COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60829 THELMA McNATT : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION OHIO FAIR PLAN UNDERWRITING : ASSOCIATION : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 30, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 184,959 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: ROBERT J. TRIOZZI Attorney at Law 1276 West Third Street Marion Building, Suite 409 Cleveland, Ohio 44113 For defendant-appellee: JAMES N. KLINE Attorney at Law 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 - 1 - FRANCIS E. SWEENEY, P.J.: Plaintiff-appellant, Thelma McNatt, timely appeals the trial court's granting of defendant-appellee Ohio Fair Plan Underwrit- ing Association's motion for summary judgment in favor of appel- lee on the ground that appellant failed to timely file her action for recovery of an insurance claim within the one-year limitation pro-vision set forth in the fire insurance contract. For the reasons set forth below, we affirm the judgment of the trial court. The pertinent facts are as follows: Appellee issued an insurance policy to appellant for a home located at 6017 Wakefield Avenue. On October 23, 1988, the home was destroyed by arson. Appellant submitted a claim to appellee to obtain insurance benefits for the destruction of the home. On March 27, 1989, counsel for appellee wrote to appellant to schedule her statement under oath for April 14, 1989. In this letter, and seven subsequent letters sent by appellee's counsel to appellant regarding the scheduling of the statement under oath, appellee's counsel stated that appellee ". . . does not waive any of the pro-visions or conditions set forth in the policy of insurance." One of the conditions which the policy contained was the requirement that "[n]o action shall be brought - 2 - unless there has been compliance with the policy provisions and the action is started within one year of the loss." The policy also required that the insured sub-mit to an examination under oath and subscribe the same. By mutual agreement, the statement under oath was resched- uled to April 27, 1989. On that date, appellant called appel- lee's counsel and stated that she was scheduled to work and needed to reschedule the date for her statement. It was agreed that the statement was rescheduled for May 2, 1989. On May 2, 1989, appel-lant called appellee and stated that her mother had taken ill and again requested the statement under oath be re- scheduled. At appellant's request, the statement was rescheduled for May 11, 1989. On May 11, 1989, appellee's counsel called appellant's home to confirm her appearance at the statement under oath. A woman who identified herself as appellant's daughter told appellee's counsel that appellant was out of town and that she was not sure when appellant would come back to Cleveland. Subsequently, appellee sent a letter to appellant stating that no further consideration could be given to her claim unless and until she fully complied with all the terms and conditions of the insurance policy, includ-ing the requirement of submitting to a statement under oath. Appellant was notified that if she desired appellee to give further consideration to the claim, she should contact the company. - 3 - Appellant called appellee on June 23, 1989 to arrange to appear for her statement under oath. It was agreed to set the statement under oath for July 13, 1989. Appellant appeared on that date, but indicated that she thought she was going to be accom-panied by counsel, whom she believed to be either Janet Burnside and/or Larry Zuckerman of Greene & Hennenberg. No attorney appeared, however, and appellant indicated that she preferred not to make a statement. Subsequently, appellee sent a letter to appellant stating again that no determination of appellant's claim could be made until the statement under oath was completed. Janet Burnside wrote a letter to appellee stating that neither she nor anyone else from the firm of Greene & Hennenberg represented appellant in her claim. On September 8, 1989, Attorney Robert Triozzi wrote to appel-lee's counsel indicating that he represented appellant and asking to speak with counsel about the claim. On September 14, 1989, appellant's attorney and appellee's attorney spoke by telephone and agreed that the statement under oath would be taken on September 27, 1989. The statement under oath finally went ahead on that date. On October 19, 1989, appellant's counsel mailed to appellee's counsel the shared statement under oath as required under the policy prior to appellee's making a determina- tion on the claim. On February 20, 1990, appellant filed a complaint against the appellee alleging that appellee had delayed without just - 4 - cause in making a determination of her insurance claim. Appellee filed an answer and a motion for summary judgment on the ground that appel-lant failed to timely file the action within one year of the date of the loss, October 23, 1989, as required by the terms and conditions of the insurance policy. Appellant's brief in opposition to the motion for summary judgment alleges that appellee waived the time limit by its actions in allowing appel- lant to repeatedly reschedule the statement under oath. The trial court granted appellee's motion for summary judgment in favor of appellee, finding that there was no waiver of the contractual statute of limitations based on the facts and circum- stances. Appellant now timely appeals, raising one assignment of error for our review. THE TRIAL COURT ERRED WHEN IT GRANTED DEFEN- DANT'S MOTION FOR SUMMARY JUDGMENT AS THE DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Appellant contends that the trial court erred in granting appellee's motion for summary judgment since a genuine issue of material fact existed as to whether appellee waived the rule requiring appellant to file an action within one year of the date of the loss. This argument is without merit. Civ. R. 56 provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears - 5 - from the evidence that reasonable minds can come to but one conclusion and, viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Petrey v. Simon (1984- ), 19 Ohio App. 3d 285. It is well settled in Ohio that a provision in a fire insur- ance policy that limits the time within which an action may be brought for recovery of a claim is valid and enforceable. Appel v. Cooper Insurance Co. (1907), 76 Ohio St. 52; Broadview S. & L. Co. v. Buckeye Union Ins. Co. (1982), 70 Ohio St. 2d 47. A waiver of the time limitation provision may occur when the insur- er, by its acts or declarations, evidences a recognition of liability and offers of settlement have led the insured to delay in bringing an action on the insurance contract. Hounshell v. American States Ins. Co. (1981), 67 Ohio St. 2d 427. In the present case, no conduct on the part of appellee could be construed as a waiver of the time limitation provision. The fact that appellee allowed appellant to reschedule appel- lant's statement under oath, at appellant's requested requests, did not constitute a waiver. Appellee continually notified appellant that it would require strict compliance with the policy conditions and did not waive any defenses available to it. In addition, appellee stated repeatedly that no further consider- ation of appellant's claim could be made until the completion of the statement under oath. - 6 - Therefore, we find that the insurance contract's one-year time limitation provision for bringing the action was valid and enforceable. The trial court did not err in granting appellee's motion for summary judgment based on appellant's failure to timely file the action within one year of the date of her loss. Assignment of Error I is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J. HARPER, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .