Nazareth Deli LLC v. John W. Dawson Ins. Inc.
| Decision Date | 08 November 2022 |
| Docket Number | 21AP-394 |
| Citation | 200 N.E.3d 652 |
| Parties | NAZARETH DELI LLC et al., Plaintiffs-Appellants, v. JOHN W. DAWSON INSURANCE INC. et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
On brief: Scott Elliot Smith, L.P.A., Scott E. Smith, and Michael L. Dillard, Jr., for appellants. Argued: Scott E. Smith.
On brief: Marshall Dennehey Warner Coleman & Goggin, and Ray C. Freudiger, Cincinnati, for appellees. Argued: Ray C. Freudiger.
DECISION
{¶ 1} Plaintiffs-appellants Hany Baransi and Nazareth Deli LLC ("Nazareth Deli") appeal from a judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendants-appellees John W. Dawson Insurance Inc. ("Dawson Insurance") and Michael D. Palmer denying appellants’ motion for summary judgment, and granting appellees’ motion to strike affidavits. For the reasons which follow, we affirm in part and reverse in part, and remand the case to the trial court.
{¶ 2} On December 3, 2018, appellants filed a complaint alleging claims of negligence, breach of fiduciary duty, and negligent misrepresentation. The claims concerned a commercial automobile insurance policy Palmer procured for Nazareth Deli from Grange Mutual Casualty Company ("Grange"). Appellants alleged that appellees failure to secure uninsured/underinsured motorist ("UIM") coverage on the policy precluded appellants "from fully recovering Baransi's collision-related damages," resulting from a December 6, 2016 motor vehicle accident. (Compl. at ¶ 15.)
{¶ 3} Baransi is the owner of Nazareth Deli, a restaurant which has been operating in Columbus, Ohio since 1989. Baransi met Palmer in the mid-1990s, and Palmer eventually became a regular customer at Nazareth Deli. The restaurant was located one-quarter mile away from the offices of Dawson Insurance, where Palmer was employed as a licensed insurance agent. Baransi would often talk to Palmer when he came into the restaurant and the two men developed a friendship. Baransi and Palmer had lunch together once, and the two men and their wives had dinner together once.
{¶ 4} In the 2000s, Palmer began procuring insurance for Baransi. Palmer eventually provided Baransi with personal auto, homeowners, and commercial policies of insurance. Baransi stated he told Palmer he wanted "the best, the most coverage on anything," while Palmer stated Baransi asked him "to give him a good rate and make sure that the limits were appropriate." (Baransi Depo. at 71; Palmer Depo. at 56.)
{¶ 5} In 2004, Baransi and his wife Kim obtained a personal auto insurance policy from Palmer written by Grange. The vehicles on the 2004 personal auto policy were a 1995 Pontiac, a 1998 BMW, and a 2000 Volvo. The policy had matching liability and UIM coverage limits of $100,000 per person and $300,000 per accident for each vehicle on the policy.1 Dawson Insurance had a general rule of providing customers with matching liability and UIM coverage limits on auto policies.
{¶ 6} In 2006, Palmer procured a commercial insurance policy for Nazareth Deli written by Grange. The commercial policy, which was in effect from October 24, 2006 to October 24, 2007, included general liability coverage, property coverage, and commercial auto coverage. The commercial auto portion of the policy provided liability coverage of $300,000 per accident for covered auto symbol 1, and UIM coverage of $300,000 per accident for covered auto symbol 2. (Baransi Depo., Ex. F.) Covered auto symbol "1" referred to "[a]ny ‘[a]uto,’ " while covered auto symbol "2" referred to "[o]nly those ‘autos’ you own." (Baransi Depo., Ex. I.) The policy defined "you" as the "[n]amed [i]nsured shown in the [d]eclarations." (Baransi Depo., Ex. I.) Nazareth Deli was the named insured shown on the declarations of the commercial policy. The 2006-07 commercial auto policy listed a 1997 Ford F150 as the sole covered auto owned by Nazareth Deli.
{¶ 7} Palmer explained that the insurance policies automatically renewed "at the same numbers" each year unless the client asked for changes. (Palmer Depo. at 70.) Baransi stated he was the "[o]nly" person at Nazareth Deli who made decisions regarding insurance. (Baransi Depo. at 114.)
{¶ 8} In 2009, Baransi removed the 1997 F150 from the commercial auto policy, and added a 2002 Ford Explorer and Kim as an additional insured to the commercial auto policy. As such, the 2002 Explorer became the sole covered auto owned by Nazareth Deli on the commercial auto policy, and the policy continued to provide liability coverage of $300,000 per accident for any auto and UIM coverage of $300,000 per accident for covered autos owned by Nazareth Deli. Baransi explained that Kim, who also worked at Nazareth Deli, was "the main driver" of the 2002 Explorer. (Baransi Depo. at 124.)
{¶ 9} In December 2012, Baransi purchased a 2012 Mazda 3 and informed Palmer of the purchase. Effective December 3, 2012, Palmer added the Mazda to Baransi's personal auto policy. The personal auto policy also provided coverage for the 2000 Volvo at this time, and continued to provide matching liability and UIM coverage limits of $100,000 per person and $300,000 per accident for each vehicle on the policy. When Baransi was asked if he bought the Mazda as a personal vehicle, he responded (Baransi Depo. at 160.) Baransi stated he drove both the "Mazda and the Ford" for work in December 2012. (Baransi Depo. at 177-78.)
{¶ 10} Around 2014, Nazareth Deli moved to a new location. The restaurant's lease agreement at the new location required it carry $1 million in insurance coverage. Baransi let Palmer know about the new lease requirements, and Palmer procured a commercial policy from Grange with coverage limits of $1 million. As such, the commercial auto policy in effect from October 24, 2014 to October 24, 2015 provided liability coverage of $1 million per accident for any auto and UIM coverage of $1 million for covered autos owned by Nazareth Deli. The 2014-15 commercial auto policy identified the 2002 Explorer as the sole covered auto owned by Nazareth Deli.
{¶ 11} In 2015, Baransi removed the 2002 Explorer and Kim from the commercial auto policy and added a 2005 Ford Explorer to the policy. As issued on October 24, 2015, the commercial auto policy continued to provide $1 million in liability coverage for any auto and $1 million in UIM coverage for covered autos owned by Nazareth Deli, and identified the 2005 Explorer as the sole covered auto owned by Nazareth Deli. Baransi affirmed he used the 2005 Explorer in connection with his business.
{¶ 12} Baransi and Kim divorced in August 2016 and Kim took possession of the 2005 Explorer during the divorce proceedings. In March 2016, Palmer texted Baransi to ask if he should remove the 2005 Explorer from the commercial auto policy as Kim had the vehicle. Baransi responded (Baransi Depo., Ex. N.) On June 2, 2016, after Kim obtained a personal auto policy for the 2005 Explorer from Dawson Insurance, Palmer sent Baransi a form to complete the removal of the 2005 Explorer from the commercial auto policy. Baransi executed the form and the 2005 Explorer was removed from the commercial auto policy effective June 1, 2016. Baransi received a pro rata premium return resulting from the removal of the 2005 Explorer.
{¶ 13} After June 2016, there was no covered auto listed on the commercial auto policy. Palmer stated he "asked" Baransi "if he was going to put another vehicle onto the commercial policy," and Baransi told Palmer, "not at this time." (Palmer Depo. at 103.) The commercial auto policy in effect from June 2016 to October 2016 continued to provide $1 million in liability coverage for any auto, but did not provide UIM coverage for any auto. The commercial auto policy in effect from October 24, 2016 to October 24, 2017 did not list a covered auto owned by Nazareth Deli and did not provide UIM coverage for any auto. As such, Nazareth Deli was not obligated to pay a premium for UIM coverage under the 2016-17 commercial auto policy, as it was under previous policies. The 2016-17 commercial auto policy provided $1 million in liability coverage for covered auto symbols "8" and "9," which applied to non-owned and hired autos Nazareth Deli used in connection with its business. (Baransi Depo., Ex. O.) In 2016, Baransi had possession of the Mazda and the 2002 Explorer.
{¶ 14} On December 6, 2016, Baransi was in a motor vehicle accident with an underinsured motorist while driving the Mazda for work. Baransi suffered severe injuries in the accident. Baransi sought to collect UIM benefits under the commercial auto policy following the accident, but Grange denied the claim. Although Baransi was driving the Mazda at the time of the accident, he stated he could have been driving the 2002 Explorer because "some days [he] dr[o]ve that." (Baransi Depo. at 176.) Baransi claimed Palmer "knew" he drove the Mazda primarily for work; Palmer affirmed he "knew that [Baransi] used his vehicle for business purposes." (Baransi Depo. at 177-78; Palmer Depo. at 114.)
{¶ 15} Baransi acknowledged he received his insurance policies, but repeatedly stated he never read his policies. Palmer would take the policies "out to [the Baransis] sometimes and review it with them," but acknowledged he did not "know if they read anything of those policies." (Palmer Depo. at 57.)
{¶ 16} Palmer stated that, when Baransi instructed him to remove the 2005 Explorer from the commercial auto policy, he explained to Baransi "that the only coverage still being provided on the Nazareth policy was higher[ed] and unowned, so it would cover his personal vehicles being used for third party liability," and Baransi "was now covered for everything other than liability for Nazareth on his personal auto policy." (Palmer Depo. at 107-09.) Baransi...
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