Schaller v. National Alliance Ins. Co.

• Decision Date: 06 July 2007
• Docket Number: No. 3:05cv093.,3:05cv093.
• Citation: 496 F.Supp.2d 890
• Parties: Steven SCHALLER, et al., Plaintiffs, v. NATIONAL ALLIANCE INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

496 F.Supp.2d 890

Steven SCHALLER, et al., Plaintiffs, v. NATIONAL ALLIANCE INSURANCE COMPANY, et al., Defendants.

No. 3:05cv093.

United States District Court, S.D. Ohio, Western Division.

July 6, 2007.

Robert Forsythe Croskery, Croskery Law Offices, Cincinnati, OH, for Plaintiffs.

Randall J. Moore, Roetzel & Andress, Akron, OH, Barry Alan Mentser, Columbus, OH, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT BAILEY'S MOTION FOR SUMMARY JUDGMENT (DOC. # 80) AND DEFENDANT NATIONAL'S MOTION FOR SUMMARY JUDGMENT (DOC. # 81); DECISION AND ENTRY OVERRULING, AS MOOT, DEFENDANT NATIONAL'S MOTION IN LIMINE TO EXCLUDE CERTAIN TESTIMONY OF MILDRED SCHALLER (DOC. # 90), MOTION IN LIMINE TO EXCLUDE CERTAIN TESTIMONY OF PLAINTIFFS' EXPERTS (DOC. # 91), MOTION IN LIMINE TO EXCLUDE TESTIMONY OF STEVE PHILPOT (DOC. # 92), MOTION TO COMPEL (DOC. # 93) AND MOTION FOR AN ORDER DEEMING DEFENDANT'S REQUEST FOR ADMISSIONS ADMITTED (DOC. # 101); DECISION AND ENTRY OVERRULING, AS MOOT, PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE CERTAIN INFORMATION AS TO VALUE OF MOTOR HOME (DOC. # 98) AND MOTION TO SUPPLEMENT ADMISSIONS (DOC. # 112); INSTRUCTIONS TO DEFENDANT NATIONAL

RICE, District Judge.

Plaintiffs, Steven and Mildred Schaller, owned two vehicles-a motor home and a car-both of which were insured by Defendant National Alliance Insurance Company ("National"). While driving the motor home and towing the car on Interstate 75, north of Dayton, Steven Schaller fell asleep and drifted into the concrete median. The accident caused damage to both vehicles. Following the accident, National hired Defendant Tom Bailey to conduct an appraisal of the damage to the Plaintiffs' motor home. Dissatisfied with Bailey's appraisal, and National's response to their claims, the Plaintiffs filed the instant Complaint against the Defendants alleging Bad Faith (Count One), Conspiracy to Act in Bad Faith (Count Two), Breach of Contract (Count Three), Fraud (Count Four), Conspiracy to Commit Fraud (Count Five), Breach of the Ohio Consumer Sales Practices Act, O.R.C. § 1345.01 et seq. (Count Six), Conspiracy to Commit Violations of the Ohio Consumer Sales Practices Act (Count Seven) and Negligent Hiring, Supervision and Retention (Count Eight). Doc. # 1 (Compl.). Counts Three and Eight are alleged solely against National; all other claims are alleged against both National and Bailey. Id. This matter is currently before the Court on the Defendants' Motions for Summary Judgment. Doc. # 80 (Bailey Mot. Summ. J.); Doc. # 81 (National Mot. Summ. J.). Based on the reasoning and citations of authority contained herein, those motions are SUSTAINED.

Also before the Court are Defendant National's Motion in Limine to Exclude certain Testimony of Mildred Schaller (Doc. # 90), Motion in Limine to Exclude the Testimony of Plaintiffs' Experts (Doc. # 91), Motion in Limine to Exclude Testimony of Steve Philpot (Doc. # 92), Motion to Compel Plaintiffs to Submit Joint Proposed Final Pretrial Order (Doc. # 93) and Motion for an Order Deeming Defendant's Request For Admissions to Plaintiffs Admitted (Doc. # 101). The Plaintiffs have also filed a Motion in Limine to Exclude Information as to Fair Market Value of Motor Home and Information as to Subsequent Sales Price (Doc. # 98), as well as a Motion to Supplement Admissions (Doc. # 112). Given that the Court has sustained the Defendants' Motions for Summary Judgment, decisions made without the need to rule on these motions, same are OVERRULED, as moot.

I. FACTUAL BACKGROUND¹

The Plaintiffs, Steven and Mildred Schaller, purchased an Allegro Bus Motor Home ("motor home" or "vehicle") on September 30, 2001, for $150,000.² Doc. # 1 (Compl.) ¶¶ 7-8. On March 30, 2002, Steven Schaller was driving the Plaintiffs' motor home and towing their car, on Interstate 75 near Dayton, Ohio. Doc. # 75 (S. Schaller Dep.) Part A at 10-14. Mildred Schaller was the only passenger. Id. at 13. While driving, Mr. Schaller fell asleep and the vehicle veered into the center concrete median. Id. at 14-16. Both the motor home and the car were damaged in the accident. Id. at 30. Immediately following the accident, the Plaintiffs contacted their insurer, National. Doc. # 72 (M. Schaller Dep.) Part A at 32; Doc. # 81 Ex. A (Policy).

In response to the Plaintiffs' call, National hired a representative from Cincinnati Appraisal Service to meet the Plaintiffs and estimate the damage done to the motor home and car. Doc. # 77 (McNiff Dep.) Part A at 23-24. Cincinnati Appraisal Service sent Steve Philpot to conduct the appraisal. Doc. # 72 (M. Schaller Dep.) Part B at 7-8. While examining the motor home, Philpot told Mrs. Schaller that, due to the extent of the damage, the motor home would probably be a total loss. Id. at 10; Doc. # 82 (Philpot Aff.) ¶ 5.

Following his examination of the vehicles, Philpot spoke to John McNiff, the agent from National who was handling the Plaintiffs' claims. Doc. # 77 (McNiff Dep.) Part A at 31-34. During that conversation, Philpot informed McNiff that he was not able to provide an estimate for the cost of repairing the damage to the motor home because of the local unavailability of parts and pricing. Id. Philpot later mailed McNiff a suggestion that the motor home be taken to the manufacturer. Id. After speaking with Philpot, McNiff decided to have another appraiser look at the vehicle. Id. Towards that end, he contacted Defendant Tom Bailey, of RV Appraisals and Investigations of America, LLC. Doc. # 74 (Bailey Dep.) Part A at 15; Doc. # 77 (McNiff Dep.) Part A at 38-39.

Bailey, who lived in Florida, had been doing appraisals for National since 1998. Doc. # 74 (Bailey Dep.) Part A at 27. Bailey and McNiff had worked together on a number of occasions. Id. at 40. Bailey had, in the past, marketed his expertise in saving money for insurance companies and had given seminars on the topic of detecting excessive repair costs. Id. Part B at 29-30. Upon the request of National, Bailey flew to Ohio from Florida, inspected the motor home and estimated that it would cost between $6,000 and $7,000 to repair. Doc. # 81 Ex. B (M. Schaller Dep.) at 50.

After Bailey informed the Schallers of his estimate, he asked them where they wanted the motor home taken for repairs. Doc. # 74 (Bailey Dep.) Part A at 44. The Schallers, unfamiliar with repair facilities in the area, asked for his help in finding such. Id. Bailey researched repair facilities in the area and sent his estimate to some of them with which he felt comfortable. Id. at 45. Ultimately, based on Bailey's recommendation, the Schallers chose to have the motor home repaired at Eastgate Ford. Doc. # 72 (M. Schaller Dep.) Part B at 24.

After the motor home was transported to Eastgate Ford, an estimate done by its Body Shop Manager raised the cost of repairs to approximately $23,000. Doc. # 81 Ex. I (Eastgate Ford Prelim. Est.).³ Bailey and National approved the estimate and Eastgate made the repairs. Doc. # 74 (Bailey Dep.) Part C at 14. Seven months later, the Schallers were not satisfied with Eastgate's repair work on the motor home.⁴ Doc. # 76 (S. Schaller Dep.) Part A at 48. In response to the Schallers' dissatisfaction with Eastgate, National agreed to pay to move the motor home to the manufacturer for an inspection and further repairs; however, the Schallers declined their offer.⁵ Id. at 48-51.

In August 2004, the Schallers sold the motor home to Robin Trammell, a recreational vehicle dealer and appraiser, for $50,000. Doc. # 83 Ex. 3 (Acceptance Ltr.). At that time, Trammell placed the retail value of the motor home (the value of the motor home had it been repaired such that it was in "like-new condition with reasonable wear and tear" and without some of the original options) at $122,480. Doc. # 78 (Trammell Dep.) at 25-27.⁶

Both Defendants seek summary judgment. Doc. # 80 (Bailey Mot. Summ. J.); Doc. # 81 (National Mot. Summ. J.).

II. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6 th Cir.1991). "Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1245 (6th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations, it is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff." Mich. Prot. & Advocacy Sera, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994).

Summary judgment "shall be rendered forthwith if the pleadings, depositions,...