Plant v. Illinois Employers Ins. of Wausau

• Decision Date: 12 September 1984
• Docket Number: No. 1979,1979
• Citation: 20 Ohio App.3d 236,485 N.E.2d 773
• Parties: , 20 O.B.R. 297 PLANT, Appellant, v. ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Appellee.
• Court: Ohio Court of Appeals

Page 236

20 Ohio App.3d 236

485 N.E.2d 773, 20 O.B.R. 297

PLANT, Appellant, v. ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Appellee.

No. 1979.

Court of Appeals of Ohio, Ninth District, Wayne County.

Sept. 12, 1984.

Syllabus by the Court

1. Where a policy of insurance which provides for loss sustained by theft states that "[n]o suit, action or proceeding for the recovery of any claim under this policy shall be sustainable * * * unless the same be commenced within twelve months next after discovery by the insured of the occurrence which gives rise to the claim," the phrase "occurrence which gives rise to the claim" refers to the theft itself, not the date of the company's denial of liability, nor does the phrase refer to a time commencing at the conclusion of the payment-of-claim period specified in the policy.

2. The tort of breach of a good faith duty is recognized in Ohio. (Hoskins v. Aetna Life Ins. Co. [1983], 6 Ohio St.3d 272, 452 N.E.2d 1315, followed.)

3. An insured's tort claim for breach of the insurer's duty to act in good faith is independent of the contract of insurance and is, thus, not subject to the twelve- month limitation period contained in the policy for filing actions against the insurer.

Mark W. Baserman, Wooster, for appellant.

Harold H. Reader, Cleveland, for appellee.

MAHONEY, Judge.

Plaintiff-appellant, Phillip R. Plant, challenges a trial court order granting summary judgment in favor of the defendant-appellee, Illinois Employers Insurance of Wausau. We affirm in part, vacate in part, and remand.

On October 9, 1981, Plant entered into a contract of insurance with appellee insuring against, among other things, theft of his coin collection. The policy contained the following limitation on actions:

"10. * * * No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the Insured of the occurrence which gives rise to the claim, provided, however, that if by the laws of the State within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest limit of time permitted by the laws of such State to be fixed herein."

The insured coin collection was allegedly stolen on November 13, 1981, and the alleged theft was timely reported to appellee. In a letter dated May 25, 1982, the insurance company denied any liability to Plant and offered a full return of premium.

On November 24, 1982, the complaint was filed claiming under the insurance contract and in tort for breach of the insurer's duty of good faith. Upon motion by the company, the trial court granted summary judgment based upon the twelve-month limitation of actions contained in the insurance policy. While it is not clear whether the summary judgment order deals with both causes of action, we will assume that it does in that both issues were addressed in the briefs supporting and opposing summary judgment.

Assignment of Error

"The trial court erred in granting summary judgment in this matter."

Plant argues as to his first cause of action that the phrase "occurrence which gives rise to the claim" should be interpreted to mean not the theft itself, but the date of the company's denial of liability, or, in the alternative, the date of the conclusion of the payment-of-claim period specified in the policy.

In Ohio, similar but not identical phrases have been found to refer to the actual act or calamity which leads to the claim under the insurance contract. See Metz v. Buckeye Union Fire Ins. Co. (1957), 104 Ohio App. 93, 147 N.E.2d 119 ; Corn City Mut. Ins. Co. v. Schwan (1885), 1 Ohio C.D. 105.

In Centennial Ins. Co. v. Dowd's Inc. (D.C.App.1973), 306 A.2d 648, at fn. 2, the Court of Appeals for the District of Columbia found that the phrase "occurrence which gives rise to the claim" clearly ties the running of the limitation period to the theft itself or the discovery thereof by the insured. The Supreme Court of Ohio long ago recognized that in interpreting such clauses the court is bound by the...