[Cite as Tornado Technologies, Inc. v. Quality Control Inspection, Inc.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97514

TORNADO TECHNOLOGIES, INC. PLAINTIFF-APPELLEE

vs.

QUALITY CONTROL INSPECTION, INC., ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-696827

BEFORE: Blackmon, A.J., E. Gallagher, J., and Kilbane, J.

RELEASED AND JOURNALIZED: August 2, 2012 ATTORNEYS FOR APPELLANT

Charles A. Bowers Michael J. Zbiegien, Jr. Taft, Stettinius & Hollister LLP 200 Public Square, Suite 3500 Cleveland, Ohio 44114-2302

ATTORNEYS FOR APPELLEES

Tornado Technologies, Inc.

Debra J. Horn Meyers, Roman Friedberg & Lewis 28601 Chagrin Blvd., Suite 500 Cleveland, Ohio 44122

Fitzgibbons Arnold & Company Agency, Inc., Et Al.

George V. Pilat McIntyre, Kahn & Kruse Co., L.P.A. The Galleria & Towers at Erieview 1301 East Ninth Street, Suite 2200 Cleveland, Ohio 44114

Ohio Casualty Corp.

Ronald A. Rispo Randy L. Taylor Weston Hurd, LLP The Tower At Erieview 1301 East Ninth Street, Stuite 1900 Cleveland, Ohio 44114 PATRICIA ANN BLACKMON, A.J.:

{¶1} Appellant Quality Control Inspection, Inc. (“QCI”) appeals the trial court’s

decision granting summary in favor of appellees Fitzgibbons, Arnold & Company

Agency, Inc. and Clark Fitzgibbons (“FAC”). QCI assigns the following error for our

review:

I. The trial court erred when it granted Fitzgibbons Arnold & Company Agency, Inc. and Clark Fitzgibbons’ motion for summary judgment.

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

{¶3} QCI was founded in 1985 by Rick Capone and is a construction inspection

firm, which provides engineering and architectural support services for governments and

private contractors on construction projects. FAC was formed in 1991 by Clark

Fitzgibbons and Dick Arnold and is an independent insurance agency, which arranges

personal and commercial lines of coverage, as well as bonds, health, and benefits

coverage. In 1997, QCI became a client of FAC, purchasing a wide range of insurance

coverages.

{¶4} Beginning in 2004, QCI began storing its electronic data off-site on servers

that would eventually be owned by Tornado Technologies, Inc. (“Tornado”). On

November 28, 2008, as a result of an electrical surge, Tornado’s server crashed and

substantially all of QCI’s data stored on the server was lost. Tornado’s backup file was affected by the electrical surge, and, although they were able to retrieve and restore some

files, they were unable to restore all of QCI data.

{¶5} QCI reported the incident to FAC, who in turn forwarded a claim to Ohio

Casualty, the insurance carrier. After investigating the claim, Ohio Casualty issued a

check in the amount of $50,000 to QCI. This amount represented the limit of coverage

under the commercial computer coverage policy.

{¶6} On June 26, 2009, Tornado filed a breach of contract action against QCI

alleging that it had not been paid for services rendered and QCI had an unpaid balance of

$50,615. On September 3, 2009, QCI filed its answer, counterclaimed against Tornado,

and joined FAC, Clark Fitzgibbons, and Ohio Casualty as defendants in its counterclaim.

{¶7} In its counterclaim, QCI asserted claims of breach of contract, promissory

estoppel, and negligence against Tornado. QCI alleged said claims flowed from the

failure of Tornado’s servers and the resultant loss of QCI’s data. QCI alleged that

Tornado’s failure to adequately store the data caused them to suffer losses exceeding $1

million.

{¶8} QCI asserted claims of breach of contract against Ohio Casualty and breach

of fiduciary duty, negligence, along with insurance malpractice against FAC and Clark

Fitzgibbons. As against these defendants, QCI alleged that FAC failed to ensure that it

was protected against catastrophes such as Tornado’s server failure. {¶9} On April 30, 2010, Consolidated Insurance Company, the insurer under

Ohio Casualty, filed an amended answer and asserted a subrogation claim against

Tornado for the $50,000 that was paid to QCI.

{¶10} After significant motion practice, on May 14, 2010, FAC and Clark

Fitzgibbons filed its motion for summary judgment on the grounds that QCI never asked

for insurance coverage on computer, electronic data, or backup that was stored off-site.

QCI filed its motion in opposition on June 23, 2010.

{¶11} On May 23, 2011, the trial court granted FAC and Clark Fitzgibbons’s

motion for summary judgment. Thereafter, on October 3, 2011, Tornado, QCI, and Ohio

Casualty proceeded to a jury trial on the remaining matters. The jury returned a verdict

in Tornado’s favor and against QCI in the amount $71,299.46. QCI did not appeal the

jury verdict. QCI timely appealed the trial court’s decision granting summary judgment

in favor of FAC and Clark Fitzgibbons.

Summary Judgment

{¶12} In the sole assigned error, QCI argues the trial court erred when it granted

summary judgment in favor of FAC and Clark Fitzgibbons.

{¶13} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays,

,

(8th Dist. 2000), citing

Smiddy v. The Wedding Party, Inc.,

,

(1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs.,

,

(8th Dist. 1997). Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

{¶14} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is adverse

to the nonmoving party.

{¶15} The moving party carries an initial burden of setting forth specific facts

that demonstrate his or her entitlement to summary judgment. Dresher v. Burt,

,

(1996). If the movant fails to meet this burden,

summary judgment is not appropriate; if the movant does meet this burden, summary

judgment will be appropriate only if the nonmovant fails to establish the existence of a

genuine issue of material fact.

.

{¶16} In the instant case, QCI argues FAC failed to competently advise it as to

the type and amount of coverage that would have guarded against the loss incurred when

Tornado’s server crashed. This alleged failure, QCI claims, amounted to negligence,

insurance agent malpractice, and breach of fiduciary duty.

{¶17} To establish any type of actionable negligence, a plaintiff must show the

existence of a duty, a breach of that duty, and injury that is the proximate result of that

breach. Delta Fuels, Inc. v. Consol. Environmental. Servs., 6th Dist. No. L-11-1054,

, citing Mussivand v. David,

,

(1989). See also Armstrong v. Best Buy Co., Inc.,

,

,

, citing Menifee v. Ohio Welding Prods., Inc.,

,

(1984).

{¶18} In the insurance context, an action for negligence may be based upon an

insurance agent’s failure to procure insurance. Gerace-Flick v. Westfield Natl. Ins. Co.,

7th Dist. No.

,

, citing Minor v. Allstate Ins. Co.,

,

(2d Dist. 1996). Whether an agent has negligently failed

to procure insurance is ordinarily a question of fact.

{¶19} Pertinent to the elements of duty and breach, an insurance agency has a

duty to exercise good faith and reasonable diligence in obtaining insurance that its

customer requests. Moor v. Am. Family Ins. Co., 3d Dist. No. 4-09-13,

,

citing Fry v. Walters & Peck Agency, Inc.,

,

(6th Dist. 2001). See also First Catholic Slovak Union v. Buckeye Union Ins.,

,

(8th Dist. 1986); Stuart v. Natl. Indemn. Co.,

,

(8th Dist. 1982). However, an insurance agent owes no duty

to seek replacement coverage for an insured in the absence of a request by the insured to

do so. See Slovak.

{¶20} FAC maintains it was not on notice that QCI was storing electronic data

off-site and, more importantly, QCI never asked FAC to place or arrange any coverage

for data stored with Tornado. The record reveals quite a number of instances where

Capone was asked if he ever notified FAC that electronic data was being stored off-site and Capone indicated he could not recall. For example, Capone testified as follows

during his deposition:

Q. Rick, with respect to remote servers and the off-site data that QCI and the other companies had, did you ever talk with Clark Fitzgibbons about an amount of coverage for that data?

A. I don’t believe so, no.

Q. Did you ever talk about how much data, what kind of data was being stored off-site?

A. You know, frankly, I don’t think Clark and I ever had a conversation about data ever stored, no.

Q. You said you do 400 projects a year, approximately?

A. Yes.

Q. Obviously some are going to be 5 pages and others are going to be 5,000 pages. Did you ever talk about that in the context of how much material or data was being stored on the remote servers?

A. No. Capone Depo. 157-158.

{¶21} Clark Fitzgibbons testified that QCI became a customer in 1997, and he

personally took over the account in 1999. Fitzgibbons testified that he generally met

with Capone three times per year, namely: a pre-renewal meeting held 60-90 days prior to

renewal, specifically to go over the previous year’s coverage and discuss changes for the

upcoming year; a renewal meeting to present quotes and prices for the renewal coverage;

and finally a meeting to deliver the renewal policy. Capone has acknowledged that the

three annual meetings took place. {¶22} During any of these three meetings, Capone had multiple opportunities over

the years to put FAC on notice that QCI was storing electronic data off-site and multiple

opportunities to request the appropriate coverage. In addition, when the renewal policy

was delivered, Capone had the opportunity to review the coverage and request changes.

The insurance policy, at issue, Computer Coverage Form states in pertinent part as

follows:

Duplicates in Storage

This policy is extended to cover “loss” to duplicates backup Software while stored at a location not described in the Declarations. The most we will pay under this Coverage Extension is the lesser of:

(1) the actual cost to replace the duplicate backup Software; or

(2) $50,000.

Extra Expenses

We will pay the actual necessary and reasonable extra expenses you incur to continue the normal computer operations of your business, as a direct result of “loss” by a Covered Cause of “Loss” that damages or destroys any of the following during the policy period:

(1) Covered Property that is not situated at a described premises Newly Acquired Location, Temporary Location or in transit.

{¶23} We specifically look at the declaration’s reference to duplicate storage and

references different locations, as well as coverage during transit; thus, QCI should have

notified FAC that they were storing data at Tornado and queried the propriety of

additional coverage. An insured has a corresponding duty to examine the coverage

provided and is charged with knowledge of the contents of his or her own insurance policies. Fry,

. See also Craggett v. Adell Ins. Agency,

,

(8th Dist. 1993); Nickschinski v. Sentry Ins. Co.,

,

(8th Dist. 1993). Thus, the onus was on QCI to

review the policy declaration, notify FAC that it was storing electronic data with Tornado,

and request the appropriate level of coverage. As such, we conclude the trial court did

not err in granting summary judgment in favor of FAC on QCI’s agency negligence

claim.

{¶24} Nonetheless, QCI maintains that it relied on FAC’s expertise to procure

sufficient coverage. In essence, QCI argue that FAC were fiduciaries with a higher duty

of care, a duty not only to provide the coverage requested but also to advise QCI of the

amount of coverage needed.

{¶25} The Ohio Supreme Court has defined a “fiduciary relationship” as one “in

which special confidence and trust is reposed in the integrity and fidelity of another and

there is a resulting position of superiority or influence, acquired by virtue of this special

trust.” Nichols v. Schwendeman, 10th Dist. No. 07AP-433,

, citing Ed

Schory & Sons, Inc. v. Soc. Natl. Bank,

, 442,

,

, quoting In re Termination of Emp.,

,

(1974).

{¶26} A fiduciary relationship may be created out of an informal relationship “only

when both parties understand that a special trust or confidence has been reposed.”

Umbaugh Pole Bldg. Co., Inc. v. Scott,

,

(1979), paragraph one of the syllabus; Hoyt v. Nationwide Mut. Ins. Co., 10th Dist. No.

04AP-941,

. Thus, a fiduciary relationship cannot be unilateral; it must

be mutual. Horak v. Nationwide Ins. Co., 9th Dist. No. CA 23327,

.

{¶27} However, it is important to note that 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. Rose v. Landen, 12th Dist. No.

CA2004-06-066,

, citing Nielsen Ents., Inc. v. Ins. Unlimited Agency,

Inc., 10th Dist. No. 85AP-781,

(May 8, 1986). See also Roberts v. Maichl, 1st Dist. No. C-040002,

.

{¶28} In this case, we find that the record shows the relationship between QCI

and FAC was nothing more than an ordinary business relationship between insurance

agent and client. Furthermore, QCI was in the best position to know how much coverage

it needed. QCI knew the quantity and the quality of the data it was storing off-site with

Tornado. QCI knew that its off-site coverage was limited to $50,000. QCI was in a

position to know the type of impact the loss of said data would have on its company.

QCI was in a position to properly forecast the financial cost of retrieving or re-creating

data that could be lost off-site or even on its own premises. Given that QCI was in the

uniquely superior position of knowing the nature and scope of its business needs, it had a

duty to bring these relevant concerns to FAC’s attention and request the appropriate

coverage. {¶29} As previously noted, the policy declaration clearly stated that the duplicate

storage limit was set at $50,000. QCI received a renewal policy for more than five years

reflecting this fact, but they failed to seek the additional coverage or notify FAC of the

off-site storage of their electronic data. It is our opinion that the storage off-site in and

of itself was not the concern. The concern was the limit of $50,000. QCI was best able

to evaluate whether that limit was too much or too small.

{¶30} We conclude that FAC’s exercise of good faith and reasonable diligence

was satisfied in obtaining the insurance as requested by QCI over the years, but there was

no duty to advise QCI, without them furnishing additional and pertinent information, that

additional coverage was needed. As such, we find no evidence from which reasonable

minds could conclude that the relationship between QCI and FAC was anything other

than an ordinary business relationship between an insurance agent and a client. Thus, we

find no error in the trial court’s entry of summary judgment in favor of FAC on QCI’s

breach of fiduciary duty claim.

{¶31} Turning now to QCI’s claim that FAC committed insurance agent

malpractice. Having concluded in the foregoing discussion that FAC was not negligent

and that it was not in a fiduciary relationship with QCI, we find QCI’s claim that FAC

committed insurance agent malpractice unsustainable. As such, we conclude that there

was no error in the trial court’s entry of summary judgment in favor of FAC on the

aforementioned claims. Accordingly, we overrule the sole assigned error.

{¶32} Judgment affirmed. It is ordered that appellees recover from appellant their costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR