[Cite as Hatfield v. Whisman, 2016-Ohio-7597.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Jason Hatfield, et al., : Case No. 16CA3738
Plaintiffs-Appellants, :
v. : DECISION AND JUDGMENT ENTRY Melissa Whisman, et al., : RELEASED: 10/31/16 Defendants-Appellees :
APPEARANCES:
Michael H. Mearan, Portsmouth, Ohio, for appellants.
Stuart A. Keller, David A. Goldstein Co., L.P.A., Columbus, Ohio, for appellee, Safe Auto Insurance Company. Harsha, J. {¶1} Jason Hatfield and Carrie Gerald appeal from a summary judgment
entered in favor of Hatfield’s automobile insurance company, Safe Auto Insurance
Company (“Safe Auto”), on their suit for uninsured-motorist coverage. In rendering the
judgment the trial court relied upon the policy’s two-year limitation period to bring an
action. The accident in which Hatfield and Gerald were injured by an uninsured motorist
occurred in October 2007, but they did not bring an action against Safe Auto to collect
on the uninsured-motorist provision of their policy until May 2015.
{¶2} In their sole assignment of error Hatfield and Gerald assert that the trial
court erred in granting Safe Auto’s motion for summary judgment without considering
whether the two-year limitation in the uninsured-motorist clause was unconscionable.
We reject their assertion because courts have uniformly held that a two-year limitation
period is a reasonable and appropriate period of time in which to require an insured who Scioto App. No. 16CA3738 2
has suffered bodily injury to commence an action under the uninsured/underinsured-
motorist provisions of an insurance policy. Moreover, the trial court did not violate R.C.
1302.15(B) by entering summary judgment in favor of Safe Auto because the court
afforded the parties a reasonable opportunity to present pertinent evidence on the
issue, and Hatfield and Gerald failed to introduce summary-judgment evidence that the
two-year limitation was unconscionable.
{¶3} The trial court properly granted summary judgment in favor of Safe Auto;
we affirm that judgment.
I. FACTS
{¶4} In October 2007, Jason Hatfield was operating his Pontiac Grand Prix
automobile with Carrie Gerald and his son, Aaron, riding as passengers in the car.
According to Hatfield and Gerald, Melissa Whisman negligently operated a car owned
by another person and collided with Hatfield’s car, causing them to suffer personal
injuries. In October 2009, Hatfield and Gerald initiated a personal-injury action against
Whisman in the Portsmouth Municipal Court and obtained a default judgment against
her in August 2011. But before a scheduled damages hearing, Hatfield and Gerald
voluntarily dismissed the action without prejudice.
{¶5} In August 2012, Hatfield and Gerald refiled their personal-injury action
seeking damages against Whisman. After Whisman failed to respond to their new
complaint, the trial court granted appellants’ motion and entered a default judgment
against her on the issue of liability.
{¶6} In March 2015, the attorney for Hatfield and Gerald received a letter from
Whisman’s insurance provider, General Automobile Insurance Company, Inc., that Scioto App. No. 16CA3738 3
stated that there was no coverage for the accident. A couple months later, in May 2015,
Hatfield and Gerald filed an amended complaint adding a claim against Hatfield’s
automobile insurance carrier, Safe Auto, under his policy’s uninsured-motorist provision.
Hatfield and Gerald thus filed their amended complaint adding Safe Auto as a defendant
more than seven years after the October 2007 accident. Safe Auto filed an answer,
cross-claim, and counterclaim.
{¶7} Safe Auto then filed a motion for summary judgment. The insurance
company claimed that Hatfield and Gerald’s claim against it was barred by the following
two-year contractual limitation in the policy:
SUIT AGAINST US We may not be sued unless there is full compliance with all the terms of the policy. We may not be sued under the liability coverage until your obligation to pay is finally determined either by judgment against the person after actual trial or by written agreement of the person, the claimant, and us. No one shall have any right to make us a party to a lawsuit to determine your liability. Any lawsuit seeking recovery under Part IV, Uninsured/Underinsured Motorists Coverage, must be filed within two (2) years from the date of the auto accident.
(Emphasis added.)
Safe Auto attached to its motion for summary judgment a certified copy of its
automobile insurance declarations and policy covering Hatfield and his vehicle
during the accident.
{¶8} In their memorandum in opposition Hatfield and Gerald argued that the
two-year contractual limitation in the insurance policy “would be unconscionable in as
much that another provision precludes suit under the uninsured motorist provision of the
policy within ninety (90) days of discovering the Defendant, Melissa Whisman, did not
have insurance” and that “[u]nder the circumstance[s] it would be unconscionable to Scioto App. No. 16CA3738 4
permit an insurance company from paying a claim that is clearly valid.” Hatfield and
Gerald did not cite any pertinent authority in support of their claim and did not submit
any Civ.R. 56(E) summary-judgment evidence in opposition to Safe Auto’s motion.
{¶9} In January 2016, the trial court granted Safe Auto’s motion and entered
summary judgment in its favor on Hatfield’s and Gerald’s claims. The court applied “the
clear and unambiguous language of the policy [that] provides that any action brought by
an insured under his uninsured/underinsured motorist coverage provided in this contract
issued by Safe Auto Insurance Company must be filed within two (2) years from the
date of the auto accident.” The court scheduled the matter for a damages hearing on
the default judgment against Whisman. A couple months later, the trial court entered
judgment for over $25,000 in damages in favor of Hatfield and Gerald against Whisman.
(OP52) Hatfield and Gerald appeal from the entry of summary judgment in favor of
Safe Auto on their insurance claim.
II. ASSIGNMENT OF ERROR
{¶10} Hatfield and Gerald assign the following error for our review:
THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT, SAFE AUTO’S MOTION FOR SUMMARY JUDGMENT WITHOUT CONSIDERING WHETHER THE UNINSURED MOTORIST CLAUSE WAS UNCONSCIONABLE.
III. STANDARD OF REVIEW
{¶11} Hatfield and Gerald assert that the trial court erred in granting summary
judgment to Safe Auto without determining whether the insurance policy’s two-year
contractual limitation in its uninsured motorist clause was unconscionable.
{¶12} Generally, appellate courts apply a de novo standard of review to an
appeal from a summary judgment based on an insurance contract. Westfield Ins. Co. v. Scioto App. No. 16CA3738 5
Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12; see also Willis v.
Gall, 2015-Ohio-1696, 31 N.E.3d 678, ¶ 10 (4th Dist.) (“[t]he interpretation of a written
contract, such as an insurance policy, is a matter of law that we review de novo”);
Hickory Grove 339, L.L.C. v. Cincinnati Ins. Co., 4th Dist. Washington No. 15CA38,
2016-Ohio-3408, ¶ 13.
{¶13} Summary judgment is appropriate if the party moving for summary
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Hatfield v. Whisman, 2016-Ohio-7597.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Jason Hatfield, et al., : Case No. 16CA3738
Plaintiffs-Appellants, :
v. : DECISION AND JUDGMENT ENTRY Melissa Whisman, et al., : RELEASED: 10/31/16 Defendants-Appellees :
APPEARANCES:
Michael H. Mearan, Portsmouth, Ohio, for appellants.
Stuart A. Keller, David A. Goldstein Co., L.P.A., Columbus, Ohio, for appellee, Safe Auto Insurance Company. Harsha, J. {¶1} Jason Hatfield and Carrie Gerald appeal from a summary judgment
entered in favor of Hatfield’s automobile insurance company, Safe Auto Insurance
Company (“Safe Auto”), on their suit for uninsured-motorist coverage. In rendering the
judgment the trial court relied upon the policy’s two-year limitation period to bring an
action. The accident in which Hatfield and Gerald were injured by an uninsured motorist
occurred in October 2007, but they did not bring an action against Safe Auto to collect
on the uninsured-motorist provision of their policy until May 2015.
{¶2} In their sole assignment of error Hatfield and Gerald assert that the trial
court erred in granting Safe Auto’s motion for summary judgment without considering
whether the two-year limitation in the uninsured-motorist clause was unconscionable.
We reject their assertion because courts have uniformly held that a two-year limitation
period is a reasonable and appropriate period of time in which to require an insured who Scioto App. No. 16CA3738 2
has suffered bodily injury to commence an action under the uninsured/underinsured-
motorist provisions of an insurance policy. Moreover, the trial court did not violate R.C.
1302.15(B) by entering summary judgment in favor of Safe Auto because the court
afforded the parties a reasonable opportunity to present pertinent evidence on the
issue, and Hatfield and Gerald failed to introduce summary-judgment evidence that the
two-year limitation was unconscionable.
{¶3} The trial court properly granted summary judgment in favor of Safe Auto;
we affirm that judgment.
I. FACTS
{¶4} In October 2007, Jason Hatfield was operating his Pontiac Grand Prix
automobile with Carrie Gerald and his son, Aaron, riding as passengers in the car.
According to Hatfield and Gerald, Melissa Whisman negligently operated a car owned
by another person and collided with Hatfield’s car, causing them to suffer personal
injuries. In October 2009, Hatfield and Gerald initiated a personal-injury action against
Whisman in the Portsmouth Municipal Court and obtained a default judgment against
her in August 2011. But before a scheduled damages hearing, Hatfield and Gerald
voluntarily dismissed the action without prejudice.
{¶5} In August 2012, Hatfield and Gerald refiled their personal-injury action
seeking damages against Whisman. After Whisman failed to respond to their new
complaint, the trial court granted appellants’ motion and entered a default judgment
against her on the issue of liability.
{¶6} In March 2015, the attorney for Hatfield and Gerald received a letter from
Whisman’s insurance provider, General Automobile Insurance Company, Inc., that Scioto App. No. 16CA3738 3
stated that there was no coverage for the accident. A couple months later, in May 2015,
Hatfield and Gerald filed an amended complaint adding a claim against Hatfield’s
automobile insurance carrier, Safe Auto, under his policy’s uninsured-motorist provision.
Hatfield and Gerald thus filed their amended complaint adding Safe Auto as a defendant
more than seven years after the October 2007 accident. Safe Auto filed an answer,
cross-claim, and counterclaim.
{¶7} Safe Auto then filed a motion for summary judgment. The insurance
company claimed that Hatfield and Gerald’s claim against it was barred by the following
two-year contractual limitation in the policy:
SUIT AGAINST US We may not be sued unless there is full compliance with all the terms of the policy. We may not be sued under the liability coverage until your obligation to pay is finally determined either by judgment against the person after actual trial or by written agreement of the person, the claimant, and us. No one shall have any right to make us a party to a lawsuit to determine your liability. Any lawsuit seeking recovery under Part IV, Uninsured/Underinsured Motorists Coverage, must be filed within two (2) years from the date of the auto accident.
(Emphasis added.)
Safe Auto attached to its motion for summary judgment a certified copy of its
automobile insurance declarations and policy covering Hatfield and his vehicle
during the accident.
{¶8} In their memorandum in opposition Hatfield and Gerald argued that the
two-year contractual limitation in the insurance policy “would be unconscionable in as
much that another provision precludes suit under the uninsured motorist provision of the
policy within ninety (90) days of discovering the Defendant, Melissa Whisman, did not
have insurance” and that “[u]nder the circumstance[s] it would be unconscionable to Scioto App. No. 16CA3738 4
permit an insurance company from paying a claim that is clearly valid.” Hatfield and
Gerald did not cite any pertinent authority in support of their claim and did not submit
any Civ.R. 56(E) summary-judgment evidence in opposition to Safe Auto’s motion.
{¶9} In January 2016, the trial court granted Safe Auto’s motion and entered
summary judgment in its favor on Hatfield’s and Gerald’s claims. The court applied “the
clear and unambiguous language of the policy [that] provides that any action brought by
an insured under his uninsured/underinsured motorist coverage provided in this contract
issued by Safe Auto Insurance Company must be filed within two (2) years from the
date of the auto accident.” The court scheduled the matter for a damages hearing on
the default judgment against Whisman. A couple months later, the trial court entered
judgment for over $25,000 in damages in favor of Hatfield and Gerald against Whisman.
(OP52) Hatfield and Gerald appeal from the entry of summary judgment in favor of
Safe Auto on their insurance claim.
II. ASSIGNMENT OF ERROR
{¶10} Hatfield and Gerald assign the following error for our review:
THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT, SAFE AUTO’S MOTION FOR SUMMARY JUDGMENT WITHOUT CONSIDERING WHETHER THE UNINSURED MOTORIST CLAUSE WAS UNCONSCIONABLE.
III. STANDARD OF REVIEW
{¶11} Hatfield and Gerald assert that the trial court erred in granting summary
judgment to Safe Auto without determining whether the insurance policy’s two-year
contractual limitation in its uninsured motorist clause was unconscionable.
{¶12} Generally, appellate courts apply a de novo standard of review to an
appeal from a summary judgment based on an insurance contract. Westfield Ins. Co. v. Scioto App. No. 16CA3738 5
Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12; see also Willis v.
Gall, 2015-Ohio-1696, 31 N.E.3d 678, ¶ 10 (4th Dist.) (“[t]he interpretation of a written
contract, such as an insurance policy, is a matter of law that we review de novo”);
Hickory Grove 339, L.L.C. v. Cincinnati Ins. Co., 4th Dist. Washington No. 15CA38,
2016-Ohio-3408, ¶ 13.
{¶13} Summary judgment is appropriate if the party moving for summary
judgment establishes that (1) there is no genuine issue of material fact; (2) the moving
party is entitled to judgment as a matter of law; and (3) reasonable minds can come to
but one conclusion, which is adverse to the party against whom the motion is made.
Civ.R. 56(C); New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-
Ohio-2266, 950 N.E.2d 157, ¶ 24; Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶
29 (4th Dist.). The moving party has the initial burden to inform the trial court of the
basis for the motion and to identify the parts of the record that demonstrate the absence
of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996). Once the moving party satisfies this initial
burden, the non-moving party has the reciprocal burden under Civ.R. 56(E) to set forth
specific facts to show that genuine issues exist for trial. Id.; Schultheiss v. Heinrich
Ents., Inc., 2016-Ohio-121, ___ N.E.3d ___, ¶ 15 (4th Dist.).
{¶14} “The fundamental goal when interpreting an insurance policy is to
ascertain the intent of the parties from a reading of the policy in its entirety and to settle
upon a reasonable interpretation of any disputed terms in a manner designed to give
the contract its intended effect.” Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234,
41 N.E.3d 1224, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8. In the absence of an express Scioto App. No. 16CA3738 6
contractual definition or resultant manifest absurdity, we will construe words and
phrases contained in an insurance policy in accordance with their plain and ordinary
meaning. Id., citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374
N.E.2d 146 (1978), paragraph two of the syllabus; see also Wayne Mut. Ins. Co. v.
McNabb, 2016–Ohio–153, ___ N.E.3d ___, ¶ 20 (4th Dist.).
IV. LAW AND ANALYSIS
{¶15} In their sole assignment of error Hatfield and Gerald claim that the trial
court erred in granting summary judgment in favor of Safe Auto because it failed to
consider whether the two-year limitation in the insurance policy was unconscionable.
They contend that the trial court thereby violated R.C. 1302.15(B), which provides that
“[w]hen it is claimed or appears to the court that the contract or any clause thereof may
be unconscionable the parties shall be afforded a reasonable opportunity to present
evidence as to its commercial setting, purpose, and effect to aid the court in making its
determination.”
{¶16} Unconscionability includes both an absence of meaningful choice on the
part of one of the parties together with contract terms that are unreasonably favorable to
the other party; the party asserting that the contract is unconscionable has the burden of
proving that the agreement is both procedurally and substantively unconscionable. See
Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 20.
{¶17} As appellants themselves acknowledge, courts have consistently upheld a
two-year limitation period in which to require an insured who has suffered bodily injury
to commence an action under the uninsured/underinsured-motorist provisions of an
insurance policy as reasonable and appropriate. See Angel v. Reed, 119 Ohio St.3d Scioto App. No. 16CA3738 7
73, 2008-Ohio-3193, 891 N.E.2d 1179, ¶ 12; Sarmiento v. Grange Mut. Cas. Co., 106
Ohio St.3d 403, 2005-Ohio-5410, 835 N.E.2d 692, ¶ 16; Miller v. Progressive Cas. Ins.
Co., 69 Ohio St.3d 619, 625, 635 N.E.2d 317 (1994).
{¶18} On appeal Hatfield and Gerald argue that the period was unconscionable
because they were precluded from bringing a suit under the uninsured-motorist clause
until they had exhausted their claim against the tortfeasor and her insurance company.
They do not specifically point to which clause in the policy they are relying on. Notably,
the exhaustion requirement in the same paragraph as the two-year limitation period
applies only to a suit under the liability-coverage section of the policy and not a lawsuit
seeking recovery under the uninsured-motorist coverage. And courts have routinely
held that exhaustion provisions in insurance policies are a condition precedent to an
insured’s right to payment and not a precondition to filing suit by the insured against his
insurer within the contractual limitation period. See Barbee v. Nationwide Mut. Ins. Co.,
130 Ohio St.3d 96, 2011-Ohio-4914, 955 N.E.2d 995, ¶ 45; D’Ambrosia v. Hensinger,
10th Dist. Franklin No. 09A-496, 2010-Ohio-1767, ¶ 15-16 (exhaustion and full-
compliance provisions of insurance policy did not render two-year contractual limitation
to raise uninsured/underinsured-motorist claim ambiguous and unenforceable). Nothing
prevented appellants from discovering the uninsured status of Whisman in time to
comply with the clear and unambiguous two-year limitation. See Angel, 119 Ohio St.3d
73, 2008-Ohio-3193, 891 N.E.2d 1179, at ¶ 19.
{¶19} Likewise, the trial court did not violate R.C. 1302.15(B) by entering
summary judgment in favor of Safe Auto because Hatfield and Gerald were afforded a
reasonable opportunity to submit Civ.R. 56(E) summary judgment evidence setting forth Scioto App. No. 16CA3738 8
specific facts to support their unconscionability claim. See, e.g., Pohman v. Columbia-
Brookpark Mgt., L.L.C., 8th Dist. Cuyahoga No. 88666, 2007-Ohio-4044, ¶ 13-14 (R.C.
1302.15(B) does not require an evidentiary hearing, but can be satisfied by the Civ.R.
56 summary judgment procedure for submitting evidence); see also Young v. Rollins
Leasing Corp., 6th Dist. Lucas No. L-78-137, 1979 WL 207397, *5 (Dec. 7, 1979) (R.C.
1302.15 “does not provide a specific method for the presentation of evidence as to the
commercial setting of the contract”). But after Safe Auto made and supported its motion
for summary judgment with certified copies of the insurance policy and declarations
page, Hatfield and Gerald failed to meet their reciprocal burden of establishing a
genuine issue of material fact concerning the enforceability of the two-year contractual
limitation with summary-judgment evidence.
{¶20} Finally, we need not address appellants’ additional argument in their reply
brief that they were “justified under the circumstances to be relieved of the two-year
requirement” because we address assignments of error and not mere arguments. See
State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 28 (court need
not address argument not assigned as error because we review assignments of error
and not mere arguments). And to the extent that they are attempting to raise an
argument apart from unconscionability, they cannot raise that new argument in a reply
brief. See Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No.
13CA14, 2014-Ohio-239, ¶ 17 (“an appellant may not use a reply brief to raise new
issues or assignments of error”).
{¶21} Therefore, the trial court did not err in granting summary judgment in favor
of Safe Auto. We overrule appellants’ assignment of error. Scioto App. No. 16CA3738 9
V. CONCLUSION
{¶22} Summary judgment was appropriate because Safe Auto established that
there was no genuine issue of material fact, it was entitled to judgment as a matter of
law, and reasonable minds could come to only one conclusion, which was adverse to
Hatfield and Gerald. The two-year insurance policy limitation barred their untimely
uninsured-motorist claim. Having overruled appellants’ sole assignment of error, we
affirm the trial court’s entry of summary judgment in favor of Safe Auto.
JUDGMENT AFFIRMED. Scioto App. No. 16CA3738 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Portsmouth Municipal Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.