[Cite as Amankwah v. Liberty Mut. Ins. Co.,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

JOHN M. AMANKWAH, : APPEAL NO. C-150360 TRIAL NO. A-1402540 Plaintiff-Appellant, :

vs. : O P I N I O N. : LIBERTY MUTUAL INSURANCE CO., : and : ROBERT A. WALKER,

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 30, 2016

Dressman Benzinger LaVelle PSC, Kevin F. Hoskins and Christopher B. Markus, for Plaintiff-Appellant,

Frost Brown Todd LLC, William M. Harter and Katherine A. Klaeren, for Defendants-Appellees.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

FISCHER, Presiding Judge.

{¶1} Plaintiff-appellant John Amankwah appeals from the decision of the

trial court granting summary judgment in favor of defendants-appellees Liberty

Mutual Insurance Company and insurance agent Robert Walker (the “Liberty Mutual

defendants”) on Amankwah’s claims for negligent procurement and contract

reformation, arising from an accident in which Amankwah’s vehicle was totaled and

Amankwah had no collision coverage. Because we determine that reasonable minds

can conclude only that Amankwah’s loss of his vehicle was proximately caused by his

negligence and not the negligence of the Liberty Mutual defendants, his claims for

negligent procurement and contract reformation fail as a matter of law, and

summary judgment in favor of the Liberty Mutual defendants was proper.

Background Facts and Procedural History

{¶2} The relationship between Amankwah and the Liberty Mutual

defendants began in 2006, when Amankwah purchased automobile insurance

through Walker for a Mercury Sable. Amankwah obtained full, comprehensive

coverage for the vehicle, which included collision coverage. At some point,

Amankwah purchased a Kia and added this car to the policy as well, which also had

full coverage. Amankwah testified that he reviewed the policy in 2006 and again

when the Kia was added. Amankwah renewed the policy for the Sable and Kia in

March 2011, and approximately one month later, Amankwah purchased a

Volkswagen Passat to replace his Sable.

{¶3} Amankwah called the number for Walker’s office to request an

exchange of car insurance. According to Amankwah’s deposition testimony, he

spoke with a woman at that office about “roll[ing] over” the policy from the Sable to

2 OHIO FIRST DISTRICT COURT OF APPEALS

the Passat. Amankwah recalled that the woman had told him that his total premium

for the two vehicles would be increasing because the Passat was a “foreign-made”

car, and that the woman would take care of his request. At that time, Amankwah

asserts that Liberty Mutual began to automatically deduct his insurance premiums

from his bank account on a monthly basis.

{¶4} Amankwah testified that he “skimmed” through the April 2011 policy

after he substituted the Passat, but he did not review the policy declarations page,

which explained that Amankwah had no collision coverage on the Passat. The

parties do not dispute that Amankwah received two more annual renewal policies,

both of which also indicated the absence of collision coverage on the Passat.

{¶5} In October 2013, Amankwah was involved in a car accident, and his

Passat was a total loss, valued at $14,000. Amankwah reported the loss to the

Liberty Mutual defendants, who denied his request for coverage. According to

Amankwah, this was the first time he realized he did not have collision coverage on

the Passat. Amankwah then filed suit against the Liberty Mutual defendants for

negligence and contract reformation based upon mutual or unilateral mistake.

{¶6} The Liberty Mutual defendants filed a motion for summary judgment

on both claims, relying upon Amankwah’s deposition testimony, and an affidavit

from a senior branch manager at Liberty Mutual. The branch manager averred that

he had reviewed the files and the contemporaneous notes made when Amankwah

had called Liberty Mutual on April 18, 2011, to add the Passat to his policy.

According to the notes, Amankwah had spoken to a man in Florida and had

specifically declined collision coverage on the Passat, stating that the prior owner

had collision coverage, which would last until 2015.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} Amankwah responded to the Liberty Mutual defendants’ summary-

judgment motion with an affidavit addressing the contemporaneous note from his

April 2011 call. In his affidavit, Amankwah avers that when he had called Walker’s

office to switch vehicle coverage, he had discussed with the agency representative a

transfer of the Passat’s warranty from the prior owner, and not the transfer of

collision coverage. The trial court granted summary judgment in favor of the Liberty

Mutual defendants. This appeal by Amankwah ensued.

Negligent Procurement

{¶8} In his first assignment of error, Amankwah argues that the trial court

erred in granting summary judgment in favor of the Liberty Mutual defendants on

his negligence-procurement claim.

{¶9} This court reviews a trial court’s decision on summary judgment de

novo. Fisher v. Archdiocese of Cincinnati,

,

, ¶ 16 (1st

Dist.), citing Esber Beverage Co. v. LaBatt USA Operating Co., L.L.C.,

,

,

. Summary judgment is proper under

Civ.R. 56(C) when no genuine issues as to any material fact remain; the moving party

is entitled to judgment as a matter of law; and 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, the conclusion is adverse to that party. Fisher, citing Temple v. Wean United,

Inc.,

,

(1997).

{¶10} Ohio law recognizes a cause of action against an insurance agency for

negligent procurement where the agency fails to act with reasonable diligence in

providing an insured with requested coverage. See Minor v. Allstate Ins. Co., 111

4 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio App.3d 16,

(2d Dist. 1996); Damon’s Missouri, Inc. v. Davis,

,

(1992), fn. 2. Ohio law also recognizes a

corresponding duty on the part of an insured to review the insurance policy and

know the extent of insurance coverage issued. See, e.g., Roberts v. Maichl, 1st Dist.

Hamilton No. C-040002,

; Rose v. Landen, 12th Dist. Warren

No. CA2004-06-066,

; Kincaid v. Erie Ins. Co.,

,

,

, ¶ 16.

{¶11} Amankwah argues that an insured’s failure to review policy coverages

presents an issue of comparative negligence for a factfinder in an action against an

insurance agency for negligent procurement. Amankwah relies on a case from the

Fourth Appellate District, Robson v. Quentin E. Cadd Agency,

,

,

(4th Dist.). In Robson, the court determined

that Ohio courts differ in their treatment of negligent-procurement cases involving

insureds who have breached their duty to review policies—some courts holding that

the failure to review precludes a negligent-procurement claim as a matter of law, and

others holding that the failure to review presents a comparative-negligence issue for

a factfinder. Id. at ¶ 21. The Robson court then adopted a rule that an insured’s

failure to review a policy is a comparative-negligence issue for a factfinder. Id. at ¶

28.

{¶12} The Liberty Mutual defendants argue that Robson is the minority

position, especially after the Ohio Supreme Court decided Kincaid. Kincaid involved

an insured’s standing to file a breach-of-contract action against an insurance agency,

where the insured failed to first present a claim to the agency or otherwise give notice

to the agency of the loss, and the Kincaid court held that no justiciable controversy

5 OHIO FIRST DISTRICT COURT OF APPEALS

existed. Although the Kincaid court recognized a long-standing principle among

Ohio appellate courts that “[an] insured has a duty to examine the coverage provided

and is charged with knowledge of the contents of the policy[,]” that precept merely

aided the court in reaching its conclusion on standing and cannot be extended to

negligence cases as an absolute bar to recovery. See Kincaid at ¶ 16, citing Fry v.

Walters & Peck Agency, Inc.,

,

(6th Dist. 2001).

Therefore, we do not believe that Kincaid resolves the issue in this appeal.

{¶13} We also disagree that Robson represents a minority position. Our

review of Ohio case law in actions brought by insureds against insurance agencies for

negligence, where the insureds have indisputably breached their duty to review the

policies, reveals that courts have reached differing results, not based upon any legal

rule, but upon the unique facts of each case.

{¶14} Several courts have relied on an insured’s failure to review coverage in

an insurance policy in barring the insured from recovering from an insurance agency

under a negligent-procurement theory. See Nofer v. Volanski Agency, Inc.,

,

(C.P. Oct. 23, 1980); First Cathothic Slovak

Union v. Buckeye Union Ins. Co.,

,

(8th

Dist. 1986); Craggett v. Adell Ins. Agency,

,

(8th Dist. 1993); Fry; Island House Inn v. State Auto Ins. Cos.,

,

,

(6th Dist.); Horak v. Nationwide Ins. Co., 9th

Dist. Summit No. CA-23327,

; Rose, 12th Dist. Warren No. CA2004-

06-066,

; Tornado Techs., Inc. v. Quality Control Inspection, Inc.,

,

(8th Dist.).

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} For example, in Rose v. Landen, the Twelfth District Court of Appeals

affirmed the granting of summary judgment to an insurance agency and its agent in a

negligence action brought by an insured for the agent’s failure to procure adequate

personal-property liability coverage on a rental property. In Rose, the insured

owned five acres of real estate, which contained a farmhouse, and the insured

maintained owner’s insurance on the property with a $75,000 personal-property

contents limit. When the insured began facing financial difficulty, she sold the

property, but continued to live in the farmhouse under a lease agreement and

converted her owner’s insurance to renter’s insurance. Approximately ten months

later, the farmhouse sustained fire damage, and the insured’s personal-property

losses exceeded the $50,000 limit in the insurance policy. In the negligent-

procurement action, the insurance agent maintained that the insured had specifically

requested $50,000 in contents limits, while the insured maintained that she had not

requested a specific amount, and that she had trusted the agent’s expertise on the

matter. The insured admitted that she had not read the policy nor examined its

terms.

{¶16} In affirming summary judgment against the insured on her negligent-

procurement claim, the Rose court found that the insured had been a well-educated

business woman, having owned and operated numerous businesses, and that she had

stated in her deposition that she knew that she wanted a different content limit on

the property at the time she sold it and obtained renter’s insurance. Based on these

facts, in addition to the insured’s failure to read the policy that she had in her

possession for ten months, the Rose court found that the insured could not argue

that the loss occurred as a result of any negligence by the insurance agent, and that

7 OHIO FIRST DISTRICT COURT OF APPEALS

reasonable minds could only conclude that the insured’s loss was proximately caused

by the insured’s breach.

.

{¶17} Unlike the result in Rose where the insured was barred as a matter of

law from recovering under a negligent-procurement theory, other courts have

determined that an insured’s failure to read an insurance policy presented an issue of

comparative negligence for a factfinder in a negligent-procurement action. See

Robson,

,

,

; Bedillion

v. Tri-County Ins. Agency, 9th Dist. Summit No. 15722,

(Feb. 3, 1993); Gerace Flick v. Westfield Nat. Ins. Co., 7th Dist. Columbiana No.

,

; Nichols v. Progressive Ins. Co., 10th Dist. Franklin No.

01AP-899,

.

{¶18} In Nichols, the Tenth Appellate District reversed the trial court’s grant

of summary judgment in favor of an insurance agent in a negligent-procurement

action. In that case, an insured and her husband sued the insurance company and its

agent after the insurance company refused to cover losses resulting from an accident

where the insured’s husband had been driving. At the time of the accident, the

insurance policy contained a “named-driver exclusion,” which explicitly voided any

insurance coverage resulting from the operation of a vehicle by the insured’s

husband. The insured’s husband had been in a previous accident and had been

advised by his doctor not to drive, so the insured could only obtain insurance with

the named-driver exclusion. Five or six months after obtaining the policy, the

insured had called the agent to notify him of the purchase of a new vehicle. The

insured testified that she had specifically told the agent that she had obtained a

release from her husband’s doctor allowing him to drive again. The insurance agent

8 OHIO FIRST DISTRICT COURT OF APPEALS

testified that he had received a call from the insured regarding the purchase of a new

vehicle, but that she had not requested a removal of the named-driver exclusion for

her husband.

{¶19} The insured in Nichols testified that she had not read the insurance

policy or declarations page to determine whether the named-driver exclusion had

been removed from the policy. Ten or 11 months later, the insured, her husband, and

their three children were injured in a car accident where the husband had been

driving. In reversing the grant of summary judgment in favor of the insurance agent

on a negligent-procurement claim, the Nichols court determined that the insured’s

failure to read the policy did not bar the claim as a matter of law.

{¶20} The courts in Nichols and Rose reached different results based upon

the particular facts. The Nichols court determined that the insured’s failure to read

the declarations page, without more, could not have been the proximate cause of the

loss as a matter of law. By contrast, in Rose, the court relied on the following

undisputed facts in finding that the insured’s negligence outweighed any negligence

by the insurance agency in failing to obtain a higher contents limit: (1) the

sophistication of the insured, (2) her testimony that she wanted to change the

contents limit at the time she converted her owner’s policy to a renter’s policy, but

that she did not discuss the contents limit with her agent, and (3) her failure to read

the insurance policy. See Rose, 12th Dist. Warren No. CA2004-06-066, 2005-Ohio-

1623, at ¶ 20.

{¶21} Like in Rose, the loss in this case goes beyond Amankwah’s failure to

read the insurance policy. According to Amankwah’s deposition testimony, he is

highly educated with a Ph.D. in communications and holds a position as a professor

9 OHIO FIRST DISTRICT COURT OF APPEALS

at Mount Saint Joseph University. When he called the number to Walker’s office to

“roll over” the insurance from his Sable to his Passat, Amankwah stated that the

woman at the office had told him that his total premium would be increasing,

because the Passat was a “foreign-made” vehicle. Although Amankwah expected his

premiums to increase, he did not notice that his premiums actually decreased.

Amankwah attempts to downplay his oversight because, at the time he obtained

insurance on the Passat, Liberty Mutual began withdrawing the premiums on a

monthly basis from his bank account. Thus, not only did Amankwah fail to read the

policy declarations for two years, when a simple glance would have revealed the

absence of collision coverage, but he also failed to examine his bank account and take

notice that Liberty Mutual had decreased and not increased his premiums.

{¶22} Amankwah argues that he had no duty to review the policy

declarations with regard to his Passat, because the policy was a renewal or

replacement policy, and thus, Amankwah states, the change in collision coverage on

the Passat should have been brought to his attention by bold-face type and capital

letters. See Allstate Ins. Co. v. Croom, 8th Dist. Cuyahoga No. 95508, 2011-Ohio-

1697 (recognizing that an insured can assume that a renewal or replacement policy

contains the same terms as an original policy unless the insured receives adequate

notice as to a change in policy conditions); MCD Acquisition Co. v. N. River Ins. Co.,

(N.D.Ohio 2012).

{¶23} Croom and MCD Acquisitions involved unilateral policy changes made

by insurance companies to insureds’ policies, which were due to expire and coming

up for an annual renewal. The change to Amankwah’s insurance policy was brought

about by a condition he changed—selling the Sable and buying the Passat—not a

10 OHIO FIRST DISTRICT COURT OF APPEALS

periodic renewal of a policy with a condition changed by the insurance company.

Amankwah knew his policy would change by virtue of insuring a newer, foreign-

made vehicle, causing his premium to increase. Therefore, the rule in Croom does

not extend to Amankwah’s situation, and we determine that Amankwah’s request to

insure his Passat came with a duty to review the insurance policy and declarations.

{¶24} Like the Rose court, we determine that based upon these particular

facts reasonable minds can conclude only that Amankwah’s loss of his vehicle was

proximately caused by his negligence, and not the negligence of the insurance agent

or Liberty Mutual. See Rose, 12th Dist. Warren No. CA2004-06-066, 2005-Ohio-

1623, at ¶ 24-25; Civ.R. 56(C); Temple,

,

.

Therefore, we overrule Amankwah’s first assignment of error.

Contract Reformation

{¶25} In his second assignment of error, Amankwah asserts that the trial

court erred in granting summary judgment in favor of the Liberty Mutual defendants

on Amankwah’s claim for reformation of the insurance policy.

{¶26} An insurance policy may be “reformed” to correct a mutual mistake by

the insured and the insurer, or to correct a unilateral mistake made by the insurer in

failing to issue a policy in accordance with a prior agreement of the parties.

Snedegar v. Midwestern Indemn. Co.,

,

(10th Dist. 1988). Reformation is an equitable remedy available to a complaining

party who has acted with reasonable diligence, so where a complaining party has

failed to read a contract, equitable relief in the form of contract reformation is

generally prohibited. See Priore v. State Farm Fire & Cas. Co., 8th Dist. Cuyahoga

11 OHIO FIRST DISTRICT COURT OF APPEALS

; Weiner v. Kopp, 1st Dist. Hamilton Nos. C-

960611 and C-960632,

, *11 (June 25, 1997).

{¶27} Amankwah cannot claim relief on the grounds of mistake when the

loss occasioned by the alleged mistake was the result of his own negligence as a

matter of law. Therefore, we overrule Amankwah’s second assignment of error.

Conclusion

{¶28} In conclusion, we affirm the decision of the trial court entering

summary judgment in favor of the Liberty Mutual defendants.

Judgment affirmed.

MOCK, J., concurs. STAUTBERG, J., dissents.

Please note: The court has recorded its own entry on the date of the release of this opinion.

12