[Cite as Hatfield v. Whisman, 2016-Ohio-7597.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     SCIOTO COUNTY

Jason Hatfield, et al.,                          :   Case No. 16CA3738

        Plaintiffs-Appellants,                   :

v.                                               :   DECISION AND
                                                     JUDGMENT ENTRY
Melissa Whisman, et al.,                         :
                                                     RELEASED: 10/31/16
        Defendants-Appellees                     :

                                           APPEARANCES:

Michael H. Mearan, Portsmouth, Ohio, for appellants.

Stuart A. Keller, David A. Goldstein Co., L.P.A., Columbus, Ohio, for appellee, Safe
Auto Insurance Company.
Harsha, J.
        {¶1}    Jason Hatfield and Carrie Gerald appeal from a summary judgment

entered in favor of Hatfield’s automobile insurance company, Safe Auto Insurance

Company (“Safe Auto”), on their suit for uninsured-motorist coverage. In rendering the

judgment the trial court relied upon the policy’s two-year limitation period to bring an

action. The accident in which Hatfield and Gerald were injured by an uninsured motorist

occurred in October 2007, but they did not bring an action against Safe Auto to collect

on the uninsured-motorist provision of their policy until May 2015.

        {¶2}    In their sole assignment of error Hatfield and Gerald assert that the trial

court erred in granting Safe Auto’s motion for summary judgment without considering

whether the two-year limitation in the uninsured-motorist clause was unconscionable.

We reject their assertion because courts have uniformly held that a two-year limitation

period is a reasonable and appropriate period of time in which to require an insured who
Scioto App. No. 16CA3738                                                            2


has suffered bodily injury to commence an action under the uninsured/underinsured-

motorist provisions of an insurance policy. Moreover, the trial court did not violate R.C.

1302.15(B) by entering summary judgment in favor of Safe Auto because the court

afforded the parties a reasonable opportunity to present pertinent evidence on the

issue, and Hatfield and Gerald failed to introduce summary-judgment evidence that the

two-year limitation was unconscionable.

       {¶3}   The trial court properly granted summary judgment in favor of Safe Auto;

we affirm that judgment.

                                         I. FACTS

       {¶4}   In October 2007, Jason Hatfield was operating his Pontiac Grand Prix

automobile with Carrie Gerald and his son, Aaron, riding as passengers in the car.

According to Hatfield and Gerald, Melissa Whisman negligently operated a car owned

by another person and collided with Hatfield’s car, causing them to suffer personal

injuries. In October 2009, Hatfield and Gerald initiated a personal-injury action against

Whisman in the Portsmouth Municipal Court and obtained a default judgment against

her in August 2011. But before a scheduled damages hearing, Hatfield and Gerald

voluntarily dismissed the action without prejudice.

       {¶5}   In August 2012, Hatfield and Gerald refiled their personal-injury action

seeking damages against Whisman. After Whisman failed to respond to their new

complaint, the trial court granted appellants’ motion and entered a default judgment

against her on the issue of liability.

       {¶6}   In March 2015, the attorney for Hatfield and Gerald received a letter from

Whisman’s insurance provider, General Automobile Insurance Company, Inc., that
Scioto App. No. 16CA3738                                                           3


stated that there was no coverage for the accident. A couple months later, in May 2015,

Hatfield and Gerald filed an amended complaint adding a claim against Hatfield’s

automobile insurance carrier, Safe Auto, under his policy’s uninsured-motorist provision.

Hatfield and Gerald thus filed their amended complaint adding Safe Auto as a defendant

more than seven years after the October 2007 accident. Safe Auto filed an answer,

cross-claim, and counterclaim.

       {¶7}   Safe Auto then filed a motion for summary judgment. The insurance

company claimed that Hatfield and Gerald’s claim against it was barred by the following

two-year contractual limitation in the policy:

       SUIT AGAINST US
       We may not be sued unless there is full compliance with all the terms of
       the policy. We may not be sued under the liability coverage until your
       obligation to pay is finally determined either by judgment against the
       person after actual trial or by written agreement of the person, the
       claimant, and us. No one shall have any right to make us a party to a
       lawsuit to determine your liability. Any lawsuit seeking recovery under
       Part IV, Uninsured/Underinsured Motorists Coverage, must be filed within
       two (2) years from the date of the auto accident.

(Emphasis added.)

Safe Auto attached to its motion for summary judgment a certified copy of its

automobile insurance declarations and policy covering Hatfield and his vehicle

during the accident.

       {¶8}   In their memorandum in opposition Hatfield and Gerald argued that the

two-year contractual limitation in the insurance policy “would be unconscionable in as

much that another provision precludes suit under the uninsured motorist provision of the

policy within ninety (90) days of discovering the Defendant, Melissa Whisman, did not

have insurance” and that “[u]nder the circumstance[s] it would be unconscionable to
Scioto App. No. 16CA3738                                                            4


permit an insurance company from paying a claim that is clearly valid.” Hatfield and

Gerald did not cite any pertinent authority in support of their claim and did not submit

any Civ.R. 56(E) summary-judgment evidence in opposition to Safe Auto’s motion.

       {¶9}   In January 2016, the trial court granted Safe Auto’s motion and entered

summary judgment in its favor on Hatfield’s and Gerald’s claims. The court applied “the

clear and unambiguous language of the policy [that] provides that any action brought by

an insured under his uninsured/underinsured motorist coverage provided in this contract

issued by Safe Auto Insurance Company must be filed within two (2) years from the

date of the auto accident.” The court scheduled the matter for a damages hearing on

the default judgment against Whisman. A couple months later, the trial court entered

judgment for over $25,000 in damages in favor of Hatfield and Gerald against Whisman.

(OP52) Hatfield and Gerald appeal from the entry of summary judgment in favor of

Safe Auto on their insurance claim.

                              II. ASSIGNMENT OF ERROR

       {¶10} Hatfield and Gerald assign the following error for our review:

       THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT, SAFE
       AUTO’S MOTION FOR SUMMARY JUDGMENT WITHOUT
       CONSIDERING WHETHER THE UNINSURED MOTORIST CLAUSE
       WAS UNCONSCIONABLE.

                              III. STANDARD OF REVIEW

       {¶11} Hatfield and Gerald assert that the trial court erred in granting summary

judgment to Safe Auto without determining whether the insurance policy’s two-year

contractual limitation in its uninsured motorist clause was unconscionable.

       {¶12} Generally, appellate courts apply a de novo standard of review to an

appeal from a summary judgment based on an insurance contract. Westfield Ins. Co. v.
Scioto App. No. 16CA3738                                                               5

Hunter, 128 Ohio St. 3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12; see also Willis v.

Gall, 2015-Ohio-1696, 31 N.E.3d 678, ¶ 10 (4th Dist.) (“[t]he interpretation of a written

contract, such as an insurance policy, is a matter of law that we review de novo”);

Hickory Grove 339, L.L.C. v. Cincinnati Ins. Co., 4th Dist. Washington No. 15CA38,

2016-Ohio-3408, ¶ 13.

       {¶13} Summary judgment is appropriate if the party moving for summary

judgment establishes that (1) there is no genuine issue of material fact; (2) the moving

party is entitled to judgment as a matter of law; and (3) reasonable minds can come to

but one conclusion, which is adverse to the party against whom the motion is made.

Civ.R. 56(C); New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St. 3d 39, 2011-

Ohio-2266, 950 N.E.2d 157, ¶ 24; Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶

29 (4th Dist.). The moving party has the initial burden to inform the trial court of the

basis for the motion and to identify the parts of the record that demonstrate the absence

of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio

St.3d 280, 293, 662 N.E.2d 264 (1996). Once the moving party satisfies this initial

burden, the non-moving party has the reciprocal burden under Civ.R. 56(E) to set forth

specific facts to show that genuine issues exist for trial. Id.; Schultheiss v. Heinrich

Ents., Inc., 2016-Ohio-121, ___ N.E.3d ___, ¶ 15 (4th Dist.).

       {¶14} “The fundamental goal when interpreting an insurance policy is to

ascertain the intent of the parties from a reading of the policy in its entirety and to settle

upon a reasonable interpretation of any disputed terms in a manner designed to give

the contract its intended effect.” Laboy v. Grange Indemn. Ins. Co., 144 Ohio St. 3d 234,

41 N.E.3d 1224, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8. In the absence of an express
Scioto App. No. 16CA3738                                                             6


contractual definition or resultant manifest absurdity, we will construe words and

phrases contained in an insurance policy in accordance with their plain and ordinary

meaning. Id., citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241, 374
N.E.2d 146 (1978), paragraph two of the syllabus; see also Wayne Mut. Ins. Co. v.

McNabb, 2016–Ohio–153, ___ N.E.3d ___, ¶ 20 (4th Dist.).

                                IV. LAW AND ANALYSIS

      {¶15} In their sole assignment of error Hatfield and Gerald claim that the trial

court erred in granting summary judgment in favor of Safe Auto because it failed to

consider whether the two-year limitation in the insurance policy was unconscionable.

They contend that the trial court thereby violated R.C. 1302.15(B), which provides that

“[w]hen it is claimed or appears to the court that the contract or any clause thereof may

be unconscionable the parties shall be afforded a reasonable opportunity to present

evidence as to its commercial setting, purpose, and effect to aid the court in making its

determination.”

      {¶16} Unconscionability includes both an absence of meaningful choice on the

part of one of the parties together with contract terms that are unreasonably favorable to

the other party; the party asserting that the contract is unconscionable has the burden of

proving that the agreement is both procedurally and substantively unconscionable. See

Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 20.

      {¶17} As appellants themselves acknowledge, courts have consistently upheld a

two-year limitation period in which to require an insured who has suffered bodily injury

to commence an action under the uninsured/underinsured-motorist provisions of an

insurance policy as reasonable and appropriate. See Angel v. Reed, 119 Ohio St.3d
Scioto App. No. 16CA3738                                                             7

73, 2008-Ohio-3193, 891 N.E.2d 1179, ¶ 12; Sarmiento v. Grange Mut. Cas. Co., 106
Ohio St. 3d 403, 2005-Ohio-5410, 835 N.E.2d 692, ¶ 16; Miller v. Progressive Cas. Ins.

Co., 69 Ohio St. 3d 619, 625, 635 N.E.2d 317 (1994).

       {¶18} On appeal Hatfield and Gerald argue that the period was unconscionable

because they were precluded from bringing a suit under the uninsured-motorist clause

until they had exhausted their claim against the tortfeasor and her insurance company.

They do not specifically point to which clause in the policy they are relying on. Notably,

the exhaustion requirement in the same paragraph as the two-year limitation period

applies only to a suit under the liability-coverage section of the policy and not a lawsuit

seeking recovery under the uninsured-motorist coverage. And courts have routinely

held that exhaustion provisions in insurance policies are a condition precedent to an

insured’s right to payment and not a precondition to filing suit by the insured against his

insurer within the contractual limitation period. See Barbee v. Nationwide Mut. Ins. Co.,

130 Ohio St. 3d 96, 2011-Ohio-4914, 955 N.E.2d 995, ¶ 45; D’Ambrosia v. Hensinger,

10th Dist. Franklin No. 09A-496, 2010-Ohio-1767, ¶ 15-16 (exhaustion and full-

compliance provisions of insurance policy did not render two-year contractual limitation

to raise uninsured/underinsured-motorist claim ambiguous and unenforceable). Nothing

prevented appellants from discovering the uninsured status of Whisman in time to

comply with the clear and unambiguous two-year limitation. See Angel, 119 Ohio St. 3d
73, 2008-Ohio-3193, 891 N.E.2d 1179, at ¶ 19.

       {¶19} Likewise, the trial court did not violate R.C. 1302.15(B) by entering

summary judgment in favor of Safe Auto because Hatfield and Gerald were afforded a

reasonable opportunity to submit Civ.R. 56(E) summary judgment evidence setting forth
Scioto App. No. 16CA3738                                                             8

specific facts to support their unconscionability claim. See, e.g., Pohman v. Columbia-

Brookpark Mgt., L.L.C., 8th Dist. Cuyahoga No. 88666, 2007-Ohio-4044, ¶ 13-14 (R.C.

1302.15(B) does not require an evidentiary hearing, but can be satisfied by the Civ.R.

56 summary judgment procedure for submitting evidence); see also Young v. Rollins

Leasing Corp., 6th Dist. Lucas No. L-78-137, 1979 WL 207397, *5 (Dec. 7, 1979) (R.C.

1302.15 “does not provide a specific method for the presentation of evidence as to the

commercial setting of the contract”). But after Safe Auto made and supported its motion

for summary judgment with certified copies of the insurance policy and declarations

page, Hatfield and Gerald failed to meet their reciprocal burden of establishing a

genuine issue of material fact concerning the enforceability of the two-year contractual

limitation with summary-judgment evidence.

       {¶20} Finally, we need not address appellants’ additional argument in their reply

brief that they were “justified under the circumstances to be relieved of the two-year

requirement” because we address assignments of error and not mere arguments. See

State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 28 (court need

not address argument not assigned as error because we review assignments of error

and not mere arguments). And to the extent that they are attempting to raise an

argument apart from unconscionability, they cannot raise that new argument in a reply

brief. See Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No.

13CA14, 2014-Ohio-239, ¶ 17 (“an appellant may not use a reply brief to raise new

issues or assignments of error”).

       {¶21} Therefore, the trial court did not err in granting summary judgment in favor

of Safe Auto. We overrule appellants’ assignment of error.
Scioto App. No. 16CA3738                                                           9


                                    V. CONCLUSION

      {¶22}    Summary judgment was appropriate because Safe Auto established that

there was no genuine issue of material fact, it was entitled to judgment as a matter of

law, and reasonable minds could come to only one conclusion, which was adverse to

Hatfield and Gerald. The two-year insurance policy limitation barred their untimely

uninsured-motorist claim. Having overruled appellants’ sole assignment of error, we

affirm the trial court’s entry of summary judgment in favor of Safe Auto.

                                                                JUDGMENT AFFIRMED.
Scioto App. No. 16CA3738                                                           10


                                      JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Portsmouth Municipal Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.


                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.