State Farm Fire & Cas. Co. v. Capital Roofing, LLC

• Decision Date: 25 February 2020
• Docket Number: No. 18AP-691,No. 18AP-689, No. 18AP-692,18AP-689
• Citation: State Farm Fire & Cas. Co. v. Capital Roofing, LLC, 152 N.E.3d 460, 2020 Ohio 642 (Ohio App. 2020)
• Parties: STATE FARM FIRE & CASUALTY COMPANY., et al., Plaintiffs-Appellants, v. CAPITAL ROOFING, LLC, et al., Defendants-Appellees. State Farm Fire & Casualty Company., et al., Plaintiffs-Appellees, v. Capital Roofing, LLC, et al., Defendants-Appellants. State Farm Fire & Casualty Company., et al., Plaintiffs-Appellees, v. Capital Roofing, LLC, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

152 N.E.3d 460

2020 Ohio 642

STATE FARM FIRE & CASUALTY COMPANY., et al., Plaintiffs-Appellants,

v.CAPITAL ROOFING, LLC, et al., Defendants-Appellees.

State Farm Fire & Casualty Company., et al., Plaintiffs-Appellees,

v.Capital Roofing, LLC, et al., Defendants-Appellants.

State Farm Fire & Casualty Company., et al., Plaintiffs-Appellees,

v.Capital Roofing, LLC, et al., Defendants-Appellants.

No. 18AP-689

No. 18AP-691

No. 18AP-692

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered February 25, 2020

On brief: Keis George, LLP, Herbert L. Nussle, Cleveland, and Ethan Clark, for plaintiffs-appellants/appellees State Farm Fire & Casualty Company and Mount Air Condominium Association.

On brief: Isaac Wiles Burkholder & Teetor, LLC, and Dale D. Cook, Columbus, for defendants-appellees/appellants Capital Roofing, LLC and Mark Kissling.

DECISION

BRUNNER, J.

{¶ 1} State Farm Fire & Casualty Company (as subrogee of Mount Air Condominium Association and an individual condominium unit owner) and Mount Air Condominium Association (collectively, "State Farm") appeal from a judgment entered on August 15, 2018 in favor of Capital Roofing, LLC and Mark Kissling (collectively "Capital") based upon a jury verdict. Capital appeals from the same judgment to the extent it incorporated two decisions issued on November 7, 2017 and January 22, 2018, granting summary judgment against Capital and in favor of State Farm in amounts of $79,949.52, $378,065.81, and $5,000.00.

{¶ 2} Because genuine issues of material fact existed in the summary judgment record as to elements of State Farm's vicarious liability claim but not as to State Farm's breach of contract claim, we reverse the grant of summary judgment in favor of State Farm as to that vicarious liability claim but affirm as to the breach of contract claim. Because the evidence presented at trial was sufficient to support the jury's verdict in favor of Capital, State Farm was not entitled to a directed verdict or judgment notwithstanding the verdict. We therefore modify the August 15, 2018 judgment entry granting judgment in favor of State Farm against Capital to reflect that the award is based solely on the breach of contract claim and affirm the portion of the August 15, 2018 entry memorializing the jury's verdict. Capital's second assignment of error is sustained; its third and fourth assignments of error are overruled, and its first assignment of error is moot. State Farm's three assignments of error are overruled.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} In May 2016, in Franklin C.P. No. 16CV-4785, State Farm Fire & Casualty Company, as insurer, assignee, and subrogee of fellow plaintiff, Mount Air Condominium Association, sued Connell's Construction, LLC and Capital Roofing, LLC for negligence and breach of contract relating to a fire started by Connell's Construction while allegedly acting as an employee or agent of Capital Roofing in repairing a roof for Mount Air. (May 18, 2016 Compl. No. 16CV-4785; May 23, 2016 First Am. Compl. No. 16CV-4785.) Two months later, in Franklin C.P. No. 16CV-6326, Amica Mutual Insurance Company also sued as the property insurer for two individual condominium unit owners (collectively "Amica") whose unit had been damaged in the same fire. (July 6, 2016 Compl. No. 16CV-6326.) Capital answered and cross-claimed in both cases against Connell's Construction. (Aug. 8, 2016 Answer & Cross-Claim No. 16CV-4785; Aug. 8, 2016 Answer & Cross-Claim No. 16CV-6326.) Shortly thereafter, the two cases were consolidated. (Aug. 18, 2016 Consolidation Granted.)¹

{¶ 4} On August 31, 2016, given Connell's Construction failure to plead or otherwise answer, the trial court granted default judgment against Connell's Construction in favor of State Farm for $383,065.81. (Aug. 31, 2016 Jgmt. Entry.) In November, the trial court granted default to Capital against Connell's Construction on its cross-claims for indemnity and contribution, amount damages to be assessed at a later date. (Nov. 18, 2016 Jgmt. Entry.)

{¶ 5} In spring 2017, State Farm intervened in the suit in another capacity, as subrogee of the insured owner of an individual condominium unit in the complex. (Mar. 6, 2017 Intervenor Compl.) The following month, in April 2017, State Farm amended its complaints to add claims against Mark Kissling (an individual agent of Capital Roofing who allegedly supervised the roofing work) and Archatas Inc. (an architecture firm involved in the roof project). (Apr. 28, 2017 State Farm Second Am. Compl.; Apr. 28, 2017 State Farm Intervenor First Am. Compl.)

{¶ 6} On August 9, 2017, Archatas requested summary judgment on the grounds that none of the plaintiffs had submitted expert testimony to show that it had failed to meet the standard of care or any evidence that it was involved with the roof repairs that caused the fire. (Aug. 9, 2017 Archatas Mot. for Summ. Jgmt.) In September 2017, State Farm moved for summary judgment also, arguing that Capital Roofing had breached its contract with the association and that it was liable vicariously for the negligence of Connell's Construction. (Sept. 5, 2017 State Farm Mot. for Summ. Jgmt.) The same day, Capital filed a summary judgment motion of its own as to all plaintiffs arguing that, as a matter of law, a general contractor is not liable for the negligent acts of an independent subcontractor and that Connell's Construction was such a subcontractor. (Sept. 5, 2017 Capital Mot. for Summ. Jgmt.)

{¶ 7} At the time the summary judgment motions were briefed and decided, in addition to the pleadings, a number of exhibits and depositions had been made part of the record. Affidavits from David Mendum with attached records confirmed the amount of damages incurred and paid by State Farm and the deductible paid by Mount Air Condominium Association. (Mendum Aff., filed Aug. 1, 2016; Exs. 4, 5, attached to Sept. 5, 2017 State Farm Mot. for Summ. Jgmt.) The parties also introduced copies of the contracts between Mount Air and Capital Roofing and between Capital Roofing and Connell's Construction. (Exs. 1-3, attached to Sept. 5, 2017 State Farm Mot. for Summ. Jgmt.) In addition, depositions of John Adkins (president of Capital Roofing), Brandon Connell (president of Connell's Construction), and Mark Kissling (an agent of Capital Roofing) were filed.

{¶ 8} Adkins testified that he founded Capital Roofing in 2009. (Adkins Dep. at 13, filed Feb. 22, 2017.) The company had very little equipment and no employees. Id. at 15, 25-28. Adkins explained that he used subcontractors for everything, and the basic function of his company was to make bids, organize jobs, and pay bills. Id. at 30-32, 115-16, 124. Adkins agreed that he used Mark Kissling as an independent salesperson and allowed Kissling to run jobs through Capital Roofing for his own profit. Id. at 35, 55-56.

{¶ 9} Adkins stated that the Mount Air job was a Kissling job and that Kissling prepared the bid proposal to Mount Air, which was introduced in the deposition as exhibit 9. Id. at 59-60. Adkins agreed that Kissling subcontracted with Connell's Construction for the copper roofing portion of the job and that the contract governing that relationship was introduced as exhibit 3. Id. at 75-76, 88-89. Adkins stated that, generally, subcontractors are not told how to do a job and that he did not tell Connell's Construction how to do the job in this case. Id. at 81-82, 110-11, 115-16. He explained that subcontractors are merely provided with materials and a deadline and told to get the job done. Id. at 81-82, 115-16.

{¶ 10} Regarding the specific event of the fire, Adkins stated that Kevin Taylor, father of Brandon Connell, was very good with copper work. Id. at 79-81, 90. But he acknowledged that he did not know if Brandon Connell knew how to do copper work. Id. He did not personally know the cause of the fire, as he was not at the job site at the time of the fire but did not dispute the contention that Brandon Connell's copper soldering work was the cause of the fire. Id. at 88-90. He stated that, after the fire, Brandon Connell admitted that Connell's Construction had allowed its insurance policy to lapse. Id. at 106-07.

{¶ 11} Brandon Connell testified in his deposition that he was the sole owner and operator of Connell's Construction at the relevant time. (Connell Dep. at 10-12, filed Feb. 22, 2017.) He testified that Connell's Construction had no equipment, not even a truck, and rented what it needed on a per job basis. Id. at 13. Connell said he sometimes bid jobs to Kissling but that on the Mount Air job there was no bid process. Id. at 27-30. Instead, a contract document was exchanged over e-mails and signed individually by himself and Adkins. Id. at 30, 32-33. Despite Adkins' signature on the contract, Connell said Kissling was his contact on the job. Id. at 32-33.

{¶ 12} Connell testified that he was not given plans or blueprints for the work; rather, Kissling specified a crew of four and met Connell and the three other workers (James Lust, Angelo Pruitt, and Kevin Taylor) at the job site to tell them how he wanted things done. Id. at 51, 56-57, 90, 109. According to Connell, Kissling told them what to do, how to do it, and provided all tools and equipment (including a ladder, torches, tanks, and safety equipment). Id. at 52-54, 91, 93-94. He did admit, however, that he brought some of his own hand tools and a fire extinguisher. Id. at 91-92. After they took some measurements on the roof, Kissling got up on the roof to show how he wanted the copper pans placed. Id. at 57, 117. Kissling also stayed to help for a time as they soldered copper pieces together on the ground before taking them up to the roof to put them in place. Id. Connell acknowledged that though Kissling told the workers how he wanted the soldering done, he did not demonstrate the technique. Id. at 61. Kissling did, however, veto a suggestion by Connell that the copper be riveted and sealed rather than soldered and also rejected a...