[Cite as Dolce v. Great Am. Ins. Co., 2026-Ohio-2818.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
NICOLINA DOLCE, INDIVIDUALLY, :
AND AS ADMINISTRATIX OF THE
ESTATE OF ROSINA SILVIA :
PIETRANTUONO,
:
Plaintiff-Appellant,
: No. 115611
v.
:
GREAT AMERICAN INSURANCE
COMPANY, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 23, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-998562
Appearances:
Flowers & Grube, Paul W. Flowers, and Michael J. Factor,
for appellant.
Collins Roche Utley & Garner, LLC and Richard M.
Garner; Tressler LLP, Georgia L. Joyce, pro hac vice, and
Mark T. Banovetz, pro hac vice, for appellees Great
American Insurance Company; American Empire
Surplus Lines Insurance Company n.k.a. Great American
Risk Solutions Surplus Lines Insurance Company.
ANITA LASTER MAYS, J.:
Plaintiff-appellant Nicolina Dolce (“Dolce”), individually and as
administratrix of the estate of Rosina Silvia Pietrantuono, appeals from the
judgment of the trial court granting summary judgment in favor of defendantsappellees Great American Insurance Company, Great American Risk Solutions
Surplus Lines Insurance Company, formerly known as (f.k.a.) American Empire
Surplus Lines Insurance Company (“AESLIC”), and denying Dolce’s cross-motion
for summary judgment on her supplemental complaint seeking insurance coverage
for a default judgment entered against AESLIC’s insured Mayfield Heights
Healthcare, LLC (“Mayfield”). After a thorough review of the record and applicable
law, we affirm.
I. Facts and Procedural History
This appeal arises from the death of Rosina Silvia Pietrantuono
(“Rosina”) and the subsequent efforts of her daughter, Dolce, to collect a default
judgment from defendant-appellee Great American Risk Solutions Surplus Lines
Insurance Company, f.k.a., American Empire Surplus Lines Insurance Company
(“AESLIC”), and the related defendant-appellee Great American Insurance
Company. AESLIC issued a Healthcare Facilities Liability Insurance Policy, Policy
No. PL2666595, to Mayfield as a named insured. The facts giving rise to the
underlying tort claim, the multiple lawsuits that followed, and the parties’
competing positions on insurance coverage are set forth in detail below.
On the evening of June 19, 2020, Rosina was found unresponsive in
her bed at a short-term rehabilitation facility owned and operated by Mayfield.
Rosina had been admitted to the facility for a temporary stay following hip surgery.
According to the affidavit of Dolce executed February 19, 2024, and attached to the
motion for summary judgment, Rosina was rushed to the emergency room at the
Cleveland Clinic Hillcrest Hospital, where it was determined that she had choked on
a hot dog provided to her by a Mayfield staff member who had left her unattended.
The remainder of the hot dog was found on a plate by her bed. Although emergency
personnel succeeded in removing the obstruction from Rosina’s throat, she did not
recover and died ten days later on June 29, 2020.
The day after Rosina was found unconscious, Dolce contacted
Mayfield supervisor Kelly Wiggins and requested both her mother’s medical records
and the name of Mayfield’s liability carrier. Dolce asserted that she received neither
in response to that request. Nine days later, Dolce submitted a complaint regarding
her mother’s care to the Ohio Department of Health, designated No. OH 00113552.
Throughout July 2020, Dolce left messages for and spoke with numerous
individuals about the choking incident and continued her efforts to identify
Mayfield’s liability insurance carrier.
Dolce retained counsel during this period. On July 9, 2020, counsel
issued a litigation hold letter to Mayfield requiring that all correspondence, records,
test results, and other evidence pertaining to Rosina be preserved pending a
potential lawsuit. A follow-up records request was sent on October 26, 2020, seeking Rosina’s complete chart and file. The October 26, 2020 correspondence
advised Mayfield that the requested materials were anticipated to become evidence
in a civil action for damages. In December 2020, Dolce was also in contact with a
representative of former United States Senator Sherrod Brown’s office and with a
local news investigator concerning her mother’s death and her inability to identify
the liability carrier.
When the requested records were not produced, counsel for Dolce
filed a complaint for access to medical records pursuant to R.C. 3701.74(C) in the
trial court on November 18, 2020, captioned Dolce v. Mayfield Hts. Healthcare,
LLC, Cuyahoga C.P. No. CV-20-940412 (“the Records Complaint”). The Records
Complaint alleged that Rosina had been residing temporarily at Mayfield’s facility,
that she had been transported to the hospital, and that numerous attempts to obtain
her medical records had been unsuccessful. The clerk’s docket reflected that service
of the Records Complaint was completed upon Mayfield on November 23, 2020,
and again on November 30, 2020.
Mayfield tendered the Records Complaint to AESLIC Senior Claim
Specialist Nicole Daniel (“Daniel”) on December 3, 2020. Because the Records
Complaint sought only access to medical records and not damages, Mayfield
withdrew any claim for liability coverage in connection with that pleading. The
Records Complaint was subsequently settled and dismissed with prejudice on
June 29, 2021.
On June 10, 2021, Dolce’s counsel sent a letter via certified mail to
Mayfield administrator Paul Deutsch (“Deutsch”) advising that the potential
malpractice action was still being evaluated. Thereafter, on December 3, 2021,
Dolce commenced a civil action against Mayfield and others in the trial court,
captioned Dolce v. Mayfield Hts. Healthcare, LLC, Cuyahoga C.P. No. CV-21-956709 (“the malpractice action”). The complaint in the malpractice action set forth
wrongful-death and survivorship claims based upon the alleged negligence of
Mayfield’s staff and asserted violations of the Ohio Nursing Home Residents’ Bill of
Rights.
Mayfield did not file an answer or otherwise appear in the malpractice
action. Instead, Mayfield and its parent company, Boulder Operations Holding, LLC
(“Boulder”), filed for bankruptcy protection in Delaware, which had the effect of
staying the malpractice action. Dolce subsequently filed a motion for relief from the
automatic stay in the bankruptcy proceedings, and the parties reached a stipulation
permitting her to proceed with the malpractice action against Mayfield, with the
understanding that any recovery would be limited to available insurance proceeds.
On September 5, 2023, Dolce advised the trial court of these developments. AESLIC
was not informed of the malpractice action, the bankruptcy stipulation, or the
resumed state-court proceedings.
Following further proceedings in the malpractice action, the trial
court issued a default judgment entry on April 30, 2024, awarding $500,000 in
favor of the estate upon the survivorship claim and $2,500,000 for the surviving family members on the wrongful-death claim, for a total default judgment of
$3,000,000 against Mayfield.
Through her own investigation, Dolce determined that AESLIC had
issued liability coverage to Mayfield at the time of Rosina’s death and had also
insured related Boulder entities. As permitted by R.C. 3929.06, Dolce filed a
supplemental complaint against AESLIC, Great American Insurance Company, and
Great American Risk Solutions Surplus Lines Insurance Company in the Cuyahoga
County Court of Common Pleas on June 7, 2024, captioned Dolce v. Great Am. Ins.
Co., Cuyahoga C.P. No. CV-24-998562. The supplemental complaint requested that
the insurer be ordered to cover and pay the default judgment up to the available
policy limits. AESLIC filed an answer on August 30, 2024, generally denying that
coverage was owed and asserting a counterclaim for declaratory relief. Dolce filed a
reply to the counterclaim on October 7, 2024, and the parties proceeded with
discovery.
The AESLIC policy at issue was in effect from December 21, 2019,
through December 21, 2020. The declarations identified Mayfield as one of several
named insured through an endorsement. The policy provided both Commercial
General Liability Coverage, designated Coverage A, and Healthcare Facilities
Professional Liability Coverage, designated Coverage D. For each of these
coverages, the “Each Occurrence Limit” was $1,000,000 and the “General
Aggregate Limit” was $3,000,000.
Coverage A, the Commercial General Liability Coverage part,
provided that AESLIC would pay those sums that the insured became legally
obligated to pay as damages because of “bodily injury” or “property damage” to
which the insurance applied. The policy defined “bodily injury” to mean “bodily
injury, sickness or disease sustained by a person, including death resulting from any
of these at any time.” Coverage A required that the bodily injury be caused by an
“occurrence” within the coverage territory, that it not occur before any applicable
retroactive date or after the end of the policy period, and that a claim for damages
be first made against any insured during the policy period or any applicable
extended reporting period.
In an endorsement inapplicable to the facts of this case, Coverage A
was amended to exclude bodily injury sustained by a “patient or resident” arising
from heat, smoke, or fumes from a “hostile fire.”
Coverage D, the Healthcare Facilities Professional Liability Coverage
part, obligated AESLIC to pay those sums that the insured became legally obligated
to pay as damages because of “bodily injury” to a “patient or resident” caused by an
“incident” to which the insurance applied. The policy defined “patient or resident”
to include a person under the insured’s care who resided in a facility the insured
owned, operated, or managed, or who was receiving care or treatment at such a
facility when the “incident” occurred. The term “incident” was defined to include
any act or omission in the providing of, or failure to provide, services to patients or
residents, including the providing or dispensing of food, beverages, medications, or medical supplies in connection with such services, and the general care, control,
supervision, providing, or failure to provide for the safety and security of a patient
or resident.
Coverage D was a “claims made and reported” coverage. It provided
that the insurance applied to an injury only if a claim for damages with respect to
the injury was first made against any insured and reported to AESLIC during the
policy period or any extended reporting period. Section V.3.a. of Coverage D
provided for an extended reporting period requiring that a claim be reported not
later than 60 days after the end of the policy period, which ended on December 21,
2020. A claim was deemed first made at the earlier of the time notice of the claim
was received by any insured and reported to AESLIC in writing or when a claim was
made directly to AESLIC in writing.
In addition, the AESLIC policy contained two reciprocal exclusions at
AESLIC 000089 through AESLIC 000091 governing the interaction between
Coverage A and Coverage D. Coverage D excluded bodily injury covered under
Coverage A of the Commercial General Liability Coverage Form, and Coverage A in
turn excluded bodily injury covered under Coverage D of the Healthcare Facilities
Professional Liability Coverage part. Both coverages also contained general
conditions, including notice requirements and a cooperation provision requiring
Mayfield to cooperate with AESLIC in the investigation or settlement of any claim
and in the defense against any suit.
In accordance with the trial court’s case-management schedule, the
parties filed cross-motions for summary judgment on the issue of whether coverage
was owed for the default judgment entered in the malpractice action. Dolce filed her
motion for summary judgment on May 9, 2025, contending that all of the initial
requirements for coverage under Coverage A had been satisfied, that no applicable
exclusion barred coverage, and that AESLIC had received sufficient notice of the
claim through the various communications and the Records Complaint.
AESLIC filed its own motion for summary judgment on May 9, 2025,
arguing that Coverage D was the only potentially applicable coverage, that the Dolce
malpractice action had not been made and reported to AESLIC within the policy
period or extended reporting period as required by Coverage D, that Mayfield
breached the notice and cooperation conditions of the policy, and that AESLIC had
been actually prejudiced because the $3,000,000 default judgment had been
entered against Mayfield before AESLIC had any knowledge of the malpractice
action.
While the cross-motions for summary judgment were pending, Dolce
moved for leave to amend her answer to the counterclaim to add the additional
affirmative defense of laches on June 2, 2025, and moved separately for leave to
amend her answer to add the additional affirmative defense of impossibility of
performance on June 13, 2025. AESLIC filed briefs in opposition to both motions
on June 9, 2025, and June 26, 2025, respectively, and no replies were filed. On
July 31, 2025, the trial court denied both motions for leave to amend, finding that the motions had been filed approximately one year after the case was initiated, after
the close of discovery, and after the parties’ cross-motions for summary judgment
had been fully briefed. Journal Entry No. 199460248 (July 31, 2025). The trial court
further found that Dolce had not pointed to any newly discovered facts to justify the
delay and that allowing the amendments would necessitate additional discovery and
could affect dispositive motions that had already been fully briefed, thereby
prejudicing AESLIC and disserving judicial economy. Id.
On August 25, 2025, the trial court issued a 12-page order and
opinion granting summary judgment in favor of AESLIC and against Dolce. Journal
Entry No. 199987941 (Aug. 25, 2025). The trial court concluded that Coverage D
was the applicable coverage for the underlying healthcare-related claim, that the
claim had not been made and reported during the policy period or the extended
reporting period as required by Coverage D, and that AESLIC had not received
timely notice of the malpractice action. Id. The trial court further addressed the
reciprocal exclusion located at AESLIC 000091 and concluded that Coverage A did
not apply by its own terms. Id. The trial court dismissed all of Dolce’s claims against
all defendants with prejudice.
Dolce filed a timely notice of appeal on September 22, 2025, and
presents a single assignment of error for review challenging the trial court’s entry of
summary judgment in favor of AESLIC and the denial of her own motion for
summary judgment.
II. Summary Judgment
In her sole assignment of error, Dolce contends that the trial court
erred as a matter of law by granting summary judgment in favor of AESLIC and by
denying her cross-motion for summary judgment. Dolce argues that the undisputed
record demonstrated that she satisfied every prerequisite to coverage under the
policy and that AESLIC failed to carry its burden of establishing that any exclusion
or condition precluded coverage for the underlying default judgment.
A. Standard of Review
“An appellate court reviews a trial court’s decision to grant summary
judgment de novo.” U.S. Bank Trust N.A. v. Wittman, 2025-Ohio-5229, ¶ 18 (8th
Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “De novo
review means that this court independently ‘examine[s] the evidence to determine
if as a matter of law no genuine issues exist for trial.’” Id., quoting Brewer v.
Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist. 1997). In other words,
we review the trial court’s decision without according the trial court any deference.
Id., citing Smith v. Gold-Kaplan, 2014-Ohio-1424, ¶ 9 (8th Dist.).
Under Civ.R. 56(C), summary judgment is appropriate only
when (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, viewing the evidence most
strongly in favor of the nonmoving party, can come to but one conclusion and that
conclusion is adverse to the nonmoving party. The moving party bears the initial
burden of identifying the portions of the record that demonstrate the absence of a genuine issue of material fact, and if that burden is satisfied, the nonmoving party
must then set forth specific facts showing a genuine issue for trial. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996).
Because the construction of an insurance contract presents a question
of law, this court likewise reviews the trial court’s interpretation of the AESLIC
policy de novo. Smith v. Ohio State Univ., 2024-Ohio-764, ¶ 11.
B. Law and Analysis
This appeal arose from a supplemental complaint filed by Dolce
under R.C. 3929.06 to subject the proceeds of the AESLIC policy to satisfaction of a
$3,000,000 default judgment entered against Mayfield in the underlying
malpractice action, Cuyahoga C.P. No. CV-21-956709 (Default Judgment Entry,
Apr. 30, 2024). The dispositive question presented was whether AESLIC, as
Mayfield’s liability insurer, was obligated to indemnify Mayfield for the underlying
default judgment under either the Healthcare Facilities Professional Liability
Coverage part (Coverage D) or the Commercial General Liability Coverage part
(Coverage A) of the policy issued for the period December 21, 2019, through
December 21, 2020.
The trial court granted summary judgment in favor of AESLIC,
concluding that AESLIC had no duty to indemnify Mayfield because timely notice of
the claim had not been furnished to the insurer. The trial court further concluded
that Coverage D, the claims-made-and-reported professional liability coverage, was the only potentially applicable coverage and that Coverage A, the occurrence-based
commercial general liability coverage, did not apply.
An insurance policy is a contract, and its interpretation is governed
by the well-established rules of contract construction. Emoi Servs., L.L.C. v.
Owners Ins. Co., 2022-Ohio-4649, ¶ 12. Words and phrases used in an insurance
policy must be afforded their plain and ordinary meaning unless another meaning
is clearly apparent from the contents of the policy. Id. See Santiago v. Costanzo,
2022-Ohio-611, ¶ 18 (8th Dist.). Where provisions of a policy are reasonably
susceptible of more than one interpretation, “‘they will be construed strictly against
the insurer and liberally in favor of the insured.’” Smith v. Erie Ins. Co., 2016-Ohio7742, ¶ 24, quoting King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (1988), syllabus.
Once an insured establishes that a claim falls within the basic insuring
agreement of the policy, the burden shifts to the insurer to demonstrate that an
exclusion applies to defeat coverage. Motorists Mut. Ins. Co. v. Ironics, Inc., 2022-Ohio-841, ¶ 9. In other words, “[t]he burden of proving that an exclusion applies is
on the insurer.” Id., citing Neal-Pettit v. Lahman, 2010-Ohio-1829, ¶ 19. To bar
coverage, the insurer must show that its proffered interpretation of an exclusion is
the only fair construction of the policy language. Lahman, at ¶ 12.
Coverage D of the AESLIC policy is a claims-made-and-reported
coverage. By its express terms, Coverage D applies to injury only if “a claim for
damages, with respect to the injury, is first made against any insured . . . during the
policy period or any Extended Reporting Period.” The policy further provides that a claim is considered first made at the earlier of when notice of the claim is received
by any insured and reported to AESLIC in writing or when a claim is made directly
to AESLIC in writing. The extended reporting period required that a claim be
reported “not later than 60 days after the end of the policy period,” that ended on
December 21, 2020.
The undisputed record demonstrated that the Dolce malpractice
action was not filed until December 3, 2021, nearly a full year after the policy period
expired and well beyond the 60-day extended reporting window. Mayfield did not
report the Dolce malpractice action to AESLIC. AESLIC first received notice of the
underlying claim only after the default judgment had been entered against Mayfield
on April 30, 2024, and after the time for appeal had expired. Indeed, Dolce herself
acknowledged in the supplemental complaint that she identified AESLIC as
Mayfield’s liability carrier only “largely through happenstance” after the default
judgment had been entered.
The notice provided to AESLIC in December 2020 in connection with
the Records Complaint did not constitute the reporting of a claim for damages
within the meaning of Coverage D. The Records Complaint was a statutory action
under R.C. 3701.74(C) to compel production of medical records; it did not seek
monetary relief on a theory of negligence and did not allege liability for Rosina’s
death. As the First District has observed, R.C. 3701.74 “does not provide a cause of
action for monetary relief.” Frank v. Univ. of Cincinnati Med. Ctr., 2023-Ohio1255, ¶ 11 (1st Dist.). Moreover, the undisputed record reflected that Mayfield’s representative expressly withdrew any claim for liability coverage in connection with
the Records Complaint when it was tendered to AESLIC Senior Claim Specialist
Nicole Daniel on December 3, 2020.
A claims-made-and-reported policy is materially distinct from an
occurrence-based policy. Under a claims-made-and-reported policy, the reporting
of the claim to the insurer within the policy period (or any extended reporting
period) is not merely a condition subsequent to coverage; it is part of the insuring
agreement itself and defines the scope of the coverage purchased. See Shaut v. Natl.
Cas. Co., 2021-Ohio-2522, ¶ 37, fn. 2 (8th Dist.). For that reason, the prejudice
analysis applicable to ordinary notice provisions in occurrence-based policies does
not apply where the failure to give notice within the policy period defeats coverage
in the first instance. Bosley v. Associated Paper Stock, Inc., 2022-Ohio-2649, ¶ 29,
30 (7th Dist.). Because the Dolce malpractice action was neither first made nor
reported to AESLIC during the policy period or the 60-day extended reporting
period, the trial court correctly concluded that Coverage D did not afford coverage
for the default judgment. To that extent, we determine that the trial court’s analysis
was sound.
Dolce argues that, even if Coverage D was unavailable, the
Commercial General Liability Coverage of Coverage A should fill the gap and provide
indemnity for the underlying default judgment. That argument cannot be
reconciled with the structure of the policy. The policy’s own terms placed identical
“first made” reporting requirements on Coverage A, and the policy further expressly excluded from Coverage A those bodily-injury claims arising from the rendering of
or failure to render professional healthcare services that fall within the scope of
Coverage D. The standing of Dolce, as a judgment creditor proceeding under
R.C. 3929.06, can rise no higher than the rights of the insured, and the insured’s
failure to comply with the policy’s claim-reporting requirements is equally a defense
available to the insurer against the judgment creditor. Burdette v. Bell, 2019-Ohio5035, ¶ 41 (12th Dist.).
The allegations of the underlying Dolce malpractice action confirmed
that the claim sounded in healthcare professional liability rather than in general
premises liability. The complaint in Cuyahoga C.P. No. CV-21-956709 alleged that
Mayfield’s staff negligently provided food to and failed to supervise a resident under
its care, resulting in her choking and subsequent death. Such allegations fall
squarely within the definition of “incident” under Coverage D, which encompasses
“any act or omission in the providing of or failure to provide services to your ‘patients
or residents,’ including . . . [t]he providing or dispensing of food, beverages,
medications or medical supplies” and “[t]he general care, control, supervision,
providing or failure to provide for the safe[ty] and security of a ‘patient or resident’”
(AESLIC Policy at AESLIC 000094-000095). Because the underlying claim was, at
its core, a professional liability claim, Coverage A’s express professional services
exclusion barred any alternative path to coverage under the general liability
coverage part.
The court is mindful that exclusions must be strictly construed
against the insurer and that the insurer bears the burden of demonstrating their
applicability. Ironics, Inc., 2022-Ohio-841, ¶ 9, quoting Lahman, 2010-Ohio-1829,
at ¶ 19. AESLIC carried that burden here. The policy’s professional services
exclusion was unambiguous, conspicuously placed, and directly addressed the very
conduct alleged in the underlying complaint. The single occurrence at the heart of
the underlying judgment — the alleged negligent provision and supervision of food
to a resident under Mayfield’s care — cannot plausibly be characterized as anything
other than the rendering of, or failure to render, professional healthcare services
within the meaning of Coverage D.
The trial court’s ultimate conclusion that no coverage was owed under
the AESLIC policy was therefore correct, even if the trial court’s reasoning rested
principally on the broader notice rationale. An appellate court reviewing a grant of
summary judgment may affirm on any ground supported by the record. Williams
v. PNC Bank, N.A., 2022-Ohio-4287, ¶ 71 (8th Dist.). Because Coverage D was
unavailable because of the insured’s failure to satisfy the policy’s claims-made-andreported requirements, and because Coverage A was foreclosed both by its own firstmade reporting requirement and by its professional services exclusion, AESLIC was
entitled to judgment as a matter of law.
Construing the evidence most strongly in favor of Dolce, as the
nonmoving party on AESLIC’s motion, no genuine issue of material fact remained
on the dispositive coverage questions. We find that the trial court did not err in granting summary judgment in favor of AESLIC and in denying Dolce’s crossmotion for summary judgment.
Therefore, Dolce’s sole assignment of error is overruled.
Judgment affirmed.
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 issue out of this court directing the
common pleas 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.
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, A.J., and
EILEEN A. GALLAGHER, J., CONCUR