Bigelow v. Am. Family Ins.

2016 Ohio 3311

• Court: Ohio Court of Appeals
• Decided: June 6, 2016
• Docket: 2013CA0024
• Status: Published

Opinion

[Cite as Bigelow v. Am. Family Ins., 2016-Ohio-3311.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: DEBORAH BIGELOW : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2013CA0024 AMERICAN FAMILY INSURANCE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Coshocton County Municipal Court, Case No. CVE 1200287

JUDGMENT: Reversed and final judgment entered

DATE OF JUDGMENT ENTRY: June 6, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES SKELTON MARK MADDOX 309 Main Street 987 South High Street Coshocton, OH 43812 Columbus, OH 43206-2527 [Cite as Bigelow v. Am. Family Ins., 2016-Ohio-3311.]

Gwin, P.J.

{¶1} This matter is before the Court upon a remand from the Ohio Supreme

Court. The Supreme Court remanded the case to this Court for application of Dillon v.

Farmers Insurance of Columbus, Inc., 145 Ohio St.3d 113, 2015-Ohio-5407, -- N.E.3d --

--.

{¶2} In May of 2012, appellee Deborah Bigelow was in an auto accident. She

was covered by an auto insurance policy of appellant American Family Insurance

(“American Family”). Despite Bigelow’s request for the use of only original equipment

manufacturer (“OEM”) parts to repair her vehicle, American Family failed to obtain

appellee’s signature notifying her of the use of non-OEM parts when it issued a repair

estimate in relation to Bigelow’s insurance claim for the damage to the vehicle.

{¶3} Bigelow filed a complaint against American Family alleging violations of

the Consumer Sales Practices Act (“CSPA”) and common law causes of action.

Bigelow subsequently dismissed, with prejudice, all causes of action except Count IV,

an alleged violation of R.C. 1345.82 of the CSPA for the failure to obtain her signature

on the bottom of the estimate approving the use of non-OEM parts. The trial court

granted Bigelow’s motion for summary judgment on Count IV and, after a damages

hearing, awarded Bigelow actual damages of $161.19, treble damages of $483.57, and

expenses of $326.44. The trial court also awarded Bigelow attorney’s fees in the

amount of $17,640 and expert witness fees of $4,272.15.

{¶4} American Family appealed the judgment entries of the Coshocton

Municipal Court to this Court and argued the trial court erred: (1) in granting Bigelow’s

motion for summary judgment; (2) in awarding attorney fees to Bigelow; and (3) in Coshocton County, Case No. 2013CA0024 3

awarding Bigelow actual and treble damages. In Bigelow v. American Family

Insurance, 5th Dist. Coshocton No. 2013CA0024, 2014-Ohio-294, this Court utilized the

same rationale as in Dillon v. Farmers Insurance of Columbus, Inc. and affirmed the

finding of the trial court that American family violated the CSPA by failing to obtain

Bigelow’s signature notifying her of the use of non-OEM parts when it issued a repair

estimate in relation to Bigelow’s insurance claim for motor vehicle damage.

{¶5} We overruled American Family’s assignment of error regarding the

granting of the motion for summary judgment. Further, we affirmed the trial court’s

judgment as to the award of attorney fees and amount of attorney fees, but sustained

American Family’s assignment of error as to expert witness fees and found the trial

court abused its discretion when it awarded expert fees in the amount of $4,272.15.

Finally, we found the trial court properly calculated the amount of actual damages, but

that Bigelow could not recover actual damages in addition to treble damages and thus

determined the proper award for damages was $483.57. Accordingly, we modified the

judgment entered by the Coshocton Municipal Court and entered judgment in favor of

Bigelow in the amount of $483.57 in damages, $326.44 in expenses, and $17,640 in

attorney fees.

{¶6} American Family appealed our decision. After deciding Dillon v. Farmers

Insurance of Columbus, Inc., 145 Ohio St.3d 113, 2015-Ohio-5407, -- N.E.3d ----, the

Ohio Supreme Court remanded this case to the Court for application of Dillon.

Accordingly, we review the following assignments of error in accordance with the Dillon

opinion: Coshocton County, Case No. 2013CA0024 4

{¶7} “I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION

FOR PARTIAL SUMMARY JUDGMENT.

{¶8} II. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO

THE PLAINTIFFS, AS WELL AS IN DETERMINING THE AMOUNT OF ATTORNEY

FEES.

{¶9} III. THE TRIAL COURT ERRED IN AWARDING APPELLEE ACTUAL

AND TREBLE DAMAGES.”

I., II. III.

{¶10} In Dillon, the Ohio Supreme Court reversed this Court and held an insurer

does not engage in a “consumer transaction” as defined in the CSPA when it issues a

repair estimate in relation to its policyholder’s claim for motor vehicle damage. Dillon v.

Farmers Insurance of Columbus, Inc., 145 Ohio St.3d 113, 2015-Ohio-5407, -- N.E.3d --

--. The Supreme Court further found since the insurer’s provision of a repair estimate to

the Dillons was not in connection with a consumer transaction, it was not an “unfair or

deceptive practice” under the CSPA and dismissed the cause. Id.

{¶11} Applying the Supreme Court’s holding in Dillon to the instant case, we find

American Family did not engage in a “consumer transaction” as defined in the CSPA

when it issued a repair estimate in relation to Bigelow’s claim for motor vehicle damage.

Further, pursuant to the holding in Dillon, since American Family’s provision of a repair

estimate to Bigelow was not in connection with a consumer transaction, it was not an

“unfair or deceptive act or practice” under the CSPA. Coshocton County, Case No. 2013CA0024 5

{¶12} Accordingly, we VACATE our previous judgment in the instant case

awarding Bigelow damages in the amount of $483.57, expenses of $326.44, and

attorney fees of $17,640.

{¶13} In accordance with the Supreme Court’s opinion in Dillon, we sustain

American Family’s assignments of error and find: the trial court erred in granting

Bigelow’s motion for summary judgment; the trial court erred in awarding Bigelow

attorney fees and expenses pursuant to the CSPA; and the trial court erred in awarding

Bigelow damages pursuant to the CSPA. The November 12, 2012, January 29, 2013,

and February 20, 2013 judgment entries of the Coshocton Municipal Court are

REVERSED and, pursuant to App.R. 12(B), final judgment is entered in favor of

American Family.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur