Whittaker et al v. Allstate Property & Casualty Insurance Coompany

Filing 42

OPINION AND ORDER denying 32 Allstates Motion for Certification of Question to the Supreme Court of Ohio. Signed by Judge Algenon L. Marbley on 6/9/2017. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WOODROW WHITTAKER, et al.,

Plaintiffs,
v.
ALLSTATE PROPERTY &
CASUALTY INSURANCE COMPANY
Defendant.

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Case No. 2:15-cv-02584
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter is before the Court on Defendant Allstate Property & Casualty Insurance
Company’s (“Allstate”) Motion for Certification of Question to the Supreme Court of Ohio.
(Doc. 32.) For the reasons stated herein, the Court DENIES the motion.
I. BACKGROUND
The relevant background is as follows. Plaintiffs, Woodrow and Carolyn Whittaker, own
the home located at 4128 Trumbull Street, Bellaire, Ohio 43906.

Plaintiffs bought a

homeowner’s insurance policy from Allstate, and Allstate insured the property from 2007
through July 31, 2014. On June 7, 2014, a fire caused substantial damage to the property. An
investigator had determined the cause of the fire to be “incendiary in nature,” most probably “the
result of a human act.” (Doc. 34-5 at 6.) The Whittakers filed a claim with Allstate, which
Allstate denied “based on an exclusion in its policy which precludes coverage for acts of
vandalism and/or malicious mischief if the property has been vacant for more than 30 days prior
to the act.” (Doc. 32 at 2.)

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The Whittakers sued Allstate on June 4, 2015 in the Belmont County Court of Common
Pleas for breach of the insurance contract. (Doc. 3.) The Whittakers claim that they are covered
by the insurance policy because: (1) the fire was not an “act of vandalism and/or malicious
mischief” (Doc. 3 at ¶ 9); and (2) their property was “under construction,” which caused it to fall
into an exception to the vacancy exclusion (id. at ¶ 8). Allstate removed the case to federal court
on July 7, 2015. (Doc. 1.) On October 26, 2017, before filing an answer, Allstate moved to
certify the following question to the Ohio Supreme Court: “[i]s ‘arson’ considered an act of
‘malicious mischief’ or ‘vandalism’ with respect to a vacancy exclusion in a standard
homeowner’s policy?” (Doc. 34 at 1.) The Whittakers opposed the motion, which is now ripe
for review.
Also relevant is the fact that in 2015, the Northern District of Ohio certified a very
similar question to the Ohio Supreme Court in connection with an Allstate home insurance
policy: “is ‘arson’ a subset of ‘fire’ or an act of ‘malicious mischief or vandalism’ when neither
the ‘fire’ nor ‘malicious mischief or vandalism’ provisions in an insurance contract expressly
include ‘arson?’” (Wells Fargo Bank N.A. v. Allstate Insurance Co., No. 4:15-cv-239 (“Wells
Fargo”), Doc. 21, reproduced in Doc. 34-1 at 2.) After oral argument, on May 18, 2016, the
Ohio Supreme Court sua sponte dismissed the certified question of state law as “improvidently
accepted for review.” (Doc. 34-4.)
II. STANDARD OF REVIEW
Under Ohio Supreme Court Rule of Practice 9.01, “[t]he 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

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precedent in the decisions of this Supreme Court.” Ohio S. Ct. Prac. R. 9.01(A). Certification’s
purpose “is to apply the same rules of state law to litigants in federal court as would apply in
state court.” Scott v. Bank One Trust Co., N.A., 62 Ohio St.3d 39, 46 (1991). Through certifying
questions to the state Supreme Court, a district court “faced with a novel state-law question
[may] put the question directly to the State’s highest court, reducing the delay, cutting the cost,
and increasing the assurance of an authoritative response.” Jones v. Coleman, 848 F.3d 744, 750
(6th Cir. 2017) (internal quotations omitted). The decision to certify a question to a state
supreme court “rests in the sound discretion of the federal court.” Lehman Bros. v. Schein, 416
U.S. 386, 391 (1974).
III. ANALYSIS
For the Court to certify a question to the Ohio Supreme Court, the Court must find: (1)
the question “may be determinative of the proceeding;” and (2) “there is no controlling precedent
in the decisions of [the Ohio] Supreme Court.” Ohio S. Ct. Prac. R. 9.01(A). The parties agree
that there is no controlling precedent in the decisions of the Ohio Supreme Court, particularly in
light of the fact that it recently certified, but then declined to answer, a nearly identical question
about an Allstate homeowners’ insurance policy.
The Ohio Supreme Court recently faced the certified question whether “arson” in a
vacant home was a “fire” or whether it was instead “vandalism” or “malicious mischief.” (Id. at
1.) The homeowners’ insurance policy in Wells Fargo, like the policy in this case, did not define
“arson,” “fire,” “vandalism,” or “malicious mischief.” While the Ohio Supreme Court ultimately
did not answer the question, the oral argument illuminated some of the justices’ thought
processes. If the Ohio Supreme Court determined that “arson” fell within the category of “fire”
and did not fall within the categories of “vandalism” or “malicious mischief,” then the insurance

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contract would likely cover the damage at issue. If the Court determined instead that “arson” is
“vandalism” or “malicious mischief” but not “fire,” then the insurance contract would likely
exclude coverage.
The Court did not indicate, however, what coverage implications would follow if it
determined that “arson” was both “fire” and “vandalism” or “malicious mischief.” Wells Fargo
(effectively, the insured) argued that this outcome would create an ambiguity, which should be
construed against the drafter (Allstate). Allstate argued that vandalism is a specific exclusion in
an all-risk policy, so if “arson” falls within the specific exclusion, then it is not covered. Both
parties pointed to other parts of the insurance contract to bolster their positions. At least one
Justice pointed out that this question appeared to be one of contract interpretation—an exercise
that trial courts, rather than the Ohio Supreme Court, undertake in the first instance. Ultimately,
for reasons unknown, the Ohio Supreme Court dismissed the certified question as
“improvidently accepted for review.” (Doc. 34-4.)
Allstate argues that this Court should re-certify this question, but omitting the question of
whether “arson” falls within the category of “fire.” According to Allstate, the Supreme Court
“should reconsider based on this court’s wording of the question, which is more in line with what
the issue is[.]” (Doc. 32 at 4-5.) Moreover, Allstate worries about potentially conflicting
decisions because two (uncited) district courts “must decide the same issue.” (Id. at 5.)
Plaintiffs point out that the question posed in Wells Fargo was nearly identical to that
posed here, in a case in which the answer would be more useful to the parties. In Wells Fargo,
the parties agreed that arson caused damage to a vacant home. (Wells Fargo, Doc. 34-1, at 2.)
Here, there are no such admissions. Therefore, there are factual predicates that cut against the
answer to this question being “determinative of the proceeding” in this Court. Moreover, even

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assuming that “arson” caused the damage and the home was vacant, the answer to the proposed
certified question does not determine the proceeding. If the Ohio Supreme Court were to
determine that “arson” is “vandalism” or “malicious mischief,” then Plaintiffs could still be
covered if this Court were to find “arson” to be a subset of “fire.” (Doc. 34 at 3-4.)
The Court agrees with Plaintiffs.

The Ohio Supreme Court very recently had the

opportunity to decide this exact same issue: how to interpret “arson” in a vacant home within the
context of a homeowners’ insurance policy. It declined to do so, in a case in which the factual
predicates were clear and its decision could have been determinative of the proceeding. There is
no reason to believe that the Ohio Supreme Court would accept a nearly identical (yet less
fulsome) certified question, where: (a) it is not clear whether the fire in this case was caused by
“arson” or whether the home was truly “vacant;” and (b) an affirmative answer to the proposed
certified question would not determine the proceeding because the proposed question is
incomplete.
IV. CONCLUSION
It is premature to ask the Ohio Supreme Court where “arson” falls within the contract
when we do not know whether the fire in this case was caused by “arson.” And the answer to the
proposed certified question is less likely to determine the proceeding than the question that the
Ohio Supreme Court already denied as “improvidently accepted for review.” (Doc. 34-4.)

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Therefore, the Court DENIES Allstate’s Motion for Certification of Question to the Supreme
Court of Ohio. (Doc. 32.)
IT IS SO ORDERED.

/s/ Algenon L. Marbley___
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

DATED: June 9, 2017

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