O'Donnell v. Financial American Life Insurance Company

Filing 111

OPINION AND ORDER denying #86 Motion for Certification and #99 Motion for Reconsideration. Signed by Judge Michael H. Watson on 8/21/2017. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

2017 AUG 21 PM 3: 22
U.~;. DISH;t{:T CC rJ!H
SUUiHERN OiST. CHiO
t~ST. DIV. COLUMaus
1

SHEELA K. O'DONNELL,

Plaintiff,
Case No. 2:14-cv-1071
JUDGE MICHAEL H. WATSON
Magistrate Judge Jolson

v.
FINANCIAL AMERICAN LIFE
INSURANCE CO.,

Defendant.

OPINION AND ORDER
Financial American Life Insurance Co. ("Defendant") moves for
reconsideration of the Court's March 21, 2016, Opinion and Order ("March 21
Order''), ECF No. 99, and to certify three issues decided in the Order to the Ohio
Supreme Court, ECF No. 86. The Court DENIES both motions.
I.

BACKGROUND

The facts of this case are set forth in more detail in the March 21 Order.
For ease of reference, relevant background facts from that Order are repeated
below.

A. The Parties
Defendant Financial American Life Insurance Co. offers credit life
insurance policies. Such policies, available to consumers financing credit

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transactions, offer payments to the consumer's lender in the event the consumer
dies or becomes disabled. Defendant offers its policies exclusively at automobile
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dealerships, where Defendant trains the dealership s employees on how to offer
the policies to customers. Tri-County Chrysler Dodge Jeep in Health, Ohio {"TriCounty") was one of these dealerships.
On February 10, 2102, Plaintiff Sheela K. O'Donnell and her late husband,
Daniel 0 Donnell, Sr., purchased a new automobile from Tri-County. The
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O'Donnells financed the automobile purchase through Wells Fargo Dealer
Service {"Wells Fargo").
In connection with the purchase, a Tri-County agent solicited the
O'Donnells to purchase one of Defendant's policies. The agent told the
O'Donnells that it would benefit them to purchase credit life insurance since they
were both in their sixties. The agent then presented the O'Donnells with an
application for credit life insurance {the "Policy"). The agent did not inform the
O'Donnells of any restrictions on their ability to purchase the insurance or
otherwise discuss the O'Donnells' suitability for the insurance. The agent
similarly did not ask any questions about the O'Donnells' heath history.

B. The Policy and its Terms
The parties highlight several of the Policy's provisions. The following
provisions relate to the O'Donnells' eligibility for the Policy:
THE FOLLOWING ARE MY REPRESENTATIONS AND
ACKNOWLEDGMENT OF INSURABILITY REQUIREMENTS
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ELIGIBILITY REQUIREMENT:

1. I am not eligible for any insurance if I now have, or during the
past two (2) years have been seen, diagnosed or treated
{including medication) by a doctor or member of the medical
profession for: (a) a disease or disorder of the: Brain, Heart,
Lung, Liver, Kidney, Respiratory System, Circulatory System,
Digestive System, Neurological/Muscular System; {b) Cancer;
High Blood Pressure {prescribed and/or taking more than one
medication); Edema; Stroke; Diabetes; Alcoholism; Drug Abuse;
Morbid Obesity (and/or complications directly related to); or a
Psychological or Psychiatric Illness; {c) an HIV Positive test
result; or {d) weight reduction surgery (had or recommended to
have).

YOUR CERTIFICATE MAY NOT BE IN FORCE WHEN YOU HAVE
A CLAIM! PLEASE READ!
Your certificate is issued based on the information entered in this
Application. If, to the best of your knowledge and belief, there is any
misstatement in this Application or if any information concerning the
medical history of any insured person has been omitted, you should
advise the Company, otherwise your Certificate may not be a valid
contract.
My signature below acknowledges that I have read and understand
the above lnsurability Requirements and represent that I meet both
the Eligibility Requirements and the Statement of lnsurability and am
eligible for the coverage as requested in the Schedule. I further
understand and agree that I am insured only if I have signed below
and I agree to pay the premiums for this insurance . .. .
ECF No. 37-1, at PAGEID # 386.
Below that clause, the O'Donnells both signed the Policy:

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Id.
Plaintiff testified that neither she nor Mr. O'Donnell read the Policy before
signing it. The Tri-County agent did not instruct the O'Donnells not to read the
Application or obstruct the O'Donnells from doing so. Plaintiff testified that she
and Mr. O'Donnell had signed other applications for credit life insurance in the
past without reading them.
Following the Policy's Eligibility section is a section entitled CERTIFICATE
OF INSURANCE. This section states:
We certify that, if we have been paid the premium shown in the
Application, you are insured for the coverage shown in the
Application, subject to the terms of the Group Policy issued to the
Creditor and acceptance by us.
Our acceptance will be in
accordance with our procedures and practices.
Under no
circumstances will acceptance occur before sixty (60) days of the
receipt of the Application. . . . All benefit payments are made to the
Creditor shown in the Application to pay off or reduce your debt. If
benefit payments are more than the balance of your loan, we will
pay the difference to you or to a named Second Beneficiary. . ..
The PAYMENT OF A DEATH BENEFIT section below the CERTIFICATE OF
INSURANCE SECTION states:
If you or the insured Co-Borrower dies while insured, we will pay the
amount of insurance then in force after we receive proof of death.
Only one death benefit is payable under this Certificate. Payment of
a death benefit terminates all insurance coverage under this
Certificate. We will not pay more than the decreasing insurance
balance of the initial amount of life insurance.
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Id. at PAGEID # 387.
It is undisputed that the O'Donnells paid a premium of $1,429.56 at the
time they signed the Policy. This premium, according to Plaintiff, purchased
$30,629.93 worth of credit life insurance over a period of 75 months, payable to
Wells Fargo in the event the O'Donnells died or became disabled. Defendant
accepted the premium payment, meaning that the O'Donnells became "insured
for the coverage shown in the Application, subject to the terms of the Group
Policy issued to the Creditor." Id. Defendant therefore became obligated to "pay
the amount of insurance then in force after we receive proof of death" in the
event that either of the O'Donnells died while insured. Id.

C. Mr. O'Donnell's Death
Approximately a year and a half after the O'Donnells purchased the Policy,
on October 16, 2013, Mr. O'Donnell died. Plaintiff submitted a claim to
Defendant for a life benefit payment pursuant to the Policy. The balance owed
on the loan at that time was approximately $21,000.
Plaintiff included a certified copy of Mr. O'Donnell's death certificate with
her claim. The death certificate lists Mr. O'Donnell's cause of death as
myocardial infarction due to coronary artery disease and hypercholesterolemia.
The death certificate also lists conditions contributing to Mr. O'Donnell's death as
hypertension, atrial fibrillation, congestive heart failure, peripheral vascular
disease, and esophageal cancer.
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Defendant requested additional information from Plaintiff. Specifically,
Defendant presented Plaintiff with authorization forms to obtain Mr. O'Donnell's
medical records. Plaintiff complied and Defendant received the forms, which
indicated that Mr. O'Donnell had suffered from and been treated for high blood
pressure, vascular disease, and other disorders within the two years preceding
the date on which the O'Donnells signed the Policy.
It is undisputed that the O'Donnells' representation that Mr. O'Donnell met
the insurance eligibility requirements set forth in the Policy was false. It is
undisputed that both Plaintiff and Mr. O'Donnell were aware that Mr. O'Donnell
had been seen, diagnosed, and treated for heart, kidney, circulatory, neurological
conditions or high blood pressure in the two years preceding the date on which
they signed the Policy. It likewise is undisputed that the O'Donnells did not
inform Defendant about Mr. O'Donnells ineligibility under the Policy at any point
prior to Mr. O'Donnell's death.
Upon receiving Defendant's medical forms and determining that Mr.
O'Donnell had been ineligible for coverage, Defendant denied Plaintiffs claim.
Plaintiff filed this lawsuit shortly thereafter.

D. Procedural Posture
Plaintiff brings the following claims that are relevant to this Opinion and
Order: (1) declaratory relief that Defendant is not permitted to demand medical
records as a condition for evaluating a claim for life insurance death benefits
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unless the policy specifically reserves that right {Count One); (2) breach of
contract for refusing to evaluate Plaintiffs claim unless she produced medical
records after the insured's death (Count Three); (3) breach of the duty of good
faith and fair dealing {Count Four); and {4) unjust enrichment/equitable restitution
{Count Five). Defendant counterclaims for rescission of the Policy and for a
declaratory judgment that: (1) Plaintiffs request for coverage and benefits under
the Policy is precluded because the Contract of Insurance with regard to
coverage for Decedent is void ab initio as a result of the O'Donnells' fraudulent
misrepresentations on the Application; (2) Plaintiffs request for coverage and
benefits under the Policy is precluded under Ohio Revised Code § 3911.06; and
(3) Plaintiffs request for coverage and benefits under the Policy is precluded
because Mr. O'Donnell was not eligible for coverage such that no contract was
formed.
Defendant moved for summary judgment on each of Plaintiffs claims and
on its counterclaims. Defendant argued, inter alia, that the O'Donnells'
signatures on the Policy were false representations that voided their coverage
thereunder. Defendant relied primarily on Ohio Revised Code § 3911.06, title
"False Answer," which states:
No answer to any interrogatory made by an applicant in his
application for a policy shall bar the right to recover upon any policy
issued thereon, or be used in evidence at any trial to recover upon
such policy, unless it is clearly proved that such answer is willfully
false, that it was fraudulently made, that it is material, and that it
induced the company to issue the policy, that but for such answer
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the policy would not have been issued, and that the agent or
company had no knowledge of the falsity or fraud of such answer
The Ohio Supreme Court has stated the following regarding § 3911.06:
[A]n insurer can satisfy the requirements of Section 3911.06, so as
to establish an answer to an interrogatory by an applicant as a bar to
recovery upon a policy, by clearly proving that
( 1) the applicant willfully gave a false answer
(2) such answer was made fraudulently
(3) but for such answer the policy would not have been
issued and
(4) neither the insurer nor its agent had any knowledge
of the falsity of such answer.

Jenkins v. Metro. Life Ins. Co., 171 Ohio St. 557, 561-62, 173 N.E.2d 122
(1961 ).
This Court, in an Opinion and Order by now-retired Judge Frost, rejected
Defendant's arguments regarding§ 391 1.06's application to this case. Judge
Frost analyzed the issue as follows:
The first question for the Court is one of statutory
interpretation: does the O'Donnells' signature on the Policy
constitute a false "answer to any interrogatory" within the meaning of
§ 3911.06? Plaintiff argues that the plain language of the statute
does not apply because the O'Donnells were not presented with and
did not answer any interrogatories in connection with the Policy.
Defendant argues that, notwithstanding the statute's plain language,
"Ohio courts apply R.C. 3911 .06 to applications with affirmations
similar to the one at issue here." {ECF No. 37, at PAGEJD # 356.)
Defendant cites caselaw in which a judicial officer from the Northern
District of Ohio found that "the Ohio statute intends to protect the
insurer from a fraudulent application." (Id. at PAGEID # 359 (citing
New York Life Ins. Co. v. Wittman, 813 F. Supp. 1287, 1298 (N.D.
Ohio 1993)). Defendant also cites a case in which an Ohio court
found that an affirmation in a life insurance policy "was in effect an
interrogatory." (Id. at PAGEID # 1461 (quoting Am. Assur. Co. v.
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Early, 34 Ohio C.D. 320, 1912 WL 827 (Ohio Cir. Ct. 1912)).)

Finally, Defendant argues that "[t]here is no rational reason to limit
application of the statute to circumstances where such health
information is provided only by response to a question." (Id.)
In interpreting § 3911.06, the Court is "obligated to decide the
case as [it] believe[s] the Ohio Supreme Court would do." City of
Columbus, Ohio v. Hotels.com, L.P., 693 F.3d 642, 648 (6th Cir.
2012) (quoting Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com,
L.P., 590 F.3d 381, 384 (6th Cir. 2009) (brackets omitted)). The
Court must look "first to final decisions of the highest court of that
state, in this case Ohio, and if there is no decision directly on point,
the court must make an Erie judgment as to how Ohio's courts would
decide the issue." Kings Dodge, Inc. v. Chrysler Grp., LLC, 595 F.
App'x 530, 534 (6th Cir. 2014).
"[T]he primary goal of statutory interpretation is to determine
and give effect to the legislature's intent when it enacted the statute."
Id. (citing Sugarcreek Twp. v. City of Centerville, 133 Ohio St.3d
467, 979 N.E.2d 261 (2012)). "When construing a statute, Ohio
courts first examine its plain language and apply the statute as
written when the meaning is clear and unambiguous." City of
Columbus, Ohio, 693 F.3d at 648 (quoting AT&T Commc'ns of Ohio,
Inc. v. Lynch, 132 Ohio St. 3d 92, 96, 969 N.E.2d 1166 (Ohio 2012)
(brackets omitted)). "[W]here the language of a statute is clear and
unambiguous, it is the duty of the court to enforce the statute as
written, making neither additions to the statute nor subtractions
therefrom." Kings Dodge, Inc., 595 F. App'x at 534 (quoting Estate of
Heintzelman v. Air Experts, Inc., 126 Ohio St. 3d 138, 931 N.E.2d
548 (2010)). Only if the statute's meaning is ambiguous may the
Court consider other factors such as the purposes underlying the
statute. See id. (citing Ohio Rev. Code Ann.§ 1.49).
Turning to the statute at issue, § 3911.06 unambiguously
limits its reach to "answer[s] to any interrogatory." This language
contains two distinct elements: "a formal question or inquiry," and an
affirmative answer to the same. Interrogatory, Merriam-Webster
Dictionary, http://www.merriam-webster.com/dictionary/interrogatory
(last accessed March 16, 2016); see also Kings Dodge, Inc., 595 F.
App'x at 535 {noting that, "[i]n determining the 'common, everyday
meaning of a word, [Ohio courts] have consistently used dictionary
definitions' ,, (quoting Campus Bus Serv. v. Zaino, 98 Ohio St.3d
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463, 786 N.E.2d 889 (2003))). In Jenkins, for example, the Ohio
Supreme Court considered an insurance application that contained
the question: "Have to you ever consulted any physician, healer, or
other practitioner within the last 5 years for any reason not
mentioned above?" to which the applicant answered, "No." 171 Ohio
St. at 559. Most of the cases on which Defendant relies discuss
insurance applications with similar questions and answers. See, e.g.,
Long v. Time Ins. Co., 572 F. Supp. 2d 907, 909 (S.D. Ohio 2008)
(analyzing an applicant's answer of "no" to the question: [w]ithin the
last five (5) years, have you . . . ever received any medical or
surgical consultation, advice, or treatment including medication for
[certain medical conditions]?").
Here, Defendant does not identify an interrogatory presented
to the O'Donnells in connection with the Policy. Defendant likewise
does not identify an affirmative answer to a formal inquiry that the
O'Donnells gave. The plain language of § 3911.06 therefore does
not apply to the facts of this case. Defendant's arguments to the
contrary are without merit. First, the Court disagrees with
Defendant's statement that there is no rational reason to limit
application of the statute to circumstances in which information is
provided in response to a question. Limiting the statute in this way
ensures that it reaches only affirmative conduct in which an applicant
provides false information in response to a question that he or she
necessarily read. Because the statute expressly limits its reach to
willful conduct, it is not "irrational" to conclude that the statute's plain
language was intended to reach only affirmative misstatements.
Indeed, one might rationally conclude that the General Assembly
chose to limit§ 3911.06 in order to avoid situations like the present
one, in which the applicant claims that he or she did not read the
policy before signing it.
Second, although Defendant cites caselaw in which two Ohio
appellate courts and one federal district court purported to apply
§ 3911.06 or a related statute to facts similar to the facts at issue
here, none of those cases discuss the statutory interpretation issue
or otherwise explain why § 3911.06 should be interpreted
inconsistently with its plain language. These cases therefore provide
no persuasive value on the issue of whether the Ohio Supreme
Court would apply the statute to the facts of this case. The quote
from a judicial officer in the Northern District of Ohio that a related
statute "intends to protect the insurer from a fraudulent application,"
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New York Life Ins. Co., 813 F. Supp. at 1301 , likewise does not
address § 3911.06's reference to "answer[s]" to "interrogator[ies]."
The New York Life Insurance court's quote is especially
unpersuasive in this context because statutory purpose only
becomes relevant if the statute's language is ambiguous, which is
not the case here. See Kings Dodge, Inc., 595 F. App'x at 534.
Defendant's final argument, as stated above, is that an Ohio
circuit court previously found that an affirmation in a life insurance
policy "was in effect an interrogatory." (ECF No. 37, at PAGEID
# 1461 (quoting Am. Assur. Co. v. Early, 34 Ohio C.D. 320, 1912 WL
827 (Ohio Cir. Ct. 1912)).) But the American Assurance Co. court's
entire analysis of this issue is as follows: "[T]he application was on a
blank furnished by the company; it was in effect an interrogatory."
Am. Assur. Co., 34 Ohio C.D. at 324. The Court finds that this limited
analysis does not support Defendant's statement that "it has long
been the law in Ohio" that courts interpret the word "interrogatory"
inconsistently with its plain language. (ECF No. 55, at PAGEID
# 1461.)
The Court concludes that § 3911.06 does not apply to the
facts of this case. The Court need not address the parties'
arguments regarding whether § 3911.06 applies to group life
insurance and/or whether§ 3911 .06 allows for rescission after loss.
Op. & Order 11-15, ECF No. 64.
Judge Frost noted that the analysis did not end with§ 3911 .06. Because
Ohio's common law provides a separate ground for rescission of contracts based
on fraudulent misrepresentations, Judge Frost proceeded as follows:
Having rejected Defendant's arguments regarding § 3911.06,
the Court is left with Defendant's counterclaim for rescission under
Ohio common law. Defendant argues that a party seeking to rescind
a contract on the ground that it was procured by fraudulent
misrepresentations must prove five elements:
(1) that there were actual or implied misrepresentations
of material matters of fact; (2) that such representations
were false; (3) that such representations were made by

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one party to the other with knowledge of their falsity; (4)
that they were made with the intent to mislead a party to
rely thereon and (5) that such party relied on such
representations with a right to rely thereon.

(Id. (quoting Fifth Third Mortg. Co. v. Chicago Title Ins. Co., 758
F.Supp.2d 476, 487 (S.D. Ohio 2010)).
The standard set forth in Fifth Third Mortgage Co. does not
support Defendant's position that it is entitled to rescind the Policy in
this case. A brief summary of Ohio insurance law provides the
necessary context for this statement.
Courts applying Ohio law to insurance contracts (outside the
confines of § 3911.06) must distinguish between representations
and warranties. See Ramsey v. Penn Mut. Life Ins. Co., 787 F.3d
813, 821 (6th Cir. 2015) (citing James v. Safeco Ins. Co. of Ill., 195
Ohio App. 3d 265, 959 N.E.2d 599 (2011 )); see also Allstate Ins. Co.
v. Boggs, 27 Ohio St. 2d 216, 218-19, 271 N.E.2d 855 (1971). "[A]
representation is a statement made prior to the issuance of the
policy which tends to cause the insurer to assume the risk." Boggs,
27 Ohio St. 2d at 219. "A warranty is a statement, description or
undertaking by the insured of a material fact either appearing on the
face of the policy or in another instrument specifically incorporated in
the policy." Id. (citing Harford Protection Ins. Co. v. Harmer (1853), 2
Ohio St. 452). "The insurer's decision to incorporate the statement in
or to omit it from the policy generally controls whether the statement
is a warranty or a representation." Id.
The distinction between a warranty and a representation in an
insurance contract is important: whereas a misstatement of fact in a
warranty voids a policy ab initio, a misrepresentation by the insured
renders the policy voidable at the insurer's option. See id. at 218-19.
Notably for purposes of this case, if an insurance contract is voidable
(as opposed to void ab initio), an insurer cannot void the contract
after liability has accrued. See id.; see also Ramsey, 787 F.3d at
821. As such, the Ohio Supreme Court has held that an insurance
policy must clearly and unambiguously state that a misstatement by
the insured will render the policy void ab initio in order for the
statement to be considered a warranty. Id.

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The court in Fifth Third Mortg. Co. v. Chicago Title Ins. Co.
reiterated this standard. See 758 F. Supp. 2d at 488 (quoting Boggs,
271 N.E.2d at 857). The Fifth Third court explicitly noted that the
five-pronged standard it cited (which Defendant cites in support of its
position in this case) did not apply because the insurer was
attempting to void a policy based on a misrepresentation after it had
incurred liability under that policy. See id. In effect, the Fifth Third
court acknowledged that a party can rescind a contract based on
fraudulent misrepresentations if it can prove the five elements
Defendant cites, but only if the rescission occurs before liability
accrues under the policy.
Defendant's claim for common law rescission therefore turns
on whether the O'Donnells' false statements in the Policy are
warranties or representations. Defendant does not argue that the
statements are warranties. In response to Plaintiff's arguments that
the statements at issue are representations, Defendant argues only
that the distinction is irrelevant under§ 3911.06.
The Court therefore will assume that the statements at issue
are representations for purposes of this Opinion and Order. Liability
under the Policy accrued once Plaintiff submitted proof of Mr.
O'Donnell's death to Defendant. See ECF No. 37-1, at PAGEID #
387 ("If you or the insured Co-Borrower dies while insured, we will
pay the amount of insurance then in force after we receive proof of
death.") Because Defendant did not attempt to rescind the Policy
before that time, the five-pronged test set forth in Fifth Third
Mortgage Co. does not apply. The Court accordingly DENIES
Defendant's motion for summary judgment on its counterclaim.
Op. & Order 15-17, ECF No. 64. Judge Frost applied the same reasoning to
deny Defendant's motion for summary judgment on all claims.
Dissatisfied with Judge Frost's March 21 Order, Defendant moved on
November 8, 2016, to certify the same issues it had argued in its motion for
summary judgment to the Ohio Supreme Court. Subsequently, on January 23,
2017, Defendant moved for reconsideration of the March 21 Order.
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This case has since been transferred to the Undersigned. Because the
Court finds no error with Judge Frost's analysis and no need to certify the issues
to the Ohio Supreme Court, it denies Defendant's motions.
II.

MOTION FOR RECONSIDERATION

The Federal Rules of Civil Procedure do not explicitly authorize motions for
reconsideration. A court will grant such a motion only if the moving party can
show: (1) an intervening change of controlling law, (2) new evidence available,
or (3) a need to correct a clear error or prevent manifest injustice. Rodriguez v.
Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004)

(citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)).
Defendant proceeds under the third prong of this test. Defendant purports
to make its motion "in light of additional authority showing that, as a matter of
Ohio law, affirmations like those appearing in the O'Donnells' insurance
application are interrogatories within the meaning of§ 3911.06," ECF No. 99-1,
at PAGEID # 2156. None of the authority Defendant cites, however, came after
Defendant filed its motion for summary judgment. It is unclear to the Court why
Defendant did not present this available authority in its summary judgment
motion and why it chose to rely, instead, on four cases with minimal (if any)
discussion about§ 3911.06's use of the term "interrogatory."
Ultimately, this fact is without consequence because none of the authority
Defendant cites alters the Court's analysis. The basic premises of Judge's
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Frost's holding are that: ( 1) the Ohio Supreme Court dictates that unambiguous
statutes must be interpreted consistently with their plain language; (2) the plain
language of the term "interrogatory" in unambiguous; (3) the Policy does not
contain an '•interrogatory" such that§ 3911.06 does not apply; and (4)
accordingly, pursuant to Ohio Supreme Court precedent, additional
considerations such as legislative purpose do not impact the analysis.
Defendant does not challenge any of these premises. Its entire argument
in moving for reconsideration is the same argument it made in moving for
summary judgment; namely, that lower courts have interpreted§ 3911.06
inconsistently with its plain language and, as such, this Court should do the
same. But it is axiomatic that this Court must interpret § 3911.06 as it believes
the Ohio Supreme Court would do. See, e.g., In re Porsche Cars N. Am., 880 F.
Supp. 2d 801, 815 (S.D. Ohio 2012). Lower court opinions are persuasive but
are not necessarily controlling. See id.
The Ohio Supreme Court has unequivocally stated that unambiguous Ohio
statutes must be interpreted consistently with their plain language. See, e.g.,
Kings Dodge, Inc. v. Chrysler Grp., LLC, 595 F. App'x 530, 534 (6th Cir. 2014)
(citing Estate of Heintzelman v. Air Experts, Inc., 126 Ohio St. 3d 138, 931
N.E.2d 548, 552 (201 O); Ohio Rev. Code Ann. § 1.49)). Judge Frost correctly
applied that rule of statutory interpretation.

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Defendant disingenuously suggests that the term "interrogatory" is
ambiguous and that Judge Frost erred in relying on the dictionary definition of the
term. It offers no authority suggesting a different definition or interpretation of the
term. To the contrary, Defendant goes on to quote an Ohio Circuit Court case
from 1910 in which the court acknowledged that applying the term "interrogatory"
to an affirmation "perhaps extend[s] the statute somewhat beyond its letter." Mot.
12, ECF No. 99-1 (quoting Pacific Mutual v. Barnes, 25 Ohio C.D. 380, 382-83,
1910 WL 1220 (Ohio Cir. Ct. 1910)). In other words, the cases on which
Defendant relies in its motion implicitly acknowledge that the term "interrogatory"
is not ambiguous and that § 3911.06 only applies to an affirmation if it is
interpreted inconsistently with its plain language, "considering its manifest
purpose and spirit." Id. Defendant's analysis clearly contradicts the Ohio
Supreme Court's rules of statutory interpretation that unambiguous statutes are
to be interpreted consistently with their plain language and that legislative
purpose only becomes relevant if the statute is ambiguous.
Defendant goes on to argue that interpreting§ 3911.06 consistently with its
plain language is manifestly unjust. It suggests, curiously, that the Court must
reverse course on its statutory interpretation analysis in order to prevent Plaintiff
from recovering damages for breach of the duty of good faith and fair dealing.
Because the Undersigned does not read Judge Frost's March 21 Order as
restricting Defendant's ability to argue that it acted reasonably and in good faith
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in denying Plaintiff's claim, this argument is out of place in the motion for
reconsideration.
Defendant offers a similar argument regarding Plaintiff's unjust
enrichment claim; however, this argument entirely depends on Defendant's
contention that § 3911.06 applies to this case. The Court rejects this argument
for the same reasons as those set forth above.
Having found no clear error or manifest injustice with the March 21 Order,
the Court DENIES Defendant's motion for reconsideration, ECF No. 99.

Ill.

MOTION TO CERTIFY

Plaintiff moves to certify the following issues to the Ohio Supreme Court:
( 1) Whether an affirmation of the applicant's health in a credit life
insurance application in the State of Ohio is an "answer to anO
1
interrogatory' within the meaning of Ohio statute§ 3911.06;
(2) Whether a credit life insurer, under Ohio common law or Ohio
statute, may rescind a policy after the date on which a claim was
submitted based on a knowing misrepresentation of fact
contained in the insurance application; and
(3) Whether a credit life insurer is allowed to investigate a claim once
the claim is made, but prior to payment of the claim, absent a
specific provision in the policy expressly allowing the insurer to do
so.
Mot. Certify 7, ECF No. 86-1. The Court applies the following standard:
Federal courts have the power to certify questions to the state
supreme court. It is well within the discretion of this Court to decide
whether to certify. Pennington v. State Farm Mut. Auto. Ins. Co., 553
F.3d 447, 450 (6th Cir. 2009). Though federal courts may certify
questions to the Ohio Supreme Court, it is not mandatory. Drown v.
Wells Fargo Bank, NA, 2:10-CV-00272, 2010 WL 4939963, at *1
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'
(S.D. Ohio Nov. 30, 2010) (citing Lehman Bros. v. Schein, 416 U.S.
386, 390-91, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974)). Under the Ohio
Supreme Court Rules of Practice, the Ohio Supreme Court may
answer questions of law certified to it by federal courts:
The Supreme Court may answer a question of law
certified to it by a court of the United States. This rule is
invoked if the certifying court, in a proceeding before it,
issues a certification order finding there is a question of
Ohio law that may be determinative of the proceeding
and for which there is no controlling precedent in the
decisions of this Supreme Court. S. Ct. Prac. R. 9.1(A).
Simple "difficulty in ascertaining local law provides an insufficient
basis for certification." Duryee v. U.S. Dep't of the Treasury, 6 F.
Supp. 2d 700, 704 (S.D. Ohio 1995) (citing Transcontinental Gas
Pipeline Corp. v. Transportation Ins. Co., 958 F.2d 622 (5th Cir.
1992)). If the Court "believes it can resolve an issue of state law
with available research materials already at hand, and makes the
effort to do so," certification is unwarranted. Drown, 2010 WL
4939963 at *2 (citing Lehman Bros., 416 U.S. 395) (Rehnquist, J.,
concurring). Even when the question of state law is generally
unsettled, "federal courts generally 'will not trouble our sister state
courts. . . . When we see a reasonably clear and principled course,
we will seek to follow it ourselves.' " Pennington, 553 F.3d at 450
(quoting Pino v. United States, 507 F .3d 1233, 1236 (10th Cir.
2007)).
To decide in favor of certification, this Court must weigh whether
"there is a question of Ohio law that may be determinative of the
proceeding and for which there is no controlling precedent in the
decisions of this Supreme Court." S. Ct. Prac. R. 9.1(A).
Subsequently, the Court must consider if it is capable of resolving
the issue of state law with the materials at hand. Only if the Court
finds that there is a genuine dearth of guidance from state court
precedent, so much so that it would be extremely difficult to examine
properly the questions presented, will the Court then decide to certify
questions to the Ohio Supreme Court.

Tri Cnty. Wholesale Distribs., Inc. v. Labatt Operating Co., LLC, No. 2:13-cv317, 2014 WL 32307, at *2 (S.D. Ohio Jan. 6, 2014). See also Shaheen v.
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Yonts, 394 F. App'x 224, 233 {6th Cir. 2010) (11 We are mindful that in the context
of a request for certification, the state court need not have addressed the exact
question at issue, so long as well-established principles exist to govern a
decision.").
The timing of Defendant's request-after this Court rejected the identical
arguments Defendant intends to present to the Ohio Supreme Court-weighs
against certification. See, e.g., Gasho v. Glob Fitness Holdings, LLC, 918 F.
Supp. 2d 708, 713 (S.D. Ohio 2013); see a/so Shaheen, 394 F. App'x at 232
(citing Cantwell v. Univ. of Mass., 551 F.2d 879, 880 (1st Cir. 1977)).
Certification at this stage would not only allow Defendant a second bite at the
apple, but it also would unnecessarily duplicate judicial effort. See id.
Even had it been timely, however, Defendant's request to certify is without
merit. As stated above, Defendant does not challenge any of the four premises
of Judge Frost's ruling on the statutory interpretation issue: (1) that well-settled
Ohio Supreme Court precedent dictates that unambiguous statutes must be
interpreted consistently with their plain language; (2) that the plain language of
the term "interrogatory" in unambiguous; (3) that the Policy does not contain an
"interrogatory" such that§ 3911.06 does not apply; and (4) accordingly, pursuant
to Ohio Supreme Court precedent, that additional considerations such as
legislative purpose do not impact the analysis. As such, there is nothing left to
certify regarding the first issue.
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Defendant's request to certify the second and third issues loses significant
context without the first issue. Had Defendant-like countless other insurance
companies in cases the Court has reviewed-structured its Policy in the form of
interrogatories to which an insured must affirmatively respond, § 3911.06 would
have protected Defendant from false answers, and the second and third issues
Defendant seeks to certify would not come into play. Defendant elected not to do
so. Because this factual scenario has limited application outside of this case,
and because Judge Frost identified and discussed relevant authority that allowed
him to decide the issue, the Court exercises its discretion to deny certification on
the second and third issues.
The Court rejects Defendant's public policy arguments for similar reasons.
Although the Court acknowledges the harsh result in this case given the
undisputedly false affirmation, Defendant could have-but elected not tostructured its Policy within§ 3911.06's reach. Any issues Defendant has with
Judge Frost's ruling are issues with the General Assembly and the language it
chose in drafting § 3911.06. This Court disagrees with Defendant's
characterization of the "far reaching impact of this holding," ECF No. 86-1, and is
unpersuaded that certification is warranted on any issue.
The Court accordingly DENIES Defendant's motion for certification, ECF
No. 86.

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IV.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendant's motions for
certification, ECF No. 86, and for reconsideration, ECF No. 99. The Clerk is
DIRECTED to remove these motions from the Court's pending motions list.
IT IS SO ORDERED.

CHAEL H. WATSON
UNITED STATES DISTRICT JUDGE

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