COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70711 FRED YOUNG : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION HARVEST LIFE INSURANCE COMPANY : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION OCTOBER 3, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 288211 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STANLEY L. JOSSELSON, ESQ. WILLIAM J. O'NEILL, ESQ. Stanley L. Josselson, L.P.A. ERICA L. EVERSMAN, ESQ. 1276 West Third Street McDonald, Hopkins, Burke Suite 411 & Haber Co., L.P.A. Cleveland, Ohio 44113 2100 Bank One Center 600 Superior Avenue, East Cleveland, Ohio 44114 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiff-appellant Fred Young appeals from the trial court's entry of summary judgment in favor of defendant-appellee Harvest Life Insurance Company on plaintiff's claim for disability benefits under a policy issued by Harvest. We find no error and affirm for the reasons hereinafter stated. On March 28, 1994, plaintiff Young purchased a truck from Bud Brady Ford and elected to obtain life and disability insurance to cover the credit balance. The Certificate of Insurance issued to Young provided for a maximum disability benefit of $50,000 and also provided for a maximum monthly benefit of $750. The amount insured under the initial certificate was $21,614.87, which provided for a monthly disability benefit of $564.93. The "Limitations" for disability coverage on the Certificate of Insurance stated: "The monthly benefit under all certificates shall not exceed the monthly maximum amount of insurance shown in the schedule." The monthly maximum amount of insurance shown in the Certificate Schedule was $750. The policy also stated: The total amount of disability benefits that may become payable under all certificates issued to you under the policy may not exceed the lesser of (1) the amount owing on your insured debt(s) *** or (2) the total maximum amount of insurance. A refund will be made of any premium paid for insurance in excess of this amount. - 3 - On the very next day, March 29, 1994, Young returned to Bud Brady Ford and purchased yet a second truck. Again, he selected life and disability insurance coverage, and signed a second Certificate of Insurance which provided for insurance on a debt of $31,693.82 and a monthly disability benefit of $704.44. This second Certificate of Insurance carried the same Limitations quoted above expressly limiting the monthly maximum disability benefit under all certificates to $750. Young's two certificates were then sent to defendant Harvest for processing. When Harvest discovered that the combined monthly disability benefits of the two insurance certificates exceeded the maximum monthly benefit of $750, Harvest issued a rider ("Rider") dated May 24, 1994, reducing the amount of disability benefits to equal $750. This resulted in plaintiff's disability benefit on the second certificate being reduced from $704.44 to $185.07 per month, which, added to the disability benefit of $564.93 on the first certificate reflected a total of $750. As a result of this reduction and adjustment, the premium was reduced by $1,862.97 and a net premium refund check in the amount of $1,149.36 was sent to Bud Brady Ford on July 22, 1994. The difference between the gross and net premium refund was the result of the deduction of advance commission to the dealer's agency and other certificate adjustments on Bud Brady Ford's March 1994 premium report. In October 1994, several months after Harvest issued its premium refund, Young submitted disability claims under both Certificates - 4 - of Insurance, alleging that he had broken his leg on October 6, 1994, and was totally disabled as a result. Harvest began paying, and has continued to pay, $750 per month in disability benefits until Young returned to work. Young claimed that Harvest "backdated" its Rider to avoid paying Young full disability benefits, and he filed the underlying lawsuit alleging bad faith and breach of an insurance contract. Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED IN GRANTING THE MOTION OF HARVEST LIFE INSURANCE COMPANY ("HARVEST") FOR SUMMARY JUDGMENT BECAUSE HARVEST FRAUDULENTLY BACKDATED A RIDER ON FRED YOUNG'S ("YOUNG") INSURANCE POLICIES TO AVOID PAYING FULL DISABILITY COMPENSATION. Under Civ. R. 56(C), summary judgment is proper when: (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 conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. - 5 - In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party then has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Dresher at 295-96. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. Mere conclusory and unsupported allegations do not satisfy this burden. Mathis v. Cleveland Pub. Library (1984), 9 Ohio St.3d 199, 202; Gaul v. Olympia Fitness Center, Inc. (1993), 88 Ohio App.3d 310, 315. Thus, it is insufficient as a matter of law for a nonmovant to claim the mere existence of some alleged factual dispute, as unsupported allegations do not constitute evidence. Dresher, supra; Barney v. Chi Chi's, Inc. (1992), 84 Ohio App.3d 40, 43; Buckeye Union Ins. v. Consol. Stores (1990), 68 Ohio App.3d 19, 22; Allen v. CGS Investments, Inc. (June 11, 1992), Cuyahoga App. No. 62947, unreported. - 6 - This Court reviews the lower court's granting of summary judgment de novo. 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"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. The record in this case and the trial court's memorandum of opinion and order demonstrate that Harvest properly supported its motion for summary judgment with the affidavit of Warren Haidu, an account executive of Harvest. The record further reflects that Young failed to produce any evidence to support his allegations that the insurance company backdated the Rider to defraud him. Ohio Rule of Civil Procedure 56(E) clearly states: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated thereon. Young's affidavit, although purportedly based on his personal knowledge, contains conclusory statements that, on their face, are beyond Young's personal knowledge. For example, the affidavit states, "[o]n January 9, 1995, defendant issued a 'Rider' that - 7 - unilaterally modified the insurance contract *** that the May 24, 1994 letter was actually sent approximately three months after the date of affiant's injury ***." However, Young failed to offer any foundation for his "personal knowledge" or produce any documents, statements by actual witnesses, or any other information demonstrating that the Rider was actually issued on January 9, 1995, rather than May 25, 1994, as stated in Warren Haidu's affidavit and as the Rider reflects. Accordingly, Young's affidavit did not contain admissible evidence to refute Harvest's factual affidavit and was insufficient to establish a material issue of fact. Consequently, the trial court appropriately granted Harvest's motion for summary judgment. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 8 - 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 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. JAMES M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, JUDGE 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). .