ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 8) AND DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 9)
This civil action is before the Court on the parties’ cross motions for partial summary judgment (Docs. 8, 9) and responsive memoranda (Docs. 14,15,16,17).
I. BACKGROUND FACTS
Plaintiffs Michael R. Schmidt (“Schmidt”) and Cohen, Todd, Kite & Stanford LLC (“CTKS”) allege that Defendant Travelers Indemnity Company of America (“Travelers”) breached the parties’ contract and acted in bad faith when it refused to indemnify Plaintiff CTKS pursuant to an insurance policy. (See Doc. 1 at ¶¶ 34-39, 42-47). In addition to damages and attorney’s fees, Plaintiffs seek a declaration that the loss is a covered loss under the policy and, therefore, Defendant owes Plaintiff CTKS a duty of indemnification. (See id. at ¶¶ 40-41).
Plaintiffs and Defendant filed cross-motions for partial summary judgment.
II. UNDISPUTED FACTS
A. In Support of Plaintiffs’ Motion for Partial Summary Judgment
1. CTKS paid insurance premiums to Travelers in exchange for which Travelers provided business owners insurance coverage to CTKS under Policy No. 1-680-9A246743-TIA-11 (“Policy”). (Doc. 9-1 at 2, ¶ 1; Doc. 1-3 at 2-3).
2. As a result of CTKS’s payment of the insurance premiums when due, the Policy was in effect from December 14, 2011 through December 14, 2012. (Doc. 9-1 at 2-3, ¶ 2; Doc. 1-3 at 2-3).
3. The Policy contains a “Computer Fraud” provision stating that insurance may be extended “to apply to loss of or damage to Business Personal Property rеsulting directly from the use of any computer to fraudulently cause a transfer of that property from inside the building at the described premises or ‘banking premises’: (a) To a person outside those premises; or (b) To a place outside those premises.” (Doc. 9-1 at 6, ¶ 13; see also Doc. 1-4 at 26).
4. On February 21, 2012, while the Policy was in effect, Schmidt received an email on his CTKS computer requesting legal representation from a person purporting to be Erick Carpenter, supposedly a resident of Japan. (Doc. 9-1 at 4, 6, ¶¶ 3, 14; see also at Doc. 9-2 at ¶¶ 2-3, 28).
5. On February 27, 2012, Plaintiffs and the person purporting to be Erick Carpenter entered into a retention agreement via electronic mail, whereby Plaintiffs undertook to represent the purported Erick Carpenter with respect tо his claims against North American Iron and Steel Company (“North American”), in exchange for a 25 percent contingent fee. (Doc. 9-2 . at ¶¶ 6, 28; Doc. 9-1 at 4, 7, ¶¶ 4, 15; see also Doc. 1-1 at 2-5).
6. The person purporting to be Erick Carpenter then provided Schmidt with additional details regarding his purported claim against North American via electronic mail. (Doc. 9-2 at ¶¶ 5, 28; see also Doc. 9-1 at 7, ¶ 16).
7. After entering into the retention agreement, Schmidt drafted a demand letter to North American and forwarded the draft to the person purporting to be Erick Carpenter through the use of a computer. (Doc. 9-2 at ¶¶ 7-8, 28; see also Doc. 9-1 at 7, ¶¶ 17-18).
8. In response to Schmidt’s email, the purported Erick Carpenter sent his approval of the draft letter to Schmidt via electronic mail. (Doc. 9-2 at ¶¶ 9, 28; see also Doc. 9-1 at 8, If 19).
9. On February 29, 2012, Schmidt sent a letter to North Amеrican via electronic mail using his CTKS computer. (Doc. 9-2 at ¶¶ 10, 28; see also Doc. 9-1 at 4, 8, ¶¶ 4, 20).
10. The letter, which was sent to an email address that the purported Erick Carpenter had provided, demanded payment of $378,000 to Schmidt as counsel for Carpenter. (Doc. 9-2 at¶¶ 10, 28; see also Doc.' 9-1 at 4, 8, ¶¶ 4, 20).
1Í. Also on February 29, 2012, a person purporting to be Edgar Marshall, on behalf of North American, responded to Schmidt’s demand letter, also via email. (Doc. 9-2 at ¶¶ 11, 28; see also Doc. 9-1 at 8, ¶ 21).
12. In the email to Schmidt, the purported Edgar Marshall offered that North American would pay the balance of the outstanding $378,000 supposedly owed to Erick Carpenter and would do so in two separate $189,000 payments. (Doc. 9-2 at ¶¶ 12, 28).
13. Schmidt conveyed that offer to the person purporting to Erick Carpenter via electronic mail using his computer. (Doc. 9-2. at ¶¶ 13, 28; see also Doc. 9-1 at 8, ¶ 22).
14. Via electronic mail, the person purporting to be Erick Carpenter sent his authorization to Schmidt to accept the offer made by Edgar Marshall. (Doc. 9-1 at 9, ¶ 23; see also Doc. 9-2 at ¶¶ 14, 28).
15. Via electronic mail and through the use of his computer, Schmidt conveyed to the person purporting to be Edgar Marshall that Erick Carpenter had accepted Marshall’s offer. (Doc. 9-1 at 9, ¶ 24; see also Doc. 9-2 at ¶¶ 15, 28).
16. Following these communications, all of which took place via electronic mail, CTKS received what purported to be a cashier’s check in the amount of $189,000 from North American on March 6, 2012. (Doc. 9-1 at 4-5, ¶ 6; see also Doc. 9-2 at ¶¶ 16, 28).
17. The person purporting to be Erick Carpenter, via electronic mail, transmitted instructions to Schmidt for wiring $141,750 ($189,000 minus CTKS’s 25 percent cоntingent fee) to Carpenter’s account in Japan. (Doc. 9-1 at 9, ¶ 25; see also Doc. 9-2 at ¶¶ 18, 28).
18. Plaintiffs deposited the purported $189,000 cashier’s check into CTKS’s IOLTA account. (Doc. 9-2 at ¶ 17).
19. On March 7, 2012, CTKS wired $141,750 to the Japanese bank account of the person purporting to be Erick Carpenter, as instructed. (Id. at ¶ 19).
20. Only after wiring the amount of $141,750 did Plaintiffs learn from their own bank that the cashier’s check they received from North American and then deposited was fraudulent. (Id. at ¶ 20).
21. A second cashier’s check for. $189,000 from North American, which Plaintiffs received on March 12, 2012, also was fraudulent. (Id.)
22. On March 14, 2012, more than a week after Plaintiffs wired the amount of $141,750 to the account of the person purporting to be Erick Carpenter and learned that the purported cashier’s checks from North American were fraudulent, the person purporting to be Erick Carpenter, via electronic mail, separately informed Schmidt that he would send a check for $141,750 to Schmidt. (Doc. 9-1 at 10, ¶ 26; see also Doc. 9-2 at ¶¶ 21, 28).
23. Plaintiffs have received no money ‘ back from the person or persons purporting to be Erick Carpenter or Edgar Marshall. (Doc. 9-2 at ¶ 22).
24. CTKS, through its Cincinnati insurance agent, Neace Lukens, filed a timely claim for its losses with Travelers in the amount of $141,750, asserting that its losses should be covered under the Policy. (Doc. 9-1 at 5, ¶ 8; see also Doc. 9-2 at ¶¶ 24, 26).
25. CTKS later submitted to Travelers additional information supporting its claim for insurance coverage. Travelers denied CTKS’s claim for coveragein letters dated April 17, 2012 and May 2, 2012. (Doc. 9-1 at 5, ¶ 10; see also Doc. 9-2 at ¶ 27).
26. In a January 7, 2013 letter, Travelers again denied CTKS’s claim for insurance coverage under the Policy. (Doc. 9-1 at 5, ¶ 9; see also Doc. 9-2 at ¶ 27).
B. In Support of Defendant’s Motion for Partial Summary Judgment
1. Plaintiffs Michael R. Schmidt (“Schmidt”) and Cohen, Todd, Kite & Stanford LLC (“CTKS”) seek indemnification from Defendant Travelers Indemnity Company of America (“Travelers”) for the loss CTKS sustained when Schmidt, acting on behalf of CTKS, wired $141,750 from CTKS’s IOLTA (trust) account at Chase Bank to Erick Carpenter’s bank account in Japan (“$141,750 Loss”). (Doc. 1 at ¶¶ 21-27, 33).5
2. Schmidt, a member of CTKS licensed to practice law in the State of Ohio, agreed on behalf of CTKS to represent Erick Carpenter relating to a purported breach of a settlement agreement between Carpenter and his former employer, North American Iron and Steel Company (“North American”). (Id. at ¶¶ 2, 9,12).
3. Schmidt drafted and emailed a letter to North American demanding that it pay the balance owed on the purported settlement agreement ($378,000), and a person purportedly acting on behalf of North America (Edgar Marshall) offered to make a payment of $378,000 to Carpenter in two installments of $189,000. (Id. at ¶¶ 13, 16, 17).
4. Schmidt emailed Erick Carpenter’s acceptance of Edgar Marshall’s offer, and on March 6, 2012 Schmidt received what appeared to be a cashier’s check in the amount of $189,000 from North American (“North American Check”). (Id. at ¶¶ 20,21).
5. Schmidt deposited the North American Check into CTKS’s IOLTA (trust) account at Chase Bank, deducted CTKS’s twenty-five percent contingent fee, and wired the balance of $141,750 to Erick Carpenter’s bank account in Japan, account no. 1017380 (“Wire Transfer”). (Id. at ¶¶ 22, 23).
6. After the Wire Transfer was complete, Chase Bank notified CTKS, and Schmidt learned, that the North American Check had been dishonored as fraudulent. (Id. at ¶ 24).
7. After Schmidt learned that the North American Check had been dishonored, Schmidt left Edgar Marshall telephone messages notifying North American that the North American Check was dishonored, and sent Erick Carpenter an email demanding that he return the $141,750 that Schmidt wired to Erick Carpenter’s bank account. (Id. at ¶¶ 25, 26).
8. Edgar Marshall did not respond to Schmidt’s telephone messages, and Erick Carpenter failed to return any of the $141,750 that Schmidt wired to Erick Carpenter’s bank account. (Id. at ¶¶ 25-27).
9. Travelers issued policy number I-680-9A246743-TIA-l 1 (“Policy”) to CTKS, an Ohio insured, in Ohio. (Id. at ¶ 5).
10. The Policy contains Common Policy Declarations, a Businessowners Property Coverage Special Form, and a Lawyers Endorsement. (See Doc. 8-2; see also Doc. 8-3 at 29-169). 6
11. In the introductory paragraphs of the Businessowners Property Coverage Special Form, it is stated that: “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations [CTKS]. The words ‘we’, ‘us’ and ‘our’ refer to the Company providing this insurance [Travelers].” (Doc. 8-2 at 2).
12. Paragraph A. of the “COVERAGE” of the Policy’s Businessowners Property Coverage Special Form states, “We [Travelers] will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss.” (Id.)
13. “Covered Property” is stated to be “the type of property described in this Paragraph A.I., and limited in Paragraph A.2., Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property.” (Id.)7
14. The “described premises” are CTKS’s law offices' at 250 E. 5th Street, Suite 1200, Cincinnati, Ohio. (Id. at 1).
15. The $141,750 Loss was to CTKS’s IOLTA (trust) account. (Doc. 1 at ¶23).8
16. Paragraph A. of the “COVERAGE” of the Businessowners Property Coverage Special Form requires “direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss”. (Doc. 8-2 at 2).9
17. “Covered Causes of Loss” is “DIRECT PHYSICAL LOSS unless the loss is ... b. Excluded in Paragraph B., Exclusions.” (Id. at 4-5).10
■ 18. The Lawyers Endorsement of the Policy “modifies insurance provided under the ... BUSINESSOWNERS PROPERTY COVERAGE SPECIAL FORM”. (Id. at 42).
19. The following Coverage Extension is added by the Lawyers Endorsement:
b. Computer Fraud
(1) When a Limit is shown in the Declarations for Business Personal Property at the described premises,you [CTKS] may extend that insurance to apply to loss of or damage to Business Personal Property resulting directly from the use of any computer to fraudulently cause a transfer of the property from the inside the building at the described premises or “banking premises”:
(a) To a person outside those premises; or
(b) To a place outside those premises.
(2) Paragraph B.2.o. does not apply to this Coverage Extension.
(3) The most we will pay under this Coverage Extension in any one occurrence is $10,000, regardless of the number of premises involved.
(Id. at 45).
20. Subsection 2. of Paragraph B., Exclusions, states that: “2. We [Travelers] will not pay for loss or damage caused by or resulting from any of the following: ... i. Voluntary parting with any property by you [CTKS] or anyone else to whom you have entrusted the property”, or “1. Default on any credit sale, loan, or similar transaction.” (Id. at 25-26).11
21. The Lawyers Endorsement does not provide that these exclusions, Paragraphs B.2.i. and B.2.I., are inapplicable to the Computer Fraud Coverage Extension. (Id.)12
III. STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett,
A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248,
IV. ANALYSIS
Plaintiffs invoke three policy provisions in support of their motion for summary judgment on the coverage issue: (1) the Computer Fraud coverage extension; (2) the Business Personal Property provision; and (3) the Business Income and Extra Expense provision.
The parties agree that Ohio law applies. (See Doc. 8-1 at 10-11).
If provisions are reasonably susceptible of more than one meaning, they “will be construed strictly against the insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co.,
“A liability insurer’s obligation to its insured arises only if the claim falls within the scope of coverage.” Cincinnati Indem. Co. v. Martin,
A. Claimed Losses
Plaintiffs claim to have suffered three distinct covered losses, each of which must be analyzed separately: (1) loss because the cashier’s checks they received from North American were fraudulent (“First
The Court finds that Plaintiffs’ claimed losses are supported by the undisputed facts.
B. Exclusions
Defendant claims that Plaintiffs’ claimed losses are clearly and unambiguously excluded from coverage under the Policy. Because the Court finds that the “voluntary parting” exclusion clearly and unambiguously excludes Plaintiffs’ Second Loss, and thereby renders analysis of whether the Computer Fraud coverage extension applies to such’ a loss unnecessary, the Cоurt will address the exclusions first. The Businessowners Property Coverage Special Form states, in relevant part, as follows:
B. EXCLUSIONS
2. We will not pay for loss or damage caused by or resulting from any of the following:
i. Voluntary parting with any property by you or anyone else to whom you have entrusted the property.
1. Default on any credit sale, loan, or similar transaction.
(Doc. 8-2 at 23, 24-25).
1; Voluntary Parting Exclusion
Courts that have considered exclusions similar to the instant “voluntary parting” exclusion have found that these exclusions are conspicuous, plain, and clear. For example, in Martin, Shudt, Wallace, DiLorenzo & Johnson v. Travelers Indent. Co. of Conn., No. 1:13-cv-0498,
The court in Martin held that the “voluntary parting” exclusion applied, despite the fact that the insured was tricked into directing the wire transfer. Martin,
Plaintiffs argue that the presence of fraud vitiated their ability to voluntarily part with the funds wired. In support of their contention, they cite to Ohio case law establishing that a payment induced by fraud is not treated as a voluntary payment.
2. Default Exclusion
Defendant summarily concludes that the Court may hold that the “default” exclusion bars Plaintiff CTKS’s recovery of the losses it incurred because North American failed to honor its checks (First Loss) and because Carpenter failed to return the $141,750.00 that Plaintiff Schmidt wired to him (Third Loss).
Defendant fails to explain in what respect North American’s transmission of two fake cashier’s checks or the purported Erick Carpenter’s failure to pay $141,750 to Plaintiff Schmidt as promised constitute a “default” on a “credit sale, loan, or similar transaction.” North American sent the two fake cashier’s checks purportedly to fulfill a settlement agreement, not to pay off a loan that Plaintiff CTKS had made to North American. Further, the person purporting to be Carpenter reneged on a promise to send Plaintiff Schmidt $141,750, and there is no evidence that Plaintiffs made a loan or entered into a credit transaction with Carpenter requiring him to send $141,750 to the Plaintiffs.
Defendant contends that the loss Plaintiff suffered as a result of the fraudulent wire transfer request was from the extension of credit and is therefore excluded from coverage. However, the clear meaning of section 2(e) is that Defendant will not cover a loss resulting from a customer default on a loan or extension of credit made by Plaintiff. The loss in this case did not result from the nonpayment of a loan. It was a loss as a result of a fraudulent wire transfer request by someone other than the true customer.
Here, as in Bank of Ann Arbor, the losses for which the insurer invokes this exclusion were the clear result of fraud, not a knowing decision on the insured’s part to extend credit to the defrauder. For these reasons, the Court finds that the “default” provision does not clearly exclude Plaintiffs’ First or Third Losses. Accordingly, it will analyze the applicability of the coverage provisions invoked by Plaintiffs to these losses.
C. Policy Coverage
1. Business Personal Property Provision
Plaintiffs argue that their First Loss is covered under the Business Personal Property provision. The Busines-sowners Property Coverage Special Form provides, in relevant part, as follows:
A. COVERAGE
We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss.
1. Covered Property
Covered Property, as used in this Coverage Form, means the type of property described in this Paragraph A.1, and limited in Paragraph A.2., Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property. ...
b. Business Personal Property located in or on the buildings described in the Declarations or in the open (or in a vehicle) within 1,000 feet of the described premises, including: ...
(4) “Money” and “Securities”....
4. Covered Causes of Loss
RISKS OF DIRECT PHYSICAL LOSS unless the loss is:
a. Limited in Paragraph A.5, Limitations; or
b. Excluded in Paragraph B., Exclusions.
(Doc. 8-2 at 2, 4-5).
Plaintiffs argue that the purported cashier’s checks received from North American are “business рersonal property” because they fit within the Policy’s definition of “securities.” {See Doc. 8-2 at 39) (defining “ ‘securities’ ” as “all negotiable and nonnegotiable instruments or contracts representing either ‘money’ or other property”).
The Court need not reach the question of whether the purported cashier’s checks are “business personal property,” and, thereby, “covered property,” because there was no “direct physical loss of or dаmage to” the “checks.” The Policy requires “direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss” and thereafter states that “Covered Causes of Loss” are “DIRECT PHYSICAL LOSS unless the loss is” limited or excluded. This is not an instance in which, for example, cashier’s checks were destroyed and lost in a fire.
2. Business Income and Extra Expense Provision
Plaintiffs argue that their Third Loss, combined with the loss sustained by the dishonoring of the second cashier’s check, is covered under the Business Income and Extra Expense provision of the Policy. The Businessowners Property Coverage Special Form states, in relevant part, as follows:
A. COVERAGE
3. Business Income and Extra Expense
Business Income and Extra Expense is provided at the premises described in the Declarations when the Declarations show that you have coverage for Business Income and Extra Expense,
a. Business Income •
(1) Business Income means:
(a) Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred ... and
(b) Continuing normal operating expenses incurred, including payroll.
(2) We will pay for the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration.” The “suspension” must be caused by dirеct physical loss of or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss....
b. Extra Expense
(1) Extra Expense means reasonable and necessary expenses you incur during the “period of restoration” that you would not have incurred if there had been no direct physical loss of or damage to property caused by or resulting from a Covered Cause of Loss.
(2) We will pay Extra Expense (other than the expense to repair or replace property) to:
(a) Avoid or, minimize the “suspension” of business and to continue “operations” at the described premises or at replacement premises or temporary locations, including relocation expenses and costs to equip and operate the replacement premises or temporary locations; or
(b) Minimize the “suspension” of business if you cannot continue operations.
(3) We will also pay Extra Expense (including Expediting Expenses) to repair or replace the property, but only to the extent it reduces the amount of loss that otherwise would have been payable under Paragraph a. Business Income, above.
(Doc. 8-2 at 3-4).
Plaintiffs explain that, as a consequence of the wiring of the $141,750 to the purported Erick Carpenter’s account in Japan and the dishonoring of the first cashier’s check from North American, they were forced to incur the added expense of depositing $141,750 into Plaintiff CTKS’s IOLTA account to restore the account’s balance, pending the receipt of the check the purported Erick Carpenter promised to send and the second North American cashier’s check. Because Carpenter never sent his check and the second cashier’s check was dishonored as fraudulent, Plaintiffs never recovered their deposit. Plaintiffs argue thаt, for a law firm, having an IOLTA account balance short by $141,750 constitutes a definite and significant interruption of the law firm’s normal business activities. Plaintiffs claim that their loss of $141,750 should be treated as an “Extra Expense” covered under the Policy. They also argue that not enjoying the benefits of the check that Carpenter failed to send or of the second North American cashier’s check should be treated as lost “Business Income,” also covered under the Policy.
The Court cannot agree that the losses described are covered. Plaintiffs suffered no loss of income due to the necessary “suspension” of their “operations” “caused by a direct 'physical loss of or damage to property at the described premises [CTKS’s law offices]”. (Doc 8-2 at 3-4) (emphasis supplied). Further, the coverage provided for an insured’s Extra Expense does not cover Plaintiffs’ loss because the expenses incurred did not follow a “direct physical loss of or damage to property caused by or resulting from a Covered Cause of Loss. ” (Doc 8-2 at 38) (emphasis added).
V. CONCLUSION
Fоr the foregoing reasons, the Court finds that Plaintiffs’ claimed losses were not covered under the Policy. Accordingly:
1. Defendant’s motion for partial summary judgment as to Plaintiffs’ breach of contract and declaratory judgment claims (Doc. 8) is GRANTED;
2. Plaintiffs’ motion for partial summary judgment as to their breach of contract claim (Doc. 9) is DENIED.
IT IS SO ORDERED.
Notes
. The Court bifurcated the coverage and bad faith issues. (See March 12, 2014 Minute Entry and Notation Order). Accordingly, only the coverage issue is now before the Court. Plaintiffs seek summary judgment as to their breach of contract claim (Count One); Defendant seeks summary judgment as to Plaintiffs' breach of contract claim (Count One) and declaratory judgment claim (Count Two). (See Docs. 1, 8, 9).
. The Court addresses whether Plaintiff CTKS suffered a single loss or several distinct losses in Part IV.A, infra.
. See Docs. 12, 14-1.
. See Docs. 13, 15-1.
. Plaintiffs admit that this paragraph describеs one of three distinct covered losses claimed by Plaintiffs, the other two being losses due to "not enjoying the benefits of the fraudulent cashier's checks and the failure of the purported Erick Carpenter to pay $141,750 to plaintiffs as promised.” (See Doc. 9 at 17; Doc. 15 at 2, 19-21).
. The titles of these forms are capitalized throughout the Policy, and the numbers and letters denoting separate paragraphs, and those paragraph titles, appear in bold text. For ease of reading, the Court will not employ capital letters when referring to the Policy forms (unless part of a quotation) and will not employ bold text when referring to paragraphs within the Policy (even when part of a quotation).
. Plaintiffs admit that this quote is accurate but note that it does not reflect the entire description of "Covered Property” contained in the Policy.
. Plaintiffs admit that $141,750 was wired from CTKS's IOLTA (trust) account and, thus, lost, but deny this was CTKS's only loss of $141,750. See supra note 5 and accompanying text.
. Plaintiffs admit that the portion of this paragraph in quotation marks is a verbatim quote from "Paragraph A” but note that it does not reflect the entirety of the requirements for coverage under the Policy.
. Plaintiffs admit that the portion of this paragraph in quotation marks is a verbatim quote from pages 3-4 of 39 of the Policy but note that it does not reflect the entirety of the requirements for coverage of losses under the Policy.
. Plaintiffs admit that the portion of this paragraph in quotation marks is a verbatim quote of the language found on page 25 of 39 of the Policy (excеpt for the inserted word “or'') but note that does not reflect the entirety of the language found on that or the previous page of the Policy.
. Assuming that this paragraph refers to the “exclusions” in Paragraph 20, Plaintiffs admit this fact.
.The Court will employ these provision titles as shorthand to refer to the relevant policy language. The Business Personal Property and the Business Income and Extra Expense provisions are located in the Businessowners' Property Coverage Special Form. For relevant policy language, see Part IV.C, infra. The Computer Fraud coverage extension is located in the Lawyer's Endorsement. For relevant policy language, see Part II.B at ¶ 19, supra.
. While Plaintiffs do not explicitly state that Ohio law governs intеrpretation questions raised in these motions, they cite Ohio law for the breach of contract standard (see Doc. 9 at 18) and cite to Ohio law for contract interpretation principles in their memoranda (see, e.g., Doc. 19 at 9). As Defendant notes, the Policy was issued by Defendant to Plaintiff CTKS, an Ohio insured, in Ohio.
. Regarding the First Loss, the cashier’s checks Plaintiffs received from North American were fraudulent. See supra Part II.A at ¶ 20, 21. Regarding the Second Loss, Plaintiff CTKS wired $141,750 to the Japanese bank account of the person purporting to be Erick Carpenter. See supra Part II.A at ¶ 19. Regarding the Third Loss, the person purporting to be Erick Carpenter informed Plaintiff Schmidt that he would send a check for $141,750, but Plaintiffs never received such a check. See supra Part II.A at ¶ 22, 23.
. Under the policy in at issue in Martin, "Covered Causes of Loss inсlude 'risks of direct physical loss,' but exclude 'loss or damage caused by or resulting from ... [v]olun-tary parting with any property by you or anyone else to whom you have entrusted the property.' ” Martin,
.The court provided the following citation: See, e.g., Morris James, LLP v. Cont’l Cas. Co.,
Martin,
. The Court notes that the cases cited by the Martin court and by Defendant in its memo-randa address provisions that specifically exclude voluntary partings induced by fraud or trick. See, e.g., Morris James, LLP v. Cont’l Cas. Co.,
. See Cook v. Home Depot U.S.A., Inc., No. 2:06-cv-00571,
. Plaintiffs also argue that, because Plaintiff Schmidt was required to promptly deliver the funds to his client, the purported Erick Carpenter, any voluntariness on Plaintiff Schmidt’s part was eliminated. See Ohio Rule of Professional Conduct 1.15(d) ("Except as stated in this rule or otherwise permitted by law or by agreement with the client or a third person, confirmed in writing, a lawyer shall promptly deliver to the client or third person any funds or property that the client or third person is entitled to receive.”) (emphasis omitted); see also 70 C.J.S. Payment § 107 (2005) ("A voluntary payment, within the meaning of the rule that such a payment cannot be recovered, means a payment made by a person of his own motion, without compulsion”); United Nat’l Ins. Co. v. SST Fitness Corp.,
. In their reply memorandum, Plaintiffs argue that the Computer Fraud coverage extension covers Plaintiff’s Second Loss, so, at worst, there is a conflict between the language of the Computer Fraud coverage extension and the “voluntary parting” exclusion, resulting in an ambiguity that must be resolved in Plaintiffs’ favor. See Morris James LLP,
. The "described premises” are CTKS' law offices at 250 E. 5th Street, Suite 1200, Cincinnati, Ohio. (Doc. 8-2 at 1).
. In Florists’ Mut. Ins. Co. v. Ludy Greenhouse Mfg. Corp.,
. The “described premises” are CTKS’ law offices at 250 E. 5th Street, Suite 1200, Cincinnati, Ohio. (Doc. 8-2 at 1).
. See Part IV.C.1, supra (finding that Plaintiffs have not presented evidence of direct physical loss of or damage to property).