United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington, United States Magistrate Judge.
insured homeowner-Plaintiff Dorothy Mitchell-brings this case
against her insurer Defendant California Casualty General
Insurance Company of Oregon. She alleges that California
Casualty has improperly failed to fully pay for wind and
water damage to her home that is covered by the parties'
agreed-upon insurance policy. Her Complaint advances four
causes of action: (1) breach of contract, (2) bad faith, (3)
unjust enrichment, and (4) declaratory judgment.
Casualty presently seeks an Order dismissing Plaintiff's
unjust-enrichment claim under Fed.R.Civ.P. 12(c).
apply the same analysis to motions for judgment on the
pleadings under Rule 12(c) as they apply to motions to
dismiss under Federal Rules of Civil Procedure
12(b)(6).” Ayer v. Cmty. Mercy Health
Partners, No. 3:18-cv-00327, 2019 WL 1902520, *2 (S.D.
Ohio April 29, 2019) (Rose, D.J.) (citing Warrior Sports,
Inc. v. Nat'l Collegiate Athletic Ass'n, 623
F.3d 281, 284 (6th Cir. 2010)). All Plaintiff's material
and well-pleaded factual allegations are accepted as true.
Hindel v. Husted, 875 F.3d 344, 346 (6th Cir. 2017).
California Casualty's Rule 12(c) Motion may be granted
only if it is “‘clearly entitled to judgment as a
matter of law.'” Id. (quoting JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581-82 (6th
Cir. 2007) (other citation omitted)).
Casualty argues that dismissal of Plaintiff's
unjust-enrichment claim is warranted because unequivocal Ohio
law bars her from bringing a breach-of-contract claim under
her homeowner's policy together with her claim of unjust
contends that although she brings a breach-of-contract claim,
Ohio law does not foreclose her from pursuing her
unjust-enrichment claim as an alternative theory of recovery
in light of her allegations of bad faith.
action for unjust enrichment will lie where a party retains
money or a benefit that in equity or justice belongs to
another.” Eyerman v. Mary Kay Cosmetics, Inc.,
967 F.2d 213, 222 (6th Cir. 1992) (citing Hummel v.
Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 926-27 (1938)).
But, “[u]nder Ohio law, a plaintiff may not recover
under the theory of unjust enrichment when an express
contract covers the same subject.” Bihn v. Fifth
Third Mortg. Co., 980 F.Supp.2d 892, 904 (S.D. Ohio
2013) (Rose, DJ) (citing Wuliger v. Mfrs. Life Ins. Co.
(USA), 567 F.3d 787, 799 (6th Cir. 2009)).
Casualty emphasizes, “There is no dispute that
[Plaintiff's] Homeowner's Policy with [California
Casualty] was in existence at all times relevant
herein.” (Doc. #12, PageID #212). This tracks
with Plaintiff's allegations on the face of her Complaint
in which she identifies the specific insurance policy issued
by California Casualty to Plaintiff concerning her
single-family home on Derby Road in Dayton, Montgomery
County, Ohio. (Doc. #3, ¶s 1, 5). Further,
Plaintiff's unjust-enrichment theory centers upon the
benefit she conferred upon California Casualty “by
paying her policy premiums for the Derby Property covered by
the [California Casualty] policy.” Id.
¶59. Plaintiff's unjust-enrichment theory continues:
60. [California Casualty] has retained the benefit which
Plaintiff has conferred upon it by virtue of refusing to
fully pay or underpaying the windstorm loss which occurred on
or after June 22, 2016 and which was covered by [California
61. Under the circumstances, it would be unjust and
inequitable for [California Casualty] to retain any value of
such benefit without paying for it.
Id. These allegations are-in substance-a repeat of
the basis for Plaintiff's breach-of-contract claim.
See id. at ¶s 38-44. Because Plaintiff's
unjust-enrichment claims covers the same ground as her
breach-of-contract claim, and because California Casualty
does not dispute the existence of the parties' insurance
contract, Ohio's general rule applies and forecloses
Plaintiff from proceeding with a claim for unjust enrichment.
See Bihn, 980 F.Supp.2d at 904; see also
Delahunt v. Cytodyne Technologies, 241 F.Supp.2d 827,
841 (S.D. Ohio 2003) (Watson, D.J.) (“The equitable
claim of unjust enrichment fails when a legal remedy is
available.”); Randolph v. New England Mut. Life
Ins. Co., 526 F.2d 1383, 1387 (6th Cir. 1975)
(“The contract theory then being just as
‘adequate' as the unjust enrichment, or
quasi-contract, theories, founded in equitable
principles…, the unjust enrichment, or quasi-contract,
theories are unavailable ….” (citations
omitted)); Wolfer Ent., Inc. v. Overbrook Dev.
Corp., 132 Ohio App.3d 353, 357 (1999) (“A party
seeking a remedy under a contract cannot also seek equitable
relief under a theory of unjust enrichment or quantum meruit,
because the terms of the agreement define the parties'
relationship in the absence of fraud, bad faith or
on, Plaintiff says, Ohio law in this area is not unequivocal.
She maintains that Ohio law recognizes a bad-faith exception
to the general rule. She finds this exception in Ullmann
v. May, 147 Ohio St. 468, syllabus ¶4
(1947), which states, “‘In the absence of fraud
or bad faith, a person is not entitled to compensation on the
ground of unjust enrichment if he received from the other
that which it was agreed between them the other should give
in return.'” (Doc. #15, PageID #225
(emphasis omitted) (quoting Morton Bldgs., Inc. v.
Correct Custom Drywall, Inc.,
2007─Ohio─2788, ¶ 32, 2007 WL 1641155, at *6
(Ohio App. 2007); Pacific Space Design Corp. v. PNC
Equipment Finance, LLC, No. 1:13cv00460, 2014 WL
6603288, at *6 (S.D. Ohio 2014)).
premise of Plaintiff's argument is correct-Ohio law
contains a bad-faith exception: “[A]bsent fraud,
illegality, or bad faith, a plaintiff may not recover if the
defendant retains the disputed money or benefit under the
terms of an agreement between the parties.”
Eyerman, 967 F.2d at 222 (citing Aultman Hosp.
Ass'n v. Community Mut. Ins. Co., 46 Ohio St.3d 51
(1989); Ullmann, 147 Ohio St. 468, 72 N.E.2d at 67).
But this exception pertains to bad faith (or fraud or
illegality) “in the making of the agreement
….” Id. Or, in other words, a bad-faith
challenge to the existence of a valid contract may permit a
plaintiff to plead breach of contract and unjust enrichment
in the alternative. See Eyerman, 967 F.2d at 222;
see also Bihn, 980 F.Supp.2d at 904 (“Said
another way, ‘unjust enrichment claims may be pled ...