[Cite as Nationwide Property Cas. Ins. Co. v. Kavanaugh,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

NATIONWIDE PROPERTY CASUALTY : INSURANCE CO.

Plaintiff-Appellee : C.A. CASE NO. 25747

v. : T.C. NO. 12CV4473

JUACINTA KAVANAUGH : (Civil appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 25th day of October , 2013.

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NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303 and LAUREN K. EPPERLEY, Atty. Reg. No. 0082924, The Greene Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorneys for Plaintiff-Appellee

SEAN N. BRINKMAN, Atty. Reg. No. 0088253 and AARON G. DURDEN, Atty. Reg. No. 0039862, 10 W. Monument Avenue, Dayton, Ohio 45402 Attorneys for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Juacinta Kavanaugh appeals a decision of the

Montgomery County Court of Common Pleas, Civil Division, sustaining in part and

overruling in part the motion for summary judgment of plaintiff-appellee Nationwide

Property Casualty Insurance Co. Kavanuagh also appeals a decision of the trial court 2

overruling her motion to strike the affidavits of Brian Ferencz and James J. Kelleher. The

trial court issued both decisions on April 12, 2013. Kavanaugh filed a timely notice of

appeal with this Court on May 6, 2013.

{¶ 2} Kavanaugh purchased property located at 20 and 22 North Upland Avenue

in Dayton, Ohio, on May 19, 2009, for $18,000.00. Kavanaugh paid for the property in

cash. The property consisted of a residential double with two one-bedroom units side by

side. During her deposition, Kavanaugh testified that she purchased the property with the

intention of making it a home for herself, her ex-fiancee, and various family members.

Kavanaugh testified that she lived with her fiancee at 20 North Upland Ave. from August of

2009 through early 2011. Kavanaugh testified that during this time period she also resided

at her grandmother’s house located at 1137 Platt Circle in Dayton, Ohio. After Kavanaugh

split up with her fiancee in 2011, she testified that she began spending more time at her

grandmother’s residence, but still visited that North Upland house frequently.

{¶ 3} In January of 2011, Kavanaugh contacted Shamica Knight, an associate

insurance agent for Nationwide Insurance, for a homeowner insurance quote. During the

contract negotiations, Knight stated that to qualify for the type of policy she wanted,

Kavanaugh, as the owner of the subject property, would have to reside there. Knight also

suggested to Kavanaugh that she might be interested in purchasing a non-owner occupied

property policy, but Kavanaugh unequivocally stated that she would be living at the subject

property. Accordingly, on June 13, 2011, Nationwide issued an owner-occupied

homeowner insurance policy to Kavanaugh for 20 and 22 North Upland.

{¶ 4} At approximately 4:00 a.m. on March 25, 2012, the property located at 20 3

and 22 North Upland Avenue was destroyed by an arson fire. Subsequently, on April 10,

2012, Kavanaugh submitted a “Sworn Statement in Proof of Loss” to Nationwide seeking

$182,588.00 in insurance benefits. Upon investigating the insurance claim, Nationwide

concluded that Kavanaugh had not been residing at 20 North Upland Avenue address as

required by her owner-occupied property policy. In fact, Nationwide’s investigation

established that the subject property had been vacant for one to two months prior to the fire.

{¶ 5} On June 19, 2012, Nationwide filed a declaratory judgment action with the

trial court for a determination regarding whether Kavanaugh was entitled to benefits under

the owner-occupied homeowner policy. After extensive discovery, Nationwide filed a

motion for summary judgment on February 11, 2013, asserting that Kavanaugh was not

entitled to coverage under the owner-occupied homeowner policy because she did not live at

20 North Upland Avenue at the time of the fire. Kavanaugh filed a memorandum in

opposition to Nationwide’s motion, as well as motions to strike the affidavits of Nationwide

representatives James Kelleher and Brian Ferencz, the employees who investigated

Kavanaugh’s claim.

{¶ 6} On April 12, 2013, the trial court sustained in part and overruled in part

Nationwide’s motion for summary judgment. Significantly, the trial court found that

Kavanaugh was not residing at the subject property at the time of the fire and was, therefore,

not entitled to coverage under the owner-occupied homeowner policy. The trial court,

however, overruled the portion of Nationwide’s motion for summary judgment wherein it

argued that Kavanaugh made intentional misrepresentations of fact, including false

statements, at the time that the insurance contract was executed and subsequently when the 4

fire was being investigated. The trial court also denied Kavanaugh’s motions to strike the

affidavits of Kelleher and Ferencz, finding that said affidavits were admissible under Civ. R.

56 and the Ohio Rules of Evidence. We note that the trial court stated that, although the

affidavits were admissible, it did not consider either affidavit when deciding Nationwide’s

motion for summary judgment.

{¶ 7} It is from this judgment that Kavanaugh now appeals.

{¶ 8} Initially, we note that Nationwide advances two cross-assignments of error

with respect to the trial court’s decision sustaining in part and overruling in part its motion

for summary judgment. Because it is dispositive of the instant appeal, we will address

Kavanaugh’s third assignment of error out of order as follows:

{¶ 9} “THE TRIAL COURT ERRED BY GRANTING SUMMARY

JUDGMENT IN FAVOR OF PLAINTIFF.”

{¶ 10} In her third assignment, Kavanaugh contends that the trial court erred when

it sustained in part and overruled in part Nationwide’s motion for summary judgment.

Specifically, Kavanaugh argues that she presented evidence which created a genuine issue

regarding whether she was a “resident” of 20 North Upland Avenue pursuant to the

insurance policy at the time the fire occurred.

{¶ 11} An appellate court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co.,

,

(1996). We apply the same

standard as the trial court, viewing the facts in the case in a light most favorable to the

non-moving party and resolving any doubt in favor of the non-moving party. Viock v.

Stowe-Woodward Co.,

,

(6th Dist. 1983). 5

{¶ 12} Pursuant to Civil Rule 56(C), summary judgment is proper if: (1) No

genuine issue as to any material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the

party against whom the motion for summary judgment is made, that conclusion is adverse to

that party. Temple v. Wean United, Inc. (1977),

,

(1977). To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine

issue as to any material fact, and that the moving party is entitled to judgment as a matter of

law. Dresher v. Burt,

,

(1996). The non-moving

party must then present evidence that some issue of material fact remains for the trial court

to resolve.

{¶ 13} "A court must give undefined words used in an insurance contract their plain

and ordinary meaning." Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm,

,

(1995). "Where provisions of a contract of insurance are

reasonably susceptible of more than one interpretation, they will be construed strictly against

the insurer and liberally in favor of the insured." King v. Nationwide Ins. Co.,

,

(1988), syllabus. Nevertheless, "[i]f a term is clear and unambiguous

[a] court cannot in effect create a new contract by finding an intent not expressed in the clear

language employed by the parties." Santana v. Auto Owners Ins. Co.,

,

(6th Dist. 1993); see also Cincinnati Ins. Co. v. Am. Line Bldrs.

Apprenticeship Training Program,

,

(2d 6

Dist. 1994).

{¶ 14} Of the five types of coverage identified in the property coverage section, the

only two that are implicated in the instant appeal are dwelling and personal property

coverage. The coverage under the policy for a dwelling is limited to “the dwelling on the

residence premises used mainly as your private residence...” Complaint, Exh. A (Policy),

pg. B1. The coverage for personal property is limited to “personal property owned or used

by an insured at the residence premises.”

“Insured” is defined as “you and the following

residents of your household at the residence premises: A) your relatives; B) any other person

under the age of 21 in the care of you or your relatives.”

at A1. “You” is defined as “the

named insured shown in this policy who resides at the resident premises.”

“Residence

premises” is defined as the “one, two, three or four-family dwelling, other structures and

grounds located at the mailing address shown on the Declarations unless otherwise

indicated.”

We note that the terms “reside,” “resident,” and “residence” are not defined

in the policy.

{¶ 15} We have previously held that when left undefined in an insurance contract,

the term “residing” is an ambiguous term. Hicks v. Mennonite Mutual Insurance Co., 2d

Dist. Miami No. 10-CA-17,

. “[T]he word ‘residing’ is an ambiguous,

elastic, or relative term, and includes a very temporary, as well as a permanent abode[.] * *

* [T]he words ‘resident,’ ‘residence’ and ‘residing’ have no precise, technical and fixed

meaning applicable to all cases. ‘Residence’ has many shades of meaning, from mere

temporary presence to the most permanent abode. It is difficult to give an exact or even

satisfactory definition of the term ‘resident,’ as the term is flexible, elastic, slippery and 7

somewhat ambiguous. * * * Definitions of ‘residence’ include ‘a place of abode for more

than a temporary period of time’ and ‘a permanent and established home’ and the definitions

range between these two extremes. This being the case, our courts have held that such

terms should be given the broadest construction and that all who may be included, by any

reasonable construction of such terms, within the coverage of an insurance policy using such

terms, should be given its protection. (Citations omitted).” Id. at ¶¶ 44, 45; quoting,

Prudential Prop. & Cas. Ins. Co. v. Koby,

,

(11th Dist. 1997).

{¶ 16} Kavanaugh testified that she purchased the subject property with the intent

to provide a residence for her ex-fiancee and herself. Kavanaugh also testified that she also

foresaw other family members moving into the property. It is undisputed that Kavanaugh

never resided at the other half of the double, 22 North Upland. Thus, the narrow issue

before us is whether a question of fact exists regarding whether Kavanaugh resided at 20

North Upland on March 25, 2012, the date the fire destroyed the premises.

{¶ 17} Kavanaugh, her children, and her ex-fiancee moved into 20 North Upland in

August of 2009. Shortly thereafter, Kavanaugh began staying at her grandmother’s house at

1137 Platt Circle. Kavanaugh testified that from August of 2009 through December of

2009, she stayed three to four nights a week at each home. Kavvanaugh testified that her

relationship with her ex-fiancee was “on again/off again.” Kavanaugh further testified that

between 2009 and 2011, even when she was not getting along with her ex-fiancee, she

continued to periodically stay at 20 North Upland.

{¶ 18} Kavanaugh testified that by January 1, 2012, she was no longer spending the 8

night at 20 North Upland. From January 1, 2012, until the date of the fire, Kavanaugh

stayed three or four nights a week at 1137 Platt Circle and the remaining nights of the week

at either her mother’s house or a friend’s residence. The only time Kavanaugh spent the

night at 20 North Upland during that time period was in February of 2012, after the Dayton

Police had knocked down the doors to 20 North Upland while responding to a call at that

address. Kavanaugh learned of the police conduct in a telephone call from someone.

Kavanaugh also testified that she allowed her ex-fiancee’s nephews, Trevon and Rodney, to

live at 20 North Upland, at some point during 2011 and/or 2012. Kavanaugh testified that

she thought that Trevon and Rodney abandoned the premises approximately two weeks

before the fire.

{¶ 19} Although Kavanaugh was not living at 20 North Upland, she testified that

she regularly stopped to check on the property and collect the mail. Despite these purported

checkups, Kavanaugh testified that she was unaware that the City of Dayton had to mow the

grass and pick up trash around the property in 2011. Significantly, both the electricity and

natural gas services had been shut off and the accounts were terminated when the fire

occurred on March 25, 2012. Vectren, the supplier of natural gas to the residence, closed

the account for 20 and 22 North Upland on March 7, 2012. DP&L disconnected the

electricity to the subject property on February 27, 2012, approximately one month prior to

the fire.

{¶ 20} The evidence also establishes that Kavanaugh never used the 20 North

Upland address as her permanent address. In fact, Kavanaugh continuously maintained her

grandmother’s 1137 Platt Circle residence as her mailing address. The Platt Circle address 9

is listed as her residence on her driver’s license, voter registration records, bank records, and

income tax records. Kavanaugh’s children also attended school in the district in which

1137 Platt Circle is located during the disputed time frame. Further, Kavanaugh listed the

Platt Circle address as her address with her employer. At the time of the fire, Kavanaugh

testified that she did not keep any everyday personal items (clothing she wore, toiletries,

bedding) at 20 North Upland. Kavanaugh testified that she stored clothing that she no

longer wore in the basement at 20 North Upland, and there was no television or stereo

equipment kept at the subject property.

{¶ 21} In support of her argument that she was, in fact, a resident of 20 North

Upland, Kavanaugh cites the following three cases: Prudential Prop. & Cas. Ins. Co. v.

Koby,

,

(11th Dist. 1997); Hicks v. Mennonite Mutual

Insurance Co., 2d Dist. Miami No. 10-CA-17,

; and Whitaker v. Grange Mut.

Ins. Co., 2d Dist. Montgomery No. 20474,

.

{¶ 22} Prudential Prop. & Cas. Ins. Co. v. Koby

{¶ 23} The factual situation in Koby involved a thirty-two year old man who had

entered the military seven years before an accidental shooting incident that occurred at his

parents’ home in Ohio, giving rise to the request for insurance coverage.

at 175 and 179.

There were several factors that led the Eleventh District Court of Appeals to conclude that

the serviceman had established a separate residence in Texas. These included the fact that he

kept his personal effects at an off-duty base in Texas, that he had a checking account in

Texas, that he had registered his vehicle and as a driver in Texas, and that he said that he

intended to make the military his permanent career. Id. at 179-80. The court noted that the 10

serviceman spent a “considerable amount of time away from his parents' residence, their

home being the location to which he returns to enjoy visits.” Id. at 180. In addition, the

court stated that some factors indicated an intention to return to the parents’ home following

the end of the serviceman’s term of enlistment. Citing Farmers Ins. of Columbus, Inc. v.

Taylor,

,

(10th Dist. 1987), the court commented that:

[P]ursuant to a policy provision such as the one at issue here, “there

[was] no requirement * * * that, in order for a person to be a resident of the

named insured’s household, such residence must be the sole or exclusive

residence of the person[.]” (Emphasis added.)

,

. It has been held that “[r]esidence is a privilege, unlike

domicile, and one can have several residences if he chooses.” Koby,

(citations omitted).

{¶ 24} Thus, the court found that, although the rule of dual residency usually only

applied in the context of minor children with divorced parents, it was appropriate to apply

the rule to an “emancipated serviceman.” The court noted that Koby “regularly spent a

sufficient amount of time at the parental abode.” The court also noted that Koby used his

parents’ residence as his permanent address, that he maintained an Ohio driver’s license, and

that he used his parents’ address for voting and income tax purposes.

{¶ 25} Koby is clearly distinguishable from the instant case. Kavanaugh has never

been in the military. Kavanaugh never used 20 North Upland as her permanent address on

any of her personal documents. Lastly, Kavanaugh spent a negligible amount of time at 20 11

North Upland. From January 1, 2012, until the fire on March 25, 2012, Kavanaugh spent

only three nights at the subject property after the police broke the doors down at the location.

The record fails to establish that Kavanaugh maintained a dual residency of both 1137 Platt

Circle and 20 North Upland.

{¶ 26} Hicks v. Mennonite Mutual Insurance Co.

{¶ 27} In Hicks, the plaintiff submitted a fire loss claim related to property that had

been in his family for approximately thirty-five years. Prior to the fire, the property had

been transferred to the plaintiff by his mother. The plaintiff lived at the residence

exclusively while his new house was being built. Even after his new house was built, the

plaintiff maintained a strong presence at the property, to wit: he kept many personal effects

at the property, he often spent the night at the property and took his meals there, and he paid

for the utilities and the homeowner’s insurance. Accordingly, we held that a genuine issue

of material fact existed regarding whether the plaintiff resided in the insured premises at the

time of the fire.

{¶ 28} Unlike the plaintiff in Hicks, the record establishes that Kavanaugh did not

maintain a regular presence at 20 North Upland, only stopping by every few days to retrieve

the mail. While she kept some large furniture items at the subject property, Kavanaugh did

not keep any everyday living items there such as clothing, bedding, toiletries, televisions,

stereos, or other personal mementos. Moreover, the power and gas had been turned off at

the property for approximately a month prior to the fire. Simply put, there is nothing in the

record, which establishes that Kavanaugh maintained a residence at 20 North Upland at the

time of the fire. 12

{¶ 29} Whitaker v. Grange Mut. Ins. Co.

{¶ 30} In Whitaker, a husband and wife had moved from the insured premises and

each, in fact, maintained their own separate residences, apart from the insured premises. At

the time of the fire, the wife lived in Lexington, Kentucky, and her husband lived in an

apartment in Dayton, Ohio.

Moreover, more than a year before the fire, the insured

premises had been rented to unrelated third-parties, who were paying rent to the husband and

wife. The renters were also paying the utilities on the property.

{¶ 31} Furthermore, the husband and wife in Whitaker had sent a change of address

notice to their insurance agent before the fire, advising the agent that they were renting out

the insured premises and no longer lived there. They were informed by the agent that their

homeowner’s policy would not cover losses due to fire if the insured premises were not their

primary residence. The agent also told the husband and wife to cancel the policy and apply

for a dwelling-fire policy, but they declined to do so. Id. at ¶ 3.

{¶ 32} In Whitaker, we affirmed a summary judgment rendered in favor of an

insurer on the issue of coverage. We found no ambiguity in the policy, and concluded that

the policy required the insured to be residing in the premises at the time of the fire in order

for the dwelling to be covered. Id. at ¶ 15. Based on the facts of that case, we held that the

parties were living elsewhere and were using the dwelling as rental property, not as their

residence. Id.

{¶ 33} “Reside” is defined as follows:

[To] [l]ive, dwell, abide, sojourn, stay, remain, lodge. To settle

oneself *** in a place, to be stationed, to remain or stay, to dwell permanently 13

or continuously, to have a settled abode for a time, to be in residence, to have

an abiding place ***.

Black’s Law Dictionary 1176 (5th Ed. 1979).

{¶ 34} Even if we give the term “reside” its broadest construction, the evidence

establishes that Kavanaugh, like the plaintiffs in Whitaker, did not reside at 20 North Upland

at the time of the fire. As stated previously, there was no power or gas for over a month

prior to the fire. The record establishes that Kavanaugh did not maintain a regular presence

at 20 North Upland, only stopping by every few days to retrieve the mail. Additionally,

Kavanaugh never used 20 North Upland as her permanent address on any of her personal

documents. Further, she allowed her ex-fiancee’s nephews to live there at some point in

2011 or 2012. Accordingly, the trial court did not err when it sustained Nationwide’s

motion for summary judgment regarding both the dwelling coverage and the personal

property coverage because each form of coverage required that 20 or 22 North Upland be

Kavanaugh’s residence on the date of the fire, March 25, 2012.

{¶ 35} Finally, Nationwide asserts in its cross-assignments of error that Kavanaugh

made intentional misrepresentations of fact, including false statements, at the time that the

insurance contract was executed and subsequently when the fire was being investigated

rendering the contract void. However, we need not address these issues, as summary

judgment was properly granted on the issue of “residence.”

{¶ 36} Kavanaugh’s third assignment of error is overruled.

{¶ 37} Kavanaugh’s first and second assignments of error are as follows:

{¶ 38} “THE TRIAL COURT ERRED BY OVERRULING DEFENDANT’S 14

MOTION TO STRIKE AFFIDAVIT OF BRIAN FERENCZ.”

{¶ 39} “THE TRIAL COURT ERRED BY OVERRULING DEFENDANT’S

MOTION TO STRIKE AFFIDAVIT OF JAMES KELLEHER.”

{¶ 40} In her first and second assignments, Kavanaugh contends that the trial court

erred when it overruled her motions to strike the affidavits of Ferencz and Kelleher. The

trial court noted, however, that “neither Mr. Ferencz’s nor Mr. Kelleher’s affidavits were

relied upon when coming to the conclusion set forth in the summary judgment decision and

order” filed on April 12, 2013, in which the court sustained Nationwide’s motion for

summary judgment in part finding Kavanaugh ineligible for coverage under the

owner-occupied homeowner policy. Because the trial court did not rely on Kelleher’s or

Ferencz’s affidavit, any issue regarding whether the trial court erred in refusing to strike the

documents is rendered moot.

{¶ 41} All of Kavanaugh’s and Nationwide’s assignments and cross-assignments of

error having been overruled or rendered moot, the judgment of trial court is affirmed.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Nicholas E. Subashi Brian L. Wildermuth Lauren K. Epperley Sean N. Brinkman Aaron G. Durden Hon. Michael L. Tucker 15