# Crawford v. Am. Family Ins. Co.

> Ohio Court of Appeals · March 31, 2023 · 212 N.E.3d 421

URL: https://www.frixlaw.com/law-library/cases/9384054

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** March 31, 2023
- **Citations:** 212 N.E.3d 421; 2023 Ohio 1069
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Lewis
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9384054

## Opinion text

[Cite as Crawford v. Am. Family Ins. Co., 2023-Ohio-1069.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

LESLIE CRAWFORD :
:
Appellant : C.A. No. 29588
:
v. : Trial Court Case No. 2019 CV 05973
:
AMERICAN FAMILY INSURANCE : (Civil Appeal from Common Pleas
COMPANY et al. : Court)
:
Appellee :

...........

OPINION

Rendered on March 31, 2023

...........

JONATHON L. BECK & NATALIE M.E. WAIS, Attorneys for Appellee

JOHN A. SMALLEY, Attorney for Appellant

.............

LEWIS, J.

{¶ 1} Plaintiff-Appellant, Leslie Crawford, appeals from a summary judgment

rendered in favor of Defendant-Appellee, American Family Insurance Company (“AFIC”).

According to Crawford, the trial court erred in granting summary judgment based on her

failure to produce expert testimony on the issue of whether AFIC acted in bad faith.
-2-

Crawford contends that expert testimony cannot be required as a matter of law in bad

faith cases.

{¶ 2} Upon consideration, we find that the trial court incorrectly established a

blanket rule requiring insured claimants, as a matter of law, to provide expert testimony

in bad faith cases. Ohio courts have not uniformly established such a requirement, even

in the area of professional negligence claims against insurance agents. However, this is

not a professional negligence case, nor is an insurance adjuster a ”professional” for these

purposes. Instead, this case involves a bad faith claim against the insurer. There is no

basis for imposing such a standard as a matter of law, and the circumstances of each

case should be considered. In addition, AFIC took a contrary position in the trial court,

stating that Crawford did not need an expert. Furthermore, even if this were otherwise,

the deposition of AFIC’s claims adjuster provided sufficient evidence of standards and

what conduct would be required to avoid a bad faith claim.

{¶ 3} Finally, while AFIC contends that the judgment should be affirmed on

alternate grounds, the record clearly indicates that the trial court failed to consider

evidentiary materials that were submitted. We therefore decline to exercise de novo

review on this basis. Accordingly, Crawford’s sole assignment of error will be sustained,

the judgment of the trial court will be reversed, and this cause will be remanded for further

proceedings.

I. Facts and Course of Proceedings

{¶ 4} This action arose from an automobile accident that occurred between
-3-

Crawford and Tonna Marilee Brown on August 10, 2018. On December 16, 2019,

Crawford filed a complaint against AFIC and Brown, alleging that Brown was an uninsured

driver at the time of the accident and had negligently caused Crawford damage and injury.

In a second claim for relief, Crawford alleged that she was insured for uninsured motorists

(“UM”) coverage with AFIC and that she had complied with all policy provisions.

However, AFIC had refused to pay under the terms of the policy. The third claim for relief

alleged that AFIC had acted in bad faith in adjusting Crawford’s claim.

{¶ 5} On February 6, 2020, AFIC filed an answer to the complaint and a cross-

claim for subrogation against Brown. After learning that the party who had been served

with the complaint had insurance and had not been involved in the accident, Crawford

filed an amended complaint on February 26, 2020, naming the correct Tonna Brown at

the address listed in the accident report, which was on Gettysburg Avenue in Dayton,

Ohio. AFIC then filed an amended answer and cross-claim against Brown on March 11,

2020. However, service attempts at the Dayton address and at a North Carolina address

for Brown were unsuccessful.

{¶ 6} On March 20, 2020, AFIC asked the court to bifurcate the bad faith claim and

stay discovery on bad faith issues until the contract claim was resolved. In response,

Crawford agreed to bifurcation but asked the court not to delay discovery. Subsequently,

on April 9, 2020, the court granted the motion to bifurcate. However, the court also said

it would not stay discovery at that time.

{¶ 7} Crawford was finally able to perfect service on Brown and filed a motion for

default judgment against her on July 28, 2020. The court then granted a default
-4-

judgment against Brown on July 29, 2020.

{¶ 8} After holding a pretrial conference, the court issued a pretrial order setting a

November 1, 2021 jury trial and a summary judgment deadline of August 3, 2021. The

case was also referred to mediation, which was held on June 17, 2021, but mediation

was unsuccessful. Then, on the joint request of the parties for a continuance, the trial

was continued until July 25, 2022, and the summary judgment deadline was extended to

April 26, 2022.

{¶ 9} On April 5, 2022, AFIC filed a motion seeking to exclude testimony from

Crawford’s expert, Matthew Bruder, because he was a member of the law firm

representing Crawford and therefore had a financial stake in the outcome of the case.

Crawford did not respond to this motion, and there is no record in the file of a court

decision on the matter.

{¶ 10} On April 29, 2022, Crawford filed a motion asking the court to release

documents that had been submitted under seal, and the court, finding the documents

discoverable, ordered their release on May 2, 2022. The parties later entered into an

agreed protective order stipulating that documents AFIC designated as confidential would

be kept confidential. The order also outlined various conditions and provisions related

to these documents. On the same day, the court continued the July 25, 2022 trial date

and granted AFIC until June 1, 2022, to file a motion for summary judgment.

{¶ 11} On June 1, 2022, AFIC filed its motion for summary judgment, and Crawford

responded on June 22, 2022. Subsequently, on June 24, 2022, the parties filed an entry

of settlement and partial dismissal, indicating that Crawford’s first and second claims for
-5-

relief in the amended complaint had been settled and that the bad faith claim remained

pending. On August 5, 2022, AFIC filed a reply memorandum in support of summary

judgment.

{¶ 12} On September 8, 2022, the trial court filed a decision granting summary

judgment to AFIC on the bad faith claim. The court’s decision was based solely on the

conclusion that “the question of whether American Family acted in bad faith is one that

requires expert testimony to answer.” Decision, Order and Entry Sustaining Motion for

Summary Judgment (Sept. 8, 2022) (“Decision”), p. 4. Because Crawford had not

offered expert testimony, the court found that summary judgment was proper.

{¶ 13} This timely appeal followed.

II. Discussion

{¶ 14} Crawford’s sole assignment of error states that:

The Trial Court Erred in Granting the Defendants-Appellees’ Motion

for Summary Judgment.

{¶ 15} Crawford contends that the trial court erred in requiring expert testimony for

bad faith claims as a matter of law. According to Crawford, a reasonable juror could

have found that AFIC HAD breached its duty without the need for expert testimony

because AFIC’s employee testified about standards and duties owed to an insured.

Crawford further argues that expert testimony is unneeded where a breach of professional

duty is within a layman’s common understanding. In response, AFIC argues that expert

testimony is required in all circumstances. In addition, AFIC contends that summary
-6-

judgment should have been granted in its favor anyway because the claim was “fairly

debatable,” and it did not act in bad faith. Before addressing these points, we will briefly

outline the relevant summary judgment standards.

A. Summary Judgment Standards

{¶ 16} The scope of summary judgment review is well established. We review

such judgments de novo, “which means that we apply the same standards as the trial

court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873

N.E.2d 345, ¶ 16 (2d Dist.). In de novo review, we independently review trial court

decisions and accord them no deference. Northeast Ohio Apt. Assn. v. Cuyahoga Cty.

Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

{¶ 17} “Summary judgment is appropriate if (1) no genuine issue of any material

fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

construing the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made.” State ex

rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d

832, ¶ 9, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977). “ ‘As to materiality, the substantive law will identify which facts are material.

Only disputes over facts that might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.’ ” Turner v. Turner, 67 Ohio St.3d

337, 340, 617 N.E.2d 1123 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
-7-

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Finally, “because summary judgment is a

procedural device to terminate litigation, it must be awarded with caution.” Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 359, 604 N.E.2d 138 (1992).

B. Requirement of Expert Testimony

{¶ 18} In finding that expert testimony was required as a matter of law, the trial

court did not cite any case law. Instead, the court noted it had “consistently” held to the

same effect in “similar cases” (without citing any) and referenced only Evid.R. 702. In

defending the trial court’s blanket rule, AFIC has cited cases requiring expert testimony

on professional negligence claims against insurance agents and equates them to bad

faith claims against insurers.

{¶ 19} As a preliminary point, neither side raised the issue of whether expert

testimony was needed. The trial court raised the matter independently and did not give

Crawford an opportunity to respond. To counter this, AFIC says that the deficiency was

already the subject of a prior motion. AFIC Brief, p. 9, referring to “Mot. To Exclude

Testimony.” This mischaracterizes the motion, however. AFIC’s April 5, 2022 Motion

to Exclude Expert Testimony had nothing to do with whether expert testimony is required

in bad faith cases. Instead, AFIC asked the court to exclude testimony from Matthew

Bruder, the attorney who had represented Crawford during most of the claims process.

The exclusion request was based on the fact that Bruder was still a member of the firm

representing Crawford and therefore had a financial stake in the case’s outcome. Id. at

p. 1-2. The trial could never ruled on the motion (or at least no written ruling is in the
-8-

record).

{¶ 20} Furthermore, AFIC stated in the trial court that “Plaintiff is not required to

have an expert to proceed to trial on a bad faith claim * * *.” AFIC Reply Memorandum

in Support of Summary Judgment (Aug. 5, 2022), p. 6. This is inconsistent with AFIC’s

position on appeal.

{¶ 21} Turning to whether expert testimony was required as a matter of law,

Evid.R. 702 states, as relevant here, that “A witness may testify as an expert if all of the

following apply: (A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception common

among lay persons.” Notably, the rule is permissive; it does not mandate expert

testimony. Rather, it simply describes instances where expert testimony may assist a

jury. To evaluate whether an expert might be needed in the current situation, we look

first to the law on bad faith.

{¶ 22} “It is well established in Ohio that an insurer has a duty to act in good faith

in the settlement of a third-party claim.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272,

275, 452 N.E.2d 1319 (1983). The reasons for this include an insured party’s lack of a

voice in policy preparation; the parties’ economic disparity; and a claimant’s vulnerability

and susceptibility to oppression due to his or her grim financial straits at the time of the

claim. Id. In Hoskins, the court equated the duty in third party claims “to act in good

faith and accept reasonable settlements” with “the duty of an insurer to act in good faith

in handling the claims of its own insured,” stating that these “are merely two different

aspects of the same duty.” Id. at 275-276. A breach of this duty gives rise to a cause
-9-

of action in tort against the insurer and can include punitive damages in certain

circumstances. Id. at paragraph one and two of the syllabus.

{¶ 23} In such cases, the insurer’s liability “does not arise from its mere omission

to perform a contract obligation, for it is well established in Ohio that it is no tort to breach

a contract, regardless of motive. * * * Rather, the liability arises from the breach of the

positive legal duty imposed by law due to the relationships of the parties.” Id. at 276.

{¶ 24} In Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962),

the Supreme Court of Ohio stated that:

A lack of good faith is the equivalent of bad faith, and bad faith,

although not susceptible of concrete definition, embraces more than bad

judgment or negligence. It imports a dishonest purpose, moral obliquity,

conscious wrongdoing, breach of a known duty through some ulterior

motive or ill will partaking of the nature of fraud. It also embraces actual

intent to mislead or deceive another.

Id. at paragraph two of the syllabus.

{¶ 25} Slater and another case, Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690,

590 N.E.2d 1228 (1992), were overruled on other grounds in Zoppo v. Homestead Ins.

Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994). In Zoppo, the court stressed that until

its decision in Said, “the element of intent had been notably absent from this court's

definition of when an insurer acts in bad faith.” Id. at 554. Instead, the court had

“applied the ‘reasonable justification’ standard to bad faith cases.” Id. Under this

standard, “ ‘an insurer fails to exercise good faith in the processing of a claim of its insured
-10-

where its refusal to pay the claim is not predicated upon circumstances that furnish

reasonable justification therefor.’ ” Id., quoting Staff Builders, Inc. v. Armstrong, 37 Ohio

St.3d 298, 303, 525 N.E.2d 783 (1988). The court further emphasized that intent had

never been part of this standard. Id. at 555. In the context of reasonable justification,

the court had also previously said that “such a belief may not be an arbitrary or capricious

one.” Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185, 188, 87 N.E.2d 347 (1949).

Accord Hoskins, 6 Ohio St.3d at 277, 452 N.E.2d 1319.

{¶ 26} In a recent case, the Supreme Court of Ohio remarked that “[j]urisprudence

addressing ‘good faith’ when it is used at common law and or in the Revised Code

provides some general insight into its ordinary meaning, but that jurisprudence also

provides fertile ground for disagreement.” State ex rel. Ohio History Connection v.

Moundbuilders Country Club Co., Ohio Slip Opinion No. 2022-Ohio-4345, ___ N.E.3d

___, ¶ 28. The court further acknowledged that “bad faith” and “good faith” had been

defined simply by reference to each other. Id. at ¶ 30. However, distinguishing

objective factors can apply. For example, “behavior that is unreasonable, uninformed,

or irrational in light of the circumstances can establish a lack of good faith irrespective of

the party's subjective intentions.” Id., citing Worth v. Huntington Bancshares, Inc., 43

Ohio St.3d 192, 197, 540 N.E.2d 249 (1989), and Zoppo at paragraph one of the syllabus.

Thus, “a person can potentially demonstrate a lack of good faith by acting unreasonably

or failing to meet justified expectations.” Id. at ¶ 31.

{¶ 27} In responding to Crawford’s assignment of error, AFIC asserts that

professional negligence claims against insurance agents require expert testimony about
-11-

the standards of care. As an extension of this concept, AFIC argues that expert

testimony is likewise necessarily required for assessing an insurer’s duty to act in good

faith towards its insured. AFIC Brief at p. 9-10, citing authority from the Fifth and Eighth

Appellate Districts. This is not a universal view.

{¶ 28} Discussing the same cases, the Tenth District Court of Appeals stated that

“[t]his court has not previously adopted a requirement of expert testimony in a negligence

action against an insurance agent, and the trial court did not do so in granting summary

judgment in favor of appellees.” Nichols v. Schwendeman, 10th Dist. Franklin No. 07AP-

433, 2007-Ohio-6602, ¶ 25, discussing MBE Collection, Inc. v. Westfield Cos., Inc., 8th

Dist. Cuyahoga No. 79585, 2002-Ohio-1789, and Associated Visual Communications v.

Erie Ins. Group, 5th Dist. Stark No. 2006 CA 00092, 2007-Ohio-708, ¶ 65-66. See also

Burlington Ins. Co. v. Artisan Mechanical, Inc., 188 Ohio App.3d 560, 2010-Ohio-3142,

936 N.E.2d 114, ¶ 14 (1st Dist.) (“[t]here is no blanket rule requiring expert testimony

against an insurance broker in all cases”); Horak v. Nationwide Ins. Co., 9th Dist. Summit

No. CA 23327, 2007-Ohio-3744, ¶ 32, quoting Nielsen Ents., Inc. v. Ins. Unlimited

Agency, Inc., 10th Dist. Franklin No. 85AP-781 (May 8, 1996) (“While the law has

recognized a public interest in fostering certain professional relationships, such as the

doctor-patient and attorney-client relationships, it has not recognized the insurance agent-

client relationship to be of similar importance.”)

{¶ 29} Even if such a rule were unanimously followed, this case is not a

professional negligence action; it involves a bad faith claim. Furthermore, our research

has failed to disclose authority in Ohio discussing the status of claims representatives or
-12-

adjusters or classifying them as the type of professionals whose conduct, like that of a

doctor, might not be readily understood by jurors. The parties have also not cited any

such cases.

{¶ 30} What little authority we could find (on an unrelated subject) indicated that a

claims adjuster was classified as an administrative employee, rather than as a

professional employee, for purposes of applying an exemption from overtime pay

requirements. See Spence v. Grange Mut. Cas. Co., 10th Dist. Franklin No. 81AP-284,

1981 WL 3378, *1 (July 30, 1981). Consequently, there would be no basis for applying

a law requiring expert testimony for professional negligence in this situation, even if such

a view were either uniformly followed or applicable to bad faith actions.

{¶ 31} This is not to say that an insurance adjuster could not qualify as an expert,

provided appropriate criteria were met, or that an expert might not be needed to

understand complex cases. However, there is no legal basis for adopting a blanket rule

that expert testimony is required as a matter of law. The circumstances of each situation

should be considered. Some cases may be readily understood by laypersons; others

may not.

{¶ 32} Furthermore, as Crawford points out, the AFIC adjuster who handled her

claim testified about various standards, including: the duty to “fully and fairly investigate,

evaluate objectively, and to make a reasonably justifiable offer to resolve * * * claims”; an

insurer’s payment requirements under both medical and UM coverage; the impropriety of

using a “cookie-cutter” approach to claims; the need to consider any relevant information

about pain and suffering; the need to respond to an insured’s attorney and provide
-13-

needed information; Ohio law as to what can be considered in deciding the reasonable

value of medical expenses and services; the impropriety of failing to consider an insured’s

statement when deciding value; and the responsibility of adjusters to treat insured parties

fairly. Deposition of Brian Dooley, p. 13, 14-16, 21-22, 42, 55-57, 78, and 79. In

addition, Dooley testified in detail about the claims process, as well as the meaning of

insurance terms and tools used in the claims process.

{¶ 33} This is consistent with a case that AFIC has cited to support the fact that

the standard of conduct in bad faith cases must be established by expert testimony.

AFIC Brief at p. 10-11, citing Furr v. State Farm Mut. Auto. Ins. Co., 128 Ohio App.3d

607, 716 N.E.2d 250 (6th Dist.1998). In Furr, the plaintiff had recovered a bad faith

judgment, and the insurer claimed on appeal that the trial court had erred in denying its

motion to exclude the witness. Id. at 618. Ironically, the insurer’s position was the

opposite of what AFIC expresses here, i.e., the insurer claimed the expert’s “testimony

was not beyond the knowledge or experience possessed by laypersons or used to dispel

a misconception among laypersons.” Id. After reviewing the testimony, the court of

appeals decided the trial court did not abuse its discretion in allowing the expert to testify.

Id. at 618-619.

{¶ 34} There is a difference between finding that discretion was not abused in

allowing a particular expert’s testimony and formulating a standard that such testimony is

always required. Nonetheless, the testimony described in Furr is similar to the matters

that AFIC’s adjuster outlined. Specifically:

In his testimony, Levin [the expert] explained casualty insurance,
-14-

uninsured motorist insurance, reserves, bad faith claims, the Ohio

Administrative Code, how claims are processed and investigated, and an

insurance company's duty to its insured. After being given a factual

scenario of the case, Levin testified that the claim was handled in a manner

well below appropriate standards of care and that there was no reasonable

justification for the delays and the failure by Milwaukee to make payment

on the claim. We find that the trial court did not abuse its discretion in

finding that Levin's testimony either relates to matters beyond the

knowledge or experience possessed by laypersons or dispels a

misconception common among laypersons. See Evid.R. 702(A).

Furr at 618.

{¶ 35} Other than failing to specifically state that the claim here was handled

consistently with industry standards (although this was implied), Dooley’s deposition

contained essentially the same information as that of the expert in Furr.1 A jury could

have understood this information and decided whether AFIC acted in bad faith.

Accordingly, we agree with Crawford that even if testimony on standards were required,

it was provided in Dooley’s deposition. This does not mean that some type of additional

1 Dooley did not discuss the Ohio Administrative Code, which the expert in Furr had
mentioned. However, a later decision of the Sixth District Court of Appeals held that
“evidence of alleged violations of the UCSPA does not constitute evidence of bad faith,
and it was error for the trial court to admit such evidence.” Brummitt v. Seeholzer, 6th
Dist. Erie No. E-16-020, 2019-Ohio-1555, ¶ 38 (referencing the Unfair Claims Settlement
Practices Act (UCSPA), as found in Ohio Adm.Code 3901-1-54). Consequently, asking
Dooley about these regulations would have been irrelevant. In Brummitt, the court also
noted that Furr declined to address this point because the insurer in that case did not
object at trial and no plain error occurred. Id. at ¶ 31.
-15-

testimony could not be helpful to a jury. However, it was not required as a matter of law.

{¶ 36} Based on the preceding discussion, the trial court erred in granting

summary judgment on the basis that Crawford was required to provide expert testimony

as a matter of law. Crawford’s assignment of error is sustained.

C. Request to Affirm on Different Grounds

{¶ 37} In its brief, AFIC has asked us to affirm the trial court even if it erred in

adopting a blanket rule concerning experts. According to AFIC, it had a reasonable basis

for its valuation of the claim, and Crawford cannot establish that its decision was “totally

arbitrary.” AFIC Brief at p. 17. AFIC also argues that the situation here simply involved

a mere disagreement over the value of general damages and did not justify a bad faith

claim. Id. at p. 19. In response, Crawford contends that genuine issues of material fact

existed concerning whether AFIC acted in bad faith.

{¶ 38} The Supreme Court of Ohio has “ ‘consistently held that a reviewing court

is not authorized to reverse a correct judgment merely because erroneous reasons were

assigned as the basis thereof.’ ” Salloum v. Falkowski, 151 Ohio St.3d 531, 2017-Ohio-

8722, 90 N.E.3d 918, ¶ 12, quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96,

551 N.E.2d 172 (1990). See also Verbillion v. Enon Sand & Gravel, LLC, 2021-Ohio-

3850, 180 N.E.3d 638, ¶ 99 (2d Dist.) (noting “established principle that appellate courts

may affirm based on reasoning that differs from that of the trial court”).

{¶ 39} A contrasting principle expressed by the Supreme Court of Ohio is that:

An appellate court reviewing a trial court's decision to grant a Civ.R.
-16-

56(C) motion must look at the evidence in a light most favorable to the non-

moving party, construing all doubt in favor of that party. The court of

appeals concluded that its independent consideration of the record could,

in effect, cure the trial court's failure to examine the evidence. We cannot

accept that conclusion. A reviewing court, even though it must conduct its

own examination of the record, has a different focus than the trial court. If

the trial court does not consider all the evidence before it, an appellate court

does not sit as a reviewing court, but, in effect, becomes a trial court. The

clear language of Civ.R. 56(C) prevents us from sanctioning the

interpretation given by the court of appeals.

Murphy, 65 Ohio St.3d at 360, 604 N.E.2d 138.

{¶ 40} In Murphy, the trial court stated at an oral hearing that it had not reviewed

the summary judgment motion or the parties’ briefs. Id. at 359. In this circumstance,

the Supreme Court of Ohio found the trial court clearly had not conducted even a “cursory

review” and that the court of appeals had erred in affirming the summary judgment. Id.

at 359-360.

{¶ 41} Appellate courts generally apply “a basic presumption of regularity in the

proceedings below. In other words, absent an affirmative demonstration on the record

that the trial court failed to review all of the summary judgment materials before it, an

appellate court will presume that it did.” B.F. Goodrich Co. v. Commercial Union Ins.,

9th Dist. Summit No. 20936, 2002-Ohio-5033, ¶ 42, citing Montgomery v. John Doe 26,

141 Ohio App.3d 242, 250, 750 N.E.2d 1149 (10th Dist.2000). (Other citations omitted.)
-17-

{¶ 42} We cannot apply such a presumption here. The trial court’s decision does

not indicate that it reviewed any materials filed in connection with the summary judgment

motions. As noted, the court did not refer to any specific facts or arguments but found,

as it had in other cases, that failure to have an expert required judgment in AFIC’s favor

as a matter of law. These omissions might not necessarily be sufficient to prevent us

from considering whether to affirm the judgment on other grounds after reviewing the

record. However, having examined the record, we find that the trial court did not review

all the materials. Specifically, Crawford filed a substantial number of documents under

seal to be used in connection with her response to summary judgment. See Plaintiff’s

Notice of Filing under Seal (June 24, 2022) (containing Bates Nos. AmFam 000001-

001919). These documents were from AFIC’s claims file and detailed everything that

occurred during the claims process. Notably, the envelope in which the documents were

filed was sealed and had not been opened before it arrived in our court.

{¶ 43} Under similar circumstances, courts have refused to conduct further de

novo review of the summary judgment decision and have reversed and remanded the

case. See Moravec v. Hobeika, 1st Dist. Hamilton No. C-990622, 2000 WL 282439, *1

(Mar. 21, 2000) (remanding the case for the second time due to the fact that a deposition

bore an unbroken seal, meaning the trial court did not consider the evidence); Oriana

House, Inc. v. Ohio Ethics Comm., 10th Dist. Franklin No. 05AP-427, 2005-Ohio-6475,

¶ 11-12 (the trial court had not reviewed all the evidence); Bay Mechanical & Elec. Corp.

v. 2D Constr. Co., LLC, 9th Dist. Lorain No. 17CA011136, 2019-Ohio-1170, ¶ 20

(reversing and remanding because it was unclear if the trial court had considered all the
-18-

evidence, and the trial court also did not indicate which summary judgment grounds were

valid); Meekins v. City of Oberlin, 8th Dist. Cuyahoga No. 106060, 2018-Ohio-1308, ¶ 24

(declining to conduct de novo summary judgment review because it was clear the trial

court had not reviewed the evidence); Peterson v. Martyn, 10th Dist. Franklin No. 17AP-

39, 2018-Ohio-2905, ¶ 52 (declining to conduct de novo review and affirm based on an

issue that the trial court failed to rule on, since the court did not consider deposition

evidence). See also Bentley v. Pendleton, 4th Dist. Pike No. 03CA722, 2005-Ohio-3495,

¶ 10 (the trial court erred in the only summary judgment ground it considered, and an

appellate court should not be the first court to consider other issues); Alcus v. Bainbridge

Twp., 11th Dist. Geauga No. 2019-G-0206, 2020-Ohio-626, ¶ 30 (“[w]here the trial court

does not rule on a summary judgment argument because it finds it moot, it is not proper

for the appellate court in the first instance to address the argument”).

{¶ 44} Accordingly, we decline to exercise de novo review of the alternate basis

for affirming the trial court and will remand the case for further proceedings. In this vein,

we find the following comments instructive concerning the difference between summary

judgment consideration and trial in bad faith cases:

Although Colonial [the insurer] presents various good points in

support of its position, this court concludes judgment cannot be granted as

a matter of law in this case. As to the “fairly debatable” precedent, the case

does not merely state: “Where a claim is fairly debatable the insurer is

entitled to refuse the claim * * *;” the law continues: “as long as such refusal

is premised on a genuine dispute over either the status of the law at the
-19-

time of the denial or the facts giving rise to the claim.” Motorists Mut. Ins.

Co. v. Said, 63 Ohio St.3d 690, 700, 590 N.E.2d 1228 (1992). A failure to

reasonably investigate before arriving at a legal or factual position can give

rise to liability. Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 554, 644

N.E.2d 397 (1994) (finding evidence from which the jury could conclude the

insurer failed to conduct an adequate investigation on cause of fire and was

not reasonably justified in denying the insured's claim).

Furthermore, the applicable test for a judge or jury to apply at trial is

not purely applicable at the summary judgment stage. The ultimate issue

for trial is whether the insurer's handling of the claim or refusal to pay the

claim was done in good faith, meaning whether it was “predicated upon

circumstances that furnish reasonable justification therefor.” Zoppo, 71

Ohio St.3d at 554. At the summary judgment stage, the issue is not

whether Colonial proved it handled the claim in good faith and had

reasonable justification for its conduct throughout the handling of its

insured's claim.

If the insured moved for summary judgment, the issue would be

whether some reasonable mind could find the insurer did not handle the

claim in good faith, i.e. whether some reasonable mind could find the

insurer's conduct was not reasonably justified. See Civ.R. 56(C). Surely,

reasonable minds could find the claim was fairly debatable and the refusal

was premised on a genuine dispute over either the status of the law at the
-20-

time of the denial or the facts giving rise to the claim. However, Appellant

[the insured] was not seeking summary judgment; he was the non-movant.

Considering the combination of acts and omissions, it cannot be said

the record is devoid of any evidence tending to show a lack of good faith.

See, e.g., Mentor Chiropractic Ctr., Inc. v. State Farm Fire & Cas. Co., 139

Ohio App.3d 407, 411, 744 N.E.2d 207 (11th Dist.2000) (“Summary

judgment is appropriately granted to the defendant on a claim of bad faith

where the record is devoid of any evidence tending to show a lack of good

faith on the part of the defendant.”). Even if certain circumstances would

not individually qualify as bad faith conduct, the overall circumstances are

relevant and must be viewed in the light most favorable to Appellant.

Rational inferences must be drawn and doubts must be resolved in

Appellant's favor. See, e.g., Jackson v. Columbus, 117 Ohio St.3d 328,

2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11; Leibreich v. A.J. Refrig., Inc., 67

Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993); Dupler v. Mansfield Journal

Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980) (a court “may not

weigh the proof or choose among reasonable inferences.”). Upon doing

so, this court concludes some rational trier of fact could find a lack of good

faith in some aspects of Colonial's claim handling in this case.

Marshall v. Colonial Ins. Co., 7th Dist. Mahoning No. 15 MA 0169, 2016-Ohio-8155, ¶ 80-

84.
-21-

III. Conclusion

{¶ 45} Crawford’s sole assignment of error having been sustained, the judgment

of the trial court is reversed, and this cause is remanded for further proceedings.

.............

TUCKER, J. and HUFFMAN, J., concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9384054. Public record. Not legal advice.