Williams-Diggins v. Permanent Gen. Assurance Corp.

• Decision Date: 06 August 2020
• Docket Number: No. 108846,108846
• Citation: 2020 Ohio 3973,157 N.E.3d 220
• Parties: Lindsey WILLIAMS-DIGGINS, Plaintiff-Appellant, v. PERMANENT GENERAL ASSURANCE CORPORATION of Ohio, Defendant-Appellee.
• Court: Ohio Court of Appeals

157 N.E.3d 220

2020 Ohio 3973

Lindsey WILLIAMS-DIGGINS, Plaintiff-Appellant,

v.PERMANENT GENERAL ASSURANCE CORPORATION of Ohio, Defendant-Appellee.

No. 108846

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: August 6, 2020

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Plaintiff-appellant, Lindsey Williams-Diggins,¹ appeals from the trial court's judgment that granted the Civ.R. 12(B)(6) motion to dismiss of defendant-appellee, Permanent General Assurance Corporation of Ohio ("Permanent General"). Finding no merit to the appeal, we affirm.

I. Background

{¶ 2} Williams-Diggins insured his 2006 Chevrolet Impala LS with Permanent General under a private passenger auto ("PPA") policy that provided coverage for collision and comprehensive loss (the "Policy"). On March 19, 2018, he was involved in an accident while driving his car. After the accident, Williams-Diggins filed a claim for property damage with Permanent General. Permanent General determined that Williams-Diggins's vehicle was a total loss and, after a third-party vendor calculated that the fair market value of his vehicle was $2,968.00, paid him $1,431.00 ($2,968.00 less $542.00 salvage value and $1,000 deductible, plus $5.00 salvage fee). Williams-Diggins accepted the payment without objection and retained his vehicle.

{¶ 3} Williams-Diggins subsequently filed a class action complaint for breach of contract against Permanent General, alleging that Permanent General breached the insurance contract by not paying him sales tax, title fees, and registration fees as part of the actual cash value for the total loss of his vehicle. (Complaint, ¶ 2.) Williams-Diggins's class action claim was made on behalf of "all persons insured under a Permanent General Ohio PPA insurance policy who suffered a total loss covered claim and were not paid the full sales tax, title fees, and registration fees due under their policies." (Complaint, ¶ 2.)

{¶ 4} Permanent General filed a motion to dismiss under Civ.R. 12(B)(6), arguing that the trial court should dismiss the complaint because (1) Williams-Diggins lacked standing to bring suit because he never replaced his vehicle and thus did not incur any sales tax or title and registration fees, the damages sought in his complaint; and (2) the Policy did not require the payment of sales tax and fees.

{¶ 5} The trial court granted the motion to dismiss. It did not rule on Permanent General's standing argument, but found it was undisputed that the actual cash value of Williams-Diggins's vehicle prior to the accident was the proper measure of Permanent General's liability to Williams-Diggins. The court found that the Policy defined actual cash value as the fair market value of the property, which the court ruled is the price a willing buyer will pay a willing seller and does not include sales tax and fees. The trial court further found that "nowhere in the contract does the defendant promise to pay sales taxes and fees in the event the plaintiff, after accepting an actual cash value payment, decides to replace the damaged vehicle." Accordingly, the trial court found that the complaint did not state a claim for which relief can be granted, and it dismissed the complaint. This appeal followed.

II. Law and Analysis

{¶ 6} This court's review of a motion to dismiss pursuant to Civ.R. 12(B)(6) is de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In resolving a Civ.R. 12(B)(6) motion, a court is confined to the allegations contained in the complaint and as an appellate court, we must independently review the complaint to determine if dismissal was appropriate. Allstate Ins. v. Electrolux Home Prods. , 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, 2012 WL 112991, ¶ 7, citing McGlone v. Grimshaw , 86 Ohio App.3d 279, 285, 620 N.E.2d 935 (4th Dist.1993). A complaint should not be dismissed unless it appears beyond all doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. Id. , citing O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Id. at ¶ 8, citing Byrd v. Faber , 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991). Nevertheless, legal conclusions or opinions couched as factual allegations are not given a presumption of truthfulness, Thomas v. Jackson Hewitt, Inc. , 192 Ohio App.3d 732, 2011-Ohio-618, 950 N.E.2d 578, ¶ 8 (8th Dist.), and unsupported conclusions of a complaint are not sufficient to withstand a motion to dismiss. Id. , citing State ex rel. Hickman v. Capots , 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989).

{¶ 7} In his single assignment of error, Williams-Diggins contends that the trial court erred in finding that Permanent General's promise in the Policy to pay the actual cash value of a totaled vehicle, where actual cash value is defined as the fair market value of the vehicle at the time of the loss, unambiguously excludes sales tax and fees.

{¶ 8} In insurance policies, as in other contracts, words and phrases are to be given their plain and ordinary meaning unless manifest absurdity results or unless some other meaning is clearly intended from the face or overall contents of the contract. Beverage Holdings, L.L.C. v. 5701 Lombardo, L.L.C. , 159 Ohio St.3d 194, 2019-Ohio-4716, 150 N.E.3d 28, ¶ 13 (Kennedy, J., dissenting). Where the language of an insurance contract is reasonably susceptible of more than one interpretation, the meaning of the ambiguous language is a question of fact. Co. Wrench, Ltd. v. Andy's Empire Constr. Inc. , 8th Dist. Cuyahoga No. 94959, 2010-Ohio-5790, 2010 WL 4867974, ¶ 16. If there is no ambiguity, there is no issue of fact to be determined, and the terms will be given the effect called for by the plain language of the contract. Id. ; Davis v. Loopco Indus., Inc. , 66 Ohio St.3d 64, 66, 609 N.E.2d 144 (1993). Here, applying the plain language of the Policy, we find that as a matter of law, the Policy required Permanent General to pay the actual cash value of Williams-Diggins's vehicle at the time of the loss and nothing more.

{¶ 9} Under the Policy, Permanent General promised to pay Williams-Diggins for "direct loss" to his vehicle "if that loss is caused by an accident resulting from a collision." (Policy, Physical Damage Coverage, pg. 18.) "Loss" is defined in the Policy as "sudden, direct and accidental physical damage to, or theft of, property." (Policy Definitions, ¶ 25, pg. 6.) There is no dispute that Williams-Diggins's vehicle was damaged in a collision, and that as a result, he suffered a "loss" under the Policy and Permanent General had a duty to pay.

{¶ 10} Although Permanent General promised to pay Williams-Diggins for his "loss," it limited its liability under the Policy to "the lesser of":

a. The actual cash value, at the time of the loss, of the damaged or stolen auto, or its parts if the loss is limited to parts;

b. The amount necessary to repair physical damage to the auto, or its parts if the loss is limited to parts, to return it to its pre-loss condition. No amount for any diminution of value or other change in market value of the auto will be included in, or paid with, the amount to repair; or

c. The amount necessary to replace the damaged or stolen auto, or its parts if the loss is limited to parts, with that of like kind and quality.

(Policy, Limits of Liability, ¶ 1, pg. 22.)

{¶ 11} With respect to "actual cash value," the Policy stated:

2. "Actual cash value" means, at the time of the accident or loss, the fair market value of the stolen or damaged property. The fair market value is affected by:

a. The age, mileage and physical condition of the property; and

b. Depreciation and prior damage, which may reduce value.

(Policy, Definitions, ¶ 2, pg. 4.)

{¶ 12} This court has recognized that in Ohio, actual cash value is established by either the fair market value of the property at the time of the loss or the replacement cost of the vehicle less depreciation for age and condition. Modesty v. Scottsdale Surplus Lines , 8th Dist. Cuyahoga No. 86912, 2006-Ohio-4272, 2006 WL 2374311, ¶ 11, citing Asmaro v. Jefferson Ins. Co. of New York , 62 Ohio App.3d 110, 114, 574 N.E.2d 1118 (6th Dist.1989). See also Schaller v. Natl. Alliance Ins. Co. , 496 F.Supp.2d 890, 897 (S.D. Ohio 2007), citing Jones v. Auto Owners Mut. Ins. Co. , 6th Dist. Lucas No. L-98-1297, 1999 WL 435103, *4-5 (June 30, 1999). In the absence of any specific limiting language in the contract, either measure of damages is acceptable in computing the amount of the loss. Modesty at id.

{¶ 13} In this case, however, it is apparent that when it drafted the Policy, Permanent General specified the definition it was using for the term actual cash value: the fair market value of the property at the time of the loss. As this court has held, and the trial court properly determined, " ‘fair market value’ is defined as ‘that price which would be agreed upon between a willing seller and a willing buyer in a voluntary sale on the open market,’ " and does not generally include sales tax and fees. Wray v. Stvartak , 121 Ohio App.3d 462, 471, 700 N.E.2d 347 (8th Dist.1997). See also State Farm Mut. Auto. Ins. Co. v. Cheeks , 5th Dist. Stark No. 2013CA00135, 2014-Ohio-410, 2014 WL 470874, ¶¶ 15-16 ; (distinguishing between fair market value and sales tax and fees); State Bank N.A. v. Unruh , 2d Dist. Montgomery No. 13143, 1992 WL 131428, 4 (June 12, 1992) (distinguishing fair market value and sales tax); Coulter v. Schwab , 1st Dist. Hamilton No. C-880400, 1989 WL 129464 (Nov. 1, 1989) ; Porter v. Cuyahoga Cty. Bd. of Revision , 50 Ohio St.2d 307, 312, 364 N.E.2d 261 (1977).

{¶ 14} There is no ambiguity in the Policy: Permanent General promised to...