Zinser v. Auto-Owners Ins. Co.
2017 Ohio 5668
| Ohio Ct. App. | 2017Background
- Joseph Zinser owned/used a commercial building in Fairfield, Ohio and had Auto‑Owners policies for 2013–14 and 2015–16.
- Claim 1 (Oct. 2013): Zinser reported three used central AC units stolen from behind the building; units had ground wire attached but were not fully installed. Auto‑Owners denied coverage, citing policy limits for unattached building materials and lack of physical evidence.
- Claim 2 (Feb. 2015): Wind damaged siding/roof; Auto‑Owners inspected, paid $6,579.94 and offered additional recoverable depreciation if repairs were made and invoiced; Zinser cashed the check but did not make repairs or invoke appraisal.
- Zinser sued for declaratory relief; trial court granted summary judgment to insurer on both claims.
- The court of appeals reversed summary judgment as to the AC units (finding factual disputes about whether units were "permanently installed" and whether there was physical evidence of theft) and affirmed summary judgment as to the wind claim (finding no basis to require full siding replacement and that Zinser waived remedies by cashing payment and not using policy dispute procedures).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the three AC units were "covered property" (permanently installed fixtures/machinery/equipment) under the policy | Zinser: ground wire attachment and intent to install later make units permanently installed/covered | Auto‑Owners: units were inoperable, merely stored; ground wire is insufficient to show permanent attachment | Reversed: genuine factual dispute exists about intent/attachment; question for trier of fact |
| Whether policy limitation C.1.d (building materials not attached) or C.1.e (missing property absent physical evidence) bar the theft claim | Zinser: units are machinery/equipment, not building materials; he supplied photos of cut ground wire and tire tracks as physical evidence | Auto‑Owners: units fall within limitations; insufficient physical evidence of theft or attachment | Reversed: factual disputes over attachment and physical evidence preclude summary judgment |
| Whether Zinser had a financial interest in the AC units | Zinser: acquired units by barter, which still gives him a financial interest | Auto‑Owners: implied challenge to ownership/interest | Reversed: barter acquisition still creates a financial interest in the property |
| Whether insurer improperly underpaid for wind damage and whether Zinser can compel full siding replacement | Zinser: replacing one side will mismatch color; Ohio Admin. Code requires replacement to achieve reasonably comparable appearance (he seeks full replacement) | Auto‑Owners: replacement of damaged portion meets code; appraisal and policy procedures available; Zinser cashed payment and did not use dispute remedies | Affirmed: no evidence that partial repair will fail to achieve reasonably comparable appearance; Zinser waived additional recovery by cashing payment and not invoking appraisal or completing repairs |
Key Cases Cited
- Motorists Mut. Ins. Co. v. Trainor, 33 Ohio St.2d 41 (1973) (insurer may reserve coverage defenses; courts review all policy provisions)
- Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657 (1992) (insurance policy interpreted as contract; give effect to parties' intent)
- Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003) (examine policy as whole; plain meaning controls)
- Travelers Indemn. Co. v. Reddick, 37 Ohio St.2d 119 (1974) (plain and ordinary meaning governs policy terms)
- Holland Furnace Co. v. Trumball Sav. & Loan Co., 135 Ohio St. 48 (1939) (three‑part test for chattel becoming a fixture: attachment, adaptation, intent)
- Wright v. State Farm Fire & Cas. Co., [citation="555 F. App'x 575"] (6th Cir. 2014) (interpretation of Ohio Admin. Code requirement for "reasonably comparable appearance" does not automatically require full replacement absent special evidence)
- Glidden Co. v. Lumbermens Cas. Ins. Co., 112 Ohio St.3d 470 (2006) (waiver requires voluntary relinquishment of a known right)
- White Co. v. Canton Transp. Co., 131 Ohio St. 190 (1935) (waiver may be by conduct)