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Mastellone v. Lightning Rod Mut. Ins. Co.

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

January 31, 2008, Released

No. 88783


 [***1133]  [*27] 


Melody J. Stewart, Judge.

 [**P1]  Plaintiffs-appellants/cross-appellees, Gerald and Dawn Mastellone, appeal from a split jury verdict on their complaint against defendant-appellee/cross-appellant Lightning Rod Mutual Insurance Company that alleged that Lightning Rod had breached a homeowner insurance policy and acted in bad faith by refusing to provide coverage for mold found on the exterior and interior of their house and for water damage to their basement. Although they prevailed on the claim relating to coverage  [****2] for exterior mold, the Mastellones argue that the court erred by (1) bifurcating the bad-faith claim, (2) directing a verdict on the issue of interior loss, (3) denying prejudgment interest, and (4) granting summary judgment [*28]  on the bad-faith claim. 1 Lightning Rod cross-appeals, arguing that the court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict on exterior damages. We conclude that the court did not abuse its discretion by bifurcating the bad-faith claim, nor did it err by directing a verdict on the issues of water damage to the basement and interior mold. We do conclude, however, that the court erred by refusing to direct a verdict in Lightning Rod's favor on the claim for exterior mold. We therefore reverse the jury's verdict and vacate the award of damages.

 [**P2]  The Mastellones began construction of the house in question in 1988. Their "dream house" featured a vaulted ceiling and numerous skylights. Describing the house as "chalet-style," the Mastellones chose to clad the exterior with rough-sawn cedar siding that they sealed [****3]  [***1134]  with a semi-transparent stain containing a mildewcide.

 [**P3]  Problems with the house arose almost immediately. The Mastellones had the roof replaced in 1992 because some of the wood shake shingles had discolored. The new roof then experienced water leaks. In 1995, high winds tore off shingles near the chimney, causing water to leak inside near the fireplace. In October 2001, another wind storm blew several shingles off the roof. And in April 2002, high winds sent water into the solarium and another room that had a glass wall and ceiling. A roofing company blamed the water intrusion on skylights; the window company that installed the skylights blamed the water intrusion on a leaking roof.

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175 Ohio App. 3d 23 *; 2008-Ohio-311 **; 884 N.E.2d 1130 ***; 2008 Ohio App. LEXIS 274 ****


Prior History:  [****1] Civil Appeal from the Cuyahoga County Court of Common Pleas. Case No. CV-526827.



bifurcation, coverage, bad-faith, siding, exterior, court erred, retroactive, interior, discovery, skylights, staining, notice, insurer, summary judgment, damages, limitations period, bad faith, homeowners', rights, reasonable justification, physical injury, reasonable mind, claim file, directing, leaking, levels, roof, directed verdict motion, summary judgment motion, grant summary judgment

Civil Procedure, Trials, Separate Trials, Remedies, Damages, Monetary Damages, Torts, Types of Damages, Punitive Damages, General Overview, Punitive Damages, Compensatory Damages, Appeals, Standards of Review, Governments, Legislation, Effect & Operation, Prospective Operation, Retrospective Operation, Abuse of Discretion, Harmless & Invited Errors, Harmless Error Rule, Summary Judgment, Entitlement as Matter of Law, Insurance Law, Liability & Performance Standards, Bad Faith & Extracontractual Liability, Pretrial Matters, Continuances, Opposing Materials, Claim, Contract & Practice Issues, Estoppel & Waiver, Reservation of Rights, Elements of Bad Faith, Judgment as Matter of Law, Directed Verdicts, Contracts Law, Defenses, Affirmative Defenses, Statute of Limitations, Incontestability Clauses, Contract Interpretation, Policy Interpretation, Ordinary & Usual Meanings, Plain Language, Judgment Notwithstanding Verdict, De Novo Review, Property Insurance, Coverage, Property Damage