from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellant: RAYMOND V. VASVARI, JR.
Defendant-Appellee: JOHN G. FARNAN MONICA L. FRANTZ
Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon.
Earle E. Wise, Jr., J.
Plaintiff-Appellant Lois Breech appeals the December 22, 2016
judgment entry of the Stark County Court of Common Pleas.
AND PROCEDURAL HISTORY
On April 27, 2014, a storm damaged the home of
Plaintiff-Appellant Lois Breech. Defendant Liberty Mutual
Insurance Company insured her home.
Charles Lusher, Breech's grandson, was granted a power of
attorney by Breech. Lusher retained the services of Defendant
Finnicum Adjusting Company, Inc. to assist Breech in
presenting a claim to Liberty Mutual.
Lusher hired Defendant-Appellee First Response Restoration to
put a tarp on the roof of Breech's home. While the tarp
was on the roof, a dispute arose between Breech's
representatives and Liberty Mutual as to the coverage for the
property damage and value.
The parties were unable to resolve the claim for property
damage to Breech's home. On April 22, 2015, Breech filed
a complaint against Liberty Mutual in the Hamilton County
Court of Common Pleas. The complaint was removed to federal
court and dismissed. On February 12, 2016, Breech filed a
complaint in the Stark County Court of Common Pleas against
Defendants Liberty Mutual, Stephen Johnson, Finnicum, Steven
Hillman, James Garrity, and First Response. Breech alleged
First Response negligently applied the roof tarp to her home.
Breech claimed breach of contract and bad faith against
Liberty Mutual and employees. As to Finnicum and its
employees, Breech claimed breach of contract, fraud,
negligence, breach of fiduciary duty, civil conspiracy, and
violations of the Fair Debt Collections Practices Act.
The trial court set the matter for mediation on August 25,
2016. In the Stark County Court of Common Pleas, a court
mediator conducts the mediation. Lusher and counsel
represented Breech at the mediation. Breech was unable to
resolve her claims against Liberty Mutual and Finnicum. As to
First Response, the "Report of Mediation" stated,
"A mediation conference took place on the 25th day of
August, 2016. The result of the conference is as follows: 1.
Case settled CONTINGENT on the following terms:
On October 17, 2016, First Response filed a Motion to Enforce
the Settlement Agreement. In the motion, First Response
provided details of its understanding of the settlement
negotiations between Breech and First Response. First
Response stated that at the mediation, Breech agreed to
settle her claims and release First Response in exchange for
a confidential amount of money to be paid by Crum &
Forster Insurance Company on behalf of its insured, First
Response. The adjuster for Crum & Forster participated in
the mediation via telephone. After the mediation, counsel for
First Response emailed counsel for Breech a draft settlement
release. Counsel for Breech objected to the draft release
because it failed to include a confidentiality clause.
Counsel for First Response agreed to include confidentiality
language. Breech did not sign the release. Counsel for the
parties spoke again and counsel for Breech requested
additional changes to the release. The changes included
revised language as to the release of Crum & Forster.
Counsel for Breech stated his client would not agree to
release Crum & Forster from liability due to concerns
that Crum & Forster insured another party, currently
unknown, involved in Breech's cause of action. Counsel
for First Response offered to draft a release that would
release Crum & Forster only in its capacity as the
insurer to First Response. Counsel for Breech stated his
client would not sign the release document that included
language releasing Crum & Forster of its liability.
Breech responded on October 24, 2016. Breech argued that at
mediation, Breech agreed only to release First Response. Crum
& Forster was not a party to the action merely because it
was the insurer of First Response.
The trial court held an oral hearing on November 10, 2016.
William Harter, counsel for Liberty Mutual, testified first
on behalf of First Response. He had no knowledge of the terms
of the alleged settlement agreement between Breech and First
Response. He testified that based on his experience in
insurance defense work, it was customary for the insurer to
be released when the insurer pays a settlement on behalf of
John Farnan, counsel for First Response, testified over the
objection of Breech. Farnan was present at the mediation as
counsel for First Response. He testified that it was
understood and accepted as common practice in litigation that
the client and the entity paying the money were released
after a settlement. He recalled the negotiations between
counsel for Breech and himself:
So we spent hours, Mr. Seebohm and I, going back and forth
negotiating; and I tried to tailor it as narrowly as possible
to accommodate the concerns that he expressed as relayed by
Mr. Lusher, her POA.
So for that reason we offered to limit it to this claim, this
insured, on this claim only.
* * * We are only asking the Court to confirm that * * * he
is releasing First Response Restoration and the paying
insurer in its capacity as the insurer of this particular
claim that we have been sued on. Nothing else.
I am willing to limit it to that and that's it.
For that reason I am here because I couldn't get that
Farnan was asked by counsel for Breech, "Did we at any
time during the [mediation] discuss Crum & Forster being
released from this case?" Farnan answered, "We did
not discuss who was going to be released at all is my
recollection. * * We also didn't discuss whose names were
going to be on the release. * * * We didn't discuss the
timing of the payment. All those things were understood