COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69253 : BARRY BARNETT : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION CONNECTICUT MUTUAL LIFE : INSURANCE CO., ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-249957 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ROBERT P. RUTTER, ESQ. WALTER A. RODGERS, ESQ. 1 Summit Office Park Landmark Office Towers Suite 650 1750 Guildhall 4700 Rockside Road 45 Prospect Ave., West Cleveland, Ohio 44131 Cleveland, Ohio 44115 FRANK P. LEONETTI III, ESQ. 113 St. Clair Bldg. Cleveland, Ohio 44114 THOMAS R. COERDT, ESQ. JEFFERY M. ELZEER, ESQ. CALFEE, HALTER & GRISWOLD 800 Superior Bldg., Ste. 1800 Cleveland, Ohio 44114-2688 - 2 - KARPINSKI, J.: Plaintiff-appellant Barry Barnett appeals from an order of the trial court granting summary judgment for insurance agent Richard Kluchin, defendant-appellee in this action, arising from a disability insurance dispute. Following the termination of his disability insurance benefits, Barnett filed a complaint against Connecticut Mutual Life Ins. Co. ("Connecticut Mutual") and Kluchin. The complaint, which raised claims for breach of contract, negligence, fraud, and bad faith, arose from the following sequence of events. After meeting with insurance agent Kluchin, Barnett subsequently obtained a written insurance proposal from him, and completed an application for disability insurance from Connecticut Mutual in October, 1980. Connecticut Mutual accepted Barnett's application and issued a disability insurance policy to him. Barnett was diagnosed with Hodgkin's disease the following year and began receiving disability payments of $2,000 per month until terminated by Connecticut Mutual twelve years thereafter in 1993. Barnett claimed that Connecticut Mutual breached his policy when it improperly terminated his disability insurance payments in bad faith and that Kluchin committed fraud or negligently failed to obtain disability insurance coverage with a cost of living benefit adjustment provision. The policy contained a cost of living provision. However, this provision was used only to - 3 - determine whether Barnett would continue to qualify as 1 "disabled." The policy did not have a rider to increase his monthly benefits based on future cost of living increases. Connecticut Mutual and Kluchin denied the allegations of Barnett's complaint, and each subsequently filed a motion for summary judgment. Following additional briefing by the parties, the trial court denied Connecticut Mutual's motion in part and granted Kluchin's motion. The trial court subsequently granted Barnett leave to file an amended complaint to withdraw his fraud claim and to raise a claim against Kluchin for breach of a written contract. Connecticut Mutual and Kluchin again filed motions for summary judgment on the claims against them in Barnett's amended complaint. In a three-page typewritten order journalized September 28, 1994, the trial court again denied Connecticut Mutual's motion and granted Kluchin's motion. Barnett thereafter settled and dismissed with prejudice his remaining claims against Connecticut Mutual. Timely appealing from the order granting summary judgment for Kluchin, Barnett raises two assignments of error. Barnett's first assignment of error follows: THE TRIAL COURT ERRED IN GRANTING KLUCHIN'S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT CLAIM. This assignment of error lacks merit. 1 Barnett qualified as disabled in any given year if he received less than 80% of his adjusted pre-disability income. - 4 - Barnett argues the trial court improperly granted summary judgment against him on his claim for breach of a written contract. He contends that a written insurance proposal on a Connecticut Mutual form completed by Kluchin constituted a written contract with Kluchin individually to procure a disability insurance policy containing a cost of living benefit adjustment provision. This court was recently faced with a similar claim against an insurance company and insurance agent in Cleveland Builders Supply Co. v. Farmers Ins. Group of Cos. (1995), 102 Ohio App.3d 708. The court recognized that a written insurance proposal, such as issued by Kluchin to Barnett in this case, did not constitute a contract. The document merely summarizes the terms and price of a proposed disability insurance contract and does not contain promises of any kind by anyone. Barnett's own affidavit concedes that "Kluchin promised to put together an insurance proposal," but contends that the document Kluchin gave him is a contract. (Barnett Affid. 3.) As in Cleveland Builders Supply, the proposal in this case contains no promises and is not a contract. Nor do oral statements allegedly made by Kluchin when he presented the proposal to Barnett transform the proposal into a written contract. The record shows that Barnett was required to complete a separate Connecticut Mutual insurance application, which, by its own terms, did not result in the formation of a contract - 5 - 2 until accepted by Connecticut Mutual. Contrary to Barnett's argument, the written Connecticut Mutual insurance proposal completed by Kluchin did not contain any independent promise by Kluchin individually to procure insurance for Barnett. Under the circumstances, the trial court properly found, after construing the evidence in the light most favorable to Barnett, that reasonable minds could come to only one conclusion, there was no genuine issue of material fact, and Kluchin was entitled to summary judgment on Barnett's written contract claim as a matter of law. Accordingly, Barnett's first assignment of error is overruled. Barnett's second assignment of error follows: THE TRIAL COURT ERRED IN GRANTING KLUCHIN'S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE CLAIM. This assignment of error lacks merit. Barnett contends the trial court improperly found that his negligence claim against Kluchin, arising out of Kluchin's failure to obtain disability coverage with a cost of living benefit adjustment provision, was barred by the four-year statute of limitations set forth in R.C. 2305.09. Barnett acknowledges that this four-year limitations period applies, but contends that 2 Barnett also completed a separate Connecticut Mutual "Conditional Advance Premium Receipt" form and paid a $69.58 advance premium to obtain limited disability insurance coverage from Connecticut Mutual pending its disposition of his application. This coverage was clearly temporary. - 6 - a separate cause of action accrues each year he does not receive a cost of living benefit adjustment. In Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St.3d 79, the Ohio Supreme Court addressed the issue of when a cause of action for negligence accrues against an insurance agent for failure to procure requested insurance coverage. The Kunz court concluded that negligence claims against an insurance agent in this context are analogous to a malpractice action and arise when an uninsured loss, for which the party sought to purchase insurance coverage, occurs. Vonburg v. Hovey-Kaiser-St. Marie Agency, Inc. (Nov. 25, 1992), Franklin App. No. 92CA005304, unreported. There is no dispute in this case that Barnett began receiving disability payments of $2,000 per month in March, 1982, and that he did not subsequently receive any cost of living benefit adjustments, which allegedly should have begun in March, 1983. As a result, Barnett suffered immediate harm and his cause of action accrued for the failure to procure cost of living disability benefit adjustment coverage at the latest in March, 1983, when no cost of living benefit adjustment was made. Because more than ten years elapsed before Barnett filed his negligence claim in April, 1993, the trial court properly found the claim barred by the four-year statute of limitations. Barnett contends that because payments under the disability policy should have been adjusted annually, a separate cause of action accrued each year for statute of limitations purposes. - 7 - Under this theory, only Barnett's claims arising more than four years prior to his filing the action would be barred, but he could recover damages for the failure to make the cost of living adjustment each year thereafter. Barnett purports to support this argument by quoting from 66 Ohio Jurisprudence 3d, Limitations and Laches, Section 91, as follows: [w]here the wrongful act is continuous or repeated, so that separate and successive actions may be instituted for the damages as they accrue, the statute of limitations does not run from the date when the first wrong was suffered but only from the successive dates of the accrual of such damages. [Emphasis added.] Id. at 236. However, Barnett's reliance on this provision is misplaced because it does not apply by its own terms under the circumstances of this case. This case does not involve continuous or repeated wrongful acts. Barnett has alleged that Kluchin committed only a single act of negligence by failing to obtain a disability insurance policy with a cost of living adjustment. Because the alleged negligence of Kluchin constitutes a single act, successive claims did not accrue against him each time Connecticut Mutual did not thereafter make a cost of living adjustment. Accordingly, Barnett's second assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his 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. LEO M. SPELLACY, C.J., and HARPER, J., CONCUR. DIANE KARPINSKI 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 .