# Abboud v. Travelers

> District Court, N.D. Ohio · February 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10370531

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** February 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10370531

## How later opinions describe it (automated extraction)

- concluding that “[d]efendants’ unfounded speculation and attorney argument is not evidence.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SALIM ABBOUD, CASE NO. 1:20-CV-01523

Plaintiff,
-vs- JUDGE PAMELA A. BARKER

TRAVELERS PROPERTY CASUALTY
INSURANCE COMPANY, MEMORANDUM OPINION AND
ORDER
Defendant.

Currently pending is Defendant Travelers Property Casualty Insurance Company’s Motion
for Summary Judgment. (Doc. No. 17.) Plaintiff Salim Abboud filed a Brief in Opposition on July
12, 2021, to which Travelers replied on July 26, 2021. (Doc. Nos. 21, 22.) For the following reasons,
Travelers’ Motion for Summary Judgment is GRANTED.
I. Background
This insurance dispute arises out of an April 23, 2019 incident in which a tree fell on Abboud’s
garage roof. (Salim Abboud Depo., Doc. No. 17-2, PageID# 181.) The tree damaged 8 hexagonal-
shaped roof shingles, bent a portion of the gutter along the garage’s roofline, and caused an interior
drywall crack in the garage’s second-floor loft space. (2/18/2020 Monhemius Report, Doc. No. 17-
5, PageID# 274-92.)
Abboud’s house was built in the mid-1990s. (Doc. No. 17-2, PageID# 185.) Other than a
portion of roof covering an enclosed rear deck, Abboud’s roof was also constructed in the mid-1990s.
(Id.) The roof is mostly covered in hexagonal-shaped, gray-brown asphalt shingles, although at least
two roof slopes are covered in different, rectangular-shaped shingles. (Id. at PageID# 185, 192.) The
hexagonal, gray-brown shingles are manufactured by CertainTeed and the shingle style name is
“Carriage House.” (Id.; see also 8/27/2017 ITEL Report, Doc. No. 17-5, PageID# 311.)
Abboud obtained a high-value homeowners insurance policy, numbered 602945233 637 1,
through Travelers. (Travelers Policy, Doc. No. 17-4, PageID# 218.) The Policy insures “against risk
of direct physical loss to” Abboud’s house. (Id. at PageID# 239.) The Policy also sets forth the
following provisions regarding Travelers’ obligation to settle any losses:

3. Loss Settlement.
Covered property losses are settled as follows:
. . .

b. . . . Buildings under Coverage A or B are settled at replacement cost without
deduction for depreciation, subject to the following:

(1) We will pay the cost to repair, or replace, after application of deductible
and without deduction for depreciation, but not more than the least of the
following amounts:
. . .

(b) The replacement cost of that part of the building damaged with
material of like kind and quality and for like use; or

(c) The necessary amount actually spent to repair or replace the
damaged building.

(Id. at PageID# 242-43, emphasis added.)
Although the tree fell on Abboud’s roof on April 23, 2019, Abboud did not file a claim for
tree-related damage with Travelers for several months. (Doc. No. 17-2, PageID# 190.) Abboud “was
not certain of the damage immediately after the fall” and did not contact a roofing company to
ascertain the damage until August 2019. (Id.) In August 2019, Abboud contacted David Averette at
Fixler Roofing. (Id.) Averette informed Abboud that he might be unable to find a match for the
damaged shingles and suggested that Abboud go through Travelers’ claims process to determine if
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Travelers would cover the cost of replacing the entire roof, rather than merely replacing the individual
damaged shingles. (Id. at PageID# 191.)
On August 22, 2019, Abboud filed a claim for the tree damage with Travelers. (Doc. No. 17-
7, PageID# 331.) On August 27, 2019, a Travelers adjuster examined the exterior damage to
Abboud’s roof. (Doc. No. 17-2, PageID# 191, 207.) He observed that 8 shingles were damaged but
that it did not appear that the tree either punctured the exterior façade or ripped open any holes in the

exterior. (Id. at PageID# 187.) The adjuster also took a sample of Abboud’s hexagonal-shaped
shingles to determine whether Abboud could obtain either similar or identical replacement shingles.
(Id. at PageID# 207.) The adjuster ran an “ITEL report” to determine whether similar shingles were
available and learned that CertainTeed continued to make identical “Carriage House” shingles that
matched the style, shape, and color of Abboud’s damaged shingles. (Doc. No. 17-5, PageID# 310.)
That evening, the adjuster notified Abboud via email that he was able to locate an exact match for
Abboud’s damaged shingles. (Id. at PageID# 309-11.) Travelers’ adjuster also discouraged Abboud
from pursuing the claims process because Travelers believed the amount of damage to the 8 shingles
was worth less than Abboud’s $2,500 deductible. (Doc. No. 17-2, PageID# 200.)
After Travelers informed Abboud that matching CertainTeed Carriage House shingles were

available, Averette purchased a bundle of the matching shingles to compare them to Abboud’s
existing shingles. (Id. at PageID# 192.) Averette placed the new Carriage House shingles on the
front of Abboud’s roof, away from the damaged areas, and took photos to compare the look of the
new Carriage House shingles to the existing shingles. (Id.) Averette emailed these photos to Abboud.
(Id.) Abboud believed that these sample shingles were not an exact match to the existing shingles on
his roof. (Id. at PageID# 191.) Although Abboud reviewed the photos of the sample shingles, he

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never assessed the damaged shingles on the roof, nor personally compared the new shingles side-by-
side to his existing shingles. (Id. at PageID# 192.)
On October 7, 2019, Abboud sent Travelers an email containing Averette’s photos of the
sample shingles laying next to the existing shingles. (Id. at PageID# 207.) Abboud requested that
Travelers reconsider its earlier determination that the CertainTeed Carriage House shingles were a
reasonable match to his existing shingles. (Id.) Two days later, Travelers responded to Abboud’s

email, indicating that it believed the sample shingles were a reasonable match. (Id.) Abboud did not
have further contact with Travelers until January 2020. (Id. at PageID# 200-01.)
In early January 2020, Abboud filed a second, unrelated claim with Travelers regarding
interior water damage due to frozen pipes. (Id.) On January 15, 2020, a Travelers adjuster inspected
the interior and exterior of Abboud’s house and determined that Travelers should seek additional
assistance to determine the full extent of all tree-related damage to Abboud’s house. (Doc. No. 17-
9, PageID# 340.) On January 23, 2020 and February 3, 2020, Noah Monhemius, a civil forensic
engineer with Engineering & Environmental Services Group, inspected Abboud’s house to determine
the full extent of the tree-related damage. (Monhemius Affid., Doc. No. 17-5, PageID# 266.)
Monhemius identified three separate areas of tree-related damage to Abboud’s home. First,

Monhemius concluded that the tree’s impact caused a hairline to 1/32-inch crack in a portion of the
interior drywall in the garage’s second-floor loft. (2/18/2020 Monhemius Report, Doc. No. 17-5,
PageID# 280.) Monhemius recommended that the crack be repaired by spackling and repainting it.
(Id.) Second, Monhemius concluded that 8 shingles sustained gouges and/or scrapes consistent with
impacts from at least two different fallen trees. (Id. at PageID# 281.) Monhemius recommended that
the damaged shingles be removed and replaced. (Id. at PageID# 284.) Third, he concluded that the

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gutter along the garage roofline was bent and damaged, consistent with impacts from one or more
fallen trees. (Id. at PageID# 281.) He recommended that the impacted gutter, approximately 29 linear
feet, be removed and replaced. (Id. at PageID# 283.) Monhemius did not observe any other damage
to the roof or house that could be attributed to tree impacts. (Id. at PageID# 287-88.)
On March 11, 2020, Travelers sent Abboud a letter informing him that it determined the tree-
related damage to Abboud’s house was “isolated to the garage area roof, gutter and drywall directly

below.” (3/11/2020 Travelers Letter, Doc. No. 17-9, PageID# 340.) Travelers valued the full cost of
repair or replacement of these damages to be $2,847.87 and determined that, after subtracting
Abboud’s $2,500 deductible, Abboud was entitled to a payment of $347.87. (Id.)
On March 13, 2020, Abboud sent Travelers a Sworn Statement in Proof of Loss demanding
$189,163.04 for a new roof and other repairs. (See 3/31/2020 Travelers Letter, Doc. No. 17-7,
PageID# 329.) On March 31, 2020 Travelers rejected Abboud’s demand, concluding that Abboud’s
Proof of Loss was defective because it included “a vast number of repairs not covered under
[Abboud’s] policy and not as result of a covered cause of loss.” (Id.) Travelers noted that “[t]he tree
impact damages are isolated to 8 marred shingles on the south/rear elevation of the garage, the south
gutter of the garage and one crack in the second-floor garage loft area.” (Id. at PageID# 331.)

On March 2, 2021, Monhemius performed a supplemental inspection of Abboud’s roof.
(3/17/2021 Monhemius Report, Doc. No. 17-5, PageID# 294.) Monhemius compared the appearance
of the sample shingles Averette left on top of Abboud’s roof in September 2019 to Abboud’s existing
shingles. (Id.) Monhemius removed the sample shingles from where they sat on the front of the roof
and placed them alongside the damaged shingles on the rear garage roof. (Id.) Monhemius took
several pictures of the sample shingles alongside the damaged shingles to demonstrate that the

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shingles shared a similar appearance in shape and color. (Id. at PageID# 299-301.) Monhemius noted
that the existing shingles “were not brittle and could be manipulated by hand without causing creases
or tears,” meaning that it would be possible to remove and replace the 8 damaged shingles without
damaging the other unaffected shingles. (Id. at PageID# 301.)
Abboud filed the instant case in the Medina County Court of Common Pleas on May 26, 2020.
(See Complaint, Doc. No. 1-3.) Abboud asserts three causes of action against Travelers: (1) breach

of contract, (2) declaratory judgment, and (3) bad faith. (Id.) Travelers removed the action to this
Court on July 9, 2020. (Doc. No. 1.) Travelers filed the instant Motion for Summary Judgment on
May 28, 2021. (Doc. No. 17.) Abboud filed an Opposition on July 12, 2021, to which Travelers
replied on July 26, 2021. (Doc. Nos. 21, 22.) This matter is now ripe for a decision.
II. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in
favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.
2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”
Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the
outcome of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.
At the summary judgment stage, “[a] court should view the facts and draw all reasonable
inferences in favor of the non-moving party.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d

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619, 628 (6th Cir. 2018). In addition, “the moving party bears the initial burden of showing that there
is no genuine dispute of material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 F. App’x
506, 508 (6th Cir. 2014). The moving party may satisfy this initial burden by “identifying those parts
of the record which demonstrate the absence of any genuine issue of material fact.” Lindsey v.
Whirlpool Corp., 295 F. App’x 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary
judgment on an issue for which it does not bear the burden of proof at trial,” the moving party may

also “meet its initial burden by showing that ‘there is an absence of evidence to support the
nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the moving party satisfies its burden, “the burden shifts to the non-moving party who must then point
to evidence that demonstrates that there is a genuine dispute of material fact for trial.” Ask Chems.,
593 F. App’x at 508-09. “[T]he nonmoving party may not simply rely on its pleading, but must
‘produce evidence that results in a conflict of material fact to be solved by a jury.’” MISC Berhad v.
Advanced Polymer Coatings, Inc., 101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d
at 150).
III. Analysis
A. Interpretation of Contracts Under Ohio Law

Ohio law applies to the interpretation of the Policy. (See Doc. No. 17, PageID# 166; Doc.
No. 21, PageID# 354.) The Court will briefly address the general principles governing the
interpretation of insurance contracts under Ohio law, which will inform the Court’s subsequent
analysis of the parties’ arguments. Under Ohio law, “[a]n insurance policy is a contract whose
interpretation is a matter of law.” Sharonville v. Am. Employers Ins. Co., 846 N.E.2d 833, 836 (Ohio
2006) (citing Alexander v. Buckeye Pipe Line Co., 374 N.E.2d 146, 150 (Ohio 1978)). A court

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“examine[s] the insurance contract as a whole and presume[s] that the intent of the parties is reflected
in the language used in the policy.” Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1261 (Ohio
2003).
The absence of definitions does not necessarily make terms ambiguous. Nationwide Mut.
Fire Ins. Co. v. Guman Bros. Farm, 652 N.E.2d 684, 686 (Ohio 1995); see also Penton Media, Inc.
v. Affiliated Fm Ins. Co., No. 1:03-cv-2111, 2005 WL 8171363, at *6 (N.D. Ohio Sept. 30, 2005)

(citing Chicago Title Ins. Co. v. Huntington Nat’l Bank, 719 N.E.2d 955, 959 (Ohio 1999)) (“Simply
because a term in a contract is not defined does not mean that the policy is ambiguous.”). “‘If a
contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of
fact to be determined.’” Guman, 652 N.E.2d 684 at 686 (quoting Inland Refuse Transfer Co. v.
Browning-Ferris Inds. of Ohio, Inc. 474 N.E.2d 271, 272 (Ohio 1984)). Thus, a court must “look to
the plain and ordinary meaning of the language used in the policy unless another meaning is clearly
apparent from the contents of the policy.” Westfield Ins. Co., 797 N.E.2d at 1261. “When the
language of a written contract is clear, a court may look no further than the writing itself to find the
intent of the parties. . . . As a matter of law, a contract is unambiguous if it can be given a definite
legal meaning.” Id. Moreover, “a contract term is not ambiguous simply because parties disagree

about its meaning.” Tattletale Portable Alarm Sys., Inc. v. MAF Prods., Inc., No. 2:14-cv-00574,
2016 WL 5122545, at *6 (S.D. Ohio Sept. 21, 2016) (citing Shifrin v. Forest City Enters., 597 N.E.2d
499, 501 (Ohio 1992)).
B. Counts 1 and 2: Breach of Contract and Declaratory Judgment
In Count 1, Abboud alleges that Travelers breached its contractual obligations under the
Policy when it failed to fully cover Abboud’s roof damages and attempted to utilize non-conforming

8
shingles to repair his roof. (Doc. No. 1-3, ¶¶ 5-7.) Relatedly, in Count 2, Abboud seeks a declaratory
judgment that Travelers must “tender payment to adequately compensate” Abboud for the damages
described in Count 1. (Id. at ¶ 9.)
In its Motion, Travelers argues that Counts 1 and 2 fail as a matter of law because Travelers
fully compensated Abboud for all tree-related direct physical losses when it paid him for the 8
replacement CertainTeed Carriage House shingles, as well as for the other physical damage to the

gutter and drywall. (Doc. No. 17, PageID# 167-70.) Travelers further asserts that the replacement
shingles are not only of like kind and quality to the existing shingles, but are also an exact match.
(Id. at PageID# 170-71.)
In his Opposition, Abboud concedes that only 8 shingles sustained damage due to the tree’s
impact. (Doc. No. 21, PageID# 352.) Further, Abboud does not argue that the CertainTeed Carriage
House shingles are an unsuitable replacement for his 8 damaged shingles.1 Instead, Abboud argues
that Travelers failed to adequately address the interior drywall crack and asserts that “[t]he extent to
the damage [sic] the crack has caused is essentially awaiting resolution to the question whether or not
the roof will be replaced.” (Id. at PageID# 355.) Abboud contends that “two separate

1 In his Complaint, Abboud alleges that the CertainTeed Carriage House shingles were not a suitable replacement for the
8 damaged shingles. (Doc. No. 1-3, ¶ 6.) In its Motion, Travelers argued at great length that the CertainTeed Carriage
House shingles are of like kind and quality to the existing shingles and create a reasonably comparable appearance. (Doc.
No. 17, PageID# 170-73.) Abboud does not address Travelers’ argument that the CertainTeed Carriage House shingles
are indeed an acceptable replacement in his Opposition. (See Doc. No. 21.) The Court agrees with Travelers’ assertion
on Reply that Abboud failed to contest Travelers’ contention that the replacement shingles are a suitable replacement and,
therefore, has abandoned any claim that the CertainTeed Carriage House shingles are not a suitable replacement of like
kind and quality. See Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (the Sixth Circuit’s
“jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff fails
to address it in response to a motion for summary judgment.”); see also Wierengo v. Akal Sec., Inc., 580 F. App’x 364,
369 n.1 (6th Cir. 2014) (“Akal moved for summary judgment on Wierengo’s federal-and state-law claims. Wierengo did
not discuss her state-law claims in her response brief, and the district court held that they were abandoned. We agree.”);
Hicks v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (“The district court properly declined to consider
the merits of this claim because Hicks failed to address it in either his response to the summary judgment motion or his
response to Concorde’s reply brief.”).
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contractors . . . opined that he requires an entire roof repair” and that “[i]t is undisputed that
[Monhemius] did not perform a structural analysis or examine whether or not the crack is evidence
of a larger issue . . . .” (Id. at PageID# 356.) Thus, according to Abboud, Monhemius’s report is
“incomplete and erroneous . . . in the face of two separate contractors recommending a roof tear off
and replacement” and genuine issues of material fact remain. (Id.) For the following reasons, the
Court concludes that Abboud’s Counts 1 and 2 fail as a matter of law.

Abboud’s Policy covers “direct physical loss” to his dwelling, but the Policy does not define
the phrase “direct physical loss.” (See Doc. No. 17-4, PageID# 239.) Thus, the Court looks to the
plain, ordinary meaning of the phrase “direct physical loss.” See Santo’s Italian Café v. Acuity Ins.
Co., 508 F. Supp. 3d 186, 197 (N.D. Ohio 2020), aff’d 15 F.4th 398 (6th Cir. 2021); Equity Planning
Corp. v. Westfield Ins. Co., 522 F. Supp. 3d 308, 318 (N.D. Ohio Feb. 26, 2021). “Direct” is defined
as “stemming immediately from a source.” Direct, Merriam-Webster, https://www.merriam-
webster.com/dictionary/direct (last visited Feb. 18, 2022). “Physical” is defined as “having material
existence: perceptible especially through the senses and subject to the laws of nature.” Physical,
Merriam-Webster, https://www.merriam-webster.com/dictionary/physical (last visited Feb. 18,
2022). “Loss” is defined as “destruction, ruin” and also as “the act of losing possession: deprivation.”

Loss, Merriam-Webster, https://www.merriam-webster.com/dictionary/loss (last visited Feb. 18,
2022). Thus, a “direct physical loss” requires some perceptible destruction of the covered property.
See Equity Planning Corp., 522 F. Supp. 3d. at 318-19. This interpretation comports with the Ohio
Court of Appeals’s interpretation of a similar term, “direct physical injury,” in Mastellone v.
Lightning Rod Mutual Insurance Company. See Mastellone v. Lightning Rod Mut. Ins. Co., 175 Ohio

10
App. 3d 23, 40, 884 N.E.2d 1130 (2008) (interpreting “direct physical injury” to mean a tangible
harm that adversely affected the structural integrity of the covered dwelling).
Here, the direct physical loss to Abboud’s dwelling was limited to three discrete areas: (1) 8
gouged and/or scraped roof shingles; (2) a bent portion of exterior rear gutter along the garage
roofline; and (3) a cracked piece of interior drywall underneath the spot where the tree fell on the
roof. (Doc. No. 17-5, PageID# 279-81.) Upon inspection, Monhemius concluded that the direct

physical loss to Abboud’s house was limited to just the 8 shingles, bent gutter, and cracked drywall.
(Doc. No. 17-5, PageID# 279-81.) Further, Abboud admitted that the fallen tree did not damage
every shingle on the roof. (Doc. No. 17-2, PageID# 187.) Abboud also admitted that the physical
damage was limited to just the 8 gouged shingles, bent gutter, and cracked drywall. (Id. at PageID#
208.) Travelers concluded that Abboud’s damages “were isolated to the garage area roof, gutter and
drywall directly below,” and paid Abboud a total of $347.87, the full cost of repair or replacement
minus Abboud’s $2,500 deductible. (Doc. No. 17-9, PageID# 340.) Thus, Travelers fully complied
with its contractual obligations to pay Abboud only for the physical damages sustained due to the
April 23, 2019 tree impact. The rest of Abboud’s roof did not sustain any direct physical loss due to
the tree’s impact. The Court agrees with Travelers that it was not obligated to replace the entirety of

Abboud’s roof, which did not sustain any physical damage. (Doc. No. 17-2, PageID# 187.)
Accordingly, because Travelers fully complied with its contractual obligations, Abboud’s Counts 1
and 2 fail as a matter of law.
In his Opposition, Abboud argues for the first time that the interior drywall crack may or
may not portend a more serious structural problem, but that he has not yet had the drywall crack
inspected because he may need a roof replacement first. (Doc. No. 21, PageID# 354-55.) This

11
argument is meritless. Abboud fails to support this assertion with any evidence whatsoever and
instead relies on two roofing replacement price estimates, his own speculation during deposition, and
his attorney’s conjecture. (Id. at PageID# 356.) This is insufficient to defeat a motion for summary
judgment. Abboud “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
citing DeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (CA2 1949) (L. Hand, J.), cert. denied, 338

U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581 (1950); 10A C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure § 2727 (1983). First, Abboud misrepresents two price quotes from roofing contractors
as “opinions” indicating that Abboud’s roof must be totally replaced. (See Fixler Roofing Estimate,
Doc. No. 21-2; Storm Damage Consultants Estimate, Doc. No. 21-3.) Neither document contains
any opinion whatsoever that Abboud’s roof must be replaced, nor any opinion that a hairline crack in
drywall indicates a structural problem with the house. Second, Abboud may not rely on his own
unfounded speculation from deposition or his attorney’s conjecture that the drywall crack may or
may not suggest a serious structural problem, as such speculation is not evidence. See Procter &
Gamble Co. v. Team Tech., Inc., 46 F. Supp. 3d 764, 772 (S.D. Ohio 2014) (concluding that
“[d]efendants’ unfounded speculation and attorney argument is not evidence.”). Abboud offers no

other evidence whatsoever to refute Travelers’ evidence that the cracked drywall could be repaired
with spackle and paint or to demonstrate that the crack portends a more serious problem with the
house’s structural integrity.
Further, although Abboud complains that Monhemius’s report is “incomplete and erroneous,”
and that Monhemius never examined the cracked drywall’s “effect on the structure,” Monhemius’s
report expressly belies such an assertion. Monhemius wrote that his visual inspection of Abboud’s

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house “was structural in its orientation and was not intended, or designed, to provide a complete
analysis of possible damage to the electrical, plumbing, or mechanical systems of the home.” (Doc.
No. 17-5, PageID# 287, emphasis added.) Abboud offers no contrary expert testimony to suggest
that Monhemius, a civil engineer with several years of building inspection experience, completed an
inadequate inspection or that cracked drywall necessitated a more invasive inspection instead of a
visual inspection. Abboud may not rely on his own unsupported suspicions to avoid summary

judgment when he failed to counter Travelers’ expert with his own. See, e.g., Morris v. State, No.
80839, 2002 WL 31429811, at *8-10 (Ohio 8th Dist. Ct. App. Oct. 31, 2002) (noting that the
plaintiffs, who relied “solely on their own perception” had “failed to come forward with the kind of
evidence necessary to rebut the defendants,” who presented several expert witnesses at the summary
judgment stage); see also, e.g., Oman v. Advance Auto Parts, Inc., No. 3:02-CV-7581, 2003 WL
22722952, at *2 (N.D. Ohio Oct. 28, 2003).
Accordingly, the Court concludes that Travelers fully compensated Abboud for the direct
physical loss caused by the fallen tree’s impact and, therefore, fulfilled its contractual obligations
under the Policy. Counts 1 and 2 fail as a matter of law.

C. Count 3: Bad Faith
In Count Three, Abboud asserts that Travelers acted in bad faith when it “failed to tender full
payment for damages” to Abboud’s property and when it “failed to resolve [Abboud’s] claim in a
timely manner.” (Doc. No. 1-3, ¶¶ 12, 14.) For the following reasons, the Court concludes that
Abboud’s bad faith claim fails as a matter of law.
An insurer “fails to exercise good faith in the processing of a claim of its insured where its
refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification

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therefor.” Mastellone, 175 Ohio App. 3d at 35, quoting Zoppo v. Homestead Ins. Co. (1994), 71 Ohio
St.3d 552, 554–555, 644 N.E.2d 397. As discussed above, Travelers fulfilled its contractual
obligations under the Policy when it fully compensated Abboud for the three discrete areas of direct
physical loss caused by the fallen tree. Travelers was under no obligation to replace Abboud’s entire
roof when only 8 shingles, the gutter, and the drywall sustained direct physical loss. Thus, to the
extent that Abboud’s bad faith claim is premised on his assertion that Travelers failed to replace the

entire roof, the claim fails as a matter of law.
Moreover, to the extent that Abboud’s bad faith claim is premised on his assertion that
Travelers failed to timely process his claim, Count 3 still fails. Abboud argues in his Opposition that
Travelers failed to conduct a full inspection of Abboud’s home until January 2020, five months after
Abboud filed his claim. (Doc. No. 21, PageID# 357-58.) However, the record clearly belies
Abboud’s assertion that Travelers “dragged its feet” on processing Abboud’s claim and Abboud has
presented no evidence to the contrary. (Id.) Travelers conducted its initial inspection of Abboud’s
roof on August 27, 2019, only five days after Abboud filed his claim. (Doc. No. 17-2, PageID# 200.)
At that time, Travelers’ adjuster noted that the tree did not puncture or rip through the roof or any
other part of the house’s exterior. (Id. at PageID# 187.) Further, Abboud did not report any interior

damage. (Id. at PageID# 187-89.) Thus, as of August 27, 2019, Travelers determined that Abboud’s
house had only sustained exterior, not interior, damage and advised Abboud that Travelers would
only pay to replace the 8 damaged shingles with identical CertainTeed Carriage House shingles. (Id.
at PageID# 200.) Abboud did not contact Travelers again until October 7, 2019, when he asked
Travelers to reconsider its determination that the CertainTeed Carriage House shingles reasonably
matched the 8 damaged shingles. (Id. at PageID# 207.) Two days later, on October 9, 2019, Travelers

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informed Abboud that it maintained that the CertainTeed Carriage House shingles were a reasonable
match for Abboud’s damaged shingles. (Id.)
Abboud had no further contact with Travelers until he filed a separate claim for water damage
on January 10, 2020. (Id. at PageID# 200-01.) During its January 2020 inspection of Abboud’s water
damage claim, Travelers learned there was a possibility that the April 23, 2019 tree impact may have
caused interior damage. (Id.) On January 15, 2020, just five days after receiving Abboud’s water

damage claim, Travelers retained EES Group to investigate whether the April 23, 2019 tree impact
caused any interior damage. (Id.) Monhemius conducted two inspections shortly thereafter, on
January 23, 2020 and February 3, 2020. (Id.; see also Doc. No. 17-5, PageID# 266.) These facts
disprove Abboud’s unsupported assertion that Travelers delayed inspecting his tree damage claim
and demonstrate that Travelers conducted a further timely investigation upon learning of the
possibility of interior tree-related damage in January 2020. Accordingly, to the extent that Abboud’s
bad faith claim is premised on his assertion that Travelers purposely delayed processing his insurance
claim, Count 3 still fails as a matter of law.
IV. Conclusion
Accordingly, for the reasons set forth above, Travelers’ Motion for Summary Judgment is

GRANTED.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
Date: February 23, 2022 U. S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10370531. Public record. Not legal advice.