Hartman v. Erie Ins. Co., 2017 Ohio 668

Background

Chad and Erin Hartman sued Erie Insurance after two basement-flooding events in May and June 2015; Erie paid $11,500 for the first claim but denied the second.
The policy contained water-damage exclusions including: surface/flood water, sewer/drain backup (except if endorsement purchased), and subsurface/hydrostatic pressure; it also had an anti-concurrent-causation clause barring coverage if excluded and covered causes combined.
The Hartmans purchased a paid endorsement titled “Coverage for Loss Caused by Water Back Up Through Sewers or Drains.” They claimed Erie represented this endorsement was not subject to other policy exclusions and sought coverage for the second loss and for fungi/mold testing/remediation.
Erie moved for summary judgment, submitting affidavits from its adjusters and a forensic architect (Bostwick) who inspected the property and opined the second loss was caused partly by surface water entering through windows and hydrostatic pressure; he found no证clusive evidence of mold from the first loss.
The trial court struck the Hartmans’ initial unsworn federal-style declarations as not complying with Civ.R. 56(E), declined to consider a later untimely notarized affidavit, and granted Erie summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were Hartman’s 28 U.S.C. §1746-style declarations admissible under Civ.R.56(E)?	Hartman: declarations complied and supported his motion; later notarized affidavit corroborated them.	Erie: federal declaration form inapplicable in Ohio; affidavit was untimely.	Declarations invalid in Ohio; untimely affidavit not considered — no abuse of discretion.
Does the sewer/drain backup endorsement override other water exclusions or the anti-concurrent-causation clause?	Hartman: endorsement broadens coverage and should control conflicts; it should provide stand-alone coverage for backup losses.	Erie: endorsement only modifies exclusion 9.b.; policy read as whole; anti-concurrent causation bars coverage when excluded causes (surface/subsurface) also contributed.	Endorsement only covers losses from backup alone (as to 9.b.); it does not eliminate other exclusions or the anti-concurrent clause; summary judgment for Erie.
Is Hartman entitled to fungi/mold testing/remediation coverage for the first claim?	Hartman: testing/remediation coverage triggered because first loss was covered and there was reason to suspect mold.	Erie: no evidence mold was present or suspected after restoration; paid remediation steps and no records showing mold.	Coverage for testing/remediation requires a reason to believe fungi present; record lacks such evidence — no coverage.
Was Bostwick qualified and was his expert opinion admissible for summary judgment?	Hartman: Bostwick lacked microbiology foundation, did not test for mold, opinions speculative.	Erie: Bostwick has extensive forensic building/mold evaluation experience; opinions based on inspection, records, and methods within his expertise.	Trial court did not abuse discretion qualifying Bostwick; his opinions were sufficiently founded and reliable for summary judgment.

Key Cases Cited

Doe v. Shaffer, 90 Ohio St.3d 388 (summary judgment de novo standard)
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (summary judgment principles)
Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64 (summary judgment burden and construing evidence)
Ward v. United Foundries, Inc., 129 Ohio St.3d 292 (endorsements read with policy as whole)
Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107 (enforce unambiguous policy language)
Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657 (interpret exclusions narrowly)
Front Row Theatre, Inc. v. Am. Mfrs. Mut. Ins. Cos., 18 F.3d 1343 (effect of anti-concurrent causation when rain contributes to damage)
Myers v. Encompass Indemn. Co., 863 N.E.2d 1083 (distinguished — endorsement language there altered policy exclusions)