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Kolesar v. Allstate Insurance Co.

United States District Court, N.D. Ohio, Eastern Division

July 9, 2019



          Dan Aaron Polster United States District Judge.

         In early February 2015, Plaintiff Richard L. Kolesar, who resides primarily in Baltimore, Maryland, sustained substantial water damage to a second residence he owns in Euclid, Ohio. The damage arose from a pipe on the second floor that froze, and then ruptured, during a prolonged period of below-freezing temperatures that winter in Ohio. The cases arises from Defendant Allstate Insurance Company's (“Allstate”) denial of the insurance claim Kolesar filed on February 6, 2015.

         The case is before the Court on Defendant Allstate's Motion for Summary Judgment. Doc #: 12. Allstate contends that Kolesar does not have standing to bring the insurance coverage claims, the contract claim is time barred, and the contract and bad faith claims lack merit. For the reasons that follow, Defendant's Motion is GRANTED.

         I. Background

         In 1955, Plaintiff Richard Kolesar's parents built and moved into a home at 24550 Hawthorne Drive in Euclid, Ohio (“Property). (The Complaint is located at pages 3 to 15 of Doc #: 1-1 (“Comp.”). In November 1996, following his father's death, Kolesar assumed maintenance responsibilities for the home. Id. ¶ 2. On September 27, 2006, Kolesar, who resided in Baltimore, Maryland, became sole owner of the Property just 21 months prior to his mother's death. Id. Since that time, Kolesar lived at the Property intermittently, in periods ranging from two weeks to several months. Doc #: 16 (“Opp. Br.”) at 3.

         In September 2006, Kolesar consulted an Allstate Insurance agent, Schofield Insurance, about a homeowners policy for the Property, fully disclosing the intermittent nature of his residence in Ohio. Opp. Br. at 3. Allstate's agent recommended that he purchase Allstate's Deluxe Homeowners Policy - which Kolesar did, and maintained that coverage until May 23, 2015. Id. (The relevant insurance policy, No. 02492488 issued on May 24, 2014, is located at Doc #: 12-1 at pages 7-54 (“Policy”)).

         Kolesar asserts he took reasonable measures to ensure the Property was adequately heated when he was not there by monitoring the utility bills for abnormalities and by having a trusted friend in Ohio, Paul Fitzgerald, check in on the Property. Id. ¶ 21, 23. Prior to the loss, Fitzgerald had last visited the Property in late December 2014 to ensure it was sufficiently heated and reported to Kolesar that the furnace was in good working order. Id. ¶ 22. On January 16, 2015, Kolesar paid the gas bill for early December 2014 through early January 2015, in the amount of $60.99, which was consistent with the amounts he had paid previously. Comp. ¶ 23. On February 5, 2015, however, Kolesar received information from the City of Cleveland Division of Water that there had been a marked increase in water usage at the Property beginning on January 18, 2015. Id. ¶ 20, 40; Doc # 12-1, Ex. B-1 at 56. Kolesar took immediate steps to shut off the water and electricity and contacted Fitzgerald to investigate the Property. Id. ¶ 25. On February 6, 2015, Fitzgerald entered the Property, found the water damage, and reported the damage to Kolesar. Id. That same day, Kolesar contacted Allstate and filed a claim, prompting Allstate to send a forensic engineer and field adjustor to visit the Property on February 13, 2015 and February 20, 2015, respectively. Id. ¶¶ 20, 26.

         After investigating the claim, Allstate sent a denial of coverage letter to Kolesar on February 26, 2015. Id. ¶ 30. In its denial letter, Allstate explained:

We have carefully examined the circumstances surrounding this loss and believe, at this time, we have sufficient information to make a decision regarding your claim.
We have found that there is no coverage available for the loss that occurred on February 05, 2015. As a result, we will not be able to make any payments for the following reasons: Reasonable care to maintain heat was not used per the following policy requirement:
Losses We Do Not Cover Under Coverages A and B:
We do not cover loss to the property … consisting of or caused by:
16. Freezing of plumbing, fire protective sprinkler systems, heating or air conditioning systems or household appliances, or discharge, leakage or overflow from within the systems or appliances caused by freezing, while the building structure is vacant, ...

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