[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.