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FILED
COURT OF COMOH FLEAS «
GU Pls-| PH &: 20
DAN FL LY
CLERK CF CLURTS
MONTGOMERY C5.. OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
THE CINCINNATI INSURANCE : CASE NO. 2005 CV 4096
COMPANY,
(Judge Gregory F. Singer)
Petitioner,
: MEMORANDUM OF
vs. RESPONDENTS IN OPPOSITION
: TO PETITIONER’S MOTION TO
RODNEY EARLY, et al., DISMISS COUNTERCLAIM OR
: IN THE ALTERNATIVE MOTION
Respondents. FOR LEAVE TO AMEND.
On July 13, 2005, Petitioner, The Cincinnati Insurance Company, served upon Respondents’
counsel by ordinary mail its motion to dismiss! Respondents’ counterclaim and filed it with the
Clerk on July 14, 2005. In its motion “Petitioner seeks a Court Order to compel respondents’
cooperation” with the investigation of the fire at their home on February 14, 2005. Petitioner
erroneously asserts that “[t]o date, respondents expressly refuse to cooperate.”? The facts are that
Respondent Rodney Early has already provided a statement to the fire investigator hired by
Petitioner; that Petitioner has been informed that Respondents have provided statements to fire
investigators for the City of Dayton; that Petitioner have been informed Respondents would
' Petitioner, The Cincinnati Insurance Company’s Motion To Dismiss Counterclaim With Prejudice
(“Motion to Dismiss”).
? Motion to Dismiss at p. 2.
> Motion to Dismiss at p. 2.cooperate in making available swom statements if Petitioner would provide reciprocal information
regarding its investigation of the subject fire; and that Petitioner refuses to provide information
regarding its investigation of the fire to Respondents.*
In their counterclaim Respondents seek the oral deposition of the fire investigator retained by
Petitioner to investigate the fire and to compel him to provide his report for review and copying.’
Petitioner asserts it is entitled to dismissal of Respondents’ counterclaim because it “fails to state a
claim upon which relief may be granted.”* Petitioner makes several arguments in this regard. First,
Petitioner seems to claim that Respondent is improperly using a discovery petition “for purposes of
framing a complaint or fishing for discovery which can be obtained during primary litigation.” Itis
significant to note that neither of the cases relied upon by Petitioner, {7 re Bejarano, 65 Ohio App.3d
202 (1989) and Fisher v. Thole, 10 Ohio Supp. 37 (1942), support the proposition of law asserted.
Nevertheless, it is clear that Respondents’ counterclaim sets forth allegations that, if accepted as
true, state a claim for relief under Ohio Civ. R. 27.
Second, Petitioner asserts, as a basis for dismissal of Respondents’ counterclaim, that it “is
also immune for the alleged potential tort actions under Ohio law.”* Petitioner cites Ohio Revised
Code Sections 3999.31, 3737.16 and 3992.42 for that proposition.’ None of these statutes support
Petitioner’s proposition.
Ohio Revised Code Section 3999.31 provides qualified immunity for the filing of reports or
furnishing of other information relating to “suspected fraudulent insurance acts” to a specified
category of persons. “Fraudulent insurance act” refers to “any written statement” that is part of “a
See Respondents’ Answer And Counterclaim at p. 2.
See Respondents’ Answer And Counterclaim at p. 4.
Motion to Dismiss at p. 2.
Motion to Dismiss at p. 2.
8 Motion to Dismiss at p. 2.
° Motion to Dismiss at p. 2.claim for payment or other benefit pursuant to [a policy or contract for property insurance, casualty
insurance, life insurance, sickness and accident insurance] that the person knows to contain
materially false information * * *”. In their counterclaim Respondents allege that “representatives
of [Petitioner] falsely reported to their property owner, Ryan Marcotte, and others, that the subject
fire was caused by arson and that Petitioners were suspects, which resulted in Marcotte’s termination
of Petitioners’ lease.”"° It is clear that Respondent’s landlord is not among the category of persons to
whom information may be provided under the cloak of immunity. Furthermore, Respondents allege
that the information provided by Petitioner was both “false and malicious” thus removing the
communication from its qualified protection.
Similarly, Ohio Revised Code Section 3737.16 grants qualified immunity to an insurance
company investigating “a fire loss or potential fire loss of real or personal property” that “furnishes
information on its behalf” to designated law enforcement authorities. Respondent’s landlord is not
among the category of persons to whom information may be provided under the cloak of immunity
and Respondent’s allegations that the information provided by Petitioner was both “false and
malicious” removes the communication from qualified protection.
Finally, Ohio Revised Code Section 3999.42 requires an insurer to notify the department of
insurance if it “has a reasonable belief that a person is perpetrating or facilitating an insurance
fraud.” That statute does not afford immunity to anyone, and most certainly has no bearing on
information provided to Respondent’s landlord. Petitioner’s assertion that it is immune for
maliciously providing false information to Respondent’s landlord is erroneous and, accordingly,
Petitioner’s motion should be overruled.
A motion to dismiss for failure to state a claim upon which relief can be granted is procedural
‘© See Respondents’ Answer And Counterclaim at p. 2.and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65
Ohio St.3d 545, 605 N.E.2d 378 (1992). "[W]hen a party files a motion to dismiss for failure to state
a claim, all the factual allegations of the complaint must be taken as true and all reasonable
inferences must be drawn in favor of the non-moving party." Byrd vy. Faber (1991), 57 Ohio St.3d
56, 60, 565 N.E.2d 584, 589, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192,
532 N.E.2d 753, 756. In order for the trial court to dismiss a complaint pursuant to Ohio Civ. R.
12(B)(6), the court must find beyond a doubt that the plaintiff can prove no set of facts that would
support his claim for relief. O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242, 327
N.E.2d 753 (1975).
Petitioner’s motion is without merit and should be overruled. In the alternative, Respondent
requests leave to file an amended pleading in order provide verification that they believe the facts
stated in the petition are true.
Respectfully submitted,
30 Wyoming Street
Dayton, Ohio 45409
(937) 222-3000
FAX (937) 222-1414
dunphy@ohiolawyers.cc
Trial Attorney for Respondents
Rodney and Natonya EarlyCERTIFICATE OF SERVICE
Thereby certify that the foregoing was served upon Carmen C. Sarge and Matthew J. Smith,
Attorneys for Petitioner, SMITH, ROLFES & SKAVDAHL CO., L.P.A., 1014 Vine Street, Suite
2350, Cincinnati, Ohio 45202, by mailing a copy to them via ordinary U.S. mail, this I Sf. day of
August, 2005.
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: SD \ } FILED COURT OF COMOH FLEAS « GU Pls-| PH &: 20 DAN FL LY CLERK CF CLURTS MONTGOMERY C5.. OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION THE CINCINNATI INSURANCE : CASE NO. 2005 CV 4096 COMPANY, (Judge Gregory F. Singer) Petitioner, : MEMORANDUM OF vs. RESPONDENTS IN OPPOSITION : TO PETITIONER’S MOTION TO RODNEY EARLY, et al., DISMISS COUNTERCLAIM OR : IN THE ALTERNATIVE MOTION Respondents. FOR LEAVE TO AMEND. On July 13, 2005, Petitioner, The Cincinnati Insurance Company, served upon Respondents’ counsel by ordinary mail its motion to dismiss! Respondents’ counterclaim and filed it with the Clerk on July 14, 2005. In its motion “Petitioner seeks a Court Order to compel respondents’ cooperation” with the investigation of the fire at their home on February 14, 2005. Petitioner erroneously asserts that “[t]o date, respondents expressly refuse to cooperate.”? The facts are that Respondent Rodney Early has already provided a statement to the fire investigator hired by Petitioner; that Petitioner has been informed that Respondents have provided statements to fire investigators for the City of Dayton; that Petitioner have been informed Respondents would ' Petitioner, The Cincinnati Insurance Company’s Motion To Dismiss Counterclaim With Prejudice (“Motion to Dismiss”). ? Motion to Dismiss at p. 2. > Motion to Dismiss at p. 2.cooperate in making available swom statements if Petitioner would provide reciprocal information regarding its investigation of the subject fire; and that Petitioner refuses to provide information regarding its investigation of the fire to Respondents.* In their counterclaim Respondents seek the oral deposition of the fire investigator retained by Petitioner to investigate the fire and to compel him to provide his report for review and copying.’ Petitioner asserts it is entitled to dismissal of Respondents’ counterclaim because it “fails to state a claim upon which relief may be granted.”* Petitioner makes several arguments in this regard. First, Petitioner seems to claim that Respondent is improperly using a discovery petition “for purposes of framing a complaint or fishing for discovery which can be obtained during primary litigation.” Itis significant to note that neither of the cases relied upon by Petitioner, {7 re Bejarano, 65 Ohio App.3d 202 (1989) and Fisher v. Thole, 10 Ohio Supp. 37 (1942), support the proposition of law asserted. Nevertheless, it is clear that Respondents’ counterclaim sets forth allegations that, if accepted as true, state a claim for relief under Ohio Civ. R. 27. Second, Petitioner asserts, as a basis for dismissal of Respondents’ counterclaim, that it “is also immune for the alleged potential tort actions under Ohio law.”* Petitioner cites Ohio Revised Code Sections 3999.31, 3737.16 and 3992.42 for that proposition.’ None of these statutes support Petitioner’s proposition. Ohio Revised Code Section 3999.31 provides qualified immunity for the filing of reports or furnishing of other information relating to “suspected fraudulent insurance acts” to a specified category of persons. “Fraudulent insurance act” refers to “any written statement” that is part of “a See Respondents’ Answer And Counterclaim at p. 2. See Respondents’ Answer And Counterclaim at p. 4. Motion to Dismiss at p. 2. Motion to Dismiss at p. 2. 8 Motion to Dismiss at p. 2. ° Motion to Dismiss at p. 2.claim for payment or other benefit pursuant to [a policy or contract for property insurance, casualty insurance, life insurance, sickness and accident insurance] that the person knows to contain materially false information * * *”. In their counterclaim Respondents allege that “representatives of [Petitioner] falsely reported to their property owner, Ryan Marcotte, and others, that the subject fire was caused by arson and that Petitioners were suspects, which resulted in Marcotte’s termination of Petitioners’ lease.”"° It is clear that Respondent’s landlord is not among the category of persons to whom information may be provided under the cloak of immunity. Furthermore, Respondents allege that the information provided by Petitioner was both “false and malicious” thus removing the communication from its qualified protection. Similarly, Ohio Revised Code Section 3737.16 grants qualified immunity to an insurance company investigating “a fire loss or potential fire loss of real or personal property” that “furnishes information on its behalf” to designated law enforcement authorities. Respondent’s landlord is not among the category of persons to whom information may be provided under the cloak of immunity and Respondent’s allegations that the information provided by Petitioner was both “false and malicious” removes the communication from qualified protection. Finally, Ohio Revised Code Section 3999.42 requires an insurer to notify the department of insurance if it “has a reasonable belief that a person is perpetrating or facilitating an insurance fraud.” That statute does not afford immunity to anyone, and most certainly has no bearing on information provided to Respondent’s landlord. Petitioner’s assertion that it is immune for maliciously providing false information to Respondent’s landlord is erroneous and, accordingly, Petitioner’s motion should be overruled. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural ‘© See Respondents’ Answer And Counterclaim at p. 2.and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). "[W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the non-moving party." Byrd vy. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, 589, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. In order for the trial court to dismiss a complaint pursuant to Ohio Civ. R. 12(B)(6), the court must find beyond a doubt that the plaintiff can prove no set of facts that would support his claim for relief. O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Petitioner’s motion is without merit and should be overruled. In the alternative, Respondent requests leave to file an amended pleading in order provide verification that they believe the facts stated in the petition are true. Respectfully submitted, 30 Wyoming Street Dayton, Ohio 45409 (937) 222-3000 FAX (937) 222-1414 dunphy@ohiolawyers.cc Trial Attorney for Respondents Rodney and Natonya EarlyCERTIFICATE OF SERVICE Thereby certify that the foregoing was served upon Carmen C. Sarge and Matthew J. Smith, Attorneys for Petitioner, SMITH, ROLFES & SKAVDAHL CO., L.P.A., 1014 Vine Street, Suite 2350, Cincinnati, Ohio 45202, by mailing a copy to them via ordinary U.S. mail, this I Sf. day of August, 2005.