Charvat v. Farmers Ins. Columbus, Inc.

• Decision Date: 26 August 2008
• Docket Number: No. 07AP-1078.,07AP-1078.
• Citation: 2008 Ohio 4353,897 N.E.2d 167,178 Ohio App.3d 118
• Parties: CHARVAT, Appellant, v. FARMERS INSURANCE COLUMBUS, INC. et al., Appellees.
• Court: Ohio Court of Appeals

897 N.E.2d 167

178 Ohio App.3d 118

2008-Ohio-4353

CHARVAT, Appellant, v. FARMERS INSURANCE COLUMBUS, INC. et al., Appellees.

No. 07AP-1078.

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

Decided August 26, 2008.

Ferron & Associates, L.P.A., John W. Ferron, Jessica G. Fallon, Columbus, and Lisa A. Wafer, for appellant.

Kegler, Brown, Hill & Ritter, Melvin D. Weinstein, and Loriann E. Fuhrer, Columbus, for appellee Farmers Insurance of Columbus, Inc.

Isaac, Brant, Ledman & Teetor, L.L.P., J. Stephen Teetor, and Scyld D. Anderson, Columbus, for appellees Lonnie Perlman and Lonnie Perlman Insurance Agency, Inc.

BROWN, Judge.

{¶ 1} Philip J. Charvat, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court granted summary judgment to Farmers Insurance Columbus, Inc. (individually, "Farmers"); Lonnie Perlman Insurance Agency, Inc. (individually, "Perlman Agency"), and Lonnie Perlman (individually, "Perlman"), defendants-appellees.

{¶ 2} Perlman is the sole shareholder of and sales agent for Perlman Agency. Perlman sells insurance products offered by Farmers. In early 2005, Perlman consulted with Farmers in an effort to increase his sales. Farmers suggested he contact "Take the Lead," a telemarketing company promoted by Farmers on Farmers' website that provides sales leads. Perlman contacted Take the Lead and ordered leads from its service. Appellant's name was one of the leads received by Perlman. As part of its services, Take the Lead provided an introductory letter and phone call to prospective insurance customers.

{¶ 3} On April 21, 2005, Take the Lead placed an introductory telemarketing call to appellant's residence for the purpose of selling Farmers insurance ("first call"), during which appellant requested that his telephone number be placed on its do-not-call list and that he be sent a copy of its do-not-call maintenance policy.

{¶ 4} After the initial call, Take the Lead forwarded appellant's name and telephone number to Perlman, although Take the Lead did not inform Perlman that appellant had requested to be put on the do-not-call list. On June 27, 2005, Perlman's employee called appellant's residence ("second call"). On July 13, 2005, Perlman's employee called appellant's residence again ("third call"). On July 18, 2005, Perlman's employee called appellant's residence again ("fourth call").

{¶ 5} On September 18, 2006, appellant filed a complaint, asserting in 43 separate causes of action that the calls violated the Telephone Consumer Protection Act of 1991, Section 227, Title 47, U.S.Code et seq. ("TCPA"); the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq. ("CSPA"); and Ohio's consumer advertising regulations.

{¶ 6} On June 25, 2007, Farmers filed a motion for summary judgment, arguing that it was not liable for any calls made to appellant and that even if it were liable, appellant was limited to only one claim per call. Also on June 25, 2007, Perlman and Perlman Agency filed a motion for summary judgment, arguing that Perlman was not personally liable, appellant was limited to one claim per call, Perlman and Perlman Agency were not liable for the first call, judgment should be entered against Perlman Agency for $2,100 and the case terminated, and appellant was not entitled to attorney fees.

{¶ 7} On November 15, 2007, the trial court issued a decision, which it journalized on December 4, 2007. In the decision and judgment, the trial court granted appellees' motions for summary judgment; dismissed all claims against Farmers and Perlman; ordered an award of $2,100 to appellant; and denied appellant's request for attorney fees. Specifically, the court found that Perlman and Farmers were not liable for any of the claims related to any of the four calls; no appellees were liable for any claims related to the first call; appellant could recover from Perlman Agency for violations of the TCPA and CSPA for only the second, third, and fourth calls; appellant could not recover treble damages against Perlman Agency because its violations of the TCPA were not knowing or willful; and appellant could not recover attorney fees pursuant to the CSPA. Appellant appeals the judgment of the trial court, asserting the following assignments of error:

[I.] The trial court erred in dismissing appellant's claims against appellee Farmers Insurance of Columbus, Inc., because the calls were made to appellant for the benefit of, at the expense of, by an agent of, and at the direction of, appellee Farmers Insurance of Columbus, Inc.

[II.] The trial court erred in dismissing appellant's claims against appellee Lonnie Perlman because he personally authorized the unlawful telemarketing activities conducted by his own insurance agency.

[III.] The trial court erred in granting summary judgment in favor of appellees as to appellant's ninth, seventeenth, thirtieth and forty-third causes of action because it is undisputed that appellees failed to state, at the beginning of each of their four telephone calls to appellant, that the purpose of the call was to make a sale, as is required by O.A.C. 109:4-3-11(A)(1).

[IV.] The trial court erred in granting summary judgment in favor of appellees as to appellant's tenth cause of action because it is undisputed that, in making their first call to appellant, appellees used a fictitious name that had not been registered with the Ohio Secretary of state, which constitutes an unfair or deceptive practice in violation of R.C. 1345.02(A) and R.C. 1329.01.

[V.] The trial court erred in denying plaintiff's claim for treble damages by applying the wrong definition of "willful" and "knowing" to appellees' conduct.

{¶ 8} In his first assignment of error, appellant argues that the trial court erred when it dismissed his claims against Farmers because the calls were made to appellant for the benefit of, at the expense of, by an agent of, and at the direction of Farmers. When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. Lima News (1996), 109 Ohio App.3d 408, 672 N.E.2d 245. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189. When reviewing the judgment of the trial court, an appellate court reviews the case de novo. Franks, 109 Ohio App.3d 408, 672 N.E.2d 245.

{¶ 9} Appellant argues that the trial court erred when it granted Farmers' motion for summary judgment based upon a finding that the phone calls were not placed "on behalf of" Farmers. In support, appellant cites several sections from the TCPA and federal regulations. Section 227(c)(5), Title 47, U.S.Code provides:

(5) Private right of action

A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State—

(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

(Emphasis added.) Section 64.1200(d)(3) and (5), Title 47, C.F.R. provides:

(d) No person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity. The procedures instituted must meet the following minimum standards:

* * *

(3) Recording, disclosure of do-not-call requests. If a person or entity making a call for telemarketing purposes (or on whose behalf such a call is made) receives a request from a residential telephone subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber's name, if provided, and telephone number on the do-not-call list at the time the request is made. Persons or entities making calls for telemarketing purposes (or on whose behalf such calls are made) must honor a residential subscriber's do-not-call request within a reasonable time from the date such request is made. * * *

* * *

(5) Affiliated persons or entities. In the absence of a specific request by the subscriber to the contrary, a residential subscriber's do-not-call request shall apply to the particular business entity making the call (or on whose behalf a call is made), and will not apply to affiliated entities unless the consumer reasonably would expect them to be included given the identification of the caller and the product being advertised.

(Emphasis added.)

{¶ 10} Appellant asserts that the above language contemplates the liability of the organization on whose "behalf" telemarketing calls are made. While it is undisputable that the provisions above provide for liability of an entity on whose behalf telemarketing calls are made, we conclude that Farmers cannot be subject to liability pursuant to these provisions. Although there is no recording of the second call, appellant recorded the first, third, and fourth calls. The following conversation transpired between appellant and a representative from Take the Lead during the first call:

Resident: Hello.

Sales agent: Is Philip available?

Resident: This...