United States District Court, N.D. Ohio, Eastern Division
RICHARD L. KOLESAR, Plaintiff,
ALLSTATE INSURANCE COMPANY, Defendant.
OPINION AND ORDER
Aaron Polster United States District Judge.
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.
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
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.
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”)).
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.
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
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, ...