[Cite as Williams v. D&J House Doctors, L.L.C., 2025-Ohio-4716.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
RACHEAL WILLIAMS, CASE NO. 13-25-08
PLAINTIFF-APPELLANT,
v.
D & J HOUSE DOCTORS, LLC, ET AL., OPINION AND JUDGMENT ENTRY DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court Trial Court No. 21 CV 0230
Judgment Affirmed
Date of Decision: October 14, 2025
APPEARANCES:
Anthony J. Richardson, II for Appellant
Bradley S. Warren for Appellee Case No. 13-25-08
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Racheal Williams (“Williams”) appeals the
judgment of the Seneca County Court of Common Pleas, arguing that the trial court
erred in granting summary judgment. For the reasons set forth below, the judgment
of the trial court is affirmed.
Facts and Procedural History
{¶2} In May of 2021, Williams submitted an offer to purchase a house that
had been owned by Brice Taylor (“Taylor”) since July of 2017. As part of this
process, she was given a residential disclosure form in which Taylor represented
that he did not “know of any water or moisture related damage to floors, walls, or
ceilings as a result of flooding; moisture seepage; moisture condensation[.]” (Doc.
37, Ex. C). He also indicated that he was not aware of any water intrusion, leakage,
accumulation, or excess moisture.
{¶3} On May 26, 2021, Williams and Taylor signed a purchase agreement
that contained an “as is” clause and made the transaction contingent upon a home
inspection. After walking through the house and examining the premises on three
or four occasions, Williams hired a person from D&J House Doctors, LLC (“D&J
House Doctors”), to perform an inspection. By this point, the house was vacant as
Taylor had already moved to a new location in April of 2021.
-2- Case No. 13-25-08
{¶4} After the inspection was completed, Williams closed on the house on
July 23, 2021 and moved onto the premises. In this timeframe, Williams obtained
a homeowner’s insurance policy from American Family Insurance Company
(“AFI”) that had an effective date of August 5, 2021. This policy contained an
exclusion for losses caused by “Continuous or Repeated Seepage.” (Doc. 16, Ex.
A).
{¶5} On August 18, 2021, Williams’s son discovered mold on the floors of
the two side-by-side closets in the master bedroom. On further examination,
Williams found that this mold went several feet up the closet walls and was
beginning to appear on the other side of the closet wall in the kitchen. On November
29, 2021, Williams filed a complaint that named D&J House Doctors as a defendant.
{¶6} In November of 2021, Williams also filed a claim with AFI. In
response, AFI hired a leak specialist to examine Williams’s property. On December
13, 2021, the leak specialist submitted a report to AFI.1 While examining the
premises, the specialist did not locate any active leaks in the areas with mold
damage. On March 2, 2022, AFI denied Williams’s insurance claim in a letter that
quoted the policy exclusion for losses caused by “Continuous or Repeated
Seepage.” (Doc. 37, Ex. R).
1 AFI referenced this report in its motion for summary judgment “simply to show that American Family did investigate the claim” and did not rely on the truth of the matters asserted therein to establish “the cause of the water intrusion.” (Doc. 43).
-3- Case No. 13-25-08
{¶7} On May 16, 2022, Williams filed an amended complaint that included
Taylor and AFI as defendants. Williams raised breach of contract, nondisclosure,
negligent misrepresentation, and fraudulent misrepresentation claims against
Taylor. She also raised breach of contract and bad faith claims against AFI.
{¶8} On January 19, 2023, Williams had a general contractor, Joseph
Schlosser (“Schlosser”), examine the mold damage in her house. In a deposition on
May 15, 2023, Schlosser stated that he could not reach a conclusion as to the cause
of the mold damage without pulling up the flooring but suggested that the absence
of a moisture barrier under the solid surface flooring may have led to the mold
damage.
{¶9} During the summer of 2023, Schlosser returned to Williams’s house
and pulled up the flooring to further examine the condition of the property. He then
wrote a report that stated he believed the mold damage in the closets was caused by
the failure to install a moisture barrier under the flooring in the house. However, he
did not reach a conclusion as to what caused the water intrusion that led to the mold
{¶10} On November 20, 2023, AFI filed a motion for summary judgment.
Taylor and Williams filed motions for summary judgment on November 27, 2023.
After AFI and Taylor had filed briefs in opposition to Williams’s motion for
-4- Case No. 13-25-08
summary judgment, she filed an affidavit and report from Schlosser on January 18,
2024.
{¶11} The trial court issued a judgment entry on January 31, 2025 that denied
Williams’s motion for summary judgment and granted summary judgment in favor
of Taylor and AFI. In reaching these decisions, the trial court noted that Williams
had failed to establish the source, cause, and timing of the water intrusion that led
to the mold damage in her house. While Taylor had moved to strike Schlosser’s
affidavit, the trial court referenced this document in its judgment entry. The claims
against D&J House Doctors were dismissed without prejudice for failure to perfect
service.
{¶12} Williams filed her notice of appeal on February 24, 2025. On appeal,
she raises the following three assignments of error:
First Assignment of Error
The Trial Court did not properly weigh the evidentiary material in the record when deciding that there was no genuine issue of material fact sufficient to give Appellant her day in court.
Second Assignment of Error
Granting Brice Taylor’s Motion for Summary Judgment was inappropriate because Appellant produced sufficient evidence of a substantial latent defect that was either created or concealed by Brice Taylor and therefore the ‘as is’ language in the Purchase Agreement is inapplicable for purposes of dismissing Appellant’s claims.
-5- Case No. 13-25-08
Third Assignment of Error
The Trial Court erred by granting American Family Insurance’s Motion for Summary Judgment because Appellant produced sufficient evidentiary material to create a genuine issue of material fact as to the source and timing of the water and mold damage and Appellant’s claims must be decided by a jury.
Legal Standard for Summary Judgment
{¶13} Appellate courts review an order granting summary judgment de novo.
LVNV Funding LLC v. Culgan, 2023-Ohio-4706, ¶ 5 (3d Dist.). Under Civ.R. 56,
a motion for summary judgment may be granted where no genuine issue of material
fact exists for trial; the moving party is entitled to judgment as a matter of law; and
reasonable minds can only reach a conclusion that is adverse to the nonmoving
party. Williams v. ALPLA, Inc., 2017-Ohio-4217, ¶ 5 (3d Dist.).
{¶14} In making a motion for summary judgment, the moving party bears
the initial burden of demonstrating that no genuine issue of material fact exists for
trial and that it is, therefore, entitled to judgment as a matter of law. James B. Nutter
& Co. v. Estate of Neifer, 2016-Ohio-7641, ¶ 5 (3d Dist.). The moving party need
not produce evidence to carry this burden but is required to identify the materials in
the record that indicate summary judgment is appropriate. Kent v. Motorists Mutual
Insurance Company, 2022-Ohio-1136, ¶ 8 (3d Dist.).
{¶15} If the moving party carries its initial burden, the burden then shifts to
the non-moving party to establish that a dispute over a genuine issue of material fact
-6- Case No. 13-25-08
exists for trial. Hall v. Kosei St. Marys Corporation, 2023-Ohio-2021, ¶ 6 (3d Dist.).
To defeat the motion for summary judgment, the non-moving party must do more
than issue mere denials but must identify specific facts that establish its position.
Gardner v. XPO Logistics Freight, Inc., 2024-Ohio-4633, ¶ 10 (3d Dist.).
{¶16} Since an award of summary judgment can terminate the litigation, trial
courts should grant motions for summary judgment with caution. Beair v.
Management & Training Corp., 2021-Ohio-4110, ¶ 18 (3d Dist.). Accordingly,
courts must resolve any doubts and construe all the evidence in favor of the non-
moving party. Durnell’s RV Sales Inc. v. Beckler, 2023-Ohio-3565, ¶ 29 (3d Dist.).
{¶17} Williams argues that the trial court’s failure to name certain exhibits
in its judgment entry indicates that the trial court did not review all of the relevant
materials in the record and constitutes reversible error.
Legal Standard
{¶18} “The wording of Civ.R. 56(C) makes it clear that a trial court must
conscientiously examine all the evidence before it when ruling on a summary
judgment motion.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992). Since
“Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly examine all
appropriate materials filed by the parties,” a trial court’s failure “to comply with this
requirement constitutes reversible error.” Id. at 360.
-7- Case No. 13-25-08
Legal Analysis
{¶19} In this case, Williams attached four exhibits and a number of pictures
to her motion for summary judgment. On appeal, she asserts that the trial court
failed to review several of the exhibits attached to her motion for summary
judgment. The only basis that Williams provides for this assertion is the fact that
the judgment entry did not expressly mention each of these exhibits by name.
{¶20} However, the first paragraph of the judgment entry named seventeen
filings from the parties that the trial court reviewed before reaching its decision.
This list included the motions for summary judgment from Williams, AFI, and
Taylor. At least twenty-three exhibits were submitted with these three motions for
summary judgment. The fact that the judgment entry did not separately name each
of these twenty-three exhibits does not establish that the trial court did not review
these evidentiary materials.
{¶21} In conclusion, the judgment entry expressly indicates that the trial
court reviewed the contents of Williams’s motion for summary judgment. The trial
court’s analysis also relied on several exhibits that were submitted with the three
motions for summary judgment. In light of this statement and the other materials in
the record, Williams has failed to establish that the trial court did not consider the
exhibits that she included in her motion for summary judgment. Accordingly, the
first assignment of error is overruled.
-8- Case No. 13-25-08
{¶22} Williams argues that summary judgment should not have been granted
because she established that a genuine issue of material fact existed for trial as to
whether Taylor knew about or concealed the conditions at issue.
{¶23} R.C. 5302.30(C) requires the seller of qualifying residential properties
to complete a disclosure form. This document is designed to elicit disclosure of
“material matters relating to the physical condition of the property to be transferred,
including . . . any material defects in the property that are within the actual
knowledge of the transferor.” R.C. 5302.30(D).
Historically, unless a purchase agreement contained an ‘as is’ clause, sellers of real property were required to disclose latent defects, i.e., hidden defects, of which they were aware. See, e.g., Layman v. Binns, 35 Ohio St.3d 176, 178, 519 N.E.2d 642 (1988). But under the doctrine of caveat emptor, they were not required to disclose patent defects, that is, defects that would be readily observable through a reasonable inspection. Id. at 177-178, 519 N.E.2d 642.
Ashmus v. Coughlin, 2025-Ohio-2412, ¶ 18. Now, R.C. 5302.30 “requires sellers
of real estate to disclose patent or latent defects within their actual knowledge . . . .”
Rodgers v. Sipes, 2012-Ohio-3070, ¶ 38 (3d Dist.).
{¶24} “The statute further requires that any disclosure be made in good faith
or with ‘honesty in fact in a transaction.’” Shannon v. Fischer, 2020-Ohio-5567, ¶
18 (12th Dist.), quoting R.C. 5302.30(A)(1). Under R.C. 5302.30(F)(1),
-9- Case No. 13-25-08
[a] transferor of residential real property is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from any error in, inaccuracy of, or omission of any item of information required to be disclosed in the property disclosure form if the error, inaccuracy, or omission was not within the transferor’s actual knowledge.
(Emphasis added.) R.C. 5302.30(F)(1). Thus, “under . . . R.C. 5302.30, sellers are
not required to disclose latent defects of which they lack actual knowledge.” Brown
v. Burnett, 2020-Ohio-297, ¶ 29 (2d Dist.).
{¶25} While R.C. 5302.30 “modifies the common-law duty of disclosure in
certain respects,” this provision “does not create an independent cause of action[.]”
Ashmus at ¶ 17. For this reason, “a buyer’s remedy for nondisclosure is limited to
common-law claims for fraud.” Id., citing Majoy v. Hord, 2004-Ohio-2049, ¶ 17
(6th Dist.) (holding that “a violation of R.C. 5302.30 does not equal fraudulent
misrepresentation per se”).
{¶26} Where a purchase agreement indicates “that the property is being sold
in its ‘as is’ present physical condition[,] . . . the buyer has agreed to ‘make his or
her own appraisal and accept the risk of making the wrong decision.” Mobley v.
James, 2020-Ohio-380, ¶ 35 (8th Dist.), quoting McDonald v. JP Dev. Group,
L.L.C., 2013-Ohio-3914, ¶ 15 (8th Dist.). If a purchase agreement contains an “as
is” clause, then claims of “passive nondisclosure” will generally be precluded.
Mobley at ¶ 35.
-10- Case No. 13-25-08
{¶27} “However, an ‘as is’ clause will not bar a claim for positive fraud, ‘that
is, a fraud of commission rather than omission . . . .’” Majoy at ¶ 18. For this
reason, an “as is” clause generally “limits the buyer’s claims against the seller to
claims of fraudulent misrepresentation and fraudulent concealment” where the seller
is shown to “have actively misrepresented or concealed facts.” Fowler v. Fimiani,
2017-Ohio-9333, ¶ 54 (11th Dist.).
{¶28} An “as is” clause does not shield a seller from liability for fraudulent
misrepresentations on a residential property disclosure form. Morgan v. Cohen,
2019-Ohio-3662, ¶ 39 (8th Dist.).
To establish a cause of action for fraudulent misrepresentation or concealment, a plaintiff must prove: (1) a representation or, when a duty to disclose exists, concealment of a fact, (2) material to the transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent to mislead another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.
Thackston v. Zembower, 2023-Ohio-1690, ¶ 19 (7th Dist.), quoting Hubbard Family
Trust v. TNT Land Holdings, LLC, 2014-Ohio-772, ¶ 22 (4th Dist.).
Unlike a determination of negligence, evidence or expert opinions that a party ‘should have known’ of the condition . . . do not create an issue of fact as to fraud because a finding of fraud requires proof that a defendant had actual knowledge of the alleged defect and proof that he or she purposely misrepresented or concealed it.
Diemert v. Binstock, 2019-Ohio-3368, ¶ 25 (8th Dist.).
-11- Case No. 13-25-08
{¶29} Finally, “R.C. 5302.30(D)(1) provides that the disclosure form is ‘not
a warranty of any kind by the transferor,’ nor is it ‘a substitute for any inspections.’”
Ashmus, 2025-Ohio-2412, at ¶ 19. Thus, “[t]he duty under the statute to conduct a
full inspection falls upon the buyer, not the seller.” Evon v. Walters, 2021-Ohio-
3475, ¶ 17 (11th Dist.), quoting Pedone v. Demarchi, 2007-Ohio-6809, ¶ 32 (8th
Dist.). “[W]here the buyer ‘has had the opportunity to inspect the property, he is
charged with knowledge of the conditions that a reasonable inspection would have
disclosed.’” Nieberding v. Barrante, 2021-Ohio-2593, ¶ 23 (8th Dist.), quoting
Nunez v. J.L. Sims Co., Inc., 2003-Ohio-3386, ¶ 17 (1st Dist.).
{¶30} On appeal, Williams acknowledges that the purchase agreement
contains an “as is” clause. However, she points out that such a provision does not
shield a seller from fraudulent misrepresentation or fraudulent concealment.
Williams asserts that she established that a genuine issue of material fact exists for
trial as to whether Taylor knew about or concealed the conditions at issue in this
case. She raises two main arguments against the trial court’s decision to grant
Taylor’s motion for summary judgment.
{¶31} First, Williams argues that Taylor’s negligent failure to install a
moisture barrier underneath the flooring he replaced led to the mold damage. In his
affidavit, Taylor did state that he replaced the flooring in the kitchen and living room
-12- Case No. 13-25-08
of the house. But even if Taylor’s failure to install a moisture barrier eventually led
to the mold damage, this still does not establish that he knew about or concealed
this condition. Thus, Williams’s first argument fails to establish that her claims
against Taylor are not barred by the “as is” clause in the purchase agreement. See
also Tutolo v. Young, 2012-Ohio-121, ¶ 52 (12th Dist.) (concluding that an “as is”
clause bars claims based upon the seller’s negligent construction).
{¶32} Second, Williams argues that Schlosser gave an expert opinion in his
affidavit that creates a genuine issue of material fact as to whether Taylor knew
about or concealed the identified conditions. Schlosser stated that the flooring and
the paint in the house “seemed” to indicate “that the previous owner covered up
damage to the home caused by perpetual water intrusion or moisture.” (Doc. 52).
{¶33} In response, Taylor first argues that Schlosser gave a speculative
assertion about what “seemed” to be the case rather than offering an expert opinion
that is expressed in terms of probability or to a reasonable degree of certainty. See
Scioto Land Company, LLC v. Knauff, 2023-Ohio-4821, ¶ 51 (4th Dist.) (discussing
the basic requirements for expert opinions). He also points out that the conclusion
Schlosser gave in his affidavit directly contradicted the conclusion that he had
previously given on the same issue in the following deposition testimony:
[Attorney:] Did you see any evidence of an attempt to conceal the condition of this house when you did your walk-through?
[Schlosser:] Not at the moment, no.
-13- Case No. 13-25-08
(Emphasis added.) (Schlosser Depo. 45). Schlosser’s affidavit contains no
explanation as to why he gave opposite conclusions on the issue of whether he
observed any indications that Taylor may have taken steps to conceal the water
intrusion or mold damage.2
{¶34} Beyond these initial arguments, Taylor contends that Schlosser’s
opinion is speculative because he did not identify any facts or evidence in the record
that could support his conclusion.
‘Evid.R. 702 permits experts to testify as to their opinion, and even their opinion as to the ultimate issue under Evid.R. 704. Evid.R. 703 and 705, however, require that the expert establish the basis from which they draw the inferences for their expert opinion.’ [Estate of Holley v. Am. Family Life Assur. Co. of Columbus, 2005-Ohio-2281, ¶ 24.] . . . . Furthermore, ‘an expert witness may have an opinion based on inferences drawn from facts as provided for in Evid.R. 703.’ Estate of Holley, at ¶ 25. However, an expert witness cannot reach a conclusion where one inference is based upon another inference. Id.
Cole v. Contract Framing, Inc., 2005-Ohio-4244, ¶ 16 (10th Dist.). Thus,
“conclusory affidavits that merely provide legal conclusions or unsupported factual
assertions are . . . insufficient to establish a genuine issue of material fact.” Adkins
v. Yamaha Motor Corp., U.S.A., 2014-Ohio-3747, ¶ 17 (4th Dist.), quoting Moore
v. Smith, 2008-Ohio-7004, ¶ 15 (4th Dist.).
2 In his affidavit, Schlosser stated what he believed to be the cause of the mold but previously said that he could not discern what caused the damage during his deposition. But he provided an explanation for these differing conclusions: in the time between these statements, he pulled up the flooring to determine the cause. He provided no such explanation for his contradictory conclusions on the issue of concealment.
-14- Case No. 13-25-08
{¶35} In his opinion, Schlosser made references to the flooring and paint in
the house. We turn to examining whether the facts in the record relating to the
flooring and paint can support the inference that Taylor knew about the identified
conditions. Taylor’s affidavit stated that he replaced the flooring in the kitchen
roughly one year prior to moving and the flooring in the living room roughly two
years prior to moving. He also averred that he had a company called Lee’s Carpet
install carpeting in the bedroom prior to selling the house. Taylor stated that, during
these projects, he did not observe any indications of water intrusion or mold damage
and was not informed of any such conditions by Lee’s Carpet.
{¶36} Taylor’s affidavit stating that the flooring in several rooms had been
replaced does not, by itself, establish that he knew about the conditions identified
by Williams. In the same way, Schlosser’s affidavit noting that the flooring in
several rooms had been replaced does not, by itself, establish that Taylor knew about
the conditions identified by Williams. Beyond pointing to the flooring, Schlosser
and Williams do not identify any facts that would suggest that Taylor was
attempting to conceal indications of water intrusion with this flooring.
{¶37} As noted by the trial court, Williams did not present any admissible
evidence that could establish the source of the water intrusion or the progression of
the resulting damage to the subfloor. In his deposition in 2023, Schlosser indicated
that the water intrusion could have begun anytime between two and five years
-15- Case No. 13-25-08
earlier. The record indicates that the flooring was installed between three and four
years prior to this comment. In the absence of additional information, a finder of
fact would have to speculate about whether the moisture damage to the subfloor was
observable at the time that Taylor installed the flooring. Having examined the facts
in the record, we conclude that Schlosser’s reference to the flooring is not sufficient
to support the inference made in his conclusion.
{¶38} Turning to his reference to the paint, Schlosser stated the following
during his deposition:
[Attorney:] . . . [Y]ou mentioned painting over it [the mold] with Kilz. . . . Are these the ones [the pictures] that you said show somebody has painted with Kilz?
[Schlosser:] Yes, sir.
[Attorney:] How can you tell that?
[Schlosser:] Well, looking at it. Kilz is not a true white color. It’s a primer, and the way that goes on it’s got a thicker texture on it. And you can see where they painted up to a certain point in the closet to where it stops, it’s a different shade.
....
[Attorney:] You had mentioned some Kilz applied. Do you have any idea when that was applied?
[Schlosser:] No, sir.
[Attorney:] Did you see any evidence of an attempt to conceal the condition of this house when you did your walk-through?
-16- Case No. 13-25-08
(Schlosser Depo. 29, 45). However, as noted previously, no evidence was produced
that established when the mold damage appeared or progressed into the closet.
{¶39} During his deposition, Schlosser only stated that the amount of mold
he observed would have taken more than eighteen to twenty-one days to develop.
The record indicates that the house sat vacant between Taylor moving out in early
April of 2021 and Williams moving into the house in late July of 2021. Further,
Schlosser also stated that Taylor’s failure to install a moisture barrier under the
flooring he installed likely led to the mold damage. The closets in the bedroom
backed up to the kitchen where Taylor had replaced the flooring roughly one year
prior to moving. In the absence of some indication as to when the mold progressed
into the closet, the evidence in the record does not connect the paint to the condition
at issue.
{¶40} Further, while Schlosser believes that someone had used primer in the
closet, he also stated that he could not provide any indication as to how recently this
primer had been applied. The record establishes that Taylor lived at this house for
less than four years. Thus, assuming that Schlosser correctly identified the primer
used in the closet, the facts in the record do not connect this paint to Taylor. Without
more, we conclude that the reference to the paint is not sufficient to support
Schlosser’s conclusion.
-17- Case No. 13-25-08
{¶41} In summary, Schlosser’s affidavit asserted that Taylor attempted to
conceal the conditions identified by Williams. However, this inference is not
supported by facts or evidence in the record. For this reason, Schlosser’s conclusion
ultimately rests on speculation and is conjectural. Since the identified opinion in
Schlosser’s affidavit does not create a genuine issue of material fact for trial,
Williams’s second assignment of error is without merit. Having examined the
evidence in the record, we conclude that the trial court did not err in granting
summary judgment on the basis of the “as is” clause in the purchase agreement.
Accordingly, the second assignment of error is overruled.
{¶42} Williams argues that the trial court erred in granting summary
judgment as to her claims against AFI.
{¶43} “An insurance policy is a contract . . . .” Sarmiento v. Grange Mut.
Cas. Co., 2005-Ohio-5410, ¶ 8. Thus, the role of a court in interpreting an insurance
policy is to give effect to the intentions of the parties. Jordan v. United Ohio
Insurance Company, 2021-Ohio-2170, ¶ 14 (3d Dist.). Courts are to “examine the
contract as a whole and presume that the intent of the parties is reflected in the
language of the contract.” Kent, 2022-Ohio-1136, at ¶ 8, quoting Sunoco, Inc. (R &
M) v. Toledo Edison Co., 2011-Ohio-2720, ¶ 37.
-18- Case No. 13-25-08
In addition, we will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement.
When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. ‘As a matter of law, a contract is unambiguous if it can be given a definite legal meaning.’ Westfield Ins. Co. v. Galatis, 2003-Ohio-5849, ¶ 11.
Garlock v. Silver Dollar Camp, 2021-Ohio-1690, ¶ 12 (3d Dist.), quoting Sunoco at
¶ 37. “When provisions of a contract of insurance are reasonably susceptible to
more than one interpretation, they will be construed strictly against the insurer and
liberally in favor of the insured.” King v. Nationwide Ins. Co., 35 Ohio St.3d 208
(1988), at syllabus.
{¶44} “The burden of showing coverage under a contract of insurance is on
the insured.” Motorists Mutual Insurance Company v. Ironics, Inc., 2022-Ohio-
841, ¶ 9. However, if “an insurer relies on an exclusion to deny coverage, the insurer
has the burden of proving the applicability of the exclusion.” Collins v. Auto-
Owners Insurance Company, 2017-Ohio-880, ¶ 24 (12th Dist.), quoting Will
Repair, Inc. v. Grange Ins. Co., 2014-Ohio-2775, ¶ 21 (8th Dist.).
{¶45} Williams argues that the trial court erred in granting summary
judgment as to her breach of contract and bad faith claims against AFI. To prevail
on a breach of contract claim against AFI, Williams had to demonstrate that (1) a
contract existed; (2) she performed under the agreement; (3) AFI failed to perform
-19- Case No. 13-25-08
under the agreement; and (4) she suffered damages. Thiel’s Wheels, Inc. v. State
Route 30, Ltd., 2022-Ohio-2093, ¶ 14 (3d Dist.). Williams argues that AFI breached
the insurance agreement by denying her claim.
{¶46} On appeal, AFI argues that the terms of Williams’s policy provided
two main bases for denying her claim. AFI first points to the following language:
DEFINITIONS
...
9. Occurrence means an accident, including exposure to conditions, which results during the policy period, in:
a. bodily injury; or
b. property damage.
Continuous or repeated exposure to substantially the same general harmful conditions is considered to be one occurrence.
OHIO AMENDATORY HOMEOWNERS ENDORSEMENT
SUPPLEMENTARY COVERAGES—SECTION I
Fungi or Bacteria. Fungi or bacteria must occur on the insured premises and be caused by or result from a cause of loss other than fungi or bacteria covered by this policy. The cause of loss and the actual loss itself must occur while this policy is in effect. Fungi or bacteria must cause direct physical loss to property covered by this policy.
-20- Case No. 13-25-08
(Emphasis added.) (Doc. 7, Ex. E). AFI argues that Williams only produced
speculative assertions as to when the identified conditions commenced and failed to
establish that this occurrence happened after the effective date of her policy.3
{¶47} AFI also argues that, even if her assertions are taken as true, Williams
posits that the identified conditions existed prior to her purchase of the premises.
Schlosser’s affidavit suggests that the mold damage was caused by Taylor’s failure
to install a moisture barrier under the solid surface flooring and resulted from an
ongoing water intrusion issue that existed prior to the sale of house.4 Pursuant to
the relevant definitions in the insurance contract, AFI argues that this “occurrence”
would predate the effective date of the policy. (Doc. 7, Ex. E). For these reasons,
AFI argues that Williams failed to demonstrate that her insurance policy was
applicable to this occurrence.
{¶48} As an additional basis for denying coverage, AFI points to the
following language in Williams’s insurance policy:
3 AFI pointed out that Williams’s position on the timing of this condition evolved over the course of this litigation. On one occasion, Williams stated that she believed “the mold had formed after [s]he purchased the property in May.” (Doc. 47). But she also asserted that she believed the mold was “preexisting” in her deposition and argued that Taylor had failed to disclose this condition. (Williams Depo. 100). Before the trial court and on appeal, AFI has maintained that Williams’s assertions about the timing of this condition are speculative and are not supported by any admissible evidence. 4 While Schlosser stated that the failure to install the moisture barrier led to the mold damage in parts of the house, his report did not reach a conclusion as to the cause of the moisture intrusion, saying only that this underlying issue could “possibly” be caused by a “busted pipe” or “moisture in the floors.” (Doc. 52).
-21- Case No. 13-25-08
EXCLUSIONS—SECTION 1
PART A
. . . We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any cause or event contributing concurrently or in any sequence to the loss.
9. Water Damage, meaning:
c. regardless of its source, water below the surface of the ground. This includes water which exerts pressure on or flows, seeps or leaks through any part of a building or other structure, sidewalk, driveway or swimming pool.
PERILS AGAINST INSURED—SECTION 1
LOSSES NOT COVERED
We do not cover loss to the property described in Coverage A resulting directly or indirectly from, or consisting of, or caused by one or more of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
1. Losses excluded under EXCLUSIONS—SECTION 1
3. Continuous or Repeated Seepage or leakage of water or steam from within a plumbing, heating, air-conditioning or automatic fire
-22- Case No. 13-25-08
protection sprinkler system or from within a household appliance which occurs over a period of weeks, months or years.
(Doc. 7, Ex. E). As with the timing of the mold issue, AFI asserts that Williams has
not provided any admissible evidence that establishes what caused the water
intrusion that led to the mold damage and has only made speculative assertions
about the causes of these identified conditions.
{¶49} AFI further points out that Williams posits that the mold damage was
caused by Taylor’s failure to properly install a moisture barrier under the solid
surface flooring. Thus, AFI contends that, even if the water intrusion and mold
damage had occurred during the policy period, Williams’s proposed cause would
still clearly fall within the “Continuous or Repeated Seepage” exclusion. (Doc. 7,
Ex. E).
{¶50} In response to AFI’s motion for summary judgment, Williams did not
present any evidence that could establish the identified conditions occurred after the
effective date of her insurance policy. For this reason, she has failed to establish
that the insurance policy was applicable to this occurrence, as defined in her
insurance agreement. As a result, Williams has not demonstrated that a genuine
issue of material fact exists for trial on this breach of contract claim. Thus, her first
argument herein is without merit.
{¶51} Next, we turn to Williams’s claim of bad faith against AFI. This type
of claim is “predicated on the relationship between an insurer and its insured.”
-23- Case No. 13-25-08
Rousana v. Nationwide General Insurance Company, 2023-Ohio-3796, ¶ 24 (8th
Dist.). Under Ohio law, “[a]n insurer owes a duty to its insured to act in good faith
in the processing, payment, satisfaction, and settlement of the insured’s claims.”
Ballard v. Nationwide Ins. Co., 2015-Ohio-4474, ¶ 16 (7th Dist.).
{¶52} “As part of its duty, the insurer must ‘assess claims after an appropriate
and careful investigation’ and reach conclusions as a result of ‘the weighing of
probabilities in a fair and honest way.’” La Plas Condo. Assn. v. Utica Ntl. Ins.
Group, 2004-Ohio-5347, ¶ 16 (3d Dist.), quoting Motorists Mut. Ins. Co. v. Said,
63 Ohio St.3d 690, 699 (1992), overruled on other grounds in Zoppo v. Homestead
Ins. Co., 71 Ohio St.3d 552 (1994), first paragraph of the syllabus.
{¶53} To prevail on her bad faith claim against AFI, Williams had to
demonstrate that the decision to deny her claim was “not predicated upon
circumstances that furnish[ed a] reasonable justification.” Crawford v. American
Family Insurance Company, 2024-Ohio-5345, ¶ 15 (3d Dist.), quoting Zoppo at the
first paragraph of the syllabus. “An insurer’s actions are without reasonable
justification when they are arbitrary or capricious.” Eastlawn Properties, LLC v.
State Automobile Insurance Company, 2025-Ohio-1475, ¶ 44 (1st Dist.).
{¶54} “[T]he mere refusal to pay a claim does not automatically give rise to
bad faith liability.” Rousana, 2023-Ohio-3796, at ¶ 25. Thus, “summary judgment
is appropriately granted to an insurer ‘where the record is devoid of evidence
-24- Case No. 13-25-08
tending to show a lack of good faith on the part of this insurer.’” Eastlawn
Properties at ¶ 44, quoting Drouard v. United Servs. Auto. Assn., 2007-Ohio-1049,
¶ 17 (6th Dist.).
{¶55} In this case, Williams reported her mold issue to AFI in October or
November of 2021. AFI then hired a leak specialist to investigate Williams’s claim.
After this specialist submitted a report of his findings on December 13, 2021, AFI
denied Williams’s claim on March 2, 2022. During the course of this litigation, AFI
has relied upon the fact that it had a leak specialist investigate Williams’s claim and
upon several relevant provisions in Williams’s policy as an explanation for its
decision to deny her claim.
{¶56} In response, Williams merely asserts that AFI did not have adequate
grounds to deny her claim. Beyond the denial of her claim, Williams does not
identify any conduct on the part of AFI that would amount to bad faith. As the trial
court concluded in its judgment entry, the record does not contain any evidence that
suggests AFI acted in bad faith.
{¶57} In summary, AFI explained the bases for its decision to deny
Williams’s claim. In response, Williams did not provide any evidence that AFI
acted in bad faith. For this reason, we conclude that the trial court did not err in
granting summary judgment on the claim of bad faith against AFI. Thus, Williams’s
-25- Case No. 13-25-08
second argument herein is without merit. Accordingly, the third assignment of error
is overruled.
Conclusion
{¶58} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Seneca County Court of Common Pleas is
affirmed.
ZIMMERMAN and MILLER, J.J., concur.
-26- Case No. 13-25-08
JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
John R. Willamowski, Judge
William R. Zimmerman, Judge
Mark C. Miller, Judge
DATED: /hls
-27-