Bosley v. Associated Paper Stock, Inc.

[Cite as Bosley v. Associated Paper Stock, Inc., 2022-Ohio-2649.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

JOHN BOSLEY, SR.,

Plaintiff-Appellee,

v.

ASSOCIATED PAPER STOCK, INC. and THOMAS YANKO,

Defendants/Third-Party Plaintiffs-Appellees,

v.

WESTFIELD INSURANCE COMPANY and THE HARTFORD STEAM
BOILER INSPECTION AND INSURANCE CO.,

Third-Party Defendants-Appellants.

OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0012

Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2019 CV 2425

BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:
Reversed.
Judgment Entered in Favor of Appellants.

Atty. Caryn M. Groedel, Caryn Groedel & Associates Co., LPA, 31000 Woodall Drive,
Cleveland, Ohio 44139, for John Bosley, Sr.
 –2–

Atty. Scott C. Essad, 5500 Market Street, Suite 99, Youngstown, Ohio 44512, for
Associated Paper Stock, Inc. and Thomas P. Yanko and

Atty. Donald L. Best, Jr., DiBella, Geer, McAllister & Best, P.C., Law & Finance Building,
429 Fourth Avenue, Suite 200, Pittsburgh, Pennsylvania 15219, for Westfield Insurance
Company and The Hartford Steam Boiler Inspection and Insurance Company.

Dated: June 30, 2022

WAITE, J.

{¶1} Appellants, Westfield Insurance Company (“Westfield”) and The Hartford

Steam Boiler Inspection and Insurance Company (“Hartford”), appeal from a Mahoning

County Common Pleas Court decision to grant Appellees’, Associated Paper Stock, Inc.

(“APS”) and Thomas Yanko (“Yanko”), motions for summary judgment and to overrule

Appellants’ motion for summary judgment. Based on the following, the judgment of the

trial court is reversed and judgment is entered for Appellants.

Factual and Procedural History

{¶2} This appeal arises from age discrimination lawsuits filed by Plaintiff-

Appellee, John Bosley, Sr. (“Bosley”) against Defendants/Third Party Plaintiffs-Appellees,

APS and Yanko. APS and Yanko sought coverage for Bosley’s age discrimination claims

under an “Employment Practices Liability Insurance Coverage Endorsement” (“EPL

endorsement”) that was part of a commercial general liability policy issued by Third Party

Defendant-Appellant, Westfield. Hartford, a reinsurer for Westfield, was also named as

a defendant in the action. Westfield denied coverage under the policy based on the

determination that APS and Yanko failed to report Bosley’s claim by the cut-off date set

forth in the policy.

Case No. 21 MA 0012
 –3–

{¶3} APS, Yanko, Westfield, and Hartford filed a stipulation of facts with the trial

court in support of their motions for summary judgment. The stipulation included various

documents as exhibits pertaining to the EPL endorsement. Therefore, this record reveals

that the parties agree on all of the relevant facts in this matter.

{¶4} According to the stipulation of facts, Yanko is the owner and President of

APS. Bosley was employed as a commercial truck driver for APS from July of 1985

through May 17, 2018, when he was laid off. On October 26, 2018, Bosley filed an age

discrimination action against APS in Mahoning County Common Pleas Court, case no.

2018-CV-2653 (the “First Lawsuit”). Bosley alleged claims for age discrimination,

violation of the Ohio Equal Pay Act, and wrongful termination in violation of public policy.

While not a named party to this suit, the complaint listed Yanko as the statutory agent for

service of process on APS. Yanko, as agent, was served with the summons and

complaint on November 6, 2018. APS filed an answer to the complaint on December 27,

2018. Bosley voluntarily dismissed the First Lawsuit on September 13, 2019. He then

refiled his action on November 26, 2019 in case no. 2019-CV-2425 (“the Refiled

Lawsuit”). The Refiled Lawsuit was identical in every respect to the complaint filed in the

First Lawsuit, alleging age discrimination, violation of the Ohio Equal Pay Act, and

wrongful termination in violation of public policy. Service was obtained on Yanko, as

statutory agent, on January 27, 2020.

{¶5} On March 13, 2020, Bosley filed an amended complaint, now adding Yanko

as a party defendant. Other than the addition of Yanko as a party, the amended complaint

was identical to the first two complaints filed. Yanko was served with a summons and the

amended complaint by certified mail on March 20, 2020.

Case No. 21 MA 0012
 –4–

{¶6} The facts set forth in the First Lawsuit, as well as in the complaint and

amended complaint in the Refiled Lawsuit, all allege that Bosley reported directly to

Yanko. (3/13/2020 Plaintiff’s Amended Complaint, ¶ 3). Bosley reported a suspected

violation of Department of Transportation (“DOT”) regulations directly to Yanko, which

included allegations that APS personnel were throwing away the driver’s logs Bosley

submitted as required by DOT if Bosley traveled more than 100 miles in a day. Bosley

continued to submit the logs after being told not to by Yanko, after which Yanko “yelled

at [Bosley]” for submitting these logs. (3/13/2020 Plaintiff’s Amended Complaint, ¶ 18,

18-21). Shortly thereafter, Bosley was told by Yanko that he was being laid off for lack of

work. (3/13/2020 Plaintiff’s Amended Complaint, ¶ 22).

{¶7} Westfield had issued a commercial general liability insurance policy

containing the EPL endorsement with the effective dates of April 16, 2018 to April 16,

2019. The policy renewed with the same limits, deductible, terms, and conditions as the

previous policy with the effective dates of April 16, 2019 to April 16, 2020. The parties

agree that the claims raised by Bosley would not ordinarily trigger coverage under the

commercial general liability policy. However, the EPL is an endorsement that modifies

the commercial general liability policy to provide coverage for “wrongful employment

acts.” (9/30/20 Stipulation of Facts, ¶ 30.) The EPL endorsement is a “claims-made and

reported” coverage endorsement and is not occurrence based. This means that for

coverage to apply, a “claim” or “suit” for a “wrongful employment act” made against the

insured during the “EPL coverage period” must be reported to Westfield during the “EPL

coverage period” or within thirty (30) days after the end of the “EPL coverage period.”

(9/30/20 Stipulation of Facts, ¶ 32.) Again, the initial EPL coverage period was April 16,

Case No. 21 MA 0012
 –5–

2018 to April 16, 2019 and was subsequently renewed for the coverage period of April

16, 2019 to April 16, 2020. The EPL endorsement also included a definition of the word

“claim,” and broadly defines a “claim”:

“Claim” means a written demand for monetary and non-monetary relief

(including any request to toll or waive any statute of limitations). The term

“claim” shall also mean an Equal Employment Opportunity Commission

(EEOC), Department of Labor (DOL) or Office of Federal Contract

Compliance Program (OFCCP) (or similar federal, state or local agency)

proceeding or investigation commenced by the filing of a notice of charges,

service of a complaint or similar document of which notice has been given

to “you”.

(9/30/20 Stipulation of Facts, ¶ 34.) The parties agree that Bosley’s allegations regarding

age discrimination are included under the definition of “Wrongful Employment Acts” under

the EPL endorsement.

{¶8} The EPL endorsement also provides: “[a]ll ‘claims’ and ‘suits’ arising from

the same or ‘related wrongful employment acts’ shall be treated as arising out of a single

‘wrongful employment act’ ” and that “[a]ll ‘claims’ and ‘suits’ arising out of one ‘wrongful

employment act’ shall be deemed to be made on the date that the first such ‘claim’ is

made or ‘suit’ is brought[.]” (9/30/20 Stipulation of Facts, ¶ 35, 36.) Finally, the EPL

defines “related wrongful employment acts” as:

“Related Wrongful Employment Act(s)” means “wrongful employment acts”

which are the same, related or continuous…or which arise from a common

Case No. 21 MA 0012
 –6–

nucleus of facts. “Claims” or “suits” can allege “related wrongful

employment acts,” regardless of whether such “claims” or “suits” involve the

same or different claimants, “insureds” or legal causes of action.

(9/30/20 Stipulation of Facts, ¶ 37.)

{¶9} According to the parties’ stipulations, Bosley’s allegations were first

presented to APS and Yanko on November 6, 2018, with the service of Bosley’s complaint

in the First Lawsuit being made on Yanko, as statutory agent for APS. (9/30/20 Stipulation

of Facts, ¶ 38.) The parties also stipulate that the allegations Bosley set forth in the First

Lawsuit were not reported to Westfield until August 21, 2019. This was nine months after

initially being served with the First Lawsuit and four months after the end of the EPL

endorsement coverage period for the policy running from April 16, 2018 to April 16, 2019.

{¶10} Bosley voluntarily dismissed the First Lawsuit pursuant to Civ.R. 41(A) and

filed his Refiled Lawsuit on November 26, 2019. APS was served with the Refiled Lawsuit

on January 27, 2020 and reported the claim to Westfield the following day, January 28,

2020. (9/30/20 Stipulation of Facts, ¶ 44.) Bosley filed his amended complaint including

Yanko as a named defendant on March 13, 2020 and Yanko was served by certified mail

on March 20, 2020. (9/30/20 Stipulation of Facts, ¶ 45-46.) The parties stipulate that

Yanko, as an executive officer, is an insured under the EPL endorsement. Yanko and

APS reported Bosley’s filing of an amended complaint in the Refiled Lawsuit on April 6,

2020. Westfield denied coverage for defense or indemnification on April 21, 2020.

(9/30/20 Stipulation of Facts, ¶ 50.)

{¶11} APS filed a third-party action against Westfield and Hartford, disputing the

denial of coverage. The third-party complaint raised causes of action for breach of

Case No. 21 MA 0012
 –7–

contract, declaratory judgment, and bad faith. In response, Westfield and Hartford filed

an answer denying liability and a counterclaim requesting a declaratory judgment that

Westfield does not owe coverage to APS or Yanko for Bosley’s lawsuit. APS and Yanko

filed separate answers to the counterclaim. Yanko also filed a cross-claim asserting

breach of contract and bad faith and seeking a declaratory judgment. Westfield and

Hartford filed an answer to the cross-claim denying liability. Westfield, Hartford, APS, and

Yanko filed cross-motions for summary judgment on the coverage issue. In addition,

Westfield and Hartford sought summary judgment on the bad faith claims of APS and

Yanko and Hartford requested summary judgment on all claims.

{¶12} On December 9, 2020, the trial court filed a judgment entry. It granted

summary judgment for APS on the coverage issue and overruled the motion for summary

judgment filed by Westfield on that issue. In addition, the trial court overruled the motions

for summary judgment of Westfield and Hartford on the bad faith claims of APS and

Yanko, concluding that genuine issues of material fact remained for trial.

{¶13} On December 23, 2020, Westfield and Hartford filed a motion to amend or

correct the judgment nunc pro tunc, asking the trial court to enter an order declaring the

rights and obligations of the parties, and to amend its judgment entry by making the

express finding under Civ.R. 54(B) that its judgment entry was final and appealable. On

January 26, 2021, the trial court granted the motion in part, amending the December 9,

2020 judgment entry to include the finding that Westfield “is required to provide a defense

and indemnification to [APS] and Yanko. Both [APS’s] Third Party Complaint and Yanko’s

Crossclaim seeking a defense and indemnification are sustained.” (1/26/21 J.E.) The

Case No. 21 MA 0012
 –8–

trial court also found that its judgment was final and appealable and there was no just

reason for delay.

{¶14} Appellants filed this timely appeal.

Standard of Review

{¶15} This appeal is from a trial court judgment resolving opposing motions for

summary judgment. An appellate court conducts a de novo review of a trial court’s

decision to grant summary judgment, using the same standards as the trial court set forth

in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Before summary judgment can be granted, the trial 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, (3) it appears from the evidence that reasonable

minds can come to but one conclusion, and viewing the evidence in favor of the party

against whom the motion for summary judgment is made, the conclusion is adverse to

that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

Whether a fact is “material” depends on the substantive law of the claim being litigated.

Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th

Dist.1995).

{¶16} “[T]he 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 on a material element of the nonmoving party’s

claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264

(1996). If the moving party carries its burden, the nonmoving party has a reciprocal

burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at

Case No. 21 MA 0012
 –9–

293. In other words, when presented with a properly supported motion for summary

judgment, the nonmoving party must produce some evidence to suggest that a

reasonable factfinder could rule in that party’s favor. Brewer v. Cleveland Bd. of Edn.,

122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

{¶17} The evidentiary materials to support a motion for summary judgment are

listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact that

have been filed in the case. In resolving the motion, the court views the evidence in a

light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d

267.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN NOT DETERMINING THAT THE

EMPLOYMENT PRACTICES LIABILITY ENDORSEMENT OF THE

INSURANCE POLICY ISSUED BY WESTFIELD INSURANCE COMPANY

WAS A CLAIMS MADE AND REPORTED POLICY FOR WHICH A

SHOWING OF PREJUDICE WAS NOT REQUIRED.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN DETERMINING THAT WESTFIELD

INSURANCE COMPANY WAS REQUIRED TO SHOW IT WAS

PREJUDICED BY THE LATE CLAIM NOTICE BY ASSOCIATED PAPER

STOCK, INC. AND THOMAS YANKO.

Case No. 21 MA 0012
 – 10 –

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN DETERMINING THAT WESTFIELD

INSURANCE COMPANY IS REQUIRED TO PROVIDE A DEFENSE AND

INDEMNIFICATION TO ASSOCIATED PAPER STOCK, INC. AND

THOMAS YANKO FOR THE CLAIM OF JOHN BOSLEY, SR.

{¶18} In Appellants’ first three assignments of error, they challenge the trial court’s

decision to grant APS and Yanko’s motions for summary judgment and concluding they

were entitled to coverage under the policy. Although not in accordance with the appellate

rules, Appellants set forth one argument for all three assignments. For the sake of clarity

and because the assignments are so similar in nature, the first three assignments will be

addressed together.

{¶19} First, it is important to note that there are two underlying lawsuits and two

EPL endorsement policies. The allegations in both lawsuits are identical and the notice

provisions in both EPL policies are identical. The key factors are, first, that in the First

Lawsuit Yanko was not named as a defendant. Yanko was not added as a party

defendant and was not served as such in the underlying matter until the Refiled Lawsuit

was amended on March 13, 2020. Second, the First Lawsuit was voluntarily dismissed

pursuant to Civ.R. 41(A). Despite the dismissal of the First Lawsuit, Appellants’ timeline

incorporates both lawsuits and both EPL policies. Appellants allege that the language of

the EPL is unambiguous and that APS and Yanko were required to provide notice to

Westfield immediately upon being served with the First Lawsuit. Third, APS and Yanko

contend that although notice was not given by APS until nine months after APS was

Case No. 21 MA 0012
 – 11 –

served with the First Lawsuit, the dismissal of that lawsuit requires that the parties

operate, by law, as though those claims never existed and that both parties gave timely

notice of the Refiled Lawsuit, first APS, and then Yanko once he was named in the

amended complaint.

{¶20} “[I]n general, when a trial court unconditionally dismisses a case or a case

has been voluntarily dismissed under Civ.R. 41(A)(1), the trial court patently and

unambiguously lacks jurisdiction to proceed[.]” State ex rel. Hummer v. Sadler, 96 Ohio

St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 22. “A dismissal without prejudice leaves

the parties as if no action had been brought at all.” DeVille Photography, Inc. v. Bowers,

169 Ohio St. 267, 272, 159 N.E.2d 443 (1959).

{¶21} In its judgment entry granting summary judgment, the trial court concluded:

Prompt notice provisions of insurance policies are enforceable in order to

permit the insurer to determine whether the allegations state a claim and

whether there is coverage. Giving proper notice allows the insurer to protect

its own interests and properly and timely investigate the claims alleged.

Associated maintains that it failed to notify Westfield of a prior case not the

case at bar. It further argues that coverage is owed to the insured even

under the scenario of late notice because the insurer has failed to show it

was prejudiced as a result of the delay. See: Quail Energy Corp. v. Green

Westfield Ins. Co., 2015 Ohio Misc. Lexis 13447.

Case No. 21 MA 0012
 – 12 –

The Court finds that under the facts of this case as stipulated, Westfield’s

notice of the claim in case No. 2019 CV 2425 has not deprived it of a

meaningful opportunity to investigate and protect its own interests.

(12/9/20 J.E.)

{¶22} Thus, the trial court determined that Appellants were not prejudiced by the

late notice given by Appellees. Appellants assert in their first assignment of error that the

trial court erred in failing to recognize and consider that the EPL endorsement was

contained in a “claims made and reported policy.” According to Appellants, there is a

distinction under Ohio law between a “claims made and reported” policy and an

“occurrence” policy. They argue that, under Ohio law, contrary to the law and customs

regarding an occurrence policy, there is no requirement that an insurer demonstrate that

they were prejudiced by late notice of a claim from an insured under a claims made and

reported policy (the notice-prejudice rule), particularly if the policy sets forth a date certain

by which notice must be given.

{¶23} Appellees respond that in Ohio there is no distinction between a claims

made and reported policy and an occurrence based policy. Late notice will only amount

to a breach of the insurance contract when it is prejudicial to the insurer. Ferrando v.

Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927.

{¶24} The parties do not dispute that the EPL endorsement is contained in a

claims made and reported policy. In fact, according to the parties’ stipulations, the title

heading on the first page of the EPL endorsement states in all capital letters, “THIS IS A

CLAIMS-MADE AND REPORTED COVERAGE ENDORSEMENT.” (9/30/20 Stipulation

of Facts, ¶ 27.) Therefore, the language of the policy unambiguously states that it is a

Case No. 21 MA 0012
 – 13 –

claims made and reported policy and not an occurrence based policy. Appellants’

contention that the trial court erred in failing to recognize that the EPL endorsement was

contained in a claims made and reported policy is not borne out by the record, as the trial

court noted in its judgment entry that, “[t]he parties have submitted a stipulation of facts

that the Court has adopted as true.” (12/9/20 J.E.) As the parties stipulated that the

endorsement was contained in a claims made and reported policy and the trial court

adopted that stipulation, the trial court did not need to make a specific finding regarding

this issue, as it was not a fact in dispute between the parties. However, although it was

not required to specifically state the EPL endorsement was contained in a claims-made

policy, the trial court was required to conduct the appropriate analysis to determine what

coverage was provided under a claims-made policy pursuant to Ohio law. Such an

analysis is specifically lacking and is determinative in this case, as discussed below.

{¶25} In its second assignment of error, Appellants contend the trial court erred in

determining that Appellants were required to show they were prejudiced by a late notice

of claim when the parties stipulated that the EPL was part of a claims-made policy. Citing

United States v. A.C. Strip, 868 F.2d 181 (6th Cir.1989), Appellants argue that there is an

important distinction between a claims-made policy and an occurrence based policy in

determining whether the notice-prejudice rule applies. Appellants argue that, under Ohio

law, claims-made policies do not require the insurer to demonstrate it was prejudiced by

the late notice given.

{¶26} The trial court concluded in its judgment entry that, “Westfield’s notice of the

claim in case No. 2019 CV 2425 has not deprived it of a meaningful opportunity to

investigate and protect its own interests.” (12/9/20 J.E.) Hence, the court clearly applied

Case No. 21 MA 0012
 – 14 –

the notice-prejudice rule. In so doing, however, the trial court ignored the effect of the

language in the parties’ policy and EPL endorsement.

{¶27} A claims-made policy is intended to cover losses that are asserted during

the policy period, regardless of when the events underlying the “claim” may have

occurred. Id. “A claims made policy provides coverage for claims brought against the

insured only during the life of the policy. An occurrence policy provides coverage for acts

done during the policy period regardless of when the claim is brought.” Id. at 185. A

claims-made policy limits liability to a fixed duration of time only. A.C. Strip, at 187. To

allow for coverage beyond that fixed time period would operate to provide an insured

more coverage than specifically allowed for and agreed to in the policy that the insured

obtained. Id. A cut-off date is integral to a claims-made policy, as it is directly related to

the premium rate of a policy. Garrison Southfield Park, L.L.C. v. Aspen Specialty Ins.

Co., 10th Dist. No. 21AP-21, 2022-Ohio-709, ¶ 29. Moreover, “[i]t is axiomatic that an

insurance company is under no obligation to its insured, or to others harmed by the

actions of the insured, unless the conduct alleged of the insured falls within the coverage

of the policy.” Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 36, 665 N.E.2d 1115

(1996).

{¶28} In Ferrando, on which Appellees rely, the Ohio Supreme Court implemented

the notice-prejudice rule with regard to an insured giving notice to an insurer of a pending

claim. The Ferrando Court determined that prompt notice provisions in an insurance

policy can be valid, but “the failure of notice will serve as a material breach of the

insurance contract only when the unreasonable notice is prejudicial to the insurer.” Id. at

¶ 30. Thus, if notice is unreasonable but the insurer suffers no prejudice, the breach is

Case No. 21 MA 0012
 – 15 –

not material and coverage remains in effect. Id. However, it is abundantly clear that the

language in the policy in Ferrando merely stated that the insured was to provide “prompt

notice” of any “accident,” “claim,” “suit,” or “loss.” This language is significantly less

specific than in the endorsement at bar, which required that notice of any “claim,” as

broadly defined, must be made within the policy period or no later than 30 days thereafter.

Additionally, the policy language at issue requires that any “claims” raised from a single

allegedly wrongful action are “deemed to be made on the date that the first ‘claim’ is

made.” Hence, this policy tells an insured that the insurer requires notice within a specific

period of any and all acts alleged against it where a third party has made any kind of

“written demand for monetary and non-monetary relief,” and when it first becomes aware

of the demand, no matter how many subsequent “claims” are made. Ferrando is clearly

distinguishable on the basis of the language of the policies and the specificity with which

an insured is notified of its obligations. This specificity is only one hallmark in

distinguishing a claims-made versus occurrence based policy.

{¶29} Appellees contend that the notice-prejudice rule applies regardless of

whether the policy is a claims-made policy or an occurrence policy. However, federal

courts applying Ohio law have held that the notice-prejudice rule in Ferrando is

inapplicable in cases where the policy provides that notice of a “claim” must be given to

the insurer by a certain date. See McCarty v. Natl. Union Fire Ins. Co. of Pittsburgh, PA.,

699 Fed.Appx. 464 (6th Cir.2017); Wendy’s Intern., Inc. v. Illinois Union Insur. Co.,

S.D.Ohio No. 2:05-cv-803, 2007 WL 710242, at *9; Certain Underwriters at Lloyds of

London v. Jeff Wyler Dealer Group, Inc., S.D.Ohio No. C-1-05-572, 2007 WL 1989836,

*8 (July 9, 2007).

Case No. 21 MA 0012
 – 16 –

{¶30} In McCarty, the United States Court of Appeals for the Sixth Circuit, applying

Ohio law, rejected an argument that the notice-prejudice rule applied to malpractice

insurance which was contained in a claims-made policy. This policy required any “claim”

to be “promptly reported” to the insurer, but no later than 60 days after the end of the

policy period. McCarty at 468. The plaintiffs in McCarty did argue that the insurer would

not be prejudiced by the late notice. The Sixth Circuit noted, “[b]ecause coverage in a

claims-made policy is generally restricted to only claims made and reported during the

policy period, an insurer need not demonstrate prejudice to deny a claim that is made

outside the policy period.” Id. citing A.C. Strip at 187.

{¶31} In Wendy’s, the United States District Court for the Southern District of Ohio

determined that the notice-prejudice rule did not apply to a policy where notice was

required to be given “immediately, but in no event later than 60 days after the end of the

Policy Period of any Claim made against the Insured.” Wendy’s at *3. The court

distinguished Ferrando, concluding that the policy in Ferrando did not require the insured

to notify the insurer of any claim by a specific date, but merely stated that notice should

be given “promptly.” Wendy’s at *8.

{¶32} In Certain Underwriters at Lloyds of London, another United States District

Court for the Southern District of Ohio case applying Ohio law, the Court determined that

“[a]bsent any contrary caselaw supporting the proposition that the notice-prejudice

standard enunciated in Ferrando applies when a specific notice deadline is imposed

under a policy or indicating that the Ohio Supreme Court would extend the notice-

prejudice standard in this manner, the Court declines to extend Ferrando to the facts of

this case.” Certain Underwriters at Lloyds of London at *7.

Case No. 21 MA 0012
 – 17 –

{¶33} The notice provision in the instant matter is unambiguous and clear. Notice

of any “claim” made against the insured is required to be given to the insurer during the

defined policy period or within thirty days after the expiration of the policy period. Thus,

there is a date certain when the insured is to provide notice. This is the provision agreed

to by the parties when Appellees obtained this claims-made policy and, in accordance

with the Tenth District and the federal courts applying Ohio law, Appellants were not

required to demonstrate that they were prejudiced by Appellees’ late notice.

{¶34} In their third assignment of error, Appellants contend the trial court erred in

determining that Westfield was required to provide a defense and indemnification under

the terms of the EPL endorsement for Bosley’s claims.

{¶35} The parties stipulated the notice provision contained in the EPL

endorsement requires Appellees to “give written or oral notice to [Westfield] as soon as

practicable and either: * * * anytime during the ‘EPL coverage period’ * * * or within thirty

(30) days after the end of the ‘EPL coverage period.’ ” (9/30/20 Stipulation of Facts, ¶ 32.)

The coverage period for the first EPL is April 1, 2018 to April 1, 2019. The second EPL

coverage period was from April 16, 2019 to April 16, 2020. The First Lawsuit was filed

on October 26, 2018. Therefore, Appellees were required to given notice of any “claim”

to Westfield as soon as practicable anytime during the EPL coverage period or within 30

days after the EPL expired. Again, the definition of “claim” is broadly written, and certainly

includes any lawsuit that may be filed. Additionally, the policy requires that notice be

given at the first instance the insured becomes aware a “claim” is being made no matter

how many other “claims” may arise from the same facts at some later date. Here, the

notice provision was triggered and the clock began ticking when Bosley’s complaint was

Case No. 21 MA 0012
 – 18 –

filed in the First Lawsuit on October 26, 2018 and ended on a date certain, May 1, 2019

(thirty days after the EPL endorsement coverage period). Appellee APS gave Westfield

notice of Bosley’s claims on August 21, 2019, nearly four months after the time period

mandated by the policy ended.

{¶36} Appellees concede the notice provided by APS of the First Lawsuit was not

timely, but argue: (1) the subsequent dismissal of the First Lawsuit operated to void the

allegations asserted in this complaint as though they did not exist, and (2) even if the

allegations did not extinguish pursuant to Quail, Appellants were required to show they

were prejudiced by the late notice and failed to make this showing.

{¶37} In addition, Appellee Yanko asserts that since he was not named as a party

defendant in the action until the Refiled Lawsuit was amended on March 13, 2020, the

notice provision applicable to him as an individual officer of APS did not expire until May

16, 2020 (thirty days after the expiration of the second EPL endorsement coverage

period.) Thus, Yanko contends that his notice of the claim against him that was given to

Westfield on April 6, 2020, was timely under the EPL notice provision.

{¶38} It is apparent from the record and the stipulation of facts that Appellee APS

did not give timely notice under the notice provision of the EPL endorsement. It is equally

apparent that under this claims-made policy which contains a date certain for when notice

is to be given to the insurer, the notice-prejudice standard does not apply under Ohio law.

Therefore, the trial court erred in granting summary judgment to Appellees on the basis

that Appellants had “not deprived it of a meaningful opportunity to investigate and protect

its own interests.” (12/9/20 J.E.) The trial court improperly applied the notice-prejudice

rule which is inapplicable to claims-made policies with a date certain notice requirement.

Case No. 21 MA 0012
 – 19 –

{¶39} Regarding Appellee Yanko, the record contains three nearly identical

complaints: the complaint filed in the First Lawsuit, and the complaint and amended

complaint filed in the Refiled Lawsuit. Yanko, as statutory agent, was served with the

initial “claims” made by Bosley in 2018. Although not named as a party defendant until

the complaint in the Refiled Lawsuit was amended, the initial complaint is replete with

references to Yanko, individually, as the alleged bad actor in Bosley’s age discrimination

action. The complaints all state that Yanko was Bosley’s direct supervisor during the

entire tenure of his employment at APS. (3/13/20 Plaintiff’s Amended Complaint, ¶ 3.)

Further, Bosley alleges he directly informed Yanko as to APS’s violations of DOT

regulations and that “Yanko yelled at [Bosley]” for continuing to submit driver’s logs.

(3/13/20 Plaintiff’s Amended Complaint, ¶ 21.) Finally, Bosley alleged that Yanko

personally notified Bosley that he was being laid off. (3/13/20 Plaintiff’s Amended

Complaint, ¶ 22.) Under the unambiguous terms of the EPL endorsement, Appellees

were required to notify Appellants of Bosley’s “claims” when they were first raised to

Appellees, as they agree the insurance contract provides that notice must be given: “If,

during the ‘EPL coverage period’, incidents or events occur which ‘you’ reasonably

believe may give rise to a ‘claim’ or ‘suit’ for which coverage may be provided

hereunder[.]” (EPL Endorsement at p. 5.) Even the most casual reading of the original

complaint filed in October of 2018 would have given Yanko a reasonable belief that Bosley

was raising a “claim” against him, individually. No other individual employee or officer of

APS is mentioned, other than Yanko, in any of the three complaints. All of the allegations

in the amended complaint are identical to those raised in the First Lawsuit that was served

on Yanko as the statutory agent of the business. Because the First Lawsuit clearly

Case No. 21 MA 0012
 – 20 –

contained “claims” raised against Yanko as defined in the EPL endorsement, Appellee

Yanko was required to provide notice to Appellants within the same time requirement

imposed by contract on APS. The record shows the Appellees were notified, in writing,

of Bosley’s claims against them at the time they were served with the First Lawsuit. While

dismissal of that lawsuit operated procedurally to make the suit a nullity pursuant to Ohio’s

rules, it in no way affected the language of the EPL endorsement. That language clearly

required Appellees to notify Appellants of the First Lawsuit at the time it was filed because

it contained the first written notice to Appellees of claims made against them by Bosley.

Because neither Appellee gave timely notice of these claims under the EPL endorsement,

the trial court erred in granting summary judgment in favor of Appellees and in determining

that Appellants were required to provide a defense and indemnification to Appellees.

{¶40} Appellants’ first, second and third assignments of error have merit and are

sustained.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CLAIMS OF

BAD FAITH AS A MATTER OF LAW.

{¶41} In the fourth assignment of error, Appellants argue the trial court failed to

dismiss Appellees’ bad faith claims. APS asserted a claim of bad faith in a third party

complaint. Yanko raised these claims in his cross-claim against Appellants. The trial

court concluded that “Westfield’s and Hartford’s Motions for Summary Judgment

regarding bad faith claims are overruled as genuine issues of material fact remain.”

(12/9/20 J.E.)

Case No. 21 MA 0012
 – 21 –

{¶42} Appellants argue that they were not obligated to provide coverage to

Appellees because of their failure to timely provide notice. Hence, there can be no liability

for bad faith. Appellants argue in the alternative that, even if we determine that Appellees

are entitled to coverage under the EPL endorsement, Appellees’ bad faith claims should

be dismissed because their decision was reasonable under the language of the contract.

Appellees did not respond to Appellants’ motion for summary judgment on this issue.

{¶43} Summary judgment can be granted only where there remains no genuine

issue of material fact for trial and where, after construing the evidence most strongly in

favor of the nonmovant, reasonable minds can only conclude that the moving party is

entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-

3455, 850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing there is no

genuine issue of material fact initially lies with the party who files the summary judgment

motion. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996).

{¶44} Thereafter, the nonmovant may not rest on mere allegations or denials of

the party’s pleadings but must respond by setting forth specific facts that show that there

is a genuine issue of fact for trial. Id., citing Civ.R. 56(E). “If the party does not so

respond, summary judgment, if appropriate, shall be entered against the party.” Civ.R.

56(E). Although courts are cautioned to construe the evidence presented in favor of the

nonmoving party, summary judgment is not to be discouraged where a nonmovant fails

to respond with evidence supporting the essentials of his claim. Leibreich v. A.J.

Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993).

{¶45} Appellees did not provide arguments in opposition to Appellants’ summary

judgment motion on the claims of bad faith in this matter and cannot simply rest on the

Case No. 21 MA 0012
 – 22 –

allegations presented in their pleadings. The nonmovant must respond and present

evidentiary materials or cite to the evidence already in the record. While Appellees in this

case each filed summary judgment motions and opposed some of Appellants’ claims,

they addressed only the issue of coverage under the EPL endorsement.

{¶46} “[A]n insurer has the duty to act in good faith in the handling and payment

of the claims of its insured.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 452 N.E.2d

1315 (1983), paragraph one of the syllabus. Where an insurer refuses to pay a claim

without providing reasonable justification, the insurer fails to act in good faith. Zoppo v.

Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of the

syllabus. A failure to act in good faith gives rise to a claim against the insurer. Hoskins,

at paragraph one of the syllabus.

{¶47} In their pleadings, APS and Yanko alleged that despite numerous attempts,

Appellants failed to negotiate coverage in good faith. Without any additional evidentiary

support or without citing to evidence in the record, which does not appear to exist, there

is no genuine issue of material fact regarding whether Appellants acted in bad faith. The

mere allegations in Appellees’ pleadings do not amount to evidence of bad faith. In any

event, as we have concluded that Appellees failed to provide timely notice as required

under the terms of the EPL endorsement, there is no viable basis for their related bad

faith claims against Appellants.

{¶48} Appellants’ fourth assignment of error has merit and is sustained.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT

FOR THE HARTFORD STEAM BOILER INSPECTION AND INSURANCE

Case No. 21 MA 0012
 – 23 –

COMPANY BECAUSE THERE IS NO CONTRACT BETWEEN IT AND

ASSOCIATED PAPER STOCK, INC. AND THOMAS YANKO.

{¶49} In its fifth assignment of error, Appellants argue the trial court erred in failing

to grant summary judgment in favor of Hartford, as it had no contractual relationship with

Appellees. The third-party complaint filed by APS alleges that Hartford “is an insurance

company that either insures, underwrites, or acts as some sort of agent or partner” with

Westfield. (Third-Party Complaint, ¶ 3.)

{¶50} In their motion for summary judgment, Appellants argued that Hartford

served as a reinsurer to Westfield for the coverage afforded under the EPL endorsement.

Appellants argue that a reinsurance contract is separate from the contract between the

insured. As such, the reinsurer cannot be held directly liable to the insureds. Int’l Surplus

Lines Ins. Co. v. Certain Underwriters & Underwriting Syndicates at Lloyd’s of London,

868 F.Supp. 923, 928 (S.D. Ohio 1994). Since there is no direct contractual relationship

between Hartford and Appellees, the claims for breach of contract, declaratory judgment,

and bad faith against Hartford should have been dismissed.

{¶51} Again, after Hartford filed its motion for summary judgment seeking to be

dismissed from the action for failing to have a contractual relationship with Appellees, the

burden was on APS and Yanko to introduce additional evidence or cite evidence already

in the record demonstrating that a genuine issue of material fact existed regarding their

alleged contractual relationship with Hartford. Appellees did not address this issue in

their motion in opposition to summary judgment in any fashion.

Case No. 21 MA 0012
 – 24 –

{¶52} In its judgment entry, the trial court did not address this issue directly. It

merely concluded that genuine issues of fact remained regarding the bad faith claim

against both Westfield and Hartford.

{¶53} A review of this record reflects that, beyond the mere allegations in the

pleadings, there is no evidence in support of any contractual relationship which may exist

between Appellees and Hartford. In fact, it is clear even from the pleadings that Appellees

did not have a contractual relationship with Hartford.

{¶54} This record shows that no genuine issues of fact remain regarding the

absence of a contractual relationship between Hartford and Appellees. Therefore,

Appellants’ fifth assignment of error has merit and is sustained.

{¶55} Based on the foregoing, the judgment of the trial court is reversed and

judgment is hereby entered in favor of the Appellants.

Donofrio, P.J., concurs.

Robb, J., concurs.

Case No. 21 MA 0012
[Cite as Bosley v. Associated Paper Stock, Inc., 2022-Ohio-2649.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are sustained and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Mahoning County, Ohio, is reversed. Judgment is hereby

entered in favor of Appellants. Costs to be taxed against the Appellees.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.