Lewicki v. Grange Ins. Co.

[Cite as Lewicki v. Grange Ins. Co., 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

BRUCE LEWICKI,                                          :

                 Plaintiff-Appellant,                   :
                                                             No. 112705
                 v.                                     :

GRANGE INSURANCE COMPANY,
ET AL.,                                                 :

                 Defendants-Appellees.                  :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 14, 2023


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-22-960540


                                            Appearances:

                 John H. West., Co., L.P.A., and John H. West, for
                 appellant.

                 Gallagher, Gams, Tallan, Barnes & Littrell L.L.P., James
                 R. Gallagher; and Andrew J. Kielkopf, for appellee Grange
                 Insurance Company.

                 Mazanec, Raskin & Ryder Co., L.P.A., Joseph F. Nicholas,
                 Jr., Frank H. Scialdone, and Terence L. Williams, for
                 appellees Charles Zavagno and Universal Insurance
                 Company, Inc. dba Zavagno Insurance Agency.
MARY J. BOYLE, J.:

              Plaintiff-appellant, Bruce Lewicki (“Bruce”), appeals the trial court’s

granting of defendants-appellees, Grange Insurance Company (“Grange”), Charles

Zavagno (“Zavagno”), and Universal Insurance Company, Inc. dba Zavagno

Insurance Agency’s (“Universal”) (collectively, “appellees”), motions for summary

judgment, raising the following assignments of error for review:

      Assignment of Error I: The trial court erred and abused its
      discretion by granting summary judgment in favor of [Grange].

      Assignment of Error II: The trial court erred and abused its
      discretion by granting summary judgment in favor of each of the
      appellees, Grange, Zavagno, and Universal.

After careful review of the record and relevant caselaw, we affirm.

 I.   Facts and Procedural History

              This appeal stems from a lawsuit filed in March 2022 by Bruce against

Grange, an insurance company; Universal, an insurance agency; and Zavagno, a

licensed insurance agent, challenging the denial of an insurance claim following a

house fire at 5502 Charles Avenue in Parma (“Property”). The complaint asserted

claims for breach of contract, breach of implied contract, bad faith, breach of

fiduciary duty, fraud, negligence, detrimental reliance, and unjust enrichment.

Bruce alleged that Grange and Universal were liable pursuant to the doctrines of

vicarious liability and respondeat superior. Bruce sought compensatory damages,

punitive damages, attorney fees, interest, and costs. Zavagno and Universal jointly

filed an answer while Grange filed a separate answer. In their respective responsive
pleadings, the appellees asserted numerous affirmative defenses, including that

Bruce’s claims were barred by the applicable statute of limitations. The relevant

facts and circumstances surrounding Bruce’s lawsuit are as follows.

               According to Bruce, he and his wife had gone to Zavagno for their

insurance needs for many years. Zavagno testified that he worked as a sales

manager for Universal, an insurance agency he started with his wife that wrote

automobile, home, life, and small business lines of insurance for “mom and pop

type” clientele. At the time of his deposition in October 2022, Zavagno had been an

insurance agent for approximately 30 years. Zavagno testified that he was an

independent agent, meaning he worked with multiple insurance companies,

including Grange.

               Bruce’s mother, Emma Lewicki (“Emma”), passed away in July 2014.

According to a transfer on death deed filed in 2008, Emma was the titled owner of

the Property, and her interest would transfer upon her death to Bruce and his

brother, Bryan Lewicki. In an affidavit attached to his brief in opposition to Grange’s

motion for summary judgment, Bruce attested that he contacted Zavagno because

he wanted to insure the Property. Bruce further averred that he advised Zavagno

that his mother had recently died, she owned the Property, and the Property was

titled in her name. According to Bruce, Zavagno took all of the relevant information

related to obtaining the policy and told him that he was a licensed Grange agent,

insurance for the Property could be obtained through Grange, he filled in all of the
information on Grange’s form and inputted the information into Grange’s computer

software, and Bruce was approved for insurance.

              Bruce went to Zavagno’s office to sign a completed Dwelling Fire

Application in September 2014. Bruce attested that Zavagno explained that since

the home was still in Emma’s name, Bruce would sign as the “applicant” and Emma

would be listed as the “insured” on the form and in the insurance policy. “Mr.

Zavagno explained that this was the proper way to complete the paperwork because

[Emma] was deceased and the home was still in her name.” (Bruce’s Affidavit,

11/04/22.)

              Zavagno provided the following explanation as to why Bruce signed

the application for insurance naming Emma as the insured even though he

understood that Emma was deceased:

      Because at the time [Bruce] informed me that he was in charge of the
      estate and that he was the power of attorney, which I know no longer
      exists, but he was in control. It was up to him. * * * And so the big
      question was whose name to put this policy in, because Bruce could not
      provide me — he mentioned transfer on death, but he could never
      provide me with anything that proved there was transfer on death. He
      could never come up with it. We waited days and days and days and
      everything in the auditor’s page that I could see and the information
      that was available to me showed that this house, he had done nothing
      to move this house out of her name, so it needed to go in her name. And
      if I’m not mistaken till this day it still shows in Emma’s name when you
      look it up.

      So based on what he was telling me versus what I could see, they’ve
      done nothing to move the house out of her name and into his name,
      him and his brother’s name, which is what they were telling me.

      ***
      [W]e had Bruce sign, because he was acting on behalf of her estate.

(Zavagno Dep. 10/27/22, tr. 48-49.) Zavagno went on to explain that he was

verbally told about the transfer on death deed but was never provided the physical

document. In fact, Zavagno testified that he had not seen the transfer on death deed

until his deposition. Zavagno stated:

      When I asked Bruce repeatedly, “Have you started probate? Have you
      started an estate? Have you done anything?” He said, “No, we have
      not done anything at this point.” They have done nothing, exact words,
      nothing at this point. Needed to get together with his brother.

      ***
      So we were told by [the Cuyahoga County Recorder] that this has —
      even though [the transfer on death deed] exists, you still have to get it
      moved into your name, get the taxes moved into your name. There are
      things that have to happen. Even though this exists and, again, I’m not
      an attorney, I just — there’s still things that have to happen in order to
      finish this.

      ***

      [T]his is how this all came up is that I stopped Bruce and said, “We can’t
      put this in your name.”

      So it wasn’t from Emma’s name, now Bruce wanted it in his name. So
      we then put brakes on and said, “I need documentation from you. If
      you’re telling me this exists, you got to get me something and you have
      to explain this to me.”

      He couldn’t explain it. He didn’t know. All he said is, “This is all
      supposed to happen, [Zavagno].”

      “Okay. Well that’s not good enough.” Kept going back to the auditor’s
      page going this is just in Emma’s name. There’s nothing but in Emma’s
      name. And asked him again, “Did you start the estate? Did you file
      probate? Have you done anything?”

      “No, [Zavagno], we haven’t done a thing. I have to get together with my
      brother. I have to get together with my brother.” This was the constant
      answer.

(Zavagno Dep. 10/27/22, tr. 51-54.) Ultimately, Zavagno determined the policy

could not be in Bruce’s name because he was not the titled owner of the Property

according to county records and, instead, the policy had to be in Emma’s name.

Zavagno testified that was the decision he made

      based on the information they provided me. And I point blanketly told
      them, “Based on what you’re telling me here, this is how we need to
      write this policy. You need to get your brother. You need to get this
      information back. This is not the end of the game here. You have to do
      your homework.”

      ***

      I mean, everything showed — the tax records, the gas bill, the electric
      bill, everything, every document that we could find, okay, especially the
      — it wasn’t going to them, everything was still solely in Emma’s name.

(Zavagno Dep. 10/27/22, tr. 54-55.) Zavagno further testified that he did some

research on his own as to how to underwrite the policy and had a general

conversation with other agents that were part of an insurance board he belonged to.

Zavagno stated:

      I spent days looking at this. There’s what’s called the guidelines. And
      you go to the guidelines for a particular product. Based on the dwelling
      fire guideline, there’s nowhere it talks about an estate, a death. It’s even
      so broad it says that the property manager has a right to apply for
      insurance. So at least Bruce was property manager and had been for
      many, many years. So there was nothing that flagged me. * * * Under
      this particular policy, it’s trust, LLCs, commercial, anybody can apply
      and be insured under this type of policy with Grange.

      ***
      Again, we’re taught to follow the guidelines and the system will stop
      you if not. Again, there was no flag. There was nothing. * * * There
      was nothing that addresses this anywhere.

(Zavagno Dep. 10/27/22, tr. 122-123.)

              Bruce asserted that Zavagno told him that if there was an insurance

claim, Bruce would be paid by Grange for the claim and that once the insurance

premium was paid, Bruce would have insurance for the Property. According to

Bruce, he knew Zavagno had been a licensed Ohio insurance agent for many years,

had no reason to doubt what Zavagno told him, believed that Zavagno knew his

business, and relied on Zavagno’s representations.

              Ultimately, the application listed Emma as the insured and included

her marital status, date of birth, social security number, and occupation under a

section for the applicant’s information.        In that section, the applicant’s

“relationship” was identified as the “insured.”      Zavagno explained that this

information was auto-populated by Grange’s computer system, which only asked for

the insured’s information and not the applicant’s. Bruce averred that he signed the

application as the applicant; paid the insurance premium; and received an insurance

policy from Grange. Zavagno explained that Bruce signed the application as the

applicant because Bruce told him he was the executor of the estate. Zavagno stated,

“He even asked me if he should sign his mother’s name or not. And I said no. Not

trying to hide anything here, you need to sign this. You’re signing on behalf of your

mother.” (Zavagno Dep. 10/27/22, tr. 57.)
               The policy listed Emma as the only named insured on the declarations

page. The policy defined “you” and “your” as the “[n]amed [i]nsured shown on the

[d]eclarations [p]age.” (Emphasis sic.) Relevant to this appeal, the policy defined

“[i]nsured” as “the person or organization shown as the [n]amed [i]nsured on the

[d]eclarations [p]age * * * and any additional insured shown on the [d]eclarations

[p]age.” (Emphasis sic.) The policy stated, “In return for your premium payment

and your compliance with all of the provisions of this policy, we agree to provide

insurance subject to all the terms of this policy.” (Emphasis sic.) The policy further

stated that Grange will “pay you unless another payee is named in the policy or is

legally entitled to be paid.” (Emphasis sic.) The policy also provided steps that “the

insured” must take if a covered loss occurs and Grange “will not pay more than the

insurable interest an insured has in the covered property * * * .” (Emphasis sic.)

               The policy stated, “You warrant that any statement you make in the

application for this insurance is true. Any misstatement of fact you make in this

application for this insurance will render this policy void from the inception date. If

[Grange] void[s] your policy, the premium you have paid will be refunded.”

(Emphasis sic.)     The policy also included a concealment of fraud provision

contracting that the entire policy is void, either before or after a loss, if an insured

intentionally concealed or misrepresented any material fact or circumstance,

engaged in fraudulent conduct, or made false statements in any application or form

submitted to Grange or with regard to any other aspect of the insurance policy,

including its procurement. Finally, the policy provided that interest in the policy
may not be transferred without Grange’s written consent. The policy listed three

avenues for assignment in the event “you die” so long as there was coverage under

the policy “at the time of death.” (Emphasis sic.)

               Attached to Grange’s motion for summary judgment was the affidavit

of Charles William Cubbison, II (“Cubbison”), a personal lines underwriting

manager for Grange. Therein, Cubbison stated that the policy renewed annually and

every year a new declarations page was mailed to Emma at the Property, confirming

she was the sole named insured on the policy. According to Cubbison, Grange was

never advised that Emma was not alive. Bruce claimed that he paid Grange more

than $4,700 for insurance premiums on the Property from 2014 through 2021.

Zavagno testified that he received a commission from Grange when he wrote the

policy in 2014 and each time the policy renewed. Zavagno testified that the policy

was mistakenly put into his “dead file” after the application was approved in 2014,

was on “auto pilot,” and automatically renewed. (Zavagno Dep. 10/27/22, tr. 108-

109.) Zavagno further testified that changes to certain coverage amounts in the

policy’s renewal declaration pages were caused by automatic adjustments due to “an

inflation factor that is built-in based on construction materials * * *.” (Zavagno Dep.

10/27/22, tr. 69.)

               In March 2021, a fire at the Property caused damage in an estimated

amount over $63,000. Bruce attested that he and his wife contacted Zavagno and

told him about the fire. Bruce expected that Grange would assess the damage and

either pay him directly or pay contractors to repair the damage to the Property. Prior
to the fire, Zavagno testified that he was never informed by Grange that there were

any problems with the insurance policy or that the contract was invalid or void.

Zavagno further testified that he “started to get an inclination” that there was a

problem with the policy after the fire because Grange would not respond to phone

calls or inquiries about the status of the claim. (Zavagno Dep. 10/27/22, tr. 86.)

              In a letter dated August 2021, Grange notified Bruce’s attorney that it

did not know or have reason to know that Emma, who was identified as the

individual applying for insurance in the September 2014 application, died prior to

its submission. Grange stated that it was impossible for Emma to have entered into

a contract for insurance and any policy issued in reliance on the application was void

from inception. Grange further stated that even if it were presumed that a contract

of insurance was entered into, the application identifying Emma as the applicant

despite her death constituted a misrepresentation of material fact that resulted in

the policy being void ab initio. Grange advised in the letter that it would refund the

appropriate parties for all premiums paid in light of its discovery of this new

information. According to Cubbison, Grange did, in fact, issue a full refund of all

premium payments that it received in conjunction with the policy.

              Grange also sent a letter to Zavagno, advising him that Universal

breached its agreements with Grange when it submitted the application requesting

insurance for a person whom Universal knew was deceased. Zavagno testified: “I

believe our first thing was when we got the rejection denial of claim is when I first

was made aware. We got no heads up, we got no phone call, I got no — anybody
from Grange like to call us as an agent saying, hey, there’s a problem here, let’s

discuss this. Let’s work this out. Let’s figure this out. Nothing. I got a letter denying

[the] claim.” (Zavagno Dep. 10/27/22, tr. 86.)

               Bruce attested:

      31. I wouldn’t have paid the premiums to Grange if I had thought that
      the policy was invalid or if I thought that Grange wasn’t going to pay
      me if there was a loss on the property.

      32. If either Mr. Zavagno or Grange had told me that there was a
      problem with writing the insurance policy in the way that Mr. Zavagno
      wrote it, I would have gone to another insurance company in order to
      get insurance or I would have made other arrangements for insurance
      or I would have taken whatever other steps were necessary to get
      insurance on the home.

      33. I didn’t take any other actions to get insurance on the [Property]
      because Mr. Zavagno advised me that I had insurance on the [Property]
      and because Grange issued a policy.

(Bruce’s Affidavit, 11/04/22.)

               In August 2022, Grange filed a motion for summary judgment

arguing that it never issued an insurance policy to Bruce to insure the Property; the

contract was either a nullity because it was between Grange and Emma, a deceased

individual, or void ab initio based on the misrepresentations of material fact by

Bruce in the application; Bruce’s claims were barred by the statute of limitations set

forth in R.C. 2305.09; Bruce’s bad-faith claim failed as a matter of law because he

was not an insured person under the policy; Bruce’s bad-faith claim further failed

because he could not produce evidence that Grange lacked any reasonable basis to

question the claim and had actual knowledge that it lacked any reasonable
justification to do so; equitable relief was unavailable to Bruce under the

circumstances; and Grange was not liable for any alleged representations made to

Bruce by his independent insurance agent, Zavagno, or for Zavagno’s alleged

negligence. Bruce filed a brief in opposition arguing his claims were not barred by

the statute of limitations because each renewal of the insurance policy established a

new contract; Zavagno was a Grange agent, making Grange vicariously liable for his

actions; he did not make any misrepresentations to Zavagno or Grange; an implied

contract existed between him and Grange; and Grange was barred from refusing to

pay Bruce for the loss based on the doctrines of detrimental reliance and promissory

estoppel. In response, Grange filed a reply, offering further support for all of the

arguments raised in its motion for summary judgment.

               In December 2022, Zavagno and Universal filed a collective motion

for summary judgment arguing that each of Bruce’s claims were barred by the

statute of limitations set forth in R.C. 2305.09 and, alternatively, Bruce’s breach-of-

fiduciary-duty claim failed as a matter of law because an ordinary business

relationship existed; Bruce, Zavagno, and Universal did not have a contractual

relationship; and Zavagno and Universal were Grange’s agents, making Grange

responsible for any alleged negligent acts. Bruce filed a brief in opposition. In

addition to the alternative argument that his claim began to run with each renewal

of the policy, Bruce asserted that his claims were not barred by the statute of

limitations based on the discovery rule and delayed-damages rule and that the

claims asserted were distinct and separate causes of action with their own specific
statutes of limitation. Bruce further argued that Zavagno had contractually agreed

that he would obtain appropriate insurance for the Property and an implied contract

existed between him and Zavagno; Zavagno was obligated to pay for his loss

pursuant to the doctrines of detrimental reliance and promissory estoppel; Zavagno

had a fiduciary relationship with him; and Zavagno was a Grange agent, making

Grange vicariously liable for Zavagno’s actions. Grange also filed a brief in partial

opposition to Zavagno and Universal’s motion for summary judgment arguing that

at the time Zavagno was conducting his own investigation as to how he was going to

prepare the application for the policy in question, he was acting as an agent for

Bruce, not Grange. Grange further moved for leave to file an amended answer

instanter to assert a crossclaim against Zavagno for indemnity if the trial court

determined Bruce’s negligence-related claims were not time-barred, and Grange

was somehow vicariously liable. In response, Zavagno and Universal filed replies in

support of their motion for summary judgment.

               In April 2023, the trial court granted Grange, Zavagno, and

Universal’s motions for summary judgment on all of Bruce’s claims. Bruce now

appeals the trial court’s order.

II.   Law and Analysis

          A. Standard of Review: Motions for Summary Judgment

               An appellate court reviews the grant or denial of summary judgment

de novo. Grafton v. Ohio Edison Co., 

, 

 (1996).

In a de novo review, the appellate court affords no deference to the trial court’s
decision and independently reviews the record to determine whether summary

judgment is appropriate. Hollins v. Shaffer, 

, 

,

 (8th Dist.); Smathers v. Glass, Slip Opinion No. 2022-Ohio-

4595, ¶ 30.

               Summary judgment is appropriate if (1) no genuine issue of any

material fact remains; (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, construing the evidence most strongly in favor of the nonmoving

party, that conclusion is adverse to the nonmoving party. Grafton at 105.

               The party moving for summary judgment bears the burden of

demonstrating that no genuine issues of material fact exist for trial. Dresher v. Burt,

, 

 (1996). The moving party has the

initial responsibility of informing the trial court of the basis for the motion and

identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact on the essential elements of the nonmoving party’s claims. 

“To accomplish this, the movant must be able to point to the evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment.”     

    These include “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any.” Civ.R. 56(C). “These evidentiary materials must show

that there is no genuine issue as to any material fact, and that the moving party is

entitled to judgment as a matter of law.” 

.
               After the moving party has satisfied this initial burden, the

nonmoving party has a reciprocal duty to set forth specific facts by the means listed

in Civ.R. 56(C) showing that there is a genuine issue of material fact. 

 “One of

the principal purposes of the summary judgment rule is to isolate and dispose of

factually unsupported claims or defenses.” Am. Dental Ctr. v. Wunderle, 8th Dist.

Cuyahoga No. 62548, 

, 4 (Sept. 16, 1993), citing Celotex

Corp. v. Catrett, 

, 

, 

 (1986). This

court has explained:

       “[T]he plain language of the summary judgment rule mandates the
       entry of summary judgment, after adequate time for discovery, and
       upon motion, against a party who fails to make a showing sufficient to
       establish the existence of an element essential to that party’s case, and
       on which that party will bear the burden of proof at trial. In such a
       situation, there can be no ‘genuine issue as to any material fact,’ since
       a complete failure of proof concerning an essential element of a non-
       moving party’s case necessarily renders all other facts immaterial.”

(Citations omitted.) Corradi v. Soclof, 8th Dist. Cuyahoga No. 67586, 

, 6 (May 25, 1995), quoting Toensing v. MK-Ferguson Co., 

, 

 (8th Dist.1992), citing Celotex Corp. at 323-324.

               With these principles in mind, we consider whether the trial court’s

granting of appellees’ motions for summary judgment was erroneous. We begin by

addressing the second assignment of error since it determines the first assignment

of error.
          B. Claims Against Zavagno and Universal

               In the second assignment of error, Bruce argues that the trial court

erred by granting summary judgment in favor of Zavagno and Universal. Bruce

argues that sufficient evidence was presented such that reasonable minds could

conclude that Zavagno and Universal committed negligence; Zavagno committed

fraud; Zavagno and Universal breached an implied contract; Zavagno breached his

fiduciary duty to Bruce; and Zavagno and Universal were obligated to pay for his

loss pursuant to the doctrine of detrimental reliance.1 Bruce also argues that

genuine issues of material fact were presented regarding the application of the

statute of limitations. As noted by Zavagno and Universal, the primary issue to be

addressed in the instant appeal is the applicability of the four-year statute of

limitations proscribed by R.C. 2305.09(D) to Bruce’s claims against them sounding

in professional negligence.


       1 Bruce contends “that there are numerous material facts at issue such that none of

the [a]ppellees are * * * entitled to summary judgment as to any of [his] causes of action.”
However, on appeal Bruce only challenges the granting of summary judgment for the
specific causes of action listed in this section and the next for each of the parties,
respectively. Based on our review of the complaint and appellant’s brief, Bruce fails to set
forth any law or argument regarding the following causes of action raised against the
following appellees: breach of contract, bad faith, and unjust enrichment against all
appellees; breach of fiduciary duty and fraud against Universal and Grange; negligence
against Grange; and vicarious liability and respondeat superior against Universal.
Consequently, Bruce has abandoned those claims. App.R. 12(A)(2); App.R. 16(A)(7);
Midland Funding LLC v. Hottenroth, 

, 

 (8th Dist.),
quoting United States v. Johnson, 

 (6th Cir.2006) (“‘An appellant
abandons all issues not raised and argued in its initial brief on appeal.’”); Adena at Miami
Bluffs Condo. Owners’ Assn. v. Woodward, 12th Dist. Warren No. CA2020-08-044,

 (noting that appellant abandoned some of his claims by not
referring to them at all in his appellate briefing); E. Liverpool v. Columbiana Cty. Budget
Comm., 

, 

, 

 (argument not raised
in the party’s brief is deemed to be abandoned).
               R.C. 2305.09(D) provides a four-year statute-of-limitations period

for torts not specifically covered by other sections of the Revised Code. “Statutes of

limitations serve a gate-keeping function for courts by “‘“(1) ensuring fairness to the

defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing

stale and fraudulent claims, and (4) avoiding the inconveniences engendered by

delay — specifically, the difficulties of proof present in older cases.”’” Flagstar Bank,

F.S.B. v. Airline Union’s Mortg. Co., 

, 

, 

, ¶ 7, quoting Pratte v. Stewart, 

, 2010-Ohio-

1860, 

, ¶ 42, quoting Doe v. Archdiocese of Cincinnati, 

, 

, 

. Generally, a statute of limitations

begins to run as soon as the injurious act complained of is perpetrated, even if the

actual injury subsequently occurs. LGR Realty, Inc. v. Frank & London Ins. Agency,

, 

, 

, citing Kerns v.

Schoonmaker, 4-Ohio-331 (1831), syllabus. There are two primary exceptions to

this general rule. 

 citing O’Stricker v. Jim Walter Corp., 

, 

 (1983), and Flagstar at ¶ 13. The Ohio Supreme Court explained:

      One exception to the general rule is the discovery rule, which provides
      that “[w]hen an injury does not manifest itself immediately, the cause
      of action does not arise until the plaintiff knows or by the exercise of
      reasonable diligence should have known, that he had been injured by
      the conduct of the defendant, for purposes of the statute of limitations.”
      O’Stricker at paragraph two of the syllabus.

      The second exception to the general rule is the delayed-damage rule,
      which this court first adopted in Velotta v. Leo Petronzio Landscaping,
      Inc., 

, 

 (1982). Under the delayed-
      damage rule, “where the wrongful conduct complained of is not
       presently harmful, the cause of action does not accrue until actual
       damage occurs.” 

.

Id. at ¶ 15-16.

                  Ultimately, the parties argue about the applicability of two cases,

Kunz v. Buckeye Union Ins. Co., 

, 

 (1982) and LGR,

in determining when the four-year statute of limitations on Bruce’s professional-

negligence claims, first asserted in 2022, began to run. Under the authority of Kunz,

Bruce asks us to apply the discovery rule and delayed-damage rule to each cause of

action and find that the statute of limitations began to run only after Grange refused

to pay his claim in April 2021.

                  In Kunz, the Ohio Supreme Court answered the following question:

when insurance acquired by an agent for the insured is not as requested by the

insured, when does a cause of action accrue for the failure to procure the coverage

as requested? 

. There, appellants, the insureds, purchased insurance

though the appellees, an insurance agent and insurance agency, for appellants’

business equipment consisting primarily of construction machinery. 

. In

1969, appellees secured a policy written by an insurance company on a crane that

provided “all risk” coverage. 

 Later that year, appellants wished to consolidate

various individual policies on their equipment to a single omnibus policy. 

 The

appellees presented the appellants with a consolidated policy in 1970 and the

appellants believed that it provided the same “all risk” coverage that they formerly

had. 

 The policy ran for three years and was renewed in 1973, when appellants
again assumed that the coverage was just as good as the pre-1970 individualized

policies. 

                In January 1975, appellants increased their coverage on the crane,

and, in April 1975, the crane was involved in a job-site accident. 

 Appellants were

initially informed by the insurance company that the loss would be covered. 

However, in June 1975, the insurance company denied the claim citing certain

exclusionary provisions in the consolidated policy that had not been part of the pre-

1970 insurance contract for the crane. 

                In April 1977, appellants filed suit against the insurance company and

appellees, alleging that appellees failed to obtain the coverage requested or failed to

disclose a change in coverage.2 Kunz, 

, 

. Appellees

filed a motion for summary judgment on the ground that appellants’ claims sounded

in professional negligence and were barred by the four-year statute of limitations

contained in R.C. 2305.09(D). 

 The trial court granted the motion and the First

District Court of Appeals affirmed without discussing when the cause of action

accrued. 

.

                On appeal to the Ohio Supreme Court, the appellants urged the court

to adopt the delayed-damage rule. 

. Relying on a case decided by the Alaska

Supreme Court, the Kunz Court held that the cause of action did not accrue, and the




      2 The insurance company’s motion to dismiss was granted by the trial court.

Appellants did not appeal the trial court’s granting of the motion.     Therefore, the
insurance company was not a party to the subsequent appeal.
statute of limitations did not begin to run until April 1975, the date of the job site

accident involving the crane. In so holding, the court explained:

      [T]here was no invasion, or infringement upon or impairment of such
      interest until there had been a loss to appellants’ equipment because
      until that even occurred such protection could avail appellants nothing.
      Their interest was in having protection when it was needed. * * * To
      adopt the position of the lower courts would in essence require an
      insured to consult legal counsel whenever he consolidated or renewed
      an insurance policy so as to avoid statute of limitations problems when
      a claim eventually arises.

.

                Conversely, the appellees here rely on LGR, as well as numerous cases

leading up to its development, in support of their argument that Bruce’s

professional-negligence claims, first asserted in 2022, are time-barred because the

four-year statute of limitations began to run when the insurance policy was issued

in 2014 and expired in 2018. In LGR, 

, 

, 

, the Ohio Supreme Court addressed the issue of whether the delayed-damage

rule is applicable to a cause of action for professional negligence related to the

procurement of an insurance policy. Id. at ¶ 1. Ultimately, the LGR Court held that

the delayed-damage rule did not apply, and the cause of action accrued on the date

the policy was issued. Id.

                There, appellant, an insurance agency, procured a professional-

liability insurance policy from an insurance company for appellee, a realty company,

that was effective from May 2010 to May 2011. Id. at ¶ 2. A liability claim regarding

certain property was made against the appellee within the policy period and appellee
made a claim against the policy. Id. at ¶ 3. In April 2011, the insurance company

denied the claim on the basis of an exclusion provision in the policy regarding the

property at issue. Id. In April 2015, appellee brought an action against appellant

alleging that appellant had been negligent in failing to procure an appropriate

professional-liability insurance policy and negligently misrepresented the coverage

contained in the policy. Id. at ¶ 4. The trial court concluded that Kunz had been

“eroded” by subsequent cases, declined to apply the delayed-damage rule,

determined that appellee’s cause of action accrued on the day the insurance policy

went into effect in May 2010, and dismissed the complaint. Id. at ¶ 6. The Tenth

District Court of Appeals reversed the trial court’s judgment and applied the

delayed-damage rule, finding that Kunz remained intact. Id. at ¶ 7.

               On appeal to the Ohio Supreme Court, appellant asserted that the

delayed-damage rule enunciated in Kunz was abrogated by subsequent cases and,

therefore, a cause of action for insurance agent or agency negligence accrues when

the allegedly wrongful act was committed for the purposes of the four-year statute

of limitations established by R.C. 2305.09(D). In its analysis of the appellant’s

proposition of law, the Ohio Supreme Court distinguished Kunz without explicitly

overruling it, stating:

      While this case, like Kunz, involves the purchase of insurance, the
      factual similarities of the cases end there. [Here, appellees] purchased
      a professional-liability insurance policy, and when the policy was
      issued to [appellee], the specific-entity exclusion upon which [the
      insurance company] relied in denying the claim was contained in the
      policy. In Kunz, the insureds purchased a property insurance policy
      providing “all risk” coverage on a crane. When that individual policy
       was consolidated into the omnibus policy, the insureds believed,
       incorrectly, that the “all risk” coverage continued.

Id. at ¶ 24.

               The LGR Court went on to emphasize the long-recognized general

rule regarding statutes of limitations: “a statute of limitations begins to run when

the injurious act is committed.” LGR, 

, 

, 

, citing O’Stricker, 

, 

, and Flagstar, 

, 

, 

, at ¶ 13. The court reiterated that

an exception to the general rule is only judicially created or recognized “in the

narrow circumstances in which application of the general rule ‘“would lead to the

unconscionable result that the injured party’s right to recovery can be barred by the

statute of limitations before he is even aware of its existence.”’” 

 quoting

O’Stricker at 87, quoting Wyler v. Tripi, 

, 

(1971).   The Ohio Supreme Court then explicitly found that those narrow

circumstances did not exist in LGR and determined that the cause of action accrued

when the injury occurred, i.e., when appellant issued to appellee the liability policy

that specifically excluded coverage for claims related to services performed at the

property. Id. at ¶ 27.

               In concluding that the four-year statute of limitations period began to

run when appellant issued the insurance policy setting forth the specific entity

exclusion, the court explained:

       If, as [appellee] argues, it was injured by the insurance policy
       containing the specific-entity-exclusion provision provided by
      [appellant], then [appellee] was damaged the moment it entered into
      the contract and became obligated to pay a premium for a professional-
      liability insurance policy that was less than the coverage that it believed
      it would receive. Therefore, the harm to [appellee] was complete when
      [appellant] issued the insurance contract setting forth the specific-
      entity-exclusion provision.

Id. at ¶ 28. The court held that “the delayed-damage rule does not apply to a cause

of action alleging negligent procurement of a professional-liability insurance policy

or negligent misrepresentation of the terms of the policy when the policy at issue

contains a provision specifically excluding the type of claim that the insured alleges

it believed was covered by the policy.” Id. at ¶ 31. The LGR Court’s conclusion was

in line with two prior Ohio Supreme Court decisions holding, “A cause of action for

professional negligence accrues when the act is committed.” Flagstar at ¶ 27, citing

Investors Reit One v. Jacobs, 

, 

 (1989).

              Based on our extensive review of the record before us and applicable

caselaw, we find Kunz to be distinguishable for the same reasons set forth in LGR.

In his complaint, Bruce alleges that Zavagno and Universal negligently failed to

procure the appropriate insurance on the Property. The application for insurance

naming Emma as the insured and including Bruce’s signature as the applicant was

submitted by Zavagno and Universal to Grange in 2014. Grange then issued an

insurance policy listing Emma as the only named insured. Bruce was not listed as

an insured or a payee and was not otherwise mentioned anywhere in the insurance

policy; Bruce’s name only appears in the initial application in the form of the hand-

written signature of the applicant. Bruce’s status as an “applicant” does not fall
within the definitions of “you,” “your,” and “insured” as defined by the policy and

Bruce does not argue that he fell within these definitions. Based on the explicit

terms of the policy, it should have been immediately apparent to Bruce that he would

not be paid for any loss. Furthermore, the terms of the policy are not reconcilable

in light of the fact that “the insured” was deceased at the time the policy was issued,

e.g., Emma, “the insured,” could not have taken the steps listed if a covered loss

occurred or warranted that any statement made in the application was true. Nor

could interest in the policy be transferred because the Property was not covered

under the policy at the time of Emma’s death.

               Accordingly, we find that the statute of limitations began to accrue in

2014, when Zavagno and Universal’s allegedly negligent act was committed and the

insurance policy was issued, completing the harm.            This purported act of

professional negligence, which occurred in 2014, was merely perpetuated by the

automatic renewal of the policy each year.        Because the four-year statute of

limitations expired in 2018 and Bruce’s complaint was not filed until 2022, Bruce’s

professional-negligence claims against Zavagno and Universal are time-barred

pursuant to LGR.

               We further find that the causes of action against Zavagno and

Universal that Bruce raises on appeal all sound in professional negligence. The

statute of limitations to be applied is determined from the essential ground or gist

of the complaint. Kunz, 

, 

 (finding that the

action was “roughly analogous to a malpractice action” and concluding that it was
grounded in tort rather than contract because “[t]he relationship between the

parties * * * called for the performance of certain services by the insurance agent,

and any breach thereof involved the agent’s failure to secure the desired insurance

coverage”);3 Chateau Estate Homes v. Fifth Third Bank, 

, 

 (1st Dist.) (finding R.C. 2305.09(D)’s four-year statute of limitations for

tort claims was applicable to the entire action because the factual basis for the

breach-of-contract claim asserted against an insurance broker was exactly the same

as the factual basis for the asserted negligence claims); Chernett Wasserman

Yarger, L.L.C. v. ComScape Holding, Inc., 8th Dist. Cuyahoga No. 100907, 2014-

Ohio-4214, ¶ 16 (“When considering whether a legal malpractice claim has been

brought within the applicable statute of limitations, ‘the crucial consideration is the

actual nature or subject matter of the cause, rather than the form in which the

complaint is styled or pleaded.’ Hunter v. Shenango Furnace Co., 

, 

 (1988) * * *.”). The alleged conduct underlying Bruce’s

fraud, breach-of-implied-contract, detrimental-reliance, and breach-of-fiduciary-

duty claims against Zavagno and breach-of-implied-contract and detrimental-

reliance claims against Universal essentially allege that Zavagno and Universal



      3 The issues posed in Kunz were two-fold: (1) whether the allegations in the

insureds’ complaint sounded in tort or contract and were governed by the statute of
limitations set forth in R.C. 2305.09 or 2305.07, respectively, and (2) when does a cause
of action accrue for an insurance agent’s failure to procure insurance coverage as
requested by the insured. Id. at 80. As discussed above, we find the disposition of the
second issue to be distinguishable. However, Kunz’s discussion of the first issue remains
instructive to our analysis regarding whether the causes of action against Zavagno and
Universal sound in professional negligence.
failed to procure or obtain appropriate insurance coverage on the Property.

Therefore, these claims are simply restatements of the negligence claims and sound

in tort.    Accordingly, the four-year statute of limitations proscribed by

R.C. 2305.09(D) applies.

              Because no genuine issue of material fact remains that Bruce’s claims

against Zavagno and Universal are time-barred pursuant to the statute of limitations

set forth in R.C. 2305.09(D), we affirm the trial court’s granting of Zavagno and

Universal’s motion for summary judgment.

           C. Claims Against Grange

              In the second assignment of error, Bruce also argues that sufficient

evidence was presented for reasonable minds to conclude that Grange breached an

implied contract and was obligated to pay for his loss pursuant to the doctrine of

detrimental reliance.   Bruce asserts that a valid implied contract was created

whereby Zavagno and Universal were to obtain insurance on the Property and,

because Zavagno and Universal were acting as agents of Grange, Grange is now

bound by that implied contract to obtain insurance. Bruce concludes:

      Under Ohio law, once his mother pas[sed], [Bruce] was a part owner of
      the [Property] and he therefore could purchase insurance in his name
      on that home. [Bruce] intended to buy insurance from Gran[g]e,
      Zavagno and Universal intended to write a Grange policy for [Bruce],
      Grange intended to insure the home, [Bruce] paid consideration for the
      insurance every year. The only thing missing is that now, Grange is
      trying to renege on the deal.

Bruce fails to cite any legal authority in support of an implied contract under these

circumstances.
               This court has held that when an appellant fails to cite to any legal

authority for their claims, that failure allows this court to disregard their arguments.

Pinkney v. Salett, 8th Dist. Cuyahoga No. 96130, 

, citing

App.R. 12(A)(2); App.R. 16(A)(7); see also State v. Martin, 12th Dist. Warren

No. CA99-01-003, 

 (July 12, 1999), citing Meerhoff v.

Huntington Mtge. Co., 

, 

 (3d Dist.1995);

Siemientkowski v. State Farm Ins., 8th Dist. Cuyahoga No. 85323, 2005-Ohio-

4295. Afterall, “[a]ppellate courts are not advocates.” Taylor-Stephens v. Rite Aid

of Ohio, 8th Dist. Cuyahoga No. 106324, 

, ¶ 121. The appellant,

rather than the appellate court, bears the burden to construct the necessary legal

arguments that support the designated assignments of error. Doe v. Cuyahoga Cty.

Community College, 8th Dist. Cuyahoga No. 110590, 

, citing

Taylor-Stephens. “‘If an argument exists that can support this assigned error, it is

not this court’s duty to root it out.’” 

 quoting Cardone v. Cardone, 9th Dist.

Summit Nos. 18349 and 18673, 

, 22 (May 6, 1998).

Accordingly, we decline to review Bruce’s claim that summary judgment was

improper as to the implied-contract claim he asserted against Grange.

               In the first assignment of error, Bruce argues that Zavagno and

Universal are agents of Grange, thereby making Grange vicariously liable for their

actions based on the doctrine of respondeat superior. Because summary judgment

was properly granted on the underlying claims challenged on appeal against

Zavagno and Universal, Grange cannot be vicariously liable for any of those claims.
See, e.g., Clawson v. Hts. Chiropractic Physicians, L.L.C., 

, 2022-

Ohio-4154, 

 (holding a plaintiff could not prevail on a claim of

chiropractic malpractice against a chiropractor’s employer under the doctrine of

respondeat superior when the expiration of the applicable statute of limitations

extinguished the chiropractor’s direct liability for the alleged malpractice); Krause

v. Case W. Res. Univ., 8th Dist. Cuyahoga No. 70712, 

,

16 (Dec. 19, 1996) (“Under the doctrine of respondeat superior, without an

underlying tort claim against an employee, a plaintiff has no claim against the

employee’s employer.”), citing Strock v. Pressnell, 

, 

 (1988) (“It is axiomatic that for the doctrine of respondeat superior to

apply, an employee must be liable for a tort committed in the scope of his

employment.”). Therefore, we need not consider Bruce’s arguments that Zavagno

and Universal are agents of Grange and, thus, Grange is vicariously liable under the

doctrine of respondeat superior. For the same reason, Bruce’s claim that Grange is

responsible for his alleged determinantal reliance on Zavagno’s alleged negligent

advice also fails.

               Accordingly, we affirm the trial court’s decision granting Grange’s

motion for summary judgment; no genuine issue of material fact remains as to

Bruce’s implied-contract, detrimental-reliance, and vicarious-liability/respondeat-

superior claims against Grange. Having disposed of all of the arguments Bruce

raises on appeal, we overrule the two assigned errors presented for our review.
III.   Conclusion

               We find that no genuine issues of material fact remain as to Bruce’s

negligence, fraud, breach-of-implied-contract, detrimental-reliance, and breach-of-

fiduciary-duty claims against Zavagno; negligence, breach-of-implied-contract, and

detrimental-reliance claims against Universal; and vicarious-liability/respondeat-

superior, breach-of-implied-contract, and detrimental-reliance claims against

Grange. Bruce’s claims against Zavagno and Universal are time-barred pursuant to

the statute of limitations set forth in R.C. 2305.09(D). Because summary judgment

was properly granted on the underlying claims challenged on appeal against

Zavagno and Universal, Grange cannot be vicariously liable for any of those claims

under the doctrine of respondeat superior. For that same reason, Bruce’s argument

that Grange is responsible for his alleged determinantal reliance on Zavagno’s

alleged negligent advice also fails. Finally, Bruce failed to cite any legal authority or

develop his argument that Grange is bound by an implied contract under the

circumstances of this case.

               Accordingly, we affirm the trial court’s granting of appellees’ motions

for summary judgment.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       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.



MARY J. BOYLE, JUDGE

ANITA LASTER MAYS, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR