. Holden Survey, 

Inc., 7th Dist. No. 729 (Sept. 29, 2000) (surveyor); James v. Partin, 12th Dist. No. 

CA2001-11-086, 2002-Ohio-2602 (surveyor). 

{¶ 24} The court stated that it had implicitly rejected the delayed damages rule in 

Thornton v. Windsor House, Inc., 57 Ohio St.3d 158 (1991), a case involving alleged 

negligence in performing Medicaid audits. Flagstar Bank at ¶ 26. The court then 
No. 15AP-1072 8 

reiterated the rule in a broader fashion that "[a] cause of action for professional 

negligence accrues when the act is committed." Id. at ¶ 27. 

{¶ 25} The syllabus of the Flagstar Bank decision is written more narrowly and 

states that: 

A cause of action for professional negligence against a 

property appraiser accrues on the date that the negligent act is 

committed, and the four-year statute of limitations 

commences on that date. (R.C. 2305.09(D) and Investors 

REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 546 N.E.2d 

206, followed.) 

Kunz's Viability After Flagstar 

{¶ 26} The question before us is whether Kunz has any continued viability in light 

of the decision in Flagstar Bank. 

{¶ 27} On the one hand, in Flagstar Bank, the Supreme Court of Ohio rejected 

cases from various courts of appeals applying the delayed damages rule to claims of 

professional negligence in various professions. The court inserted broad language into its 

decision that "[a] cause of action for professional negligence accrues when the act is 

committed." Id. at ¶ 27. 

{¶ 28} On the other hand, the syllabus of Flagstar Bank was limited to claims of 

professional negligence against a property appraiser, and the Supreme Court of Ohio let 

stand Kunz, an older case applying the delayed damages rule to a negligence cause of 

action involving a breach of duty by an insurance agent who failed to provide proper 

coverage for a client. 

{¶ 29} In the present case, we are faced with a claim of negligence against an 

insurance agency for allegedly failing to procure proper coverage for a client. LGR seeks 

to distinguish Flagstar Bank, arguing that an insurance agent is not a professional like a 

lawyer or an accountant and therefore its claim is merely one of ordinary negligence to 

which the delayed damages rule should apply. LGR's argument is undercut by language 

from Kunz itself, in which the court stated, "[t]he instant action is roughly analogous to a 

malpractice action in which a party claims that his accountant, lawyer, or doctor has failed 

to perform the professional services that had been contractually bargained for." Kunz at 
No. 15AP-1072 9 

80. Thus, we believe that LGR's claim is one of professional negligence against Frank and 

London. 

{¶ 30} Frank and London contend that the delayed damages rule should not be 

applied in this case because LGR suffered immediate economic damage at the time they 

purchased the allegedly defective coverage. Frank and London rely on Chandler v. 

Schriml, 10th Dist. No. 99AP-1006 (May 25, 2000), and Union Sav. Bank v. Lawyers 

Title Ins. Corp., 191 Ohio App.3d 540, 2010-Ohio-6396 (10th Dist.), to show that LGR 

sustained immediate economic damage. 

{¶ 31} In Chandler, the owners of a duplex and the seller's real estate company 

represented to the buyer, Chandler, that the property was zoned for dual family use, but in 

reality it was zoned for single family use. Chandler discovered the zoning issue only after 

he had purchased the duplex and later attempted to sell his home. He argued that his 

cause of action did not accrue until he attempted to sell his home, but this court ruled that 

he suffered damages at the time he bought the duplex because he stated in the complaint 

that he would not have paid the price he did had he known of the zoning. Thus, from the 

time he purchased the duplex, he actually owned less than he believed he did, and the 

delayed damages rule was inapplicable. 

{¶ 32} In Union Savings Bank, this court ruled that a claim alleging negligence 

and a breach of fiduciary duty against a title company was time barred because the cause 

of action accrued at the time the homeowners closed on their loan and the title company 

failed to subordinate two mortgages, not when the property went into foreclosure and was 

sold at a sheriff's sale. This court indicated that the plaintiff-bank suffered damages at the 

time of the closing when it assumed a second lien position due to the defendant's failure 

to subordinate two liens. The court also stated that this court has rejected the delayed 

damages theory. Id. at ¶ 29. 

{¶ 33} Frank and London argue that, at the time LGR purchased its policy, it was 

paying premiums for coverage that did not exist. Thus, according to Frank and London, 

LGR owned less than it believed it had purchased even though it did not realize the 

diminished value of its purchase until years later when its claim was denied. Frank and 

London claim that LGR paid for something of lesser value than what they believed they 

were purchasing. According to Frank and London, the fact that LGR did not realize its 
No. 15AP-1072 10 

injury until much later does not change the fact that the injury occurred when they 

purchased a policy of insurance that did not provide a defense and indemnity for certain 

lawsuits. 

{¶ 34} But prior to the denial of the claim, what injury did LGR actually suffer? 

Perhaps it had an expectancy interest in the difference in premiums between a policy that 

covered lawsuits involving Plaza Properties versus the cost of premiums for a policy that 

did not cover the cost of lawsuits involving Plaza Properties. However, LGR's claim 

against Frank and London does not sound in contract, but in tort. Kunz at 80. A cause of 

action premised upon negligence necessitates legal harm. Until LGR suffered a loss, in 

this case having to defend a lawsuit at its own expense, the tort was not complete. A cause 

of action in negligence is not complete until the plaintiff suffers some actual damage 

proximately caused by the defendant's wrongful conduct. We believe any apparent 

inconsistency between this case, Chandler and Union Savings Bank is distinguishable on 

the basis that there was no true economic loss to LGR until the claim was rejected. This 

puts the instant case squarely within the framework of Kunz. 

Insurance Cases Decided after Flagstar 

{¶ 35} Cases decided after Flagstar Bank show erosion of the delayed damages 

rule but also that there is some split of authority as to whether the delayed damages rule is 

still valid with respect to claims against insurers for failure to procure coverage as 

requested. 

{¶ 36} In Infocision Mgt. Corp. v. Michael D. Sammy Ins. Agency, Inc., 9th Dist. 

No. 26939, 2014-Ohio-4653, the plaintiffs alleged negligence, breach of fiduciary duty, 

and vicarious liability against their insurance agency for an alleged failure to maintain 

vehicle liability insurance coverage for its employees traveling on company business in 

leased vehicles or personal vehicles. The Ninth District Court of Appeals ruled that even 

in discovery rule and delayed damages assertion scenarios, claims of professional 

negligence remain governed by R.C. 2305.09, and must be filed within four years from the 

time the disputed action is committed. Id. at ¶ 28, citing Flagstar Bank. 

{¶ 37} In Auckerman v. Rogers, 2d Dist. No. 2011-CA-23, 2012-Ohio-23, the 

plaintiff brought claims of negligence, breach of fiduciary duty, "detrimental reliance," 

and "errors and omissions" against her insurance agent alleging a failure to provide her 
No. 15AP-1072 11 

with uninsured/underinsured motorist coverage despite her request for "full coverage" on 

her automobiles. The Second District Court of Appeals determined that the Supreme 

Court of Ohio no longer applies the discovery rule or the delayed damages rule to claims 

of professional negligence and thereby implicitly overruled Kunz in the Flagstar Bank

case. Auckerman at ¶ 17. The Auckerman court could "see no principled reason why an 

insurance agent's professional negligence should be treated differently" than the 

appraiser's professional negligence in Flagstar Bank. Auckerman at ¶ 18. 

{¶ 38} The dissent in Auckerman argued that Flagstar did not overrule Kunz and 

therefore remained good law. Auckerman at ¶ 44. Applying the delayed damages rule, 

the dissent contended that the agent's failure to procure the proper coverage became 

actionable in tort only when the plaintiff was involved in an accident caused by a negligent 

driver and as a result suffered monetary losses. Id. at ¶ 49. 

{¶ 39} In Vinecourt Landscaping, Inc. v. Kleve, 11th Dist. No. 2013-G-3142, 2013-

Ohio-5825, a landscaping company and its owners brought suit against their insurance 

agent and agency for negligence and breach of fiduciary duty for failing to recommend 

greater insurance coverage for their business when the Vinecourts thought they had full 

coverage. The Vinecourts alleged the statute of limitations began to run when a fire in 

their warehouse caused significant damage to the building and their business property, 

and not when the agent allegedly negligently failed to recommend greater coverage. 

{¶ 40} The court of appeals acknowledged that, while the Supreme Court has not 

expressly overruled Kunz, it has declined to follow its holding in other causes of action 

alleging professional negligence. The court also acknowledged the reasoning of the 

Second District Court of Appeals in Auckerman. However, the court noted that the 

syllabus of Flagstar Bank was limited to a cause of action for professional negligence 

against a property appraiser and, rather than overruling Kunz, the Flagstar Bank court 

cited the case with ostensible approval in the course of discussing the delayed damages 

rule. Vinecourt at ¶ 22. The Eleventh District Court of Appeals then declined to 

extrapolate an intent to overrule Kunz, and held that the cause of action accrued when the 

Vinecourts sustained damages as a result of the fire. Id. at ¶ 23, 26. 
No. 15AP-1072 12 

Conclusion 

{¶ 41} We agree with the reasoning of the majority in Vinecourt and the dissent in 

Auckerman. We do not believe the Supreme Court of Ohio has completely abandoned the 

delayed damages rule set forth in Kunz, and it is not our role as an intermediate appellate 

court to overrule a precedent that the Supreme Court of Ohio cited with approval in the 

very case Frank and London asserts abrogates the rule. Given the conflict among districts 

in Ohio about the continued validity of the delayed damages rule in the insurance context, 

the Supreme Court of Ohio may decide at some point to abandon the rule announced in 

Kunz, but today we are compelled to apply it. 

{¶ 42} We also believe there are strong policy reasons for applying the four-year 

statute of limitations in the manner set forth in Kunz. Frank and London is asking this 

court to conservatively apply the statute of limitations, and the Supreme Court of Ohio in 

Flagstar Bank indicated that statutes of limitations are remedial in nature and are to be 

given a liberal interpretation to allow cases to be decided on the merits. Id. at ¶ 7. 

{¶ 43} In addition, if we were to adopt the position espoused by Frank and 

London, the statute of limitations could easily expire in many cases before a cause of 

action becomes legally actionable. 

{¶ 44} Consequently, we hold that LGR's cause of action for negligence against 

Frank and London did not accrue until April 26, 2011 when Continental Casualty denied 

LGR's demand for defense and indemnity. Since the lawsuit was filed on April 17, 2015, 

the complaint was timely under the four-year statute of limitations in R.C. 2305.09(D). 

{¶ 45} The sole assignment of error is sustained, and the judgment of the Franklin 

County Court of Common Pleas is reversed and remanded for further proceedings in 

accordance with this decision. 

Judgment reversed; cause 

remanded for further proceedings. 

HORTON, J., concurs. 

DORRIAN, P.J., concurs in judgment only. 

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