COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69499 ROBERT J. SCHULTZ, Executor : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION LINCOLN NATIONAL LIFE INSURANCE : CO., et al : : Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 19, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 232,035 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART AND : REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: WM. TOUSLEY SMITH Attorney at Law 800 Superior Avenue, #1400 Cleveland, Ohio 44114-2688 For defendant-appellee WALTER J. REKSTIS, III Lincoln National Life Attorney at Law Insurance Co. : 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 (Cont.) APPEARANCES: (Continued) For defendants-appellees THOMAS R. SIMMONS Carl Barricelli, et al: Attorney at Law 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 For defendants-appellees JAMES A. LAURENSON Ontario Stone Attorney at Law Corporation, et al : 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 For defendant-appellee HAROLD R. RAUZI Prudential Insurance BRENT M. BUCKLEY Company : Attorneys at Law 1400 Bank One Center Cleveland, Ohio 44114-2652 For defendant-appellee THEODORE M. DUNN, JR. John Mannen : Attorney at Law 8221 Brecksville Road, Bldg. 2 Cleveland, Ohio 44141 TIMOTHY E. McMONAGLE, J.: This action arises from a dispute over the ownership, owner- ship rights and beneficiary designations of two life insurance policies. One policy was issued by Lincoln National Life Insur- ance Company (hereafter "Lincoln National"); the second policy was issued by Prudential Insurance Company of America (hereafter "Prudential"). Plaintiff Robert J. Schultz, Executor of the Estate of Ann M. Schultz, brought this action seeking declaratory relief, reformation, and other relief regarding the interpretation of each of these insurance contracts. The defendants-appellees in this matter are Lincoln National, Prudential, Carl Barricelli, Ontario Stone Corp. and John Mannen. The policies in controversy are split/dollar, "split owner" (controlling stockholder) life insurance policies that were purchased from Prudential and Lincoln National through John Mannen, as agent for the insurance companies. The named owners of the policies are Carl Barricelli and Ann Schultz. These policies insure the life of Matilda Barricelli, the mother of Carl Barricelli and the deceased, Ann Schultz. The policies were purchased as an estate-planning tool in order to provide funds with which to pay the estate taxes on the family business upon the death of Matilda Barricelli. Initially, a $1 million life insurance policy on the life of Matilda Barricelli was obtained from Lincoln National in a contract - 4 - referred to as the "180" policy, effective May 15, 1987 (No. 20- 7145180). On June 15, 1988, upon application, Lincoln National issued a policy rider for an additional $2 million in coverage on the life of Matilda Barricelli. A controlling stockholder assign- ment was executed for the "180" policy. This policy consisted of the application, the policy, the rider application, the rider, and the controlling stockholder assignment. Subsequent to the issuance of this policy on the "180" form, Lincoln National replaced the "180" policy with a "491" policy (No. 20-7170491). It is undisputed that the change of the form in no way changed the substance of the policy at issue in this action; however, although original application documents for the replacement "491" policy and "491" rider were signed by Carl Barricelli and Ann Schultz and produced in this litigation, no original "controlling stockholder assignment" to the "491" policy has been produced. The second policy at issue here was obtained from Prudential (No. 62 205 199). The Prudential policy provides for $2 million in coverage on the life of Matilda Barricelli, effective June 15, 1988. Pursuant to the agreements, Ontario Stone, the family busi- ness, pays premiums aggregating $193,236 a year for both the Lincoln National and Prudential policies. Upon the death of the insured, Matilda Barricelli, Ontario Stone is to be reimbursed for the premiums paid, with the remaining proceeds going to the named beneficiaries. - 5 - John Mannen, as agent, submitted the applications for each of these policies to the respective insurance companies. The appli- cation for the Lincoln National policy is silent as to any survi- vorship interest in both the owner and the beneficiary designa- tions. The application for the Prudential policy is silent as to any survivorship interest designation in the ownership of the policy but indicates the beneficiary interest to be in the child- ren, "equally." Carl Barricelli and Ann Marie Schultz, children of Matilda Barricelli, are the named owners and the named benefi- ciaries of each of the policies. Ann Marie Schultz died in 1991. After her death, Prudential and Lincoln National each transferred Ann Schultz's fifty percent ownership interest to her brother, Carl Barricelli, as the surviv- ing co-owner, making him the sole owner of each of the policies. Carl Barricelli was then named the sole beneficiary of each of the policies. Robert Schultz, as executor of the estate of his late wife, Ann Marie Schultz, filed the within action claiming that, pursuant to Ohio law, the estate of Ann M. Schultz is entitled to receive half of the ownership and beneficiary rights in each of the poli- cies formerly owned by his decedent. In the third amended com- plaint, consisting of nineteen counts, Robert Schultz, as execu- tor, requested declaratory judgment or reformation of each of the life insurance policies as to the ownership and beneficiary rights of these policies, specific performance as to the "491" assignment - 6 - of the Lincoln policy, recovery of compensatory damages, exemplary damages, attorney fees, and injunctive (and other) relief. Defendants Lincoln National, Prudential, Mannen, Ontario Stone and Carl Barricelli each filed answers to the complaint. Defendants Ontario Stone and Carl Barricelli jointly filed a coun- terclaim seeking a declaratory judgment from the court that the ownership and control of both the Prudential and Lincoln National policies is in Carl Barricelli as the surviving co-owner of the policies. In the alternative, in the event judgments were entered in favor of plaintiff, these two defendants requested that the court declare there to be no further obligation on the part of Ontario Stone to pay any additional premiums on the Lincoln National policy and further requested the court to declare that, as a condition precedent to transfer of ownership of the policies, the plaintiff be required to reimburse Ontario Stone for $458,806.50, the amount equal to one-half of all premiums paid up to the date of filing of their answer and counterclaim. Plaintiff properly answered the counterclaim. The parties to this action filed five cross-motions for sum- mary judgment. Plaintiff filed a motion for partial summary judgment requesting the court to declare that ownership of one- half the Lincoln National policy rests in the estate of Ann Schultz and further requesting a declaration of the ownership rights of the policy. Defendants Carl Barricelli and Ontario Stone jointly filed a motion requesting summary judgment on all nineteen counts in the - 7 - complaint. Defendant Prudential filed a motion for summary judgment on the counts pled against it in the complaint. Defendant John Mannen filed a motion for summary judgment on the claims against him, which alleged bad faith, concealment of evidence, fraud, negligent misrepresentation, and spoliation of evidence. On August 16, 1994, the trial court, without opinion, granted the summary judgment motions of Carl Barricelli and Ontario Stone, John Mannen, and Prudential. The partial summary judgment of plaintiff Robert Schultz for the estate was denied. Plaintiff Schultz, as executor for the estate of Ann Schultz, appealed the trial court's rulings to this court, which dismissed the plaintiff's appeal for lack of a final appealable order stat- ing that the claims against Lincoln National had not been deter- mined. The matter was returned to the court below. On June 23, 1995, defendant Lincoln National filed its motion for summary judgment. Plaintiff Schultz opposed the motion. The trial court, without opinion, granted Lincoln National's summary judgment motion on August 2, 1995, and entered a final judgment. Plaintiff-appellant, Robert Schultz, as executor, timely appealed. Appellant presents twenty assignments of error for our 1 review. Appellant complains that the defendants' summary judg- ment motions were improvidently granted and argues that outstand- ing issues of material fact in dispute preclude summary judgment as to each of the defendants' motions for summary judgment. Appellant 1 See Appendix. - 8 - further argues in his partial motion for summary judgment that no issue of material fact remains in dispute and, as such, it should have been granted. For the reasons stated below, we affirm the decision of the court below in part, reverse in part and remand for further proceedings consistent with this opinion. This court reviews the lower court's granting of summary 2 judgment de novo. An appellate court applies the same test as a trial court, which test is set forth in Civ.R. 56(C). Civ.R. 56 specifically 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 from the evidence that reasonable minds can come to but one conclu- sion, 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. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of 2 Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination."). 3 Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, at 327. - 9 - 4 material fact exists for trial. Doubts must be resolved in favor 5 of the nonmoving party. In accordance with Civ.R. 56(E), "a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth 6 specific facts showing there is a genuine issue for trial." The nonmoving party must produce evidence on any issue for which that 7 party bears the burden of production at trial. Preliminarily, we note that in Assignment of Error No. V, appellant complains that the trial court erred by failing to make evidentiary rulings regarding the use of extrinsic evidence. Such error is moot as we review each of the summary judgment motions de novo. Upon reading the briefs and hearing the arguments of counsel, it would appear to us that there has been an effort by the defen- dants-appellees to obscure what this court believes to be basic black-letter contract and property law. To consider this case to be any more than that would not only cloud justice but would deny it. 4 Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Dresher v. Burt (1996), 75 Ohio St.3d 280. 5 Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, at 358- 359. 6 Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. 7 Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Dresher v. Burt, supra; Celotex, supra, at 322. - 10 - In Ohio, the law is well settled that joint tenancy with the 8 right of survivorship does not exist. If co-tenancy is expressed without words of survivorship, it will be considered tenancy-in- 9 10 common. Wright v. Bloom presents the definitive statement of the conclusive evidence of the parties' intent to have or not have a survivorship interest in a jointly-held property. In that case, our supreme court held: *** that the opening of an account in joint and survivorship form shall, in the absence of fraud, duress, undue influence or lack of mental capacity on the part of the depositor, be conclusive evidence of the depositor's intention to transfer to the survivor the balance remaining in the account at the de- positor's death. (Thompson, supra, paragraph two of the syllabus, overruled.) On the other hand, in order to maintain con- sistency in the treatment of survivorship rights, we hold that the opening of the account in joint or alternative form without a provision for survivorship shall be conclusive evidence, in the absence of fraud or mistake, of the depositor's intention not to transfer a survivorship interest to the joint party in the balance of funds contributed by the depositor remaining in the account at the depositor's death. Such funds shall belong exclusively to the depositor's estate, subject only to claims arising under other rules of law. (Bowman, supra, overruled in part.) 8 Sage v. Flueck (1937), 132 Ohio St. 377; Foraker v. Kochs (1951), 41 Ohio App. 210. 9 In re Hutchinson (1929), 120 Ohio St. 542. 10 Wright v. Bloom (1994), 69 Ohio St.3d 596. - 11 - 11 Insurance contracts are to be construed as other contracts. 12 Construction of a contract is a matter of law. Where the terms of a contract are clear and unambiguous, summary judgment proceed- 13 ings are appropriate. Courts must give the contract reasonable 14 construction in conformity with the parties' intent, which intent 15 is to be determined by the words of the contract. With these propositions of law in mind, we look to the words of the contract before us. A. In Ohio, an insurance policy is statutorily required to 16 include both the policy and the application. The Lincoln National contract before us, by its terms, is a complete integra- tion of the parties' written agreement. The language of both the application and the policy is clear and unambiguous. As to the owner, the application states, "Ann Marie Schultz and Carl Barricelli, daughter and son." As to the owner, the policy states, "Owner means the owner identified in the application or a 11 Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd. (1992), 64 Ohio St.3d 657. 12 Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241. 13 Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. (1984), 15 Ohio St.3d 321. 14 Dealers Dairy Products Co. v. Royal Ins. Co. (1960), 170 Ohio St. 336. 15 Id. 16 R.C. 3915.05(C). - 12 - successor. All the rights of the owner belong to the owner while the insured is alive. The rights pass to the estate of the owner if the owner dies before the insured." Where, as here, the terms of a contract are clear and unam- 17 biguous, it is improper for a court to review parol evidence. 18 Courts shall not create an ambiguity where none exists in order 19 to resort to construction based on extrinsic evidence. Further, a court will not read into a contract meaning which is not placed 20 there by the parties. "The absence of a provision from a writ- ten contract is evidence of an intention of the parties to exclude 21 it rather than of an intention to include it." (Emphasis added.) We are first called upon to decide whether, upon the record before us, the ownership of the Lincoln National "491" policy is able to be determined and, if so, where ownership now lies. The defendants-appellees contend that ownership of this policy rests in Carl Barricelli as the surviving co-owner of the policy; however, contrary to the assertions of the appellees, the absence 17 Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51. 18 Dairyland Ins. Co. v. Finch (1987), 32 Ohio St.3d 360. 19 13 Appleman, Insurance Law & Practice (1976) 164, 7386. 20 Nationwide Mut. Ins. Co. v. Marsh (1984), 15Ohio St.3d 107. 21 Buckeye Union Ins. Co. v. Consol. Stores Corp (1990), 68 Ohio App.3d 19, at 25. - 13 - of survivorship language in an insurance contract does not indicate that the document is neutral as to survivorship. The terms of the contract are clear and unambiguous. There is not a single word in the policy, the policy application, the rider, or the rider application that subjected the ownership rights of Ann Marie Schultz to survivorship in her co-owner, Carl Barricelli. In accordance with Ohio common law, the ownership interest of Ann Marie Schultz passed to her estate upon her death pursuant to the clear and unambiguous terms of the contract. Accordingly, we find that the estate of Ann Marie Schultz is the co-owner of fifty percent of the Lincoln National "491" policy and that the trial court erred in denying the appellant's motion for summary judgment for a declaration that the ownership interest of Ann Marie Schultz in the Lincoln National "491" policy passed to her estate as a matter of law upon her death. Further, to the extent that the trial court granted the appellees' summary judg- ment motions as to the ownership of the Lincoln National policy, the trial court erred. Next, we review the ownership rights of the Lincoln National "491" policy. From the contract terms of the policy before us, we determine that the estate of Ann Marie Schultz, as the owner of the policy, has the right to change the beneficiary designation. The 22 owner's rights are determined by contract; therefore, the contractual right to designate a beneficiary is an enforceable 22 2 Appleman, Insurance Law (1960) 440-41, 9012. - 14 - incident of ownership pursuant to the explicit terms of the con- tract. The contract terms are as follows: Owner: Owner means the owner identified in the appli- cation or a successor. All the rights of the owner belong to the owner while the insured is alive. The rights pass to the estate of the owner if the owner dies before the insured. The Beneficiary: * * * (c) May be changed by the owner. The change is subject to the terms shown in the change of beneficiary provision. *** Change of Beneficiary: The owner may change the beneficiary designation (a) while the insured is alive (b) if the prior designation does not prohibit such a change. We have reviewed the contract at issue and determine that the ownership right to change the beneficiary is unrestricted in the contract. The appellees contend that the appellant, as co-owner, may not change the beneficiary designation without the consent of the other owner. We find this argument to have no merit. Life insurance is 23 property. As any co-owner of property, the estate of Ann Schultz has the right to exercise its ownership rights in the policy. As the owner of fifty percent of the policy, the estate has the right to change the beneficiary designation as to the beneficiary of 23 1984 Couch on Insurance 2d (1984) 241-2, 1:75. - 15 - 24 fifty percent of the proceeds. Despite the appellees' contentions to the contrary, we can find no authority that requires joint owners to agree on a beneficiary designation. It is conceded that the insured, Matilda Barricelli, is still alive, and there is no prohibition in the policy preventing the owner from changing the beneficiary designation; therefore, consistent with the contract terms of the policy, the estate of Ann Marie Schultz has the ownership right to name the beneficiary of its fifty percent ownership interest in the Lincoln National "491" policy. Accordingly, the trial court erred in denying the appellant's motion for partial summary judgment on count three of his complaint requesting a declaration that the estate of Ann Schultz, as the fifty percent co-owner of the policy, has the ownership right to name a beneficiary to its ownership share of the proceeds of the policy upon the death of the insured, Matilda Barricelli. To the extent that the trial court granted the appellees' summary judgment motions as to this claim, the trial court erred, and we reverse. Finally, we review the beneficiary designation of the Lincoln National "491" policy. Appellant complains that the trial court erred in granting the appellees' summary judgment motions and denying the appellant's partial summary judgment motion, dis- missing the claim of declaratory judgment interpreting the beneficiary provisions of the Lincoln National contract. We have 24 See Harris v. Harris (N.M.Sup.Ct. 1972), 493 P.2d 407. - 16 - determined (1) that the ownership and the rights incident to the ownership of the policy previously held by Ann Schultz reside in the estate of Ann Schultz, (2) that the estate of Ann Schultz, as the owner of fifty percent of the policy, may designate the bene- ficiary of its property during the life of the insured, Matilda Barricelli, and (3) that the insured is still alive. Consistent with our determinations, we need not address by declaration the beneficiaries of this policy, and those assignments of error are moot. Further, appellant presented a claim for specific performance of the "491" assignment. Specific performance is a contract remedy, which cannot be resolved until the determination of the status of the "491" assignment document currently before the court; therefore, Assignment of Error XIII is well taken, and the decision of the trial court is reversed and the claim for specific performance remanded for determination by the court below. Accordingly, we find Assignments of Error I and II, relating to the declaration of ownership, and Assignments of Error VIII and IX, relating to the ownership rights, well taken. The trial court erred in denying the appellant's summary judgment and granting summary judgment to the appellees regarding the ownership and ownership rights of Carl Barricelli. These decisions of the trial court are, therefore, reversed. Consistent with this determination, Assignments of Error VI and VII, relating to the reformation of the ownership rights, and - 17 - Assignment of Error X, relating to the appellant's claim for en- forcement based upon promissory estoppel, are rendered moot. Assignments of Error III and IV, relating to the declaratory claim on the designation of beneficiary under the policy, are moot as, according to the terms of the contract, the owner has a contractual right to change the beneficiary designation during the life of Matilda Barricelli. B. We next review the insurance policy issued by Prudential. The Prudential policy document contains survivorship language, but the application that was signed by each of the co-owners is silent as to survivorship interest in the ownership. The absence of a provision from a written contract is evidence of the parties' 25 intention to exclude it rather than include it. The application, therefore, by its silence, requests that Prudential 26 issue a policy to the applicants without survivorship language. In the application for the Prudential policy, the ownership provisions show that Ann Schultz and Carl Barricelli applied to be co-owners of the policy. The application does not indicate sur- vivorship. The concluding sentence of the application, which states that ownership is "subject to any automatic transfer of ownership as stated in the contract," cannot be construed to authorize the insurance company to create different terms of own- 25 Buckeye Union, supra. 26 See Wright, supra. - 18 - ership. The sentence authorizes the insurance company solely to incorporate the appropriate language consistent with the request of the applicants. Prudential issued a policy in contravention of the words of the application. No notice was given to the owners of the policy that survivorship was added to the ownership and beneficiary designations. A policyowner is not bound by the terms of a policy which is issued differently than requested on the application. 57 Ohio Jurisprudence 3d (1985) Insurance 297-98 240. Ann Schultz cannot be said to have been charged with knowledge of the policy where changes were made without notice to her. R.C. 2913; see, also, Snedegar v. Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64. A material difference exists in the two parts of the con- tract, the application and the policy. When we read the two doc- uments together, as we are required by statute to do, we see a patent ambiguity within the contract. To contend, as appellees do, that no ambiguity exists in the contract and that the two documents must be read in pari materia and, therefore, designate survivorship is a specious argument. The two documents that comprise this contract cannot be reconciled without a determination of the parties' intent. We find that a question of fact exists as to whether the owners of the Prudential policy, Ann Marie Schultz and Carl Barricelli, intended to have survivorship as an incident to the ownership of the policy. - 19 - Appellant requested the court to reform the policy to conform to the application submitted by the co-owners. Reformation based 27 upon a mistake of law has been recognized in Ohio since 1860. An insurance policy at variance with the application is subject to 28 reformation conforming the policy. In order to determine the parties' intent in a case for reformation of a contract, a trial on 29 the matter is necessary. Granting of summary judgment where a factual determination needs to be made as to the intent of the 30 parties is error. Here, where the parties' intention remains unclear and there is a genuine issue as to the material fact upon which reasonable minds could differ, the trial court erred in granting summary judgment. We have reviewed the appellees' arguments that contend that the appellant be estopped from asserting that the policy does not reflect the parties' intention. Appellees argue that the policy- holder should be charged with the knowledge of the policy's terms. We find the law relied upon by the appellees to be distinguish- able, and we reject their arguments. Those cases are not based upon a policy issued pursuant to a written application where changes were included in the non-conforming policy without notice 27 Clayton v. Freet (1800), 10 Ohio St. 544. 28 New York Life Ins. v. Rak (1961), 173 N.E.2d 603. 29 Snedegar v. Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64. 30 Id. - 20 - to the owner. In this case, the changes issued in the policy varied the ownership provision, which is a term that may only be determined by the owner of the policy and never by the insurance company. Appellees further argue that a party seeking reformation has the burden of proving, by clear and convincing evidence, that the policy terms do not reflect the parties' actual intention. Where the clear and convincing standard is required, a heightened stan- 31 dard of proof for summary judgment is required. A court must evaluate the evidence, taking all permissible inferences, and resolve questions of credibility in favor of the non-moving 32 party. There is no precedent for granting summary judgment where a factual determination needs to be made as to whom the parties intended to be named as the insured at the time the policy was 33 formed. A review of the record shows us that the appellant has placed into evidence the signed application for insurance, which he claims evidences the intent of Ann Marie Schultz to request an insurance policy without survivorship in her co-owner. With this showing, the appellant has met his evidentiary burden to defeat the appellees' summary judgment motions on the issue of reformation of 31 Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116. 32 Id. 33 Snedegar, supra. - 21 - the policy as to the ownership provision of the integrated insurance policy pursuant to the mandate of Civ.R. 56(E). Summary judgment on the claim for reformation is not proper where the appellant has placed a question of fact in issue and 34 supported his position with evidence; therefore, we find that the trial court erred in granting the appellees' summary judgment motions on appellant's claim for reformation of the policy. Appellant's Assignment of Error XVI is well taken, and the deci- sion of the trial court is reversed and the matter remanded for trial on the issues. Additionally, we find that no party properly moved for sum- mary judgment on the declaratory claims as to the Prudential pol- icy in the third amended complaint; therefore, summary judgment 35 should not have been granted. Accordingly, Assignments of Error XIV, XV and XVIII are well taken, and the decision of the trial court is reversed and remanded. In light of the remand of the matter to the lower court, Assignment of Error XIX, regarding the promissory estoppel claim, is rendered moot. C. 34 See Wing, supra. 35 Civ.R. 56(C). - 22 - Consistent with our determination above as to both the Lin- coln National and Prudential policies, the appellant's claim for misrepresentation against John Mannen, alleging Mannen had repre- sented that the Prudential policy would be issued in the same form as the Lincoln National policy, can only be resolved within the factual determinations that will be presented at trial on the reformation issue, and, therefore, summary judgment on this claim was improper. Although summary judgment was proper on the appellant's claim of perjury against John Mannen as no right of action for civil 36 perjury exists in the State of Ohio, the appellant's claims against John Mannen and Lincoln National were sufficiently sup- ported by documentation and deposition testimony to avoid summary 37 38 judgment on the claim of spoliation, fraud, fraudulent conc- 39 40 ealment, and misrepresentation. In addition, R.C. 3911.23 imposes a duty upon an insurance company to not misrepresent any terms of any policy issued. It is well established that insurance companies have a duty to act in good faith in the handling and payment of claims. Appellant has 36 Kinter v. Kinter (1944), 84 Ohio App. 399. 37 See Smith v. Howard Johnson Co., Inc. (1993), 67 Ohio St.3d 28 and Moscovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638. 38 See Korodi v. Minot (1987), 40 Ohio App.3d 1. 39 See Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54. 40R.C. 3911.25. - 23 - shown, and appellees concede, that Mannen altered documents. Subsequent to the alteration, Mannen was involved in handling the ownership claim of Ann Schultz's estate in the Lincoln National "491" policy. It is undisputed that the appellees proffered the altered document to support the defense of their position. The appellant claimed that these representations rendered his civil suit more difficult and added to the expense of the litigation. Whether such a course of conduct rises to the level of bad faith is 41 an issue for a jury. To the extent that a question of fact exists as to the appellant's tort claims against John Mannen and Lincoln National for spoliation, misrepresentation, fraud, fraudulent concealment, and bad faith, the motions for summary judgment on the claims against John Mannen and Lincoln National were improperly granted. Accordingly, Assignment of Error XII is well taken, and the trial court's decision granting the summary judgments on the misrepre- sentation, spoliation, fraud, fraudulent concealment of evidence, and bad faith should be reversed and the matter remanded to the trial court. In light of our determinations above, appellant's claims for attorney fees remain to be litigated. In analogous cases of de- claratory judgment actions seeking enforcement of an insurer's obligations under a policy where the insurance company made a 41 Roberts v. Personal Service Ins. Co. (1983), 12 Ohio App.3d 92; Spadafore v. Blue Shield (1985), 21 Ohio App.3d 201. - 24 - mistake of judgment, attorney fees have been awarded to place the aggrieved party in as good a position as he would have been had the 42 mistake not been made. Accordingly, Assignment of Error XI is well taken, and the issue of attorney fees against John Mannen and Lincoln National is reversed and remanded for trial. Consistent with our analysis above, Assignment of Error XX is well taken as to appellant's claim for attorney fees against Prudential, and the decision of the trial court is reversed and remanded pursuant to the trial court's determination of the reformation action. CONCLUSION We find that the trial court erred in denying the appellant's partial motion for summary judgment when it failed to declare that fifty percent ownership of the Lincoln National policy resides in the estate of Ann Marie Schultz. There is no ambiguity in the language of the application or the policy as to ownership; there is no need to resort to extrinsic evidence where there is no ambiguity. As a co-owner of the Lincoln National "491" policy, the Schultz estate has the ownership right to designate the beneficiary interest of its fifty percent of the policy owned. The beneficiary or beneficiaries of the Lincoln National policy may be determined 42 See Staff Builders, Inc. v. Armstrong (1988), 37 Ohio St.3d 290; Zoppo, et al v. Homestead Ins. Co. (July 8, 1993), Cuyahoga App. No. 62926, unreported; Willoughby Hills v. Cincinnati Ins. (1986), 26 Ohio App.3d 146, at 148. - 25 - by each owner as to his or her interest pursuant to the terms of the contract. Accordingly, the claimed errors as to the beneficiary designations are moot. The counterclaims of Carl Barricelli and Ontario Stone remain to be litigated based upon the reversal of summary judgment on ownership. Appellant's claim for specific performance remains. We further determine that the claims against John Mannen and Lincoln National for spoliation, fraud, negligent misrepresenta- tion, and bad faith remain for trial. Should the appellant pre- vail, the issues of incremental and exemplary attorney fees remain to be litigated. We find that the Prudential policy, consisting of both the application and policy endorsement as required by the statute, contains patent ambiguity, and, as such, the appellant's request for reformation of the policy cannot be disposed of by summary judgment. Accordingly, the trial court erred in granting the appellees' summary judgment motions as to the Prudential policy; therefore, the trial court's decision is reversed, and appellant's claim for reformation is remanded for trial. Appellant's claims for misrepresentation and attorney fees remain to be litigated. - 26 - This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said 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. DIANE KARPINSKI, J. CONCURS TERRENCE O'DONNELL, P.J. CONCURS IN JUDGMENT ONLY JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX A ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S PARTIAL SUMMARY JUDGMENT MOTION SEEKING DE- CLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CONTRACT'S OWNERSHIP PROVISIONS AS A MATTER OF LAW. (Count I.) ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CON- TRACT'S OWNERSHIP PROVISIONS. (Count I.) ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S PARTIAL SUMMARY JUDGMENT MOTION SEEKING DE- CLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CONTRACT'S OWNERSHIP PROVISIONS AS A MATTER OF LAW. (Counts IV & V.) ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CON- TRACT'S BENEFICIARY PROVISIONS. (Counts IV & V.) ASSIGNMENT OF ERROR NO. V THE TRIAL COURT ERRED IN FAILING TO MAKE EVI- DENTIARY RULINGS EXCLUDING EXTRINSIC EVIDENCE RELIED ON BY DEFENDANTS AS THE BASIS FOR (A) THEIR OPPOSING PLAINTIFF'S PARTIAL SUMMARY JUDGMENT MOTION AND (B) THEIR SUMMARY JUDGMENT MOTIONS WITH RESPECT TO INTERPRETATION OF THE LINCOLN CONTRACT'S OWNERSHIP/BENEFICIARY PROVISIONS. - ii - ASSIGNMENT OF ERROR NO. VI THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR REFORMATION OF THE LINCOLN CONTRACT'S OWNERSHIP PROVISIONS. (Counts II & VI.) ASSIGNMENT OF ERROR NO. VII THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR REFORMATION OF THE LINCOLN CONTRACT'S OWNERSHIP PROVISIONS. (Counts V & VI.) ASSIGNMENT OF ERROR NO. VIII THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S PARTIAL SUMMARY JUDGMENT MOTION SEEKING DE- CLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CONTRACT'S CHANGE OF BENEFICIARY PROVISIONS AS A MATTER OF LAW. (Count III.) ASSIGNMENT OF ERROR NO. IX THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE LINCOLN CON- TRACT'S CHANGE OF BENEFICIARY PROVISIONS. (Count III.) ASSIGNMENT OF ERROR NO. X THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION TO ENFORCE THE LINCOLN CONTRACT'S TENANCY IN COMMON PROVISIONS BASED ON PROMISSORY ESTOPPEL. (Count VII.) ASSIGNMENT OF ERROR NO. XI THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR RECOVERY FROM LINCOLN OF ATTORNEY FEES/LITIGATION EXPENSES. (Count X.) ASSIGNMENT OF ERROR NO. XII - iii - THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S TORT ACTION FOR SPOLIATION AND CONCEALMENT OF EVIDENCE. (Counts XI & XII.) ASSIGNMENT OF ERROR NO. XIII THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR SPECIFIC PERFORMANCE OF THE SPLIT-DOLLAR AGREEMENT RELATING TO THE LINCOLN CONTRACT. (Count VIII.) ASSIGNMENT OF ERROR NO. XIV THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE PRUDENTIAL CONTRACT'S OWNERSHIP PROVISIONS. (Counts XIII & XVI.) ASSIGNMENT OF ERROR NO. XV THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE PRUDENTIAL CONTRACT'S BENEFICIARY PROVISIONS. (Counts XIII & XVI.) ASSIGNMENT OF ERROR NO. XVI THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR REFORMATION OF THE PRUDENTIAL CONTRACT'S OWNERSHIP PROVISIONS. (Counts XIV, XV & XVI.) ASSIGNMENT OF ERROR NO. XVII THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR REFORMATION OF THE PRUDENTIAL CONTRACT'S BENEFICIARY PROVISIONS. (Counts XIV, XV & XVI.) ASSIGNMENT OF ERROR NO. XVIII - iv - THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT BASED ON INTERPRETATION OF THE PRUDENTIAL CONTRACT'S CHANGE OF BENEFICIARY PROVISIONS. (Count XVI.) ASSIGNMENT OF ERROR NO. XIX THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR ENFORCEMENT OF THE PRUDENTIAL CONTRACT'S TENANCY IN COMMON PRO- VISIONS BASED ON PROMISSORY ESTOPPEL. (Count XVII.) ASSIGNMENT OF ERROR NO. XX THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS AND DISMISSING PLAINTIFF'S ACTION FOR RECOVERY FROM PRUDEN- .