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FDT Group, LLC v. Guaraci

Court of Appeals of Ohio, Tenth District

February 23, 2017

FDT Group, LLC, Plaintiff-Appellant,
Dan Guaraci, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 15CVH-8901

          On brief: Cook, Sladoje & Wittenberg Co., LPA, Eric J. Wittenberg, Moran N. Nusbaum, and Adam C. Sims, for appellant. Argued: Adam C Sims.

          On brief: Lane Alton, Monica L. Waller, and Joseph A. Gerling, for appellee. Argued: Monica L. Waller.


          SADLER, J.

         {¶ 1} Plaintiff-appellant, FDT Group, LLC, appeals from the judgment entry of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendant-appellee, Dan Guaraci, and dismissing appellant's claims. For the following reasons, we affirm the decision of the trial court.


         {¶ 2} Unless otherwise noted, the following facts are undisputed. Appellant, a company in the business of acquiring, remodeling, and managing real property, is one of multiple businesses owned by Dimitry Filonenko ("Filonenko") and his wife, Tatiana. Filonenko came to Columbus from Ukraine in 1997, where he had previously earned a bachelor's degree in physics and a master's degree in computer science and international business administration. Irenna Fisher serves as the operations manager for all the Filonenkos' businesses. Fisher's duties included managing the process to identify and secure property insurance, including directly interacting with insurance agents, while Filonenko made all final decisions regarding insurance.

         {¶ 3} Around 2013, Filonenko instructed Fisher to find a new insurance agent to handle insurance for all of Filonenko's businesses. After some internet research, Fisher contacted approximately three or four insurance agents to request quotes, including appellee. Filonenko did not know appellee prior to approving insurance quotes from him and agreed that Fisher was appellee's direct contact.

         {¶ 4} The record does not show that Filonenko actually selected one out of the several insurance agents from separate companies to procure insurance for all of his businesses. Rather, when appellant acquired a new property, Fisher would send information to three insurance agents, including appellee, and wait for their responses. Fisher agreed that she essentially undertook a competitive bidding process in securing property insurance and that, for the most part, price was the deciding factor in which agent she would select. Filonenko agreed that they generally had a process in which insurance companies competed against each other and that he expected the agents to sell additional-possibly unneeded-pieces of coverage to profit their business. Filonenko did not tell Fisher to let agents know she was relying on them to assess what kind of insurance coverage to get for a property and did not have a conversation with appellee himself to let appellee know he was relying on him to determine the type of coverage needed. Filonenko said all the agents "always assure [him] they're going to be working for me and to fit my needs and use their experience and knowledge" and that appellee did not possess a different position with respect to his business than the other agents. (Filonenko Dep. at 80.)

         {¶ 5} Over the course of the year, appellee provided several quotes to appellant regarding various properties and automobile insurance. On occasion, appellee would adapt his proposal to not include certain pieces of additional coverage that appellant had previously rejected. Also during this time, on October 25, 2013, appellee sent Fisher an e- mail with an attached subcontractor agreement template approved by an insurance company that appellant could use with subcontractors.

         {¶ 6} In December 2014, Filonenko told Fisher to get insurance on a specific commercial property in Reynoldsburg, Ohio ("the property") that appellant recently purchased. The property included a main building with two floors, the lower of which stood partially below grade with windows at ground level, and two warehouse outbuildings. Filonenko did not give Fisher any additional instructions regarding procuring the property insurance, did not tell her that the main building had a lower level, and did not have a conversation with her about water backup coverage for the property.

         {¶ 7} On December 15, 2014, Fisher contacted appellee to request a quote for insurance coverage. Fisher told appellee what coverages and deductible Filonenko wanted and asked appellee "to provide [the] necessary coverage" in the quote. (Fisher Dep. at 62.) Fisher did not ask for specific coverage, including water backup coverage. Fisher did not tell appellee that she was relying on him to determine optional coverages. Fisher informed appellee that she had not visited the property and did not know anything about it, other than its address, the number of buildings on the property, and its purchase price. Appellee told Fisher he would visit the property and did so before preparing a proposal. Appellee did not include water backup coverage in the proposal he submitted to Fisher. According to Fisher, after the present conflict arose, appellee told her he did not include it because Filonenko denied the coverage on two other properties, so he assumed he did not want it on other properties. Appellee asserted that he did not include water backup coverage because appellant had not requested it and because it is an optional coverage that is rarely purchased on a commercial property.

         {¶ 8} Fisher thought that had she visited the property, she possibly would have changed her mind about requesting water backup coverage or at least asked questions about it. In his deposition, Filonenko stated that he was aware of water backup coverage and that his position is that properties which go below grade need water backup coverage. Filonenko agreed that several of his properties with lower levels did not have water backup coverage but attributed this to those properties' locations at the top of hills. At least one and possibly several properties with a basement did have water backup coverage, or basement coverage, procured through an agent other than appellee.

          {¶ 9} Although Filonenko agreed that he should review quotes of insurance agents to see whether the coverage he wants is in the policy, he did not read the proposal prepared by appellee for the Reynoldsburg property. After appellant received the written proposal from appellee, Filonenko did not tell Fisher to ask appellee specifically about water backup coverage and assumed that everything that needed to be covered by insurance was provided in the quote. According to appellant's response to request for admissions, it "was not made aware of the availability of sewer line backup coverage for the ...

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