American Insurance v. City of Dayton

532 F. Supp. 174, 1980 U.S. Dist. LEXIS 16219
CourtDistrict Court, S.D. Ohio
DecidedNovember 19, 1980
DocketNo. C-3-78-350
StatusPublished

This text of 532 F. Supp. 174 (American Insurance v. City of Dayton) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Insurance v. City of Dayton, 532 F. Supp. 174, 1980 U.S. Dist. LEXIS 16219 (S.D. Ohio 1980).

Opinion

DECISION AND ENTRY SUSTAINING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO PLAINTIFF AND AGAINST DEFENDANT; ENTRY OF JUDGMENT; TERMINATION ENTRY

RICE, District Judge.

This action arises out of a dispute between plaintiff, The American Insurance Company (“American”) and defendant, The City of Dayton (“City”) concerning the amount due to American from the City under the terms of two three-year term insurance contracts entered into by the parties on April 14, 1972 and June 1, 1975, respectively. American alleges that under the retrospective premium endorsement provisions in each contract, the City was to pay retrospective premiums, as computed and adjusted retrospectively, based upon losses incurred by the City during specified policy periods. American alleges that the City has failed and refused to pay retrospective premiums for several policy periods, which total $110,934. The City averred in its Answer that it has paid American all sums due on both contracts and that American improperly calculated the amounts allegedly due on reserves for claims which have been closed and on excess reserves for pending claims.

American has moved this Court for summary judgment on the ground that there are no genuine issues of material fact and that, on the basis of the documentation attached to its motion and the affidavit of its credit manager, it is entitled to judgment for the entire amount plus interest as a matter of law. The exhibits attached to said motion consist of copies of both the 1972 and 1975 contracts; the computed adjustment premiums for each period in question; a history of some payments made by the City under the retrospective premium provisions; and the affidavit of American’s Credit Manager, which states the truthfulness and accuracy of all of the aforementioned attachments and that the City has failed to pay a total of $110,934 in retrospective premiums, despite demand for same.

The City filed a Motion Contra to Plaintiff’s Motion for Summary Judgment. The City contends therein that there are genuine issues of material fact in this case. It asserts in its memorandum that within a span of four months American provided the City with three different loss figures for one policy period. On the basis of that apparent discrepancy, the City contends that it cannot determine which, if any, of these figures is correct and what, if any, effect a change in those figures has on the retrospective premiums due. Defendant further argues that even assuming that the loss figures as of plaintiff’s December 1, 1979 valuation are correct, those figures have changed as of plaintiff’s March 1,1980 valuation. The City claims that those changes and some that have occurred since March 1, 1980 are due to settlements or closings of certain claims which had been considered by American in arriving at its December 1, 1979 valuation. Because of those settlements and closings, the City contends that there has been a reduction in their incurred losses which should substantially decrease the retrospective premiums that are presently due from the City. Essentially, the City seems to be arguing that despite the attachments submitted by American with its Motion for Summary Judgment, the City cannot determine the amount of retrospective premiums due at the present time, and thus, there are genuine issues of material fact. In support of its motion contra, the City submitted several computer print-out sheets for each policy in question, captioned Automobile Claims Exhibit and Automobile Claims Recapitulation, bearing the “Valuation Date 3-01-80.” Also attached to the motion are judgment entries and a release relating to the two insurance claims referred to by the City in its memorandum. Finally, the City also [176]*176submitted the affidavit of its Purchasing Agent which states that defendant’s Exhibits A and B are Automobile Claims Recapitulations, valued by plaintiff as of March 1, 1980; that certain amounts reflected in those exhibits represent reserves for claims; and that the plaintiff’s computation of retrospective premiums valued as of December 1, 1979 yields an excessive amount in light of current loss valuation.

American, in its response to defendant’s motion contra, contends that contrary to the City’s claims, there is no genuine issue of material fact with regard to the amount of retrospective premiums due to American under the terms of the contracts. It asserts that there is no inaccuracy in its documentation. According to American, there are no discrepancies in the loss figures reported to the City. First, it explains that the December 1, 1979 valuation, summarized in the January 28, 1980 Retrospective Premium Advice (Plaintiff’s Exhibit G), contains two different loss figures. The first figure is the Total Incurred Losses. The second figure, which is $50,000 less than the first, is the amount of losses which are subject to retrospective premium computation. In other words, $50,000 of the Total Incurred Losses were not subject to the retrospective premium provisions of the 1975 contract.

The plaintiff also asserts that the difference between the December 1, 1979 and March 1, 1980 loss figures is not a discrepancy and that the difference in the two figures has no bearing on the amount of the retrospective premium due from the City. It suggests that the figures differ because the valuation date is different and that the December 1, 1979 valuation represents an actual premium computation and bill as of that date, while the March 1,1980 valuation is merely a quarterly valuation sent to the City for its information only.

Additionally, American contends that what has occurred is that the City of Dayton has simply stopped paying retrospective premiums as they become due under the contract in hopes that all claims which form the basis for retrospective premium computations will be settled in the City’s favor. American acknowledges that disposition of these claims in the City’s favor might entitle the City to a return of the premiums presently due but contends that the City’s current failure to pay the premiums as computed, improperly denies American the use of those funds in the interim period. American further contends that the affidavit of the City’s Purchasing Agent in no way controverts the accuracy of American’s claims, and therefore, it is entitled to judgment as a matter of law.

This Court has reviewed the pleadings, the memoranda, and the materials submitted by the parties in support of their positions. Upon careful consideration of same, the Court concludes that the plaintiff has demonstrated the absence of any genuine issues of material fact in this action, and that the defendant has not controverted the accuracy of plaintiff’s claims. The purpose of the following discussion is to set forth the reasoning upon which the Court concludes that American’s motion is well taken and should, therefore, be granted in its entirety.

DISCUSSION

Rule 56(c), Fed.R.Civ.Pro., provides in pertinent part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Rule 56(e), Fed.R.Civ.Pro., provides in pertinent part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ... When a [177]

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Bluebook (online)
532 F. Supp. 174, 1980 U.S. Dist. LEXIS 16219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-insurance-v-city-of-dayton-ohsd-1980.