COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68854 DANNY BOY FARM MARKET, INC., : ET AL. : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION CONIGLIO AGENCY, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: APRIL 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-264130. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants Danny Boy Farm Market, Inc., et al., Robert P. Rutter, Esq., One Summit Office Park, 4700 Rockside Road, Suite 650, Independence, Ohio, 44131. For Defendants-appellees Coniglio Agency and Jerry A. Coniglio, Thomas W. Wright, Esq., and Dennis R. Fogarty, Esq., Davis and Young Co., L.P.A., 1700 Midland Building, Cleveland, Ohio, 44115. For State Farm Fire & Casualty Co., Henry A. Hentemann, Esq., and J. Michael Creagan, Esq., Meyers, Hentemann, Schneider & Rea, 2121 The Superior Building, Cleveland, Ohio, 44114. - 3 - SWEENEY, JAMES D., P.J.: Plaintiffs-appellants Danny Boy Farm Market, Inc., Robert Romp 1 and Loretta Romp appeal from the granting of summary judgment in favor of defendants-appellees-movants Coniglio Agency, its owner, Jerry A. Coniglio, and State Farm Fire & Casualty Company. For the reasons adduced below, we affirm. A review of the record on appeal indicates that prior to April of 1990, insurance coverage on the produce market was secured by defendants Coniglio Agency, Inc. and Jerry Coniglio, who were independent insurance agents. Insurance coverage on the business was limited to $400,000 on the building and $200,000 on the building contents. On April 1, 1990, plaintiffs switched their business insurance coverage from the Coniglio Agency to State Farm Fire & Casualty Company. State Farm appraised the replacement cost of the produce business, including property and contents, at $604,000. Plaintiffs, after being informed by State Farm that the minimum coverage available was 90% of the replacement cost, opted for this minimum coverage and insured the produce market building through State Farm for 90% of its replacement cost, or $543,000, and contents coverage at $200,000. In April of 1991, plaintiffs switched their business insurance coverage from State Farm to Coniglio Agency. Prior to switching 1 Danny Boy Farm Market, Inc., is the corporate entity which operates a produce market in North Olmsted, Ohio, known as Danny Boy Farm Market. Robert Romp founded the business. Robert Romp and his wife, Loretta Romp, own the real property on which the produce market is located. - 4 - back, plaintiffs told Coniglio Agency what had been the appraisal and coverage under State Farm in an effort to obtain the State Farm levels of coverage ($543,000/$200,000) from Coniglio Agency. Coniglio Agency, through an insurance policy written by Cincinnati Insurance Company, agreed to provide this exact coverage as sought by the plaintiffs and that this coverage was reflective of the replacement costs of the property. See letter of March 7, 1991, from Coniglio Agency to Mr. Terry Romp, the president of Danny Boy Farm Market, Inc. On September 18, 1991, a fire at the produce market severely damaged the market and its contents. The loss was estimated at over $1,000,000 for the building and several hundred thousand dollars over the contents coverage. Cincinnati Insurance Company paid the policy limits of $543,000/$200,000 to plaintiffs. On January 14, 1994, plaintiffs filed the present civil action alleging negligence and breach of contract against defendants in the alleged failure to obtain sufficient insurance coverage for plaintiffs and in the alleged failure to determine the true replacement cost for the business. State Farm filed its motion for summary judgment on November 7, 1994. Coniglio Agency and Mr. Coniglio filed a motion for summary judgment on November 17, 1994. Plaintiffs filed a brief in opposition to State Farm's summary judgment motion on November 25, 1994. - 5 - On December 13, 1994, State Farm filed a reply brief to plaintiffs' brief in opposition to summary judgment. On December 30, 1994, plaintiffs filed a brief in opposition to Coniglio's motion for summary judgment. On January 11, 1995, defendants Coniglio filed a reply brief to plaintiffs brief in opposition to summary judgment. On March 27, 1995, the trial court granted summary judgment in favor of the defendants. See Journal Vol. 1834, pages 449-456. This appeal followed presenting three assignments of error. I THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CONIGLIO AGENCY AND JERRY A. CONIGLIO SINCE THE AFFIDAVIT OF JOHN DUDZIAK, CPCU , CREATED AN ISSUE OF FACT ON THE ISSUE OF NEGLIGENCE. In addressing the assignments presented in this appeal we note the following language by Judge Krupansky as contained in Wilkerson v. Eaton Corp. (March 10, 1994), Cuyahoga App. No. 65812, unreported, 1994 Ohio App. LEXIS 1043: Civ.R. 56(C) specifically provides that before summary judgment may be granted, the court must determine 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 from the evidence that reasonable minds can come to only one conclusion, and viewing such evidence most strongly in favor of the non- movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. 2 The initials "CPCU" stand for Chartered Property and Casualty Underwriter. - 6 - A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 (syllabus). The evidentiary materials must be timely filed. Civ.R. 56(C). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollack & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. This assignment rises or falls on the trial court's admissibility determination relative to the affidavit of plaintiff's insurance expert, Mr. Dudziak, which sought to demonstrate negligence by the defendants. After recalling his professional qualifications and employment history, Mr. Dudziak averred to the following: * * * 9. As part of my review of this case, I reviewed the Amended Complaint, the Exhibits marked during the deposition of Dona Lippert, file of the Hoffman Insurance Agency, the State Farm underwriting file, the depositions of Robert Romp, Dona Lippert , and Jack Finlin , and the building and contents estimates prepared by Alex M. Sill Company. 10. Based upon my review of these documents and on my professional training and 3 Dona Lippert, CPCU, was employed by the Coniglio Agency in 1990 and 1991 and worked with the Romp's relative to their desire to obtain insurance on the produce market from the Coniglio Agency. 4 Jack Finlin was the agent for State Farm Fire & Casualty Company. - 7 - education, it is my opinion that State Farm was negligent with respect to its handling of the insurance for Danny Boy in that its representative did not properly complete the commercial cost guide and thereby arrived at an inaccurate replacement cost figure. Additionally, the second version of the "appraisal" reflected a square footage different than did the first. 11. It is my further opinion that the Coniglio Agency was negligent in that, although it clearly recognized that the building was underinsured, it did not adequately emphasize the importance of having the building appraised to confirm that it was adequately covered for its replacement cost. FURTHER AFFIANT SAYETH NAUGHT. * * * The trial court determined that this affidavit was inadmissible for summary judgment purposes. Civ.R. 56(E)("Supporting *** affidavits ***, shall set forth such facts as would be admissible in evidence, ***.) In its ruling and opinion, the trial court stated the following: * * * Plaintiffs have submitted the affidavit of John Dudziak, CPCU, who expresses the opinion that the Coniglio Agency was negligent for failing adequately to emphasize to Danny Boy the need for an appraisal to determine the replacement cost. The Dudziak affidavit fails to state any standard of care in the industry, merely expressing his opinion that Coniglio was negligent. As a result, Dudziak's opinion is not admissible evidence. * * * Journal Vol. 1834, pages 454-455. - 8 - After reviewing the affidavit in question, we agree with the trial court's ruling on its admissibility due to the absence of an expressed standard of care within the insurance industry. Without this standard of care being provided, the basic elements for a cause of action based on negligence are incomplete. Accordingly, the trial court did not err in granting summary judgment to the Coniglio Agency and Mr. Coniglio. The first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO STATE FARM. Appellants argue that State Farm was negligent in its April, 1990 appraisal of the replacement cost for the produce market in that the appraisal was not adequate for purposes of determining the proper amount of insurance, and that appellants relied on this allegedly faulty appraisal when appellants returned their business insurance to Coniglio Agency in April of 1991. The trial court found that State Farm's liability to its insured ended when the policy of insurance issued to its insured lapsed on April 1, 1991, for absent this contractual relationship, there is no duty established to the insured. Reliance by the appellants on an appraisal performed by State Farm over one year prior to appellants seeking a competitive bid in April of 1991 was not reasonable due to the inherent dynamics of market forces on the replacement costs of a particular business. Accordingly, we agree - 9 - with the granting of summary judgment in favor of State Farm on the claim of negligence where no duty was owed to its former insured. The second assignment of error is overruled. III THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CONIGLIO AGENCY AND JERRY CONIGLIO SINCE THE EVIDENCE RAISED AN ISSUE OF COMPARATIVE NEGLIGENCE FOR A JURY TO RESOLVE. Appellant argues that there was a genuine issue of fact as to whether defendants-Coniglio, in an alleged fiduciary relationship with plaintiffs, breached that fiduciary duty in failing to adequately advise the plaintiffs as to the sufficient amount of coverage for the business property while the plaintiffs allegedly relied upon the expertise of the defendants-Coniglio. It is admitted by the parties to this assignment that: An insurance sales agency has a duty to exercise good faith and reasonable diligence in obtaining insurance requested by its owner, and in advising a customer who is relying on the agency's expertise. (Emphasis added.) First Catholic Slovak Union v. Buckeye Union Ins. Co. (1986), 27 Ohio App.3d 169, paragraph one of the headnotes. Further, Absent a fiduciary relationship, an insurance sales agency has a duty to exercise good faith in obtaining only those policies of insurance which its customer requests. See First Catholic Slovak Union v. Buckeye Union Ins. Co. (1986), 27 Ohio App.3d 169, 27 OBR 202, 499 N.E.2d 1303; Gordon v. Wade (Aug. 8, 1991), Cuyahoga App. No. 61180, unreported, 1991 WL 398725. Correspondingly, a person has a duty to examine the coverage provided and is charged with knowledge of the contents of her own - 10 - policies. Id. An agent or broker is not liable when a customer's loss is due to the customer's own act or omission. See Nofer v. Volanski Agency, Inc. (Ohio C.P.1980), 414 N.E.2d 450. (Emphasis added.) Craggett v. Adell Ins. Agency (Cuyahoga, 1993), 92 Ohio App.3d 443, 453. While there was an abundance of evidence detailing the long- standing nature of the insurance dealings between the plaintiffs and the defendants-Coniglio, and those defendants' past dealings where they suggested certain changes in plaintiffs' insurance coverages as a result of changes affecting the liability exposure of the produce business, the allegations that plaintiffs relied on these past dealings in the belief that defendants-Coniglio would advise plaintiffs as to an adequate amount of coverage for the produce market in April of 1991 is not supported by any affidavit of the plaintiffs. To the contrary, the evidence in the form of letters between plaintiffs and defendants-Coniglio clearly indicates that plaintiff was advised by defendants-Coniglio to make certain that the amount of the coverages on the property was the owners responsibility: As you requested, we will revise our quotation to provide coverage on the building in North Olmsted at $543,000.00 and the building in Medina to read $443,000.00. Contents values are to remain the same. As we discussed, coverage under this new contract is provided on a replacement cost basis and is not subject to a co-insurance clause. Please be sure that the contents values and revised building values represent the replacement costs of the respective items. - 11 - Letter dated March 7, 1991. And, Although it was discussed yesterday, please be sure that you take the time to review the various values that were notated on the summary of insurance. Some of the amounts of insurance have not been updated in several years and your consideration should be given to their accuracy. Letter dated December 29, 1988. Additionally, the deposition testimony of Terry Romp clearly provides that plaintiffs relied on the State Farm appraisal as the basis for the amount of coverage sought. See Terry Romp deposition dated September 22, 1994, at 47-48. This evidence belies plaintiffs' allegation that they relied on the expertise of the defendants-Coniglio so as to form a fiduciary relationship which would obligate defendants-Coniglio in providing a duty to ascertain the insurance coverage for the property. Defendants-Coniglio advised plaintiffs to check the valuations prior to the issuance of the policy and did provide the coverage requested by its customer. Defendants-Coniglio cannot now be held responsible for the omission of plaintiffs to properly ascertain the replacement value of, and in turn the insurance coverage for, their own business property. The third assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellees recover of appellants their 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 Common Pleas Court 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. Exceptions. SARA J. HARPER, J., CONCURS; DIANE KARPINSKI, J., CONCURS, WITH CONCURRING OPINION ATTACHED. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68854 : DANNY BOY FARM MARKET, INC., : ET AL. : : Plaintiffs-Appellants : : CONCURRING -vs- : : OPINION CONIGLIO AGENCY, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 25, 1996 KARPINSKI, J., CONCURRING: I concur in the majority opinion, but write separately to emphasize that Danny Boy Farm Market, Inc.'s and the Romps' first and third assignments of error share a common defect. There is no evidence that the Coniglio Agency, Inc. or Jerry Coniglio knew Danny Boy was relying on them to determine the amount of insurance coverage. Without such evidence of reliance, Danny .