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Avery v. Erie Insurance Co.

United States District Court, S.D. Ohio, Western Division

May 4, 2018

TRACY AVERY, et al., Plaintiffs,


          Susan J. Dlott, Judge United States District Court

         This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 14) and Plaintiffs' Motion for Summary Judgment (Doc. 15). Appropriate responses and replies have been filed (Docs. 16, 17, 18, 20). For the reasons that follow, the Defendant's Motion is GRANTED IN PART AND DENIED IN PART, and the Plaintiffs' Motion is DENIED.

         I. BACKGROUND

         A. Facts

         The Averys live in a two story, single family home in Hamilton, Ohio. (Jt. Stips., Doc. 13, at ¶ 1.) They purchased homeowners' insurance from Erie Insurance Company (“Erie”) effective from November 8, 2014 through November 8, 2017. (Id. at ¶ 3). On August 27, 2016, a storm damaged part of the Averys' roof and fence. (Id. at ¶ 5.) Erie's insurance adjustor inspected the roof and identified five damaged roof tiles. (Id. at ¶ 6.) Erie offered to pay the Averys $2, 196.50-the amount Erie determined it would cost to replace the damaged roofing tiles and some fencing. (Id. at ¶¶ 7-8.)

         The Averys contacted Tamlin Exteriors (“Tamlin”). (Id. at ¶ 10.) Tamlin determined that the Averys' roof tiles contained asbestos, and, therefore, the whole roof should be removed and replaced along with some fencing repairs at a total cost of $62, 698.96. (Id. at ¶¶ 9-10.) The Averys submitted Tamlin's estimate to Erie, and Erie retained Len Rudick to re-inspect the roof. (Id. at ¶¶ 11-12.) Rudick noted that the cement-asbestos roof tiles were weathered and stained with algae or moss and, also, three areas had been patched with cement-asbestos tiles different from those covering the rest of the roof. (Jt. Ex. 5, Doc. 13-5 at PageID 98-99.) While he denied that there was wind or hail damage to the roof, Rudick found tree-limb damage to one cap tile and three slope tiles that he believed could be repaired by replacing the damaged tiles. (Id. at PageID 99.)

         After receiving Rudick's report, Erie denied the Averys' claim to replace the entire roof, but again offered to pay $2, 196.50 for repairs. (Jt. Ex. 6, Doc. 13-6 at PageID 112-13.) In refusing to pay for roof replacement, Erie indicated that loss resulting from “wear and tear, ” “faulty or inadequate . . . workmanship; construction . . . [or] maintenance, ” and “wet or dry rot” is specifically excluded from the Averys' insurance policy. (Id. at PageID 113.) Erie ultimately cancelled the Averys' insurance policy effective June 20, 2017, due to “poor conditions/ maintenance of property regarding your failure to complete repairs paid for as a result of your 8/27/16 claim.” (K. Avery Aff., Doc. 15-1 at PageID 198, ¶ 11.)

         B. Procedural Posture

         The Averys initiated this action alleging three causes of action: breach of the insurance contract by failing to replace the entire roof; breach of the common law duty to act fairly and in good faith; and bad faith refusal of their claim under the insurance contract. The parties agree on the relevant facts in this case. The parties further agree that the Ohio Residential Code (codified at Ohio Administrative Code Chapter 4101:8) governs repairs to the Averys' property. (Jt. Stips., Doc. 13 at PageID 44, ¶ 14.) The issue is how the Ohio Residential Code applies here.

         The Averys contend that because the asbestos-cement roof tiles used on their roof are no longer manufactured, Erie is unable to match the quality, color or size of their existing roof tiles as required by the Ohio Administrative Code. According to the Averys, then, Erie must replace as many of the roof tiles as necessary to result in a reasonably comparable appearance, and- because the roof tiles are cement-asbestos-Ohio Administrative Code 4101:8-9-01 requires that Erie remove all old roofing. Thus, they claim, Erie must completely replace the Averys' roof in order to comply with Ohio law and the insurance contract.

         Not surprisingly, Erie disagrees. According to Erie, the replacement tiles need only be similar in appearance and quality to those already on the roof-not the exact matching cement-asbestos tiles previously used. Also, Erie avers, Ohio Administrative Code 4101:8-9-01 (regarding cement-asbestos roofs) applies only to new construction and entire roof replacement not to the “minor repairs” required to the Averys' roof. Finally, Erie contends that the exclusions in the insurance contract bar the Averys' claim here. Both the Averys and Erie have moved for summary judgment (Docs. 14 and 15).


         Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant has the burden to show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must “present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

         A court's task is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (“A dispute is ‘genuine' only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted). Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). “Where the parties have filed cross-motions for summary judgment, the court must consider each motion separately on its merits, since each party, as a movant for summary judgment, bears the burden to establish both the nonexistence of genuine issues of material fact and that party's entitlement to judgment as a matter of law.” In re Morgeson, 371 B.R. 798, 800-01 (B.A.P. 6th Cir. 2007).

         III. ANALYSIS

         A. Ohio Law Does Not Mandate a New Roof

         a. “Minor Repairs” Within the Meaning of Ohio Administrative Code 4101:8-1-01, § 102.10.2

          Erie contends that the Ohio Residential Code allows for minor repairs to the Averys' roof rather than replacing the entire roof. The Court agrees.

         The Ohio Residential Code applies to “the construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition” of all single, double, or triple family dwellings and related structures. Ohio Admin. Code (“O.A.C.”) 4101:8-1-01, § 101.2. However, the legislature indicated its ...

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