Auckerman v. RogersAuckerman v. Rogers
Case Information
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[Cite as
Auckerman v. Rogers
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
VIRGINIA AUCKERMAN :
: Appellate Case No. 2011-CA-23 Plaintiff-Appellant :
: Trial Court Case No. 10-CV-903 v. :
: STEVE ROGERS : (Civil Appeal from
: (Common Pleas Court) Defendant-Appellee :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 6 th day of January, 2012.
. . . . . . . . . . .
LAWRENCE J. WHITE, Atty. Reg. #0062363, 2533 Far Hills Avenue, 2 nd Floor, Dayton, Ohio 45419
Attorney for Plaintiff-Appellant BRANDON M. ALLEN, Atty. Reg. #0079164, and PAUL B. RODERER, JR., Atty. Reg. #0063936, Roderer Law Office, L.L.C., 4 East Schantz Avenue, Post Office Box 897, Dayton, Ohio 45409-0897
Attorneys for Defendant-Appellee
. . . . . . . . . . . . .
HALL, J.
Virginia Auckerman appeals from the trial court’s
her tort complaint against appellee Steve Rogers, her insurance agent. Auckerman advances two assignments of error on appeal. First, she contends the
trial court erred in holding that a negligent-procurement claim against Rogers, based on his failure to provide her with UM/UIM (uninsured motorist/underinsured motorist) insurance, was barred by the applicable statute of limitations. Second, she contends the trial court erred in dismissing a promissory-estoppel claim on the basis that it was mislabeled as a “detrimental reliance” claim. The record reflects that Auckerman filed a four-count complaint against Rogers
on August 19, 2010. Count one alleged “errors and omissions.” Count two alleged “breach of
fiduciary duty.” Count three alleged “negligence.” Count four alleged “detrimental reliance.”
Each count was predicated on Rogers’ failure to provide her with UM/UIM insurance despite her
request for “full coverage” on her automobiles. The complaint further alleged that a tortfeasor
struck Auckerman’s vehicle on February 28, 2008, causing her to suffer damages of $37,500.
Because the negligent driver only had insurance coverage of $12,500, Auckerman alleged that
she had suffered an uncompensated loss of $25,000. She sought to recover that amount from
Rogers based on the theories set forth above.
Rogers moved to dismiss the complaint under
counts one through three as essentially alleging the same thing, professional negligence. He
argued that the statute of limitations for professional negligence was four years under
contended that it too was time barred by the same four-year statute of limitations. Finally, Rogers
asserted that counts one, two, and four were subject to dismissal under
{¶ 6}
In opposition to Rogers’ motion, Auckerman cited
Kunz v. Buckeye Union Ins.
Co.
(1982),
counts one, two, and four of the complaint failed to state recognized causes of action. With regard to count three, which alleged “negligence,” the trial court relied largely on Investors REIT One and held that the four-year statute of limitations expired on June 6, 2009, four years after Auckerman obtained her insurance policy. This appeal followed. In her first assignment of error, Auckerman contends the trial court erred in
finding that the statute of limitations began to run on her negligence claim when she obtained the
insurance policy that lacked UM/UIM coverage. Auckerman argues that the statute of limitations
did not begin to run until the date of her traffic accident.
We review a decision sustaining a
Adult Parole Auth
., Champaign App. No. 2009 CA 22,
the statute-of-limitations issue in the context of a
agent to cover their business equipment. After suffering an uncovered loss, the plaintiffs sued the
agent for negligently failing to provide requested coverage. The agent moved for summary
judgment, arguing that the four-year statute of limitations in
sounded in tort and that the applicable limitations period was found in
“discovery rule” or “delayed-damages rule” to claims of professional negligence governed by
529,
statute of limitations was the four-year period in
in . Id. at ¶20. It then explicitly rejected application of the delayed-damages rule in cases
involving professional negligence governed by
implicitly overruled
Kunz
with regard to application of the delayed-damages rule in cases of
professional negligence governed by
we see no principled reason why an insurance agent’s professional negligence should be treated differently. Therefore, relying on Flagstar (and Investors REIT One ), we hold that the statute of limitations began to run on Auckerman’s negligent-procurement claim when she obtained her insurance policy. Because she filed her negligent-procurement claim against Rogers more than four years after that date, the trial court properly dismissed the claim as time barred.
{¶ 19}
Finally, we note that Auckerman could have complied with the statute of
limitations even though it began to run when she obtained her insurance policy. According to
Auckerman’s complaint, she obtained the policy on June 6, 2005 and had the automobile
accident on February 28, 2008. Applying our analysis herein, the statute of limitations did not
expire until June 6, 2009. Therefore, she still had more than fifteen months after the accident to
file a timely negligent-procurement claim against Rogers. Her failure to do so rendered the claim
subject to
{¶ 20} In her second assignment of error, Auckerman contends the trial court erred in dismissing a promissory estoppel claim on the basis that it was mislabeled as a “detrimental reliance” claim.
{¶ 21} In pertinent part, Auckerman’s complaint alleged:
{¶ 22} “ COUNT FOUR: Detrimental Reliance
{¶ 23} “26. Plaintiff incorporates paragraphs one (1) through twenty-five (25) as if fully rewritten herein. “27. This is an action under Ohio law for Detrimental Reliance. “28. Defendant is an insurance agent, had necessary knowledge, information, skill
and expertise to advise Plaintiff on the contents of her insurance policy. Plaintiff relied on the skill, experience and expertise of her agent/Defendant. Plaintiff bought what she thought was good ‘Full Coverage.’ Defendant never explained the lack of UN/UIM Coverage to Plaintiff. “29. Based on her agent’s actions, Plaintiff’s reliance on the belief that ‘Full Coverage’ included UN/UIM Coverage was reasonable.
{¶ 27} “30. Plaintiff’s detrimental reliance was the proximate cause of Plaintiff’s damages.” (Doc. #1).
{¶ 28} The trial court dismissed the foregoing count for failure to state a claim. It opined that Ohio law “does not recognize a cause of action for detrimental reliance.” The trial court reasoned that “[d]etrimental reliance, which arises as an element of several causes of action that exist in equity to enforce contracts that are in violation of the statute of frauds, is not itself a cause of action.” On appeal, Auckerman contends the trial court either should have construed count
four as alleging promissory estoppel or should have allowed her to amend her complaint to plead a proper promissory-estoppel claim. Auckerman also notes that Rogers had filed a motion to dismiss but had not yet filed a “responsive pleading.” Therefore, she points out that she did not need leave of court to amend her complaint. Upon review, we decline to reverse the trial court’s dismissal of Auckerman’s
“detrimental reliance” claim. Prior to the trial court’s ruling, Rogers correctly argued, in his
motion to dismiss, that “detrimental reliance” is not a viable cause of action in Ohio. See
Carpenter v. Scherer-Mountain Ins. Agency
(1999),
four liberally as a promissory estoppel claim, its failure to do so does not require reversal. In
addition to its defective wording, count four was time-barred under
of action was the same. Each claim rested on allegations that Rogers had failed to provide UM/UIM insurance despite her request for “full coverage.” Auckerman’s “detrimental reliance” claim itself never identified any “promise” allegedly made by Rogers. Rather, as her other claims did, it alleged that he had neglected to provide UM/UIM insurance and that she reasonably had relied on his experience and expertise. This Court has recognized that “[t]he applicable statute of limitations is
determined from the gist of the complaint, not by the form of the pleading.”
Gullatte v. Rion
(2000), 145 Ohio App.3d 620, 626 (citations omitted). In
Gullatte
, we concluded that when
fraudulent conduct is integral to a malpractice claim, a fraud claim is subject to the shorter statute
of limitations governing the malpractice claim. This approach prevents a party from extending a
statute of limitations through artful pleading. Id. at 625-626; see, also,
Leski v. Ricotta
, Cuyahoga
App. No. 83600,
. . . . . . . . . . . . .
FAIN, J., concurring:
I agree that affirmance of the judgment of the trial court is required by
Flagstar
Bank v. Airline Union’s Mortgage Co.
,
Negligence, as we shall see, is simply one kind of conduct. But a cause of action founded upon negligence, from which liability will follow, requires more than conduct. The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:
1. A duty, or obligation, * * *
2. A failure on the person’s part to conform to the standard required: a breach of the duty. * * *
3. A reasonably close causal connection between the conduct and the resulting injury. * * *
4. Actual loss or damage resulting to the interests of another. Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff’s case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.
{¶ 36} It follows that the statute of limitations is generally held not to begin to run against a negligence action until some damage has occurred.
{¶ 37} Prosser and Keeton on Torts, Fifth Edition, West Publishing Co., 1984, p. 164-165, Negligence: Standards of Conduct, §30 Elements of Cause of Action. (Footnotes omitted.) But the law of Ohio appears to be otherwise; statutes of limitations are really
statutes of repose. In Ohio, a tort can be born, grow old, and die, before producing an injury that would send a reasonable person to the courthouse in search of a remedy.
. . . . . . . . . . . . .
GRADY, P.J., dissenting:
I respectfully dissent.
Flagstar Bank v. Airline Union’s Mortgage Company
, 128 Ohio St.3d 529, 947
N.E.2d 672,
{¶ 41} In rendering its decision, the Supreme Court noted its holding in Kunz v. Buckeye Union Insurance Co. (1982), 1 Ohio St.3d 79, 437 N.E. 2d 1194, which applied the “delayed damages” rule to a case involving facts similar to those in the present case. held that “[t]he statute of limitations as to torts does not usually begin to run until the tort is complete. A tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff.” Id . at 81. The Supreme Court, quoting Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 379, 433 N.E.2d 147, explained that “[u]nder the delayed-damages rule, ‘where the wrongful conduct complained of is not presently harmful, the cause of action does not accrue until actual damage occurs.’” Id . at ¶19. A tort is a “civil wrong for which a remedy may be obtained, usually in the form
of damages; a breach of a duty that the law imposes on everyone in the same relation to one
another as those involved in a given transaction.” Black’s Law Dictionary (7 th Ed.).
Defendant Rogers’ failure to deliver to Plaintiff Auckerman an automobile
liability insurance policy providing UM/UIM coverage which Auckerman allegedly requested
could be a breach of the contract between them, in that respect, because it denied Auckerman the
benefit of her bargain. Such a breach arises from the private rights the contract between the
parties conferred. However, Rogers’ alleged failure is not tortious conduct, in and of itself,
because it breached no duty the law imposed on him. In other words, the alleged failure
constituted no “civil wrong.” It did not become the wrongful conduct a tort involves until
Auckerman was harmed as a result. Auckerman alleges that she suffered such harm when she
was struck by an uninsured motorist and lacked the coverage for her injuries and losses that
UM/UIM coverage provides.
While the decision in
Flagstar Bank
appears to apply to all applications of
{¶ 45} In Flagstar Bank , the Supreme Court compared the discovery rule to the delayed damages rule, observing that both “relate to when a cause of action accrues.” Id . at ¶25. With all due respect, that is incorrect.
{¶ 46} A cause of action in tort accrues when the wrongful conduct occurs. The discovery rule doesn’t alter that fact. The discovery rule instead tolls the statute of limitations for the action when the plaintiff is unaware of defendant’s wrong, until such time as the plaintiff discovers or reasonably should have discovered that the wrongful conduct was the proximate cause of injuries and losses the plaintiff suffered. The delayed damages rule does alter when a cause of action in tort accrues,
because the tort is incomplete until the plaintiff suffers some actual damage proximately resulting from the defendant’s wrongful conduct. Until then, the “cause,” the wrongful conduct, is not actionable, conferring no more than an inchoate right. The right of action is perfected only after some resulting harm has occurred. If, on the facts of the present case, the discovery rule is applied, Auckerman
reasonably should have known of Rogers’ breach of their agreement when Rogers delivered or caused to be delivered to Auckerman a policy that did not contain UM/UIM coverage. However, that was no more than a breach of their private agreement, not a civil wrong arising from a breach of a duty the law imposes. Rogers’ alleged failure became actionable in tort only when Auckerman suffered
some actual damage as a result of Rogers’ alleged failure, on the several claims for relief that Auckerman’s complaint alleges. That occurred when Auckerman was involved in an accident caused by a negligent driver and as a result suffered monetary losses. Flagstar Bank’s confusion or conflation of the discovery rule and the delayed damages rule, if applied, would deny Auckerman the right of action against Rogers to which the law then entitles her. I would reverse and remand.
. . . . . . . . . . . . .
Copies mailed to:
Lawrence J. White
Brandon M. Allen
Paul B. Roderer, Jr.
Hon. Stephen Wolaver
Notes
[1] On its face, Auckerman’s complaint states that she obtained the insurance policy at issue on June 6, 2005, and that her traffic accident occurred on February 28, 2008. The only issue is which date triggered the applicable statute of limitations.
[2] The discovery rule in
[3] See, e.g., Porterfield v. Bank One Ohio Trust Co. (Sept. 9, 1997), Franklin App. No. 97APE05-602, at n.2 (noting that “[a] claim arising out of an oral promise is subject toR.C. 2305.07 's six-year statute of limitations regardless of whether the claim is one for breach of contract or promissory estoppel”).