[Cite as Agic v. Natl. Union Fire Ins., Co of Pittsburgh, 2014-Ohio-4205.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100679

EDIN AGIC

PLAINTIFF-APPELLANT 

vs. 

NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-12-798311 

BEFORE: McCormack, J., Boyle, A.J., and Rocco, J. 

RELEASED AND JOURNALIZED: September 25, 2014 
ATTORNEYS FOR APPELLANT

Kenneth C. Podor 

Wesley Alton Johnston 

The Podor Law Firm, L.L.C. 

33565 Solon Road 

Solon, Ohio 44139 

ATTORNEYS FOR APPELLEES

For National Union Fire Insurance Co.

Steven G. Janik 

Crystal Lynn Maluchnik 

Janik, L.L.P. 

9200 South Hills Boulevard 

Suite 300 

Broadview Heights, Ohio 44147 

For Consolidated Benefits Resources, L.L.C.

Jay Clinton Rice 

Mark D. Thompson 

D. John Travis 

Gallagher Sharp 

6th Floor - Bulkley Building 

1501 Euclid Avenue 

Cleveland, Ohio 44115 
TIM McCORMACK, J.: 

{¶1} Plaintiff-appellant, Edin Agic, appeals the judgment of the common pleas 

court granting summary judgment in favor of defendants-appellees, National Union Fire 

Insurance Company of Pittsburgh (“National Union”) and Consolidated Benefits 

Resources, L.L.C. (“CBR”). After a careful review of the record and relevant case law, 

we affirm the trial court’s judgment. 

I. Factual and Procedural History

{¶2} On January 3, 2008, while operating his tractor trailer in the course and scope 

of his employment, appellant was involved in a motor vehicle accident in Seattle, 

Washington. Following the accident, appellant made a claim for temporary total 

disability and medical expense benefits under policy No. TRK 0009102454 (the “Policy”) 

issued by National Union. CBR served as the third-party administrator with respect to 

appellant’s claims. Appellant’s claims were initially paid under the Policy, however, in a 

letter dated July 21, 2008, appellant was informed that he was no longer entitled to 

ongoing benefits. The letter stated that the decision to terminate his insurance benefits 

was supported by an investigation and an independent medical evaluation by Dr. John 

Dunne, which found that “[appellant] no longer suffers from any injuries associated with 

the motor vehicle accident which would prevent him from his return from gainful 

employment.” 

{¶3} On January 21, 2011, appellant filed a personal injury action in the Superior 

Court of King County, Washington (Case No. 11-2-03851), against two drivers involved 
in the January 3, 2008 accident. Prior to trial, one of the drivers, Timothy Coy, admitted 

that his negligence was the cause of the accident. Thus, the sole issue of whether Coy’s 

negligence was the proximate cause of any injury to appellant was tried to a jury on 

February 13, 2013. At the conclusion of the trial, the jury found that appellant sustained 

no injuries as a result of the January 3, 2008 accident and awarded no damages. 

{¶4} On February 11, 2011, appellant filed a complaint in Cuyahoga County 

(Cuyahoga C.P. No. CV-11-774339) asserting causes of action for declaratory judgment, 

breach of contract, bad faith, civil conspiracy, and intentional and/or negligent infliction 

of emotional distress. The original lawsuit named 11 defendants, including National 

Union and CBR. On December 23, 2011, appellant filed a voluntary dismissal pursuant 

to Civ.R. 41(A). On December 28, 2012, more that one year after the voluntary 

dismissal, appellant refiled his complaint against National Union and CBR for declaratory 

judgment, breach of contract, bad faith, civil conspiracy, and intentional and/or negligent 

infliction of emotional distress. On March 1, 2013, he voluntarily dismissed his claims 

against National Union and CBR for intentional and negligent infliction of emotional 

distress. Thus, his remaining claims against defendants were for declaratory judgment, 

breach of contract, bad faith, and civil conspiracy. 

{¶5} On August 26, 2013, National Union moved for partial summary judgment on 

appellant’s claims for bad faith and civil conspiracy, asserting that such claims were 

“barred as having been filed beyond the statute of limitations.” On August 28, 2013, CBR 

moved for partial summary judgment on the same basis. 
{¶6} On September 4, 2013, CBR moved for summary judgment on appellant’s 

claims for breach of contract, bad faith, and civil conspiracy, asserting that such claims 

were barred by the doctrine of collateral estoppel. On September 6, 2013, National 

Union moved for summary judgment on the same basis. 

{¶7} On November 5, 2013, the trial court entered summary judgment in favor of 

National Union and CBR on all of appellant’s claims. The trial court found that because 

appellant “failed to refile the case within the confines of the savings statute, [his] breach 

of the duty of good faith and fair dealing claim is defeated by the statute of limitations.” 

The court further ordered, “[a]s [appellant]’s sole tort claim is dismissed, [his] claim for 

conspiracy must also fail.” 

{¶8} Moreover, the trial court held that appellant’s claims for bad faith and breach 

of contract were collaterally estopped by the previously adjudicated negligence suit in 

Washington. The court explained that appellant was estopped from claiming that 

defendants treated him in bad faith or breached their contract by denying benefits under 

the Policy where a jury had previously determined that appellant did not suffer any injury 

as a result of the accident. 

{¶9} Finally, the trial court sua sponte ruled that “although [appellant]’s claims fail 

on their merits, this court also finds that there are insufficient minimum contacts for 

jurisdiction to be proper in Ohio for Defendant CBR.” 

{¶10} Appellant now brings this timely appeal, raising four assignments of error 

for review: 
I. The trial court committed prejudicial error in granting motions for 

summary judgment because there are genuine issues of material fact and 

defendants are not entitled to judgment as a matter of law. 

II. The trial court committed prejudicial error in determining that 

appellant’s bad faith and conspiracy claims are barred by the statute of 

limitations. 

III. The trial court erred in determining that appellant’s claims are 

collaterally estopped by the previously adjudicated negligence suit. 

IV. The trial court erred in determining that personal jurisdiction was 

lacking over defendant CBR. 

{¶11} Furthermore, CBR raises alternative grounds for judgment as a matter of 

law in the following four cross-assignments of error: 

I. The trial court should have further held that appellant’s claims for 

breach of contract and declaratory judgment claims against CBR fail as a 

matter of law. 

II. The trial court should have held that appellant’s bad faith claim against 

CBR fails as a matter of law. 

III. The trial court should have further held that appellant’s civil 

conspiracy claim is barred by the statute of limitations and otherwise fails as 

a matter of law. 

IV. The trial court’s advisory opinion provides alternative grounds for the 

dismissal of CBR: there are insufficient minimum contacts for jurisdiction 

to be proper in Ohio. 

II. Law and Analysis

{¶12} In his first assignment of error, appellant broadly argues that the trial court 

committed prejudicial error in granting motions for summary judgment in favor of 

National Union and CBR because there are genuine issues of material fact in dispute as to 

whether he was injured in the January 3, 2008 accident. 
{¶13} An appellate court reviews 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). Summary judgment is appropriate when, construing the evidence most strongly 

in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the 

moving party is entitled to judgment as a matter of law; and (3) reasonable minds can 

come to but one conclusion, that conclusion being adverse to the nonmoving party. 

Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), 

citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), 

paragraph three of the syllabus. 

{¶14} In challenging the trial court’s judgment, appellant argues more specifically 

in his third assignment of error that the trial court committed prejudicial error in finding 

that he was collaterally estopped from pursuing his claims based on the previously 

adjudicated negligence suit in Washington. 

{¶15} Based on the following, we agree with the trial court and find that 

appellant’s claims for bad faith, breach of contract, and civil conspiracy are barred by 

collateral estoppel. 

A. Collateral Estoppel

{¶16} The doctrine of res judicata consists of two branches: (1) “claim 

preclusion,” also known as “estoppel by judgment,” and (2) “issue preclusion,” also 

known as “collateral estoppel.” Chibinda v. Depositors Ins., 12th Dist. Butler No. 

CA2012-04-073, 2013-Ohio-526, ¶ 34. Claim preclusion or estoppel by judgment bars 
the relitigation of the same cause of action between the same parties. Id. Issue 

preclusion or collateral estoppel precludes a party from relitigating issues of fact or law 

that have been actually and necessarily litigated and determined in a different cause of 

action. Id.

{¶17} Offensive use of collateral estoppel occurs when the plaintiff seeks to 

prevent the defendant from relitigating a fact or issue that the defendant has previously 

litigated unsuccessfully in another action. Id., citing Providence Manor Homeowners 

Assn., Inc. v. Rogers, 12th Dist. Butler No. CA2011-10-189, 2012-Ohio-3532, ¶ 40. 

Defensive use of collateral estoppel occurs when the defendant seeks to prevent the 

plaintiff from relitigating a fact or issue that the plaintiff has previously litigated 

unsuccessfully in another action. Id. 

{¶18} To successfully assert collateral estoppel, a party must show that (1) the fact 

or issue in question was passed upon and determined by a court of competent jurisdiction, 

(2) there was a final judgment on the merits in the previous case after a full and fair 

opportunity to litigate the fact or issue in question, (3) the fact or issue in question was 

either admitted or actually tried and decided and was necessary to the final judgment, (4) 

the fact or issue in question is identical to the fact or issue involved in the prior suit, and 

(5) there is a “mutuality of parties.” See Rogers at ¶ 43. Mutuality of parties exists 

when all parties or their privies to the present proceedings were bound by the prior 

judgment. Therefore, in order to preclude either party from relitigating an issue, a 
judgment must be preclusive upon both. Goodson v. McDonough Power Equip., Inc., 2 

Ohio St.3d 193, 195-196, 443 N.E.2d 978 (1983). 

{¶19} However, relevant to the case at hand, the Ohio Supreme Court indicated in 

Goodson that the mutuality requirement could be relaxed “where justice would 

reasonably require it.” Id. at 199. A number of appellate courts, relying on language in 

Goodson, have relaxed the mutuality requirement and allowed the nonmutual defensive 

use of collateral estoppel when a party against whom the doctrine is asserted previously 

had his day in court and was permitted to fully litigate the “specific issue” sought to be 

raised in the later action. Rogers at ¶ 40, citing Hoover v. Transcontinental Ins. Co., 2d 

Dist. Greene No. 2003-CA-46, 2004-Ohio-72, ¶ 17; Frank v. Simon, 6th Dist. Lucas No. 

L-06-1185, 2007-Ohio-1324, ¶ 12; Michell v. Internatl. Flavors & Fragrances, Inc., 179 

Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37 (1st Dist.); see also Michaels Bldg. 

Co. v. Akron, 9th Dist. Summit No. 13061, 1987 Ohio App. LEXIS 9881, *9 (Nov. 25, 

1987) (“[N]onmutuality of parties has been acceptable where it is shown that the party 

seeking to avoid collateral estoppel clearly had his day in court on the specific issue 

brought into litigation within the later proceeding”). 

{¶20} In the instant case, the trial court applied the doctrine of defensive collateral 

estoppel and determined that, although National Union and CBR were not parties to the 

litigation in Washington, appellant was “estopped from claiming that defendants treated 

him in bad faith or breached their contract by denying disability payments under his 
employer’s policy for an occupational injury arising out of the same occurrence.” We 

agree. 

{¶21} Here, appellant brought causes of action for breach of contract, bad faith, 

and civil conspiracy against National Union and CBR, alleging that defendants 

improperly terminated his insurance benefits under the Policy. In support of his claims, 

appellant contends that he is entitled to disability and medical benefits under the Policy 

based on the injuries he sustained as a result of the January 3, 2008 accident. 

{¶22} The Policy provides, in pertinent part: 

Temporary Total Disability Benefit

If Injury to the Insured Person results in Temporary Total Disability 

* * * the Company [National Union] will pay the Temporary Total 

Disability Benefit specified below * * * the Temporary Total Disability 

Benefit shall be payable, retroactively, from the date that disability began, 

provided the Insured Person remains Temporarily Totally Disabled. 

* * * 

Continuous Total Disability Benefit

If Injury to the Insured Person, resulting in Temporary Total 

Disability, subsequently results in Continuous Total Disability, the 

Company will pay the Continuous Total Disability specified below * * *. 

* * * 

Accident Medical Expense Benefit

If an Insured Person suffers an Injury that requires him or her to be 

treated by a physician * * * the Company will pay the Usual and Customary 

Charges incurred for Medically Necessary Covered Accident Medical 

Services received due to that Injury * * *. 
{¶23} Relevant to the arguments raised herein, the term “injury” is defined in the 

Policy as “bodily injury to an Insured Person caused by an Occupational accident while 

coverage is in force under this Policy * * * .” (Emphasis added.) “Occupational” means 

“that activity, accident, incident, circumstance or condition [that] occurs or arises out of 

or in the course of the Insured performing services within the course and scope of 

contractual obligations for the Policyholder, while under Dispatch.” 

{¶24} Thus, in order to receive disability and medical benefits, the clear and 

unambiguous language of the Policy requires appellant to have suffered an injury caused 

by an occupational accident. Accordingly, the “specific issue” in dispute in this case is 

whether the January 3, 2008 occupational accident caused the injuries that appellant 

argues entitle him to benefits under the Policy. 

{¶25} After a careful review of the record, we find that the issue of causation has 

already been determined by a court of competent jurisdiction. In his 2011 personal 

injury lawsuit in the Superior Court of King County, Washington, appellant alleged that 

he suffered injuries and damages proximately caused by the negligence of Timothy Coy. 

However, the jury returned a verdict finding that appellant’s alleged injuries were not 

proximately caused by the accident. Based on the jury’s resolution of causation in his 

personal injury suit, appellant cannot now relitigate the issue of whether his injuries were 

caused by the accident, a finding that is necessary for entitlement to benefits under the 

Policy. 
{¶26} While National Union and CBR were not parties to the Washington 

litigation, the issue of causation was “actually and directly litigated” in a court of 

competent jurisdiction, and appellant had the opportunity to fully litigate the issue while 

represented by competent counsel. Because the requirements for defensive collateral 

estoppel have been satisfied, the trial court correctly determined that National Union and 

CBR were entitled to judgment as a matter of law on appellant’s claims that they acted in 

bad faith and breached the contract by denying coverage under the Policy. 

{¶27} For these same reasons, defendants were entitled to judgment as a matter of 

law on appellant’s civil conspiracy claim. Generally, “[a] claim for conspiracy cannot be 

made [the] subject of a civil action unless something is done which, in the absence of the 

conspiracy allegations, would give rise to an independent cause of action.” Ford Motor 

Credit Co. v. Jones, 8th Dist. Cuyahoga No. 92428, 2009-Ohio-3298, ¶ 24. Because we 

have already held that appellant’s bad faith and breach of contract claims are barred by 

the doctrine of collateral estoppel, we find that the trial court properly determined that 

there was no longer an independent cause of action to which the conspiracy claim could 

be coupled. Therefore, appellant’s civil conspiracy claim fails as a matter of law. 

III. Conclusion

{¶28} Based on the foregoing, the trial court did not err in granting summary 

judgment in favor of National Union and CBR. Appellant’s first and third assignments 

of error are overruled. We further find that, because our resolution of appellant’s first 
and third assignments of error are dispositive, appellant’s remaining assignments of error 

and CBR’s cross-assignments of error are moot. 

{¶29} Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

TIM McCORMACK, JUDGE 

MARY J. BOYLE, A.J., CONCURS; 

KENNETH A. ROCCO, J., DISSENTS WITH SEPARATE OPINION 

KENNETH A. ROCCO, J., DISSENTING:

{¶30} I disagree with the majority’s determination that Agic is collaterally 

estopped from bringing the instant lawsuit. According to the majority, the jury’s special 

verdict form establishes that the issue in the instant case was actually and directly litigated 

in the Washington state case. The issue in the instant case is whether Agic sustained an 

injury in the accident. The special verdict form in the Washington case read, “was 

[Defendant’s] fault the proximate cause of the injury to * * * Agic?” The jury answered 
“no.” In my view, this does not conclusively establish that Agic did not sustain an injury 

in that accident. 

{¶31} While it is true that the Policy covers only those injuries “caused by an 

occupational accident,” the special verdict form in the Washington case merely 

established that one of the defendants in that lawsuit was not the proximate cause of 

Agic’s injury. Washington courts “recognize[] two elements of causation: cause in fact 

(sometimes called “actual” or “but for” cause); and legal cause (sometimes called 

“proximate” cause).” (Citations omitted.) State v. Bauer, 180 Wn.2d 929, 329 P.3d 67 

(2014), ¶ 13, fn. 5. Unlike other jurisdictions, Washington refers to both elements 

together as “proximate cause.” Id. While “cause in fact” refers to “the physical 

connection between an act and an injury,” whether a defendant is the “legal cause” of an 

injury “depends on mixed considerations of logic, common sense, justice, policy, and 

precedent.” (Internal citations omitted.) Id. at ¶ 14. 

{¶32} Given the multitude of considerations that go into determining proximate 

cause, we cannot know why the jury determined that one of the defendants was not the 

proximate cause of Agic’s injuries. But it is certainly possible that the jury could find 

that Agic was injured in the accident and also find that this one defendant was not the 

proximate cause of Agic’s injury. Further muddying the waters is the fact that the 

accident involved multiple vehicles, but the special verdict form pertains only to one 

driver. 
{¶33} Because the jury was not called upon to determine whether Agic was injured 

in the accident, that issue was not actually and directly litigated in the previous case. 

Because injury is the pivotal issue in the instant case, I would hold that collateral estoppel 

does not bar Agic from bringing his claims. I would, therefore, sustain the third 

assignment of error and would go on to reach the remaining assignments of error. For 

the aforementioned reasons, I respectfully dissent.