Neuro-Communication Servs. v. Cincinnati Ins. Co.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Neuro-Communication Servs., Inc. v. Cincinnati Ins. Co., Slip Opinion No. 2022-Ohio-4379.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-4379

NEURO-COMMUNICATION SERVICES, INC., v. CINCINNATI INSURANCE

COMPANY ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Neuro-Communication Servs., Inc. v. Cincinnati Ins. Co., Slip

Opinion No. 2022-Ohio-4379.]

Insurance—Contract interpretation—Term “direct loss” in commercial insurance

policy requires that there be physical loss or damage to covered property—

Audiology-practice owner’s policy does not cover its loss of income due to

closure during shutdown ordered by governor at beginning of COVID-19

pandemic—Direct physical loss or damage to property does not arise from

general presence of COVID-19 in community, presence of COVID-19 on

surfaces at a premises, or presence on a premises of a person infected with

COVID-19.

(No. 2021-0130—Submitted February 8, 2022—Decided December 12, 2022.)

ON ORDER from the United States District Court for the Northern District of Ohio,

Eastern Division, Certifying a Question of State Law, No. 4:20-cv-01275-BYP.

SUPREME COURT OF OHIO

________________

BRUNNER, J.

{¶ 1} This case comes to us as a certified question from the United States

District Court for the Northern District of Ohio. In the underlying litigation, the

plaintiff—respondent, Neuro-Communication Services, Inc. (“Neuro”)—argues

that its commercial insurance policy entitles it to recover income it lost after it was

forced to cease almost all operations for the first several weeks of the COVID-19

(“Covid”) pandemic. Its insurers, defendants-petitioners, Cincinnati Insurance

Company, Cincinnati Casualty Company, and Cincinnati Indemnity Company

(collectively, “Cincinnati”), moved to dismiss the suit or, in the alternative, to have

the federal court certify a question of state law to this court. See S.Ct.Prac.R.

9.01(A) (providing that we may answer a question of law certified to us by another

court in an “order finding there is a question of Ohio law that may be determinative

of the proceeding and for which there is no controlling precedent in the decisions

of this Supreme Court”).

{¶ 2} Neuro’s policy is governed by Ohio law and provides coverage for a

“direct ‘loss’ ” to certain property. The federal court concluded that whether this

provision covers a claim based on Covid-related business shutdowns is a question

of Ohio law for which there is no controlling precedent from this court. It also

observed the significance of the question, as a large number of suits seeking

coverage under the same or similar language are pending in state and federal courts

across Ohio, making an authoritative answer to the question desirable. The federal

court therefore certified the question to this court, and we agreed to answer it. We

now answer it in the negative.

I. Background

{¶ 3} On March 9, 2020, the governor of Ohio declared a state of emergency

in Ohio due to the outbreak of Covid. See Executive Order 2020-01D, available at

https://governor.ohio.gov/media/executive-orders/executive-order-2020-01-d

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January Term, 2022

(accessed Nov. 26, 2022) [https://perma.cc/NX6D-6BFN]. The order authorized

personnel from state departments “to coordinate the State response to COVID-19,

and to assist in protecting the lives, safety, and health of the citizens of Ohio.” Id.

It also required the director of the Ohio Department of Health (“Health Director”)

to “create and require the use of diagnostic and treatment guidelines and provide

those guidelines to health care providers [and] institutions.” Id. In addition, it

required the Health Director to “issue guidelines for private businesses regarding

appropriate work and travel restrictions, if necessary.” Id.

{¶ 4} Over the next several weeks, the Health Director issued a number of

orders, two of which are particularly relevant here. First, on March 17, 2020, the

Health Director issued an order stating that “all non-essential or elective surgeries

and procedures that utilized [personal protective equipment] should not be

conducted.” Director’s Order non-essential surgery, available at

https://coronavirus.ohio.gov/resources/public-health-orders/directors-order-non-

essential-surgery-3-17-2020 (accessed Nov. 26, 2022). Then, on March 22, 2020,

the Health Director issued an order requiring “all individuals currently living within

the State of Ohio * * * to stay at home” and stating that “[a]ll persons may leave

their homes or place of residence only” to participate in activities, businesses, or

operations as permitted in the order. Director’s Stay-at-Home Order at ¶ 1,

available at https://coronavirus.ohio.gov/static/publicorders/DirectorsOrderStay

AtHome.pdf (accessed Nov. 26, 2022). This order also required all nonessential

businesses to “cease all activities” except as specifically identified in the order, and

it imposed conditions on essential businesses and operations. Id. at ¶ 2. We refer

to these two orders collectively as the “Shutdown Orders.”

{¶ 5} Neuro owns and operates an audiology practice in northeast Ohio

under the name Hearing Innovations. Neuro provides hearing and balance services

to its patients, many of whom are elderly. On March 22, 2020, the American

Academy of Audiology’s Executive Committee stated that audiology practices are

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SUPREME COURT OF OHIO

nonessential businesses and recommended that such practices shut their doors. In

response to the Shutdown Orders, Neuro therefore ceased almost all of its

operations, starting on March 23, 2020. It began to resume its operations on May 4,

2020.

{¶ 6} Neuro holds an “all-risk” commercial-property insurance policy

issued by Cincinnati. It submitted a claim under the Building and Personal Property

Coverage Form of the policy seeking coverage for the revenue it lost as a result of

its complying with the Shutdown Orders.

{¶ 7} The general-coverage provision of the Building and Personal Property

Coverage Form provides that Cincinnati will pay “for direct ‘loss’ to Covered

Property at the ‘premises’ caused by or resulting from any Covered Cause of Loss.”

The term “loss” is defined as “accidental physical loss or accidental physical

damage.”1 “Covered Causes of Loss” is defined as “direct ‘loss’ unless the ‘loss’

is excluded or limited” in that part of the policy.

{¶ 8} The Building and Personal Property Coverage Form also contains a

coverage extension for business income (“Business Income Extension”).

Section A.5.b.1 provides: “[Cincinnati] will pay for the actual loss of ‘Business

Income’ * * * you sustain due to the necessary ‘suspension’ of your ‘operations’

during the ‘period of restoration’. The ‘suspension’ must be caused by direct ‘loss’

to property at a ‘premises’ caused by or resulting from any Covered Cause of Loss.”

“Period of restoration” is defined as “the period of time that * * * [b]egins at the

time of direct ‘loss’ [and] [e]nds on the earlier of: (1) [t]he date when the property

at the ‘premises’ should be repaired, rebuilt or replaced with reasonable speed and

1. The covered “premises” are Neuro’s offices in Boardman and Youngstown. The policy identifies

various types of property that qualify as “Covered Property,” including the buildings in which

Neuro’s offices are located, permanent fixtures and machinery in the buildings, and furniture and

equipment belonging to Neuro in the buildings. It also specifically identifies property that does not

constitute Covered Property.

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January Term, 2022

similar quality; or (2) [t]he date when business is resumed at a new permanent

location.”

{¶ 9} Three other coverage extensions are also relevant:

• Extra Expense Coverage Extension. Section A.5.b.2 provides, “[Cincinnati

will pay for] necessary expenses you sustain * * * during the ‘period of

restoration’ that you would not have sustained if there had been no direct

‘loss’ to property caused by or resulting from a Covered Cause of Loss.”

• Civil Authority Coverage Extension. Section A.5.b.3 provides, “When a

Covered Cause of Loss causes damage to property other than Covered

Property at a ‘premises’, [Cincinnati] will pay for the actual loss of

‘Business Income’ and necessary Extra Expense you sustain caused by

action of civil authority that prohibits access to the ‘premises.’ ”

• Extended Business Income Coverage Extension. Section A.5.b.6 provides

that if a “suspension” of operations entitling Neuro to coverage under the

Business Income Extension occurs, Cincinnati will also “pay for the actual

loss of ‘Business Income’ [the insured] sustain[s] and Extra Expense [the

insured] incur[s]” after “ ‘operations’ are resumed.”

{¶ 10} Cincinnati denied Neuro’s claim. It stated that the general-coverage

provision does not cover the claim, because the claim “does not involve direct,

physical loss to property at [Neuro’s] premises caused by a Covered Cause of

Loss.” Similarly, it stated that the claim does not fall within the extensions for

business income and extra expense, because those provisions require that there be

“direct physical loss or damage” to Covered Property and there was “no evidence

of any such physical loss or damage.”

{¶ 11} Neuro then filed suit in the United States District Court for the

Northern District of Ohio, alleging that Cincinnati had breached the Business

Income Extension as well as the Extra Expense, Civil Authority, and Extended

Business Income Extensions by refusing to provide coverage for its claim. See

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SUPREME COURT OF OHIO

Neuro-Communication Servs., Inc. v. Cincinnati Ins. Co., N.D.Ohio No. 4:20-cv-

01275-BYP. Neuro also seeks to certify a nationwide class of insureds holding

similar policies that have also been denied coverage for losses related to the

pandemic. Overall, the complaint alleges that the Shutdown Orders caused Neuro

to suffer a direct physical loss to its property by requiring it to temporarily suspend

most of its operations and lose access to its property for business purposes.

{¶ 12} Cincinnati moved to dismiss the suit or, in the alternative, to certify

a question of state law concerning the application of the policy to this court under

S.Ct.Prac.R. 9.03(A). The federal court granted Cincinnati’s motion for

certification and certified the following question:

Does the general presence in the community, or on surfaces at a

premises, of the novel coronavirus known as SARS-CoV-2,

constitute direct physical loss or damage to property; or does the

presence on a premises of a person infected with COVID-19

constitute direct physical loss or damage to property at that

premises?

We agreed to answer the question. 162 Ohio St.3d 1427, 2021-Ohio-1202, 166

N.E.3d 29.

II. Analysis

{¶ 13} In interpreting a contract, we seek “to give effect to the intent of the

parties to the agreement.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-

Ohio-5849, 797 N.E.2d 1256, ¶ 11. We review an insurance contract as a whole,

Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917,

875 N.E.2d 31, ¶ 7, and we presume that its language reflects the parties’ intent,

Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph

one of the syllabus. When contractual language is clear, we look no further than

6

January Term, 2022

the writing itself to determine the parties’ intent. Alexander v. Buckeye Pipe Line

Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).

{¶ 14} The certified question we agreed to answer asks us to determine

whether three factual scenarios involve “direct physical loss or damage to

property.” 162 Ohio St.3d 1427, 2021-Ohio-1202, 166 N.E.3d 29. That exact

language does not appear in the policy, but for present purposes we understand it

to refer to the general-coverage provision and the Business Income Extension. As

noted above, both provisions include the term “direct ‘loss,’ ” and the term “loss”

is defined as “accidental physical loss or accidental physical damage.” In our view,

this language is clear and unambiguous and does not encompass any of the three

factual scenarios identified in the certified question.

{¶ 15} Cincinnati argues that the policy’s definition of the term “loss” as

“accidental physical loss or accidental physical damage” necessarily requires that

there be some physical damage to Neuro’s property. To be “physical,” it asserts,

there must be an “actual, tangible physical alteration” of property. According to

Cincinnati, neither the temporary presence of virus particles in the air or on surfaces

nor the temporary presence of an infected person on Neuro’s property involves any

such physical damage or loss to any part of the premises. Cincinnati contends that

these scenarios instead cause only a loss of use of a premises for the purpose of

conducting business operations, and it argues that a loss of use is not covered.

{¶ 16} Neuro disagrees and argues that the term “loss” includes a loss of

use. It points to dictionary definitions of the terms “physical” and “loss” and argues

that they support reading the term “physical loss” as including the loss of the ability

to use the physical space of its offices for business purposes. For example, the term

“physical” can mean simply “material,” “substantive,” or “having an objective

existence, as distinguished from imaginary or fictitious,” and the term “loss” can

mean “deprivation” and “no longer having something or having less of it than

before.”

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SUPREME COURT OF OHIO

{¶ 17} We agree with Cincinnati. The definition of the term “loss” is clear:

for coverage to be provided, there must be loss or damage to Covered Property that

is physical in nature. Such loss or damage does not include a loss of the ability to

use Covered Property for business purposes.

{¶ 18} In particular, we reject Neuro’s argument based on the various

dictionary definitions of the terms “physical” and “loss.” Specifically, by defining

“loss” as a particular type of loss—“accidental physical loss or accidental physical

damage” (emphasis added)—the policy distinguishes between losses to Covered

Property that are physical and those that are nonphysical. In our view, a loss of use

of a physical space falls into the latter category. As another court in Ohio

considering materially identical policy language recently put it, “[a] loss of use

simply is not the same as a physical loss.” Santo’s Italian Café, L.L.C. v. Acuity

Ins. Co., 15 F.4th 398, 402 (6th Cir.2021). “It is one thing for the government to

ban the use of a bike or a scooter on city sidewalks; it is quite another for someone

to steal it.” Id.

{¶ 19} Our conclusion on this point is strengthened by the definition in

Neuro’s policy of the term “period of restoration.” As noted above, the Business

Income Extension provides coverage during the “period of restoration,” which

begins when a “direct ‘loss’ ” occurs and ends “on the earlier of: (1) [t]he date when

the property at the ‘premises’ should be repaired, rebuilt or replaced * * * ; or (2)

[t]he date when business is resumed at a new permanent location.” (Emphasis

added.) The policy’s use of the terms “repaired, rebuilt or replaced” contemplates

that the “direct ‘loss’ ” at issue involves some sort of physical alteration of Covered

Property. Quoting dictionary definitions of these terms, Neuro argues that they

require the period to be measured in relation to the time it takes for its property to

be “restored either to its prior condition or to a ‘sound or healthy state’—in other

words[,] put back to its intended use.” In our view, this stretches the terms

“repaired, rebuilt or replaced” too far. Resuming normal business operations did

8

January Term, 2022

not require any Covered Property to be “repaired, rebuilt or replaced.” It required

only that the Shutdown Orders be lifted. See Santo’s at 403 (“What the restaurant

needed was an end to the ban on in-person dining, not the repair, rebuilding, or

replacement of any of its property”).

{¶ 20} Neuro also asserts that other policies now issued by Cincinnati

include language specifically excluding losses caused by viruses. The absence of

such an exclusion in Neuro’s policy, it argues, is therefore an indication that a

“direct ‘loss’ ” to Covered Property can occur even in the absence of a physical

alteration of that property. We disagree. The parol-evidence rule prohibits us from

considering other agreements containing virus exclusions. Under that rule, we may

not consider such evidence for the purpose Neuro seeks to use it here—to create

ambiguity in the contract. See Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635,

638, 597 N.E.2d 499 (1992) (“If no ambiguity appears on the face of the instrument,

parol evidence cannot be considered in an effort to demonstrate such an

ambiguity”).

{¶ 21} Neuro also points to its policy’s Ordinance or Law exclusion, which

provides that there is no coverage for any loss caused by “the enforcement of or

compliance with any ordinance or law * * * [r]egulating the * * * use * * * of any

building or structure.” The exclusion also specifically states that it “applies whether

‘loss’ results from * * * [a]n ordinance or law that is enforced even if the building

or structure has not been damaged.” (Emphasis added.) According to Neuro, this

statement makes clear that a loss that does not involve a physical alteration of a

building can qualify as a covered “loss.” We see little relevance in this provision,

however, because it refers only to the “building or structure.” The policy provides

coverage when there is a “direct ‘loss’ to Covered Property” (emphasis added), not

just when there is a direct loss to the building or structure. As a result, the fact that

coverage for losses caused by certain ordinances or laws is excluded even when the

“building or structure” has not been physically damaged tells us little about whether

9

SUPREME COURT OF OHIO

a “direct ‘loss’ to Covered Property” must include a physical alteration of the

property.

{¶ 22} Neuro also cites court decisions issued before the Covid pandemic

that it argues stand for the proposition that a direct physical loss does not require a

physical alteration of property. See Murray v. State Farm Fire & Cas. Co., 203

W.Va. 477, 480-481, 492-493, 509 S.E.2d 1 (1998) (finding direct physical loss to

house when boulders falling from property behind house had caused extensive

damage to two neighboring houses and additional boulders were predicted to fall,

rendering undamaged house uninhabitable); Gregory Packaging, Inc. v. Travelers

Prop. Cas. Co. of Am., D.N.J. No. 2:12-cv-04418, 2014 WL 6675934, *3-6 (Nov.

25, 2014) (finding direct physical loss when ammonia gas had made facility “unfit

for normal human occupancy and continued use”); Motorists Mut. Ins. Co. v.

Hardinger, 131 Fed.Appx. 823 (3d Cir.2005) (finding that direct physical loss

would occur if contamination of house’s well-water supply with e-coli bacteria

made house uninhabitable); TRAVCO Ins. Co. v. Ward, 715 F.Supp.2d 699, 703,

707-711 (E.D.Va.2010), aff’d, 504 Fed.Appx. 251 (4th Cir.2013) (finding direct

physical loss when toxic gases released by defective drywall had rendered home

uninhabitable); W. Fire Ins. Co. v. First Presbyterian Church, 165 Colo. 34, 36-39,

437 P.2d 52 (1968) (finding direct physical loss when gasoline had accumulated

around and under church and both gasoline and gasoline vapors had infiltrated and

contaminated church’s foundation, halls, and rooms, resulting in its being rendered

uninhabitable and highly dangerous); Widder v. La. Citizens Prop. Ins. Corp., 82

So.3d 294 (La.App.2011) (finding direct physical loss when lead-paint dust had

migrated into home’s walls, rendering it uninhabitable until gutted and remediated);

Matzner v. Seaco Ins. Co., Mass.Super. No. CIV. A. 96-0498-B, 1998 WL 566658,

*3-4 (Aug. 12, 1998) (finding direct physical loss when carbon-monoxide buildup

caused by old pipe’s blocking chimney rendered unit in apartment building

uninhabitable); see also Essex Ins. Co. v. BloomSouth Flooring Corp., 562 F.3d

10

January Term, 2022

399, 401-402, 404-406 (1st Cir.2009) (finding “physical injury to tangible

property” when chemical odors had emanated from newly installed carpet at

commercial offices and caused headaches and other ill effects, requiring

replacement of the carpet and other remedial work).

{¶ 23} We are not persuaded that these cases are analogous to the present

case. As an initial matter, both TRAVCO and Essex involved policies expressly

providing coverage for loss of use. See TRAVCO at 702, 708; Essex at 401, 406.

Moreover, although the decisions cited by Neuro either reject or do not apply the

principle that direct physical loss requires a physical alteration of property, the

cases all involved an entirely different degree of harm. In each case, the property

at issue was rendered uninhabitable due to a condition that was hazardous to human

health. As a practical matter, the condition made the properties wholly inaccessible.

{¶ 24} The harm here is different. While shut down, Neuro’s premises

“contained no hazardous flaw, akin to the threat of falling rocks or seepage of

poisonous fumes, which would be just as threatening to one person as to one

hundred,” Cosmetic Laser, Inc. v. Twin City Fire Ins. Co., 554 F.Supp.3d 389, 409

(D.Conn.2021). Neuro’s premises were not wholly uninhabitable. Instead, they

were unsafe only to the extent that they served as an indoor space in which people

could gather and Covid could be transmitted. See id. at 409 (“in the COVID era,

being indoors is dangerous only insofar as other individuals share the space”).

Therefore, Neuro’s loss of the use of its premises for business purposes during the

shutdown is not akin to the total loss of access to the properties at issue in the cases

cited by Neuro.2

2. Neuro also cites cases involving contaminated food products. See Gen. Mills, Inc. v. Gold Medal

Ins. Co., 622 N.W.2d 147, 152 (Minn.App.2001) (finding coverage when cereal oats had been

tainted by pesticide); Marshall Produce Co. v. St. Paul Fire & Marine Ins. Co., 98 N.W.2d 280,

293-294, 256 Minn. 404 (1959) (finding coverage when food items had been barred from sale due

to exposure to smoke from fire); Netherlands Ins. Co. v. Main St. Ingredients, L.L.C., 745 F.3d 909,

916-917 (8th Cir.2014) (finding coverage when instant oatmeal had been recalled because it

incorporated dried milk exposed to salmonella). Gen. Mills and Netherlands are unhelpful for the

11

SUPREME COURT OF OHIO

{¶ 25} We thus conclude that the term “direct ‘loss’ ” requires that there be

some loss or damage to Covered Property that is physical in nature, and any

potential exception to this rule for situations like those presented in Murray,

Gregory, and the other cases cited above does not apply here. The term “direct

‘loss’ ” does not include Neuro’s Covid-related loss of the use of its offices for

business purposes.

{¶ 26} Moreover, with respect to the three factual scenarios identified in the

certified question, we conclude that direct physical loss or damage to property does

not arise from (1) the general presence of Covid in the community, (2) the presence

of Covid on surfaces at a premises, or (3) the presence on a premises of a person

infected with Covid.

{¶ 27} The certified question as to the first and third scenarios is relatively

straightforward to answer. The general presence of Covid in the community and

the presence on a premises of a person infected with Covid clearly do not involve

any physical alteration of Covered Property.

{¶ 28} The answer to the certified question as to the second scenario—the

presence of Covid on surfaces at a premises—may seem less obvious, but once

analyzed, it is not appreciably different. The parties dispute whether the fact that

Covid particles may exist on property only temporarily makes a difference,

debating the application of a decision of the Eighth District Court of Appeals. See

Mastellone v. Lightning Rod Mut. Ins. Co., 175 Ohio App.3d 23, 2008-Ohio-311,

884 N.E.2d 1130, ¶ 68 (8th Dist.) (holding that mold on house’s exterior did not

constitute direct physical loss, because its presence was temporary and could be

removed from siding without altering house’s structural integrity). We express no

same reason that the cases involving uninhabitable properties are unhelpful: the food products were

entirely unusable. See Gen. Mills at 150; Netherlands at 911-912. And Marshall and Netherlands

involved policies containing language different from the language at issue here. See Marshall at

410 (covering “loss or damage”); Netherlands at 914 (covering “[p]hysical injury to tangible

property, including all resulting loss of use of that property”).

12

January Term, 2022

opinion on that disagreement because regardless of whether Covid particles exist

on property only temporarily, the mere existence of Covid particles on Covered

Property does not involve any physical alteration of the property. See Verveine

Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266, 1276, 499 Mass. 534 (2022) (“mere

‘presence’ [of the virus] does not amount to loss or damage to the property”).

{¶ 29} Finally, we note that the conclusion we reach here is consistent with

the clear trend in the law in other jurisdictions. Many other state and federal courts

considering insurance claims for business losses due to Covid and related shutdown

orders have concluded that the mere loss of use of a premises does not constitute a

direct physical loss. See, e.g., Uncork & Create, L.L.C. v. Cincinnati Ins. Co., 27

F.4th 926, 933-934 (4th Cir.2022) (citing decisions of United States Court of

Appeals for Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh

Circuits applying various states’ laws); Wakonda Club v. Selective Ins. Co. of Am.,

973 N.W.2d 545, 554 (Iowa 2022), fn. 5 (citing state-court decisions). A few courts

have reached conclusions that support Neuro’s position. See, e.g., Huntington

Ingalls Industries, Inc. v. Ace Am. Ins. Co., 2022 VT 45, __ A.3d __, ¶ 42, 48;

Ungarean v. CNA & Valley Forge Ins. Co., __ A.3d __, 2022 Pa.Super. 204, 2022

WL 17334365, *5-10 (2022). But many of them are trial courts, which are subject

to appellate review, and at least two of the main decisions Neuro relies on have

since been vacated, see Henderson Rd. Restaurant Sys., Inc. v. Zurich Am. Ins. Co.,

513 F.Supp.3d 808 (N.D.Ohio 2021), vacated and remanded sub nom. In re Zurich

Am. Ins. Co., 6th Cir. No. 21-0302, 2021 WL 4473398 (Sept. 29, 2021); North State

Deli, L.L.C. v. Cincinnati Ins. Co., N.C.Super.Ct. No. 20-CVS-02569, 2020 WL

6281507 (Oct. 9, 2020), rev’d, 2022-NCCOA-455, 875 S.E.2d 590

(N.C.App.2022).

III. Conclusion

{¶ 30} For the above reasons, we answer the certified question in the

negative.

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SUPREME COURT OF OHIO

So answered.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ.,

concur.

DONNELLY, J., dissents, with an opinion.

_________________

DONNELLY, J., dissenting.

{¶ 31} This court should answer questions of law certified by a federal court

only if “there is a question of Ohio law that may be determinative of the proceeding

and for which there is no controlling precedent in the decisions of this Supreme

Court.” S.Ct.Prac.R. 9.01(A). This court already has a well-established body of

jurisprudence on basic contract interpretation. The federal courts can seek guidance

there to resolve the dispute between the parties to this case.

{¶ 32} I would dismiss this certified question of state law as having been

improvidently accepted, and I therefore dissent.

_________________

Berger Montague, P.C., and Yechiel Michael Twersky; and Spangenberg,

Shibley & Liber, L.L.P., and Nicholas A. DiCello, for respondent.

Baker & Hostetler, L.L.P., Michael K. Farrell, Daniel M. Kavouras, and

Rodger L. Eckelberry; and Litchfield Cavo, L.L.P., Daniel G. Litchfield, and

Laurence J.W. Tooth, for petitioners.

Reed Smith, L.L.P., James M. Doerfler, John N. Ellison, and Richard P.

Lewis, in support of respondent for amicus curiae United Policyholders.

Rutter & Russin, L.L.C., and Robert P. Rutter, in support of respondent for

amicus curiae Francois, Inc.

Jenner & Block, L.L.P., Gabriel K. Gillett, and Rebecca R. Fate, in support

of respondent for amici curiae Restaurant Law Center and Ohio Restaurant

Association.

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January Term, 2022

Wolterman Law Office, L.P.A., Matthew C. Metzger, and Steven R.

Wolterman; and Markovits, Stock & DeMarco, L.L.C., Terence R. Coates, W.B.

Markovits, Justin C. Walker, and Zachary C. Schaengold, in support of respondent

for amici curiae Queens Tower Restaurant, Inc., d.b.a. Primavista and Taste of

Belgium, L.L.C.

Calfee, Halter & Griswold, L.L.P., and K. James Sullivan, in support of

respondent for amici curiae SITE Centers Corp., Brentwood Healthcare

Enterprises, L.L.C., and Strang Corporation.

Rutter & Russin, L.L.C., Robert P. Rutter, and Robert A. Rutter, in support

of respondent for amici curiae Steelial Welding & Metal Fabrication, Inc.; Ohio

Hotel & Lodging Association; Scioto Society, d.b.a. Tecumseh Outdoor; Fish

Furniture; Dayton Coatings Technology; and Somco, L.L.C., d.b.a. J3 Clothing

Company.

Plevin & Gallucci, Co., L.P.A., and Frank L. Gallucci III; Weisman,

Kennedy & Berris Co., L.P.A., R. Eric Kennedy, Daniel P. Goetz, and Brian E.

Roof; and Bashein & Bashein Co., L.P.A., W. Craig Bashein, and John P. Hurst, in

support of respondent for amicus curiae Kanan Enterprises, Inc., d.b.a. King Nut

and Brennan Industries, Inc.

Susman Godfrey, L.L.P., William R.H. Merrill, Burton S. DeWitt, Seth

Ard, and Marc M. Seltzer; DiCello, Levitt, Gutzler, L.L.C., Adam J. Levitt,

Kenneth P. Abbarno, and Mark A. DiCello; the Lanier Law Firm, P.C., and Mark

Lanier; and Burns, Bowen, Bair, L.L.P., and Timothy W. Burns, in support of

respondent for amicus curiae Bridal Expressions, L.L.C.

Crowell & Moring, L.L.P., Daniel W. Wolff, and Laura A. Foggan, in

support of petitioners for amici curiae American Property Casualty Insurance

Association and National Association of Mutual Insurance Companies.

15

SUPREME COURT OF OHIO

Bricker & Eckler, L.L.P., Drew H. Campbell, David K. Stein, and Anne

Marie Sferra; and BatesCarey, L.L.P., and Adam H. Fleischer, in support of

petitioners for amicus curiae State Automobile Mutual Insurance Company.

Koehler Fitzgerald, L.L.C., and Timothy J. Fitzgerald, in support of

petitioners for amicus curiae Ohio Insurance Institute.

Carpenter, Lipps & Leland, L.L.P., Michael H. Carpenter, and Michael N.

Beekhuizen, in support of petitioners for amicus curiae Nationwide Mutual

Insurance Company.

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