2011 Ohio 3385
Ohio Ct. App.2011Background
- Ferrell owned 2934 East Boulevard, insured by Nationwide Mutual Fire Insurance; she did not live there and rented to her brother Thompson.
- Thompson paid Ferrell $500/mo and could do with the house as he wished, including subleasing.
- In 2006 Thompson subleased to Roberts; gas service was transferred to Roberts; Roberts agreed to pay $675/mo rent.
- Roberts failed to pay rent; January 2007 they executed a notarized document stating Roberts owed Thompson and vacate by Jan. 17, with Thompson retaining right to remove Roberts’ belongings.
- Roberts requested gas shutoff; lines of communication were strained; February 20, 2007, burst pipes caused damage after Roberts allegedly remained on the premises.
- Ferrell made a claim with Nationwide; Nationwide denied the claim and subsequently Ferrell and Thompson filed suit in 2009 seeking breach of contract and bad-faith duties; Roberts was not served.
- Nationwide moved for summary judgment; the trial court granted summary judgment on multiple grounds, including agency attribution to Thompson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thompson is Ferrell's agent for insurance purposes | Ferrell/Thompson contend no agency; Thompson a tenant, not an agent. | Nationwide argues Thompson was Ferrell’s agent for purposes of coverage. | Agency established; Thompson deemed Ferrell’s agent. |
| Whether Ferrell and Thompson used reasonable care to protect the property | Ferrell did not participate in property maintenance; Thompson asserts efforts as manager. | Court should hold failure to maintain applicable regardless of ownership. | Both failed to exercise reasonable care; supported by record. |
| Whether summary judgment was proper against the insureds based on policy language and agency | Ambiguity in agency and coverage should preclude summary judgment. | Unambiguous policy terms; agency established; Thompson lacks independent standing; no triable issue. | Summary judgment proper in favor of Nationwide on grounds including agency and lack of standing. |
Key Cases Cited
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (Ohio 1998) (sets summary judgment standard under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (Dresher allocates burden and standard for summary judgment)
- Ross v. Burgan, 163 Ohio St. 211 (Ohio 1955) (agency determined by right of control)
- T Tanksy Sawmill Toyota, Inc., 95 Ohio App.3d 164 (Ohio App. 1994) (agency and liability context in landlord-tenant relations)
- Trimble-Weber v. Weber, 119 Ohio App.3d 402 (Ohio App. 1997) (formation of agency relationship may be express or implied)