United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge
Gerald Riley owned a single-family residence at 856 Nebraska
Avenue in Toledo, Ohio, which Defendant Liberty Insurance
Corporation insured. On November 18, 2016, the residence
suffered severe fire damage. As a result, Plaintiff filed an
insurance claim with Defendant, which it ultimately denied in
May 2017. In his Complaint, Plaintiff alleged Defendant
breached the insurance contract by failing to pay the amount
due under the terms of the agreement. Defendant responded
that it acted with reasonable justification in denying the
claim on the basis that the residence did not qualify as a
“residence premises” under the contract, and
Plaintiff violated the “concealment or fraud”
condition of coverage. The conflagration litigation reached a
bench trial held February 20-22, 2019 (Docs. 109-11),
followed by simultaneously-filed post-trial briefs (Docs.
review, and for the reasons contained herein, the undersigned
grants judgment in favor of Defendant.
of Fact and Conclusions of Law
noted above, Defendant gave two reasons for denying
Plaintiff's insurance claim: (1) the property did not
qualify as a “residence premises” under the
contract; and (2) Plaintiff violated the “concealment
or fraud” condition of coverage. Thus, the first issue
for the Court to decide is twofold: (1) whether the terms of
the insurance contract condition recovery upon Plaintiff
residing at the insured premises; and (2) if so, whether the
agreement required Plaintiff reside there at the time he
entered into the contract or at the time of the loss or both.
If the answer to the first question is “yes”, the
second issue is whether Plaintiff actually resided
there during the relevant time period. Alternatively, the
Court must determine whether Defendant properly denied
coverage based on Plaintiff's “concealment or
fraud”. The undersigned addresses these issues in turn.
Requirements Under the Contract
first argues the insurance contract does not clearly and
unambiguously require him to reside at the property. (Doc.
112, at 6-13). Specifically, he contends the “residence
premises” language exists only to identify the insured
property, and it does not mean coverage is excluded if
Plaintiff did not reside there. Id. at 9. To support
his position, Plaintiff emphasizes that the contract contains
certain coverage “exclusions” if the home is
vacant, such as, e.g., broken water pipes. Id. at
11-12. Finally, Plaintiff asserts that - even if the contract
requires residency - he resided at the insured premises on
the date of the loss. Id. at 14-19. Defendant
counters that the language within the contract is
unambiguous, even under the most generous interpretation
(Doc. 113, at 8-11), and the evidence shows Plaintiff did not
reside at the property at the time he entered into the
contract, nor on the date of loss, id. at 4-8.
Ohio Supreme Court has explained that an insurance contract
must be construed to give words their plain and ordinary
meaning. State Farm Auto. Ins. Co. v. Rose, 575
N.E.2d 459, 461 (Ohio 1991), rev'd on other
grounds, 620 N.E.2d 809 (Ohio 1993). However, if the
language is ambiguous, and thus susceptible to more than one
interpretation, it must be liberally construed in favor of
the insured. Id.; see also Akins v. Harco Ins.
Co., 815 N.E.2d 686, 693 (Ohio Ct. App. 2004)
(“[A]ny reasonable construction which results in
coverage of the insured must be adopted by the trial
court.”), rev'd on other grounds, 830
N.E.2d 1161 (Ohio 2005). Importantly, “[u]nder Ohio
law, the burden is on the insured to prove that he is
entitled to coverage by showing facts sufficient to establish
that his loss was within the description of the
policy.” State Farm Fire & Cas. Co. v.
Hiermer, 720 F.Supp. 1310, 1314 (S.D. Ohio 1988) (citing
Sterling Merch. Co. v. Hartford Ins. Co., 506 N.E.2d
1192, 1199 (Ohio Ct. App. 1986) (“The burden, however,
is not on the insurer, but on the insured to prove that he is
entitled to coverage.”), aff'd, 884 F.2d
580 (6th Cir. 1989) (unpublished table decision)).
Court finds the contract language at issue clear and
unambiguous. The Declarations page identifies Plaintiff by
name, notes his mailing address as “856 Nebraska
Ave.”, and identifies the insured location as:
“[s]ame as [m]ailing address above”. See
Pl. Ex. 1, at 1 (insurance contract). Following the
Declarations, the contract provides a
“definitions” page, which states, in relevant
4. “Insured location” means:
a. The “residence premises”;
b. The part of other premises, other structures and grounds
used by you as a residence and:
(1) Which is shown in the Declarations; *** 8.
“Residence premises” means:
a. The one family dwelling, other structures, and
b. That part of any other building; where you reside
and which is shown as the “residence
premises” in the Declarations.
Id. at 5 (emphasis added). By definition here, the
“residence premises” is the “insured
location” shown in the Declarations - 856 Nebraska
Avenue. Id. at 1. The contract then unambiguously
defines the “residence premises” as a
“dwelling. . . where you reside . . .
and which is shown as the ‘residence
premises' in the Declarations.” Id. at 5
(emphasis added). Finally, the contract identifies coverage:
1. The dwelling on the “residence premises”
shown in the Declarations, including structures attached
to the dwelling;
Id. (emphasis added).
cross-referencing these definitions, it becomes clear the
insurance contract covers the dwelling on the residence
premises, and the contract defines such as a “dwelling
. . . where you reside”. Id.
(emphasis added). In other words, only the residential
dwelling is covered by the policy, and that can only be a
place “used by you as a residence”.
Id. (emphasis added). And, as noted above, Ohio
courts shall give insurance contract terms their plain and
ordinary meaning unless another meaning is clearly apparent
from the contents of the policy. State Farm Auto. Ins.
Co., 575 N.E.2d at 461. For this reason, Plaintiff's
argument that “residence” is ambiguous because
the contract includes specific coverage exclusions for
vandalism, theft, and frozen pipes if the property is
unoccupied, is unavailing. (Doc. 112, at 11-12) (citing Pl.
Ex. 1, at 10-11). Although the term “residence”
may be ambiguous in other contexts, there is no ambiguity
where, as here, specific language clearly defines the term.
Thus, the Court concludes the insurance contract language, as
emphasized above, makes clear that recovery was conditioned
upon Plaintiff residing at 856 Nebraska at the time
of the loss.
the insurance contract conditioned recovery upon Plaintiff
residing at 856 Nebraska Avenue, the next relevant question
becomes: did he really live there? Plaintiff contends that -
even if the contract required residency - he resided at the
insured premises on the date of the loss. (Doc. 112, at
14-19). In support, he relies on: (1) the testimony of
eyewitnesses: his neighbors, Otis Williams and Dean Taylor;
his father, William McCloud; and his former tenant, Ariane
Stevens; and (2) the fact that utilities to the property were
active at the time of the fire. Id. at 14-15.
Defendant: (1) disputes Plaintiff's utility usage and the
credibility of the witnesses; (2) argues their investigator,
and Toledo Fire Department employees determined the home was
vacant; and (3) notes that investigators were able to locate
very few of the 3, 582 items Plaintiff claimed were lost in
the blaze. (Doc. 113, at 6-9, 15). The Court addresses the
evidence of residency below.
Defendant emphasizes, Plaintiff affirmatively represented
1554 Avondale Avenue in Toledo, Ohio as his residence on
numerous occasions. See Doc. 113, at 6. For example,
on the date of the fire, Plaintiff's driver's license
reflected the Avondale address. (Trial Tr. 193: 15-18). At
the time of the fire, Plaintiff's bank account was also
registered to the Avondale address. (Def. Ex. 79; Trial Tr.
193: 19-22). A resignation letter dated September 8, 2016
reflected the same (Trial Tr. 193: 23-25; 194: 1), as did an
employer's request for information and a Federal
Employment Eligibility Verification from Plaintiff dated
November 10, 2016 (eight days before the fire). (Def. Exs. 7,
8; Trial Tr. 194: 6-16). Plaintiff also never changed his
mailing address, and was still receiving mail at 1554
Avondale. (Def. Ex. 105, 22: 4-24) (“Smith
Depo.”). Finally, Plaintiff was on parole at the time
of the fire and had the Avondale address registered with the
State as his address of record. (Trial Tr. 141: 19-25; 142:
1-3). He testified that he did not tell his parole officer of
any move to 856 Nebraska Avenue because he was not required
to, and “[i]t wasn't none of his business.”
(Trial Tr. 142: 4-6, 20). However, at her deposition,
Plaintiff's mother testified he was “supposed
to” report a change of address to his parole officer.
(Smith Depo. 20: 13-24; 21: 1-2). Plaintiff does not address
these inconsistencies in his post-trial brief. See
Department Personnel Testimony
Clapp, a Battalion Chief with the Toledo Fire Department, and
25-year firefighting veteran, took charge of the fire scene
at 856 Nebraska. (Trial Tr. 587: 22-23; 588: 22-23, 25; 589:
1-9). Chief Clapp determined the structure was vacant. (Def.
Ex. 61, at 1; Trial Tr. 596: 4-23). He specifically noted
there were no “signs” of residency such as
“furniture, appliances and stuff in the kitchen, and it
just didn't look like it was habitable unless they're
sleeping on the floors.” (Trial Tr. 596: 14-17). Chief
Clapp spoke with a neighbor who said he heard an
“explosion” and called 911. (Trial Tr. 591:
9-15). This neighbor reported the home had been vacant for
“quite some time”. (Trial Tr. 591: 15-17). Chief
Clapp called fire investigator Denis Bembenek to the scene to
investigate further. (Trial Tr. 590: 20-25; 591: 1-5).
Bembenek, an arson investigator with the Toledo Fire
Department, also responded to 856 Nebraska. (Trial. Tr. 534:
6-8). Mr. Bembenek photographed the scene and canvassed the
neighborhood, speaking with neighbors. (Trial Tr. 535: 3-14).
Mr. Bembenek spoke with Otis Williams who again stated that
the house was vacant, with people coming and going
“occasionally”. (Def. Ex. 52, at 23; Trial Tr.
535: 25; 536: 1-9).
Court finds these witnesses are professional firefighters
with many decades of experience, both in firefighting and
fire investigations, between them. They are also neutral
parties who thoroughly documented their observations
on scene and in the hours following the blaze and accurately
testified to such. For these reasons, the Court finds their
testimony highly credible.
of Neighbors and the Affidavits
collected nine identical affidavits from his parents and