The opinion
[Cite as Nunn v. Ohio Dept of Ins., 2016-Ohio-279.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Gary L. Nunn, :
Plaintiff-Appellant, :
No. 15AP-740
v. : (Ct. of Cl. No. 2014-879)
Ohio Department of Insurance, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on January 26, 2016
Gary L. Nunn, pro se.
Michael Dewine, Attorney General, James P. Dinsmore, and
Timothy M. Miller, for appellee.
APPEAL from the Court of Claims of Ohio
TYACK, J.
{¶ 1} Gary L. Nunn filed a lawsuit in the Court of Claims of Ohio in which he
named the Ohio Department of Insurance ("ODI") as a defendant. A judge in the Court of
Claims dismissed the lawsuit, finding that the complaint in the lawsuit did not state a
claim upon which relief could be granted. Nunn has appealed from the trial court's finding
assigning eight errors for our consideration:
[I.] THE COURT ERRED BY NOT EXAMINING ALL OF THE
DOCUMENTS THAT WERE SENT TO THE DEPARTMENT
OF INSURANCE 40 LETTERS AND 37 CERTIFIED
LETTERS.
[II.] THE COURT ERRED BY NOT ALLOWING THE
PLAINTIFF A JURY TRIAL WHICH WAS FILED FOR BY
THE PLAINTIFF.
No. 15AP-740 2
[III.] THE COURT ERRED BY KNOWING THE PLAINTIFF
IN THIS MATTER FILED 3 LETTERS TO REQUEST A
HEARING IN FRONT OF THE SUPERINTENDENT OF
INSURANCE AS FOR THE GUIDE LINES AND JOB
DESCRIPTION OF THE DEPARTMENT OF INSURANCE
(WHEN AS AN INSURER IS NOT SATISFIED WITH THE
OUT COME OF AN INSURANCE MATTER THE INSURER
HAS A RIGHT TO FILE A MOTION AND BE HEARD IN
FRONT OF THE SUPERINTENDENT OF INSURANCE LT.
GOVERNOR MARY TAYLOR). THE PLAINTIFF WAS
DENIED THE RIGHT TO BE HEARD IN THE MATTER.
[IV.] THE COURT ERRED BY NOT ALLOWING THE
PLAINTIFF IN THIS MATTER TO FILE A MOTION OF
ADMISSION AS TO THE PROCEDURE RULE 36 AND 26
(B). THE MOTION WAS FILED BUT THE COURT WOULD
NOT ACCEPT THE MOTION AND SENT IT BACK TWO
TIMES.
[V.] THE COURT ERRED BY NOT TAKING INTO THE
CONSIDERATION OF THE MOTION FILED BY THE
PLAINTIFF IN THIS MATTER 12 DAYS AFTER A
JUDGMENT WAS RENDERED. THIS MOTION WAS FILED
BY THE PLAINTIFF IN THIS MATTER AND WAS FILED
ON JUNE 25, 2015. THIS MOTION CONTAINED 18
EXHIBITS THAT CLEARLY SHOWED THE COURT THAT
THERE WERE IRREGULARITIES AND IMPROPRIETIES
IN THE BILLING OF THE REPAIRS AND OTHER ISSUES
THAT WERE NOT CORRECT IN THE HANDLING OF
TSHES [sic] MATTER BY THE DEPARTMENT OF
INSURANCE AND THREE INSURANCE COMPANIES
MOTOROISTS MUTUAL, GEICO, AND WESTFILED.
[VI.] THE COURT ERRED BY NOT ALLOWING THE
PLAINTIFF'S MOTION TO PRESENT ADDITIONAL
EVIDENCE TO THE COURT ON JULY 15, 2015. THE
MAGISTRATE IN THE MATTER ENTERED A DECISION
THAT THE MOTION WAS (MOOT). WHEN THE
PLAINTIFF FILED THIS MOTION HE WAS NOT AWARE
THAT THE JUDGE IN THE MATTER WOULD FILE HIS
DECISION ONLY 2 DAYS LATER. THE PLAINTIFF FEELS
THAT THE MAGISTRATE SHOULD NOT BE ALLOWED TO
MAKE A DECISION IN THIS MATTER HAD A JUDGE
ASSIGNED TO THIS CASE HAD MADE A DECISION IN
THIS MATTER. THE DECISION IN THE MATTER THAT
MAGISTRATE MADE DID NOT HAVE THE JUDGES NAME
No. 15AP-740 3
OR SIGNATURE AND SHOULD NOT HAVE BEEN
ALLOWED BY THE COURT.
[VII.] THE COURT ERRED IN THIS MATTER BY
ALLOWING THE DEPARTMENT OF INSURANCE TO
ALLOW MOTORISTS MUTUAL INSURANCE COMPANY TO
DISCRIMINATE AGAINST THE PLAINTIFF BY HAVING
THE PLAINTIFF TAKE A PHYSICAL DUE TO AGE 70. THE
ACCIDENT IN THIS MATTER HAPPENED ON
SEPTEMBER 18, 2013. THE INSURANCE COMPANY
WAITED 7 MONTHS AFTER THE ACCIDENT AND AFTER
THE PLAINTIFF TURNED 70, NOT FEBURARY 24, 2014
TO TAKE THE PHYSICAL. THIS IS TRULY AGE
DISCRIMINTION AND THE DOCUMENT STATED ABOUT
PHYSICAL LIMITATIONS. THE PLAINTIFF PASSED THE
PHYSICAL AND 2 MONTHS LATER, MOTORISTS MUTUAL
INSURANCE COMPANY CANCELLED THE PLAINTIFF'S
POLICY AND SOME OF THE CLAIMS ON THE
CANCELLATION LETTER WERE NOT VALID.
[VIII.] THE COURT ERRED AS THE COURT WAS
INFORMED WITH DOCUMENTS FROM THE PLAINTIFF
THAT NOW MOTORISTS MUTUAL INSURANCE
COMPANY CANCELLED THE PLAINTIFF'S HOME
OWNERS INSURANCE STATING THE PLAINTIFF DID
NOT LIVE IN THE HOME. THE PLAINTIFF IN THE
MATTER IS A DISABLED VIETNAM VETERAN AND HAS A
VA LOAN AND IN THIS LOAN IT STATES THE VETERAN
MUST RESIDE AND MAINTAIN THE HOME AND THE
PLAINTIFF DOES.
{¶ 2} Nunn's complaint in the lawsuit centers on allegations that the ODI failed to
investigate complaints he had about different insurance companies. He alleged that he
communicated his complaints to the ODI in a series of letters.
{¶ 3} The complaint that Nunn filed in the Court of Claims does not provide any
details about the accident other than the fact that the accident occurred
on September 18, 2013. Nunn alleged that he did not receive a traffic ticket as a result of
the accident.
{¶ 4} Nunn complained that his insurance company, Motorists Mutual, paid out a
significant amount of money as a result of the accident. The court complaint does not say
to whom the money was paid.
No. 15AP-740 4
{¶ 5} The court complaint alleges that Geico destroyed the car involved in the
accident. Westfield Insurance allegedly represents Ford Motor Company "where the
automobile was serviced before the accident" (Complaint, 12). With no information about
how the accident occurred, the significance of the allegation is difficult to determine.
Clearly, the complaint states no basis for a legitimate claim against either Geico or
Westfield Insurance such that the ODI needed to investigate the companies.
{¶ 6} Nunn also alleged that Motorists Mutual had discriminated against him
because he had reached the age of 70. He acknowledged that the request for a physical
examination was made after the collision. He did not address whether Motorists Mutual
had an obligation to pay medical expenses or had liability under uninsured motorists
coverage. He also did not consider the possibility that Motorists Mutual had a right not to
renew his insurance coverage after the accident or other factors showed that he had
deteriorated physically or mentally. He alleged in the court complaint that he was a
disabled Vietnam veteran suffering from post-traumatic stress disorder.
{¶ 7} In the court complaint, he alleged that the ODI had communicated with him
and told him he did not qualify for a hearing before the superintendent of insurance.
Thus, ODI considered his situation and made a determination that a formal hearing in his
grievances was not warranted.
{¶ 8} In short, ODI considered Nunn's situation, but did not provide the relief he
was hoping to receive.
{¶ 9} The law of Ohio provides avenues for relief, such as writs of mandamus and
administrative appeals. The law of Ohio does not make a governmental agency financially
liable for reaching a resolution which does not satisfy a complaining citizen. The Court of
Claims recognized this and granted judgment accordingly. The court specifically
referenced some of the voluminous case law which indicates that a state agency is
generally immune from liability for the performance or nonperformance of a public duty.
{¶ 10} With this background, we address the eight assignments of error in Nunn's
brief.
{¶ 11} The documents Nunn mentions were not provided with the pleadings so
were not before the court when the Court of Claims ordered the dismissal. We cannot
fault that court for failing to consider documents not yet provided to it.
No. 15AP-740 5
{¶ 12} The first assignment of error is overruled.
{¶ 13} Nunn did not show he had a claim worthy of a trial. Hence, he was not
automatically entitled to a jury trial.
{¶ 14} The second assignment of error is overruled.
{¶ 15} The fact Nunn requested a formal hearing at the ODI did not mean he had a
complaint worthy of a formal hearing.
{¶ 16} The third assignment of error is overruled.
{¶ 17} Nunn seems to confuse a request for admissions under Civ.R. 36 with
motions on discovery matters. As a result, the clerk of the Court of Claims did not have to
docket a document entitled "Motion of Admissions." The clerk correctly returned the
motion.
{¶ 18} The fourth assignment of error is overruled.
{¶ 19} The Court of Claims did not have to consider documents filed after
judgment had been entered.
{¶ 20} The fifth assignment of error is overruled.
{¶ 21} The Ohio Rules of Civil Procedure allow for cases to be referred to
magistrates to conduct proceedings. A court entry allowing such proceedings before a
magistrate was filed in the case. The magistrate had the right to refuse additional filings,
especially since the issue before the court was the sufficiency of the complaint.
{¶ 22} The sixth assignment of error is overruled.
{¶ 23} The Court of Claims did not allow the ODI to discriminate. The court merely
held that the pieces of paper Nunn filed did not state a claim for relief.
{¶ 24} The seventh assignment of error is overruled.
{¶ 25} The eighth assignment of error states a new claim which was not fully before
the trial court nor apparently before the ODI. The new claim is that Nunn's insurance was
not cancelled due to his age, but due to the alleged fact the Nunn no longer lived in the
insured property. We are not in a position to prove or disprove Nunn's residence. Neither
was the ODI able to address that.
{¶ 26} The eighth assignment of error is overruled.
No. 15AP-740 6
{¶ 27} All eight assignments of error are overruled. The judgment of the Court of
Claims of Ohio is affirmed.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur
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