[Cite as Scott v. Moore, 2026-Ohio-4009.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
TABBETHA SCOTT,
CASE NO. 11-26-04
PLAINTIFF-APPELLANT,
v.
JEFF MOORE, ET AL., OPINION AND
JUDGMENT ENTRY
DEFENDANTS-APPELLEES.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI 24 219
Judgment Affirmed
Date of Decision: October 13, 2026
APPEARANCES:
Michael D. Portnoy for Appellant
Thomas B. Bruns for Appellee
Case No. 11-26-04
ZIMMERMAN, P.J.
{¶1} Plaintiff-appellant, Tabbetha Scott (“Scott”), appeals the judgment of
the Paulding County Court of Common Pleas granting defendant-appellee, Owners
Insurance Company’s (“Owners Insurance”), Civ.R. 12(B)(6) motion to dismiss her
claims for bad faith and violations of the Ohio Corrupt Practices Act and the federal
Racketeer Influenced and Corrupt Organizations Act (collectively, “civil RICO”),
granting its cross-motion for summary judgment as to her breach of contract claim,
striking her class action allegations, and denying her request to file a second
amended complaint. For the reasons that follow, we affirm.
{¶2} This case stems from personal injuries sustained by Scott while she was
a passenger on an ATV owned and operated by defendant-appellee, Jeff Moore
(“Moore”). On April 14, 2024, Moore was negligently operating the ATV in an offroad location—rather than on a public road—when he crashed, resulting in Scott
suffering severe injuries, including a broken neck.
{¶3} After Moore’s liability insurer, Progressive Casualty Insurance
Company (“Progressive”), tendered its policy limits, Scott sought underinsured
motorist benefits to cover her remaining damages. She filed this claim under her
own personal insurance policy, which was issued by Owners Insurance. The waters
of this coverage dispute, however, have been somewhat muddied because Scott paid
additional premiums to Owners Insurance for two distinct, ATV-related coverages
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listed on her policy’s declarations page: a general “Unlicensed RV Liability”
endorsement, and the separate scheduling of her own 2023 Polaris Ranger XP with
specific uninsured and underinsured motorist limits of $100,000 per person and
$300,000 per occurrence. The presence of these distinct ATV coverages makes this
case look like a dispute over specialized “ATV Insurance.” It is not.
{¶4} Instead, because Scott was a passenger on Moore’s ATV at the time of
the accident, the specific coverages tied to her own ATV and her Unlicensed RV
Liability endorsement do not govern her recovery.1 Rather, her claim relies entirely
on the portable uninsured and underinsured motorist coverage provided by her
standard auto policy, which generally extends to protect her when occupying a third
party’s vehicle. Crucially, however, the relevant Ohio uninsured and underinsured
motorist forms governing her standard automobile policy explicitly exclude from
the definition of an uninsured or underinsured automobile any vehicle
“designed for use primarily off public roads except while actually on public roads.”
(Doc. No. 17, Ex. 1). Relying on this unambiguous language, Owners Insurance
denied Scott’s claim, asserting that Moore’s ATV did not meet the definition of an
underinsured automobile because the accident occurred off of a public roadway.
1
Because Scott sought portable uninsured or underinsured benefits as a passenger on a third party’s off-road vehicle at a location remote from any insured premises, a general automobile policy is the appropriate policy for this claim. See Ribeiro v. John Doe Ins. Cos., 2003-Ohio-433, ¶ 20 (8th Dist.) (distinguishing homeowner’s policies from motor vehicle liability policies by noting that homeowner’s policies do not cover general motor vehicle liability, but instead provide only incidental coverage for unregistered, off-road motorized vehicles used around the insured’s property).
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{¶5} On December 23, 2024, Scott filed a complaint alleging class action
claims against Owners Insurance for breach of contract, civil RICO, a violation of
the Ohio Consumer Sales Practices Act, and bad faith, alongside a negligence claim
against Moore. Scott filed an amended complaint on January 27, 2025 to correct a
clerical error.
{¶6} On February 5, 2025, Scott sought leave to file a motion for summary
judgment, which Owners Insurance opposed. The trial court denied the request on
February 28, 2025 after determining that the motion was premature since the parties
agreed Owners Insurance’s responsive pleading was not due until March 12, 2025.
{¶7} On March 11, 2025, Owners Insurance filed a Civ.R. 12(B)(6) motion
to dismiss Scott’s claims for bad faith, civil RICO, and a violation of the Ohio
Consumer Sales Practices Act. In the same filing, Owners Insurance moved to strike
the class action allegations pursuant to Civ.R. 23(D)(1)(d). On March 18, 2025,
Scott filed her memorandum in opposition to Owners Insurance’s motion to dismiss
her bad faith and civil RICO claims, while voluntarily dismissing her Ohio
Consumer Sales Practices Act claim without prejudice. That same day, Scott also
filed a motion for summary judgment as to her breach of contract claim.
Subsequently, on April 10, 2025, Owners Insurance filed a memorandum in
opposition to Scott’s motion for summary judgment alongside a cross-motion for
summary judgment regarding the breach of contract claim, which Scott then
opposed.
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{¶8} On May 23, 2025, Moore sought leave to file his answer instanter. The
delayed filing stemmed from an ongoing dispute over a proposed settlement for
Moore’s Progressive policy $50,000.00 limits, prompting Moore to include an
affirmative defense of accord and satisfaction. The trial court granted the motion
and accepted Moore’s answer. However, the parties continued to dispute whether
additional insurance coverage existed. Consequently, on July 7, 2025, Scott moved
for leave to file a second amended complaint to add Progressive as an additional
party, asserting a claim for fraud regarding the coverage limits.
{¶9} On July 11, 2025, Moore filed a motion to enforce the parties’
settlement agreement. Scott opposed this motion on July 15, 2025, and concurrently
filed a motion for sanctions under Civ.R. 11, which Moore opposed. However, that
same day, after Moore provided the requested additional insurance disclosures,
Scott formally withdrew her pending request to add Progressive as a party to the
case.
{¶10} Shortly thereafter, on July 21, 2025, Scott filed a new motion for leave
to amend her complaint to add a claim for negligent misrepresentation against
“insurance agents and insurance agencies [who sold Owners Insurance policies],
who negligently misrepresented that uninsured/underinsured coverage would be
paid to Plaintiffs when this was false.” (Doc. No. 32). Owners Insurance
subsequently filed a memorandum in opposition to the requested amendment.
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{¶11} On October 22, 2025, the trial court granted Moore’s motion to
enforce the settlement agreement and denied Scott’s request for sanctions,
prompting Scott to dismiss her claims against Moore with prejudice on November
10, 2025.
{¶12} On March 5, 2026, the trial court granted Owners Insurance’s Civ.R.
12(B)(6) motion to dismiss Scott’s civil RICO and bad faith claims; granted
summary judgment in favor of Owners Insurance as to Scott’s breach of contract
claim; and denied Scott’s motion for leave to amend her complaint.2 Because the
trial court granted summary judgment in favor of Owners Insurance as to Scott’s
breach of contract claim, the trial court dismissed Scott’s class action.
{¶13} Scott filed her notice of appeal on March 24, 2026. She raises four
assignments of error for our review.
First Assignment of Error
The Trial Court committed prejudicial error to Plaintiff by
granting Owner’s Insurance motions with supporting
memorandum to dismiss Counts two (2) and four (4) of Plaintiff’s
amended complaint.
{¶14} In her first assignment of error, Scott argues that the trial court erred
by granting Owners Insurance’s Civ.R. 12(B)(6) motion to dismiss her civil RICO
2
Owners Insurance filed a separate declaratory judgment action regarding the applicability of the policy’s coverage—case number CI-24-224—which the trial court consolidated with the present case on December 30, 2025. Even though the trial court’s final judgment entry does not explicitly dispose of the consolidated declaratory judgment action, the trial court’s decision granting summary judgment in favor of Owners Insurance as to Scott’s breach of contract claim effectively resolved the coverage dispute at issue in the declaratory action.
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and bad faith claims. Specifically, she contends that her amended complaint
satisfied the generalized notice pleading requirements of Civ.R. 8, which she argues
was sufficient to survive a motion to dismiss.
Standard of Review
{¶15} “We review de novo a judgment on a Civ.R. 12(B)(6) motion to
dismiss for failure to state a claim upon which relief can be granted.” Bd. of Health
of Defiance Cty. v. McCalla, 2012-Ohio-4107, ¶ 33 (3d Dist.). “Under de novo
analysis, we are required to ‘accept all factual allegations of the complaint as true
and draw all reasonable inferences in favor of the nonmoving party.’” McBroom v.
Safford, 2012-Ohio-1919, ¶ 9 (10th Dist.), quoting Grey v. Walgreen Co., 2011-Ohio-6167, ¶ 3 (8th Dist.).
Analysis
{¶16} “A motion to dismiss under Civ.R. 12(B)(6) ‘is a procedural
mechanism that tests the sufficiency of the allegations in the complaint.’” Pond v.
E & E Towing & Recovery, LLC, 2024-Ohio-800, ¶ 16 (10th Dist.), quoting State
Auto. Mut. Ins. Co. v. Titanium Metals Corp., 2006-Ohio-1713, ¶ 8. “‘When
reviewing a Civ.R. 12(B)(6) motion, courts are confined to the allegations contained
in the complaint.’” Betscher v. Governing Bd. of Putnam Cty. Educational Serv.
Ctr., 2015-Ohio-4727, ¶ 9 (3d Dist.), quoting Cooper v. Highland Cty. Bd. Of
Commrs., 2002-Ohio-2353, ¶ 9 (4th Dist.). “For purposes of the Rule, the trial court
must presume all facts alleged in the complaint are true and it must draw all
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reasonable inferences in favor of the non-moving party.” Melesky v. SummaCare,
Inc., 2012-Ohio-1336, ¶ 5 (5th Dist.). “[H]owever, ‘while we are to assume the
facts alleged in the complaint are true, we do not assume the legal conclusions
alleged to be drawn from those facts are also true and disregard any unsupported
conclusions included among the facts alleged in the complaint.’” Med. Mut. of Ohio
v. FrontPath Health Coalition, 2023-Ohio-243, ¶ 12 (6th Dist.), quoting STE
Invests., LLC v. Macprep, Ltd., 2022-Ohio-2614, ¶ 14 (6th Dist.).
{¶17} A court may not grant a motion to dismiss for failure to state a claim
upon which relief can be granted unless it appears beyond doubt that the plaintiff
can prove no set of facts entitling them to relief. Melesky at ¶ 5. “[A]s long as there
is a set of facts, consistent with the plaintiff’s complaint, which would allow the
plaintiff to recover, the court may not grant a defendant’s motion to dismiss.” York
v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144 (1991). Conversely, “[d]ismissal
is proper if the complaint fails to sufficiently allege an essential element of the cause
of action.” Melesky at ¶ 5, citing State ex rel. Cincinnati Enquirer v. Ronan, 2009-Ohio-5947, ¶ 8. Nevertheless, because of the notice pleading requirements of the
Ohio Rules of Civil Procedure, a plaintiff is not required to prove his or her case at
the pleading stage, as the evidence necessary for a plaintiff to prevail is often not
obtained until discovery is conducted. Id.
{¶18} “‘Ohio is a notice-pleading state.’” Hall v. Crawford Cty. Job &
Family Servs., 2022-Ohio-1358, ¶ 16 (3d Dist.), quoting Pugh v. Warden of LaECI,
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2019-Ohio-3615, ¶ 26 (11th Dist.). See also Allstate Ins. Co. v. Electrolux Home
Prods., 2012-Ohio-90, ¶ 9 (8th Dist.) (“Ohio is a notice-pleading state, and Ohio
law does not ordinarily require a plaintiff to plead operative facts with
particularity.”). “Under Civ.R. 8(A), ‘[a] pleading that sets forth a claim for relief .
. . shall contain (1) a short and plain statement of the claim showing that the party
is entitled to relief, and (2) a demand for judgment for the relief to which the party
claims to be entitled.’” Hall at ¶ 16, quoting Civ.R. 8(A). And, “‘[e]ach averment
of a pleading shall be simple, concise, and direct. No technical forms of pleading
or motions are required.’” Id., quoting Civ.R. 8(E)(1). Ultimately, a plaintiff is
only required to plead sufficient operative facts to give the defendant fair notice of
the claim and the grounds upon which it is based. Id. See also Electrolux Home
Prods. at ¶ 9.
{¶19} In evaluating a motion to dismiss, courts must remain mindful of these
liberal notice-pleading standards. See Karr v. Dianna Sayre Estate, 2026-Ohio1462, ¶ 10 (5th Dist.). A plaintiff is not required to plead specific legal theories,
allege every fact they intend to prove, or demonstrate absolute technical conformity
with arcane rules of pleading. Id. Because Civ.R. 8(A) does not contemplate
evidentiary pleading, a plaintiff is not required to prove his or her case at the
pleading stage. Id.
Instead, this simplified standard relies on liberal discovery rules and summary
judgment practice to clarify the issues, define disputed facts, and dispose of
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nonmeritorious claims. Id. Because it is relatively easy for a pleader to satisfy
Civ.R. 8(A), a motion to dismiss for failure to state a claim is viewed with disfavor
and is rarely granted. Id.
{¶20} However, the liberal notice-pleading standard is not without limits.
See Jordan v. Giant Eagle Supermarket, 2020-Ohio-5622, ¶ 24 (8th Dist.). While
a complaint no longer must set forth specific factual allegations, it must still
“‘“‘contain allegations from which an inference fairly may be drawn that evidence
on these material points will be introduced at trial.’”’” Karr at ¶ 10, quoting Bethel
Oil & Gas, LLC v. Redbird Dev., LLC, 2024-Ohio-5285, ¶ 42 (4th Dist.), quoting
Schlenker Enters., LP. v. Reese, 2010-Ohio-5308, ¶ 29 (3d Dist.), quoting Fancher
v. Fancher, 8 Ohio App.3d 79, 83 (1st Dist. 1982).
Bad Faith
{¶21} “It is well established under Ohio law that ‘based upon the relationship
between an insurer and its insured, an insurer has the duty to act in good faith in the
handling and payment of the claims of its insured.’” Coy v. Grange Mut. Cas. Co.,
2004-Ohio-6955, ¶ 20 (11th Dist.), quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio
St.3d 272 (1983), paragraph one of the syllabus. “The insurer’s failure to act in
good faith is the equivalent of acting in bad faith.” Id.
{¶22} To state a valid cause of action for bad faith, a plaintiff must establish
that the insurer failed to exercise good faith in processing the claim because its
refusal to pay was not predicated upon circumstances that furnish reasonable
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justification. Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552 (1994), paragraph
one of the syllabus. “An insurer lacks reasonable justification for denying a claim
when its refusal to pay is predicated on an arbitrary or capricious belief that the
insured is not entitled to coverage.” Reece v. Grange Guardian Ins. Co., 2004-Ohio-5668, ¶ 31 (6th Dist.).
{¶23} “Bad faith is not shown by a mere breach of a contractual duty.”
Wagner v. Midwestern Indemn. Co., 83 Ohio St.3d 287, 295 (1998). See also Sanzo
Ents., LLC v. Erie Ins. Exchange, 2021-Ohio-4268, ¶ 72 (5th Dist.) (“Even if a
denial of coverage had been erroneous, the mere wrongful denial of a claim is not
actionable under Ohio law.”). An insured must “prove that the insurer committed
some act above and beyond simply breaching the insurance contract.” Wagner at
295. See also Stefano v. Commodore Cove E. Ltd., 145 Ohio App.3d 290, 293 (9th
Dist. 2001) (noting that “the insurer’s failure to pay a claim need not involve bad
intent or malice to amount to ‘bad faith’”).
{¶24} To survive a motion to dismiss, a plaintiff must plead factual
allegations showing that the insurer breached its tort duty to act in good faith by
refusing to pay the claim without reasonable justification. Merely reciting the
elements of the tort or making conclusory statements is not enough; the complaint
must contain operative facts showing how the insurer’s conduct lacked reasonable
justification. Clemens v. Katz, 2009-Ohio-1461, ¶ 7 (6th Dist.) (relating that “to
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constitute fair notice, the complaint must still allege sufficient underlying facts that
relate to and support the alleged claim, and may not simply state legal conclusions”).
{¶25} In this case, notwithstanding Ohio’s liberal notice pleading rules,
Scott’s bad faith claim fails because it consists of unsupported legal conclusions.
Indeed, a review of the amended complaint reveals that Scott simply parroted the
legal standard from Zoppo, summarily alleging that Owners Insurance’s “refusal to
pay . . . is not predicated upon circumstances that furnish reasonable justification”
and characterizing the denial as being “willful, wanton and malicious.” (Doc. No.
6).
{¶26} Critically, Scott’s amended complaint fails to allege any specific
actions Owners Insurance took during the processing or investigation of the claim
that lacked reasonable justification. Merely disagreeing with a coverage decision
and alleging a breach of the insurance contract is insufficient to state an independent
tort for bad faith. See Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276 (1983)
(noting that bad faith liability “does not arise from its mere omission to perform a
contract obligation, for it is well established in Ohio that it is no tort to breach a
contract, regardless of motive”). Because Scott failed to plead any operative facts
elevating her claim beyond a mere breach of contract, the trial court properly
dismissed Scott’s bad faith claim under Civ.R. 12(B)(6).
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Civil RICO
{¶27} “The Ohio Corrupt Practices Act is modeled after the federal RICO
act, 18 U.S.C. 1961 et seq., and provides, ‘No person employed by, or associated
with, any enterprise shall conduct or participate in, directly or indirectly, the affairs
of the enterprise through a pattern of corrupt activity or the collection of an unlawful
debt.’” JPMorgan Chase Bank, NA v. Asbury, 2018-Ohio-1652, ¶ 28 (6th Dist.),
quoting R.C. 2923.32(A)(1). “R.C. 2923.34 grants a civil remedy to a person
injured or threatened with injury by a violation of R.C. 2923.32.” Morrow v.
Reminger & Reminger Co. LPA, 2009-Ohio-2665, ¶ 26 (10th Dist.).
To state a civil claim under the federal RICO act or the Ohio Corrupt
Practices Act, “‘a plaintiff must establish: (1) that the conduct of the
defendant involves the commission of two or more specifically
prohibited state or federal criminal offenses; (2) that the prohibited
criminal conduct of the defendant constitutes a pattern; and (3) that
the defendant has participated in the affairs of an enterprise or has
acquired and maintained an interest in or control of an enterprise.’”
Asbury at ¶ 28, quoting Morrow at ¶ 27, quoting Patton v. Wilson, 2003-Ohio-3379,
¶ 12 (8th Dist.). Critically, a “Corrupt Practices Act claim is subject to a higher
pleading standard.” Med. Mut. of Ohio v. FrontPath Health Coalition, 2023-Ohio243, ¶ 30 (6th Dist.). Consequently, “[t]he failure to plead any of those elements
with particularity results in a defective complaint that cannot withstand a Civ.R.
12(B)(6) motion to dismiss.” Morrow at ¶ 27. See also Sutton Funding LLC v.
Herres, 2010-Ohio-3645, ¶ 50 (2d Dist.) (“Failure to specifically plead the operative
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facts constituting an alleged fraud presents a defective claim that may be
dismissed.”).
{¶28} “Civil Rule 9(B) provides that, when pleading fraud or mistake, the
circumstances constituting fraud or mistake shall be pleaded with particularity.”
Bear v. Bear, 2014-Ohio-2919, ¶ 23 (9th Dist.). “‘“The circumstances constituting
fraud, as that phrase is used in Rule 9(B), include the time, place, and content of the
false representation; the fact misrepresented; the identification of the individual
giving the false representation; and the nature of what was obtained or given as a
consequence of the fraud.”’” Id., quoting Wright v. Bank of New York, 2012-Ohio2289, ¶ 19 (9th Dist.), quoting Hamblin v. Daugherty, 2007-Ohio-5893, ¶ 20 (9th
Dist.). “The particularity requirement of Rule 9(B) must be applied together with
the more general pleading requirement in Rule 8 . . . .” Id. Thus, “‘[t]o have met
the requirements of Civ.R. 9(B), the complaint . . . must have “sufficiently apprised”
the defendant “of the specific claims to be required to answer.”’” Id., quoting L.E.
Sommer Kidron, Inc. v. Kohler, 2007-Ohio-885, ¶ 27 (9th Dist.), quoting Haddon
View Invest. Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 159 (1982).
{¶29} In this case, Scott argues that her amended complaint sufficiently
detailed a civil RICO claim against Owners Insurance for engaging in a pattern of
corrupt activity through mail fraud. Specifically, Scott alleges that Owners
Insurance used the mail to commit fraud by refusing to pay uninsured or
underinsured motorist benefits to policyholders who purchased what they
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understood to be specialized insurance for their ATVs. She contends that Owners
Insurance deceived these policyholders by routinely denying coverage for off-road
accidents despite collecting premiums for ATVs.
{¶30} “To survive a motion to dismiss, the amended complaint must contain
allegations that the appellees’ criminal conduct constitutes a pattern of corrupt
activity.” Morrow, 2009-Ohio-2665, at ¶ 29 (10th Dist.). “R.C. 2923.31(E) defines
a ‘[p]attern of corrupt activity’ as ‘two or more incidents of corrupt activity, whether
or not there has been a prior conviction, that are related to the affairs of the same
enterprise, are not isolated, and are not so closely related to each other and connected
in time and place that they constitute a single event.’” Id., quoting R.C. 2923.31(E).
“The commission of two incidents of corrupt activity alone is insufficient to
demonstrate a pattern of corrupt activity.” Id. “2923.31(I) defines ‘corrupt activity’
as the commission of any one of the several crimes enumerated therein.” Sheets v.
Carmel Farms, 1997 Ohio App. LEXIS 2422, *12 (10th Dist. Jun. 5, 1997).
{¶31} “The United States Supreme Court, addressing RICO, has stated that
‘legislative history reveals Congress’ intent that to prove a pattern of racketeering
activity a plaintiff . . . must show that the racketeering predicates are related, and
that they amount to or pose a threat of continued criminal activity.’” (Emphasis in
original.) Morrow at ¶ 30, quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 239 (1989). “These factors of continuity and relationship combine to produce
a pattern.” Id. “Similarly, in Ohio, a pattern of corrupt activity under the OCPA
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requires that predicate crimes be related and pose a threat of continued criminal
activity.” Id.
{¶32} Based on our review of Scott’s amended complaint, we conclude that
Scott failed to specifically plead the existence of a pattern of corrupt activity.
Accord Herakovic v. Catholic Diocese, 2005-Ohio-5985, ¶ 37 (8th Dist.). Critically,
“[a] single event cannot establish a pattern regardless of the number of criminal acts
emanating therefrom.” Id. at ¶ 36. See also Morrow at ¶ 33 (rejecting the
proposition that a single scheme is sufficient to demonstrate a pattern, and instead
requiring a plaintiff to plead either multiple related criminal episodes or an openended scheme). Instead, courts follow a “‘common-sense approach,’ requiring a
plaintiff to plead either that the defendant “engaged in more than one related
criminal episode or scheme” or that the complaint alleges “an open-ended scheme
over an extended period to demonstrate that the alleged criminal activity is
continuous rather than isolated.” Morrow at ¶ 33, quoting B.J. Skin & Nail Care,
Inc. v. Internatl. Cosmetic Exchange, Inc., 641 F.Supp. 563, 566 (D.Conn. 1986).
To determine whether a complaint sufficiently alleges a pattern of corrupt activity,
courts evaluate the sum of various factors, including the duration of the racketeering
activity, the number of distinct schemes, the number and variety of predicate acts,
the distinct types of injuries, and the respective numbers of victims and perpetrators.
Id. at ¶ 34.
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{¶33} Here, Count Two of Scott’s amended complaint alleges, in general
terms, that Owners Insurance engaged in a fraudulent enterprise by using the mail
system to send false notices to policyholders. Specifically, she claims that Owners
Insurance made material misrepresentations by mailing notices to her and other
policyholders stating that insurance payments would be—or had already been—
made pursuant to their insurance contracts, when in reality those payments were not
made to insureds who purchased coverage. Even accepting those allegations as true,
Scott’s amended complaint does not plead facts showing multiple related criminal
episodes, an open-ended course of criminal conduct, or a continuing threat of future
corrupt activity. Compare id. (concluding that “[t]he allegations demonstrate, at
best, a single scheme of narrow scope, to avoid liability for the default judgment,
and a single type of predicate act, i.e., perjury”). Rather, the alleged predicate acts
all arise from the same narrow coverage dispute and the same asserted objective:
avoiding payment of claimed uninsured or underinsured motorist benefits for offroad recreational vehicle accidents.
{¶34} Moreover, general references to “other policyholders” does not cure
the defect because the complaint does not identify particularized facts concerning
separate victims, separate claims, separate fraudulent communications, or distinct
injuries sufficient to transform the alleged conduct into a pattern of corrupt activity.
See id. at ¶ 35; Med. Mut. of Ohio v. FrontPath Health Coalition, 2023-Ohio-243,
¶ 43-44 (6th Dist.) (determining that broad allegations of corrupt activity involving
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“victims” on “multiple occasions” lacked operative facts, and holding that a plaintiff
fails to plead a pattern with specificity when they do not identify the specific dates
or particular transactions involved).
{¶35} Accordingly, we conclude that Scott failed to plead the pattern element
with the specificity required to survive dismissal under Civ.R. 12(B)(6). Accord
Morrow at ¶ 35. See also Herakovic at ¶ 37 (declining to address additional
elements where the failure to establish a pattern defeated the cause of action). Thus,
the trial court did not err by granting Owners Insurance’s motion to dismiss Scott’s
civil RICO claim under Civ.R. 12(B)(6).
{¶36} Scott’s first assignment of error is overruled.
Second Assignment of Error
The Trial Court committed prejudicial error to Plaintiff by
granting Owner’s insurance motion with supporting
memorandum for summary judgment.
{¶37} In her second assignment of error, Scott argues that the trial court erred
by granting summary judgment in favor of Owners Insurance as to her breach of
contract claim. Specifically, Scott argues that the uninsured and underinsured
motorist coverage in her insurance policy is illusory. She contends that, because an
insured can only trigger coverage by illegally driving an ATV on a public roadway,
the contract merely appears to grant a benefit while practically failing to do so.
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Standard of Review
{¶38} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing the
evidence in favor of the non-moving party, and the conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd.
of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶39} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.’ Carnes v. Siferd, 2011-Ohio-4467, ¶ 13 (3d Dist.). “In doing so, the moving
party is not required to produce any affirmative evidence, but must identify those
portions of the record which affirmatively support his argument.” Id. “The
nonmoving party must then rebut with specific facts showing the existence of a
genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id.
Analysis
{¶40} In this case, the trial court granted summary judgment in favor of
Owners Insurance as to Scott’s breach of contract claim after determining that the
ATV accident did not fall within the policy’s uninsured or underinsured motorist
coverage because the insurance policy unambiguously excluded vehicles “designed
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for use primarily off public roads except while actually on public roads,” and the
undisputed facts established that the accident occurred off of a public road. In
reaching this decision, the trial court determined that the uninsured and
underinsured motorist policy language was not illusory because it clearly afforded
coverage for ATV accidents occurring on public roadways—regardless of whether
such operation was lawful—while explicitly excluding coverage for accidents
occurring off public roadways.
{¶41} On appeal, Scott contends that the trial court erred by granting
summary judgment in favor of Owners Insurance as to her breach of contract claim
because the trial court failed to consider that Ohio law prohibits operating an ATV
on a public roadway, except in limited circumstances that do not apply here.
Therefore, Scott contends that the trial court erred by enforcing the contract since
an insurance policy that requires an insured to break the law to recover benefits is
inherently illusory.
{¶42} In response, Owners Insurance counters that the coverage is not
illusory because the policy explicitly provides benefits for accidents occurring on
public roadways, even if the ATV is operated illegally at the time. Owners
Insurance maintains that, because the contract would pay out under that
circumstance, it provides a valid benefit rather than an illusion.
{¶43} “A cause of action for breach of contract requires the claimant to
establish the existence of a contract, the failure without legal excuse of the other
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party to perform when performance is due, and damages or loss resulting from the
breach.” Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41. “To establish
the existence of a valid contract, a plaintiff must demonstrate the essential elements
of an offer, acceptance, contractual capacity, consideration, a manifestation of
mutual assent, and legality of object and of consideration.” Rena Lyon Revocable
Trust v. Berry, 2026-Ohio-2369, ¶ 11 (3d Dist.).
{¶44} “‘In Ohio, insurance contracts are construed as any other written
contract.’” Grange Ins. Co. v. Farmers Ins., 2022-Ohio-4303, ¶ 9 (6th Dist.),
quoting Andray v. Elling, 2005-Ohio-1026, ¶ 18 (6th Dist.). “The coverage under
an insurance policy is determined by construing the contract ‘in conformity with the
intention of the parties as gathered from the ordinary and commonly understood
meaning of the language employed.’” Crow v. Dooley, 2012-Ohio-2565, ¶ 8 (3d
Dist.), quoting King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211 (1988). Thus,
policy “terms are to be given their plain and ordinary meaning . . . .” Id. If the
language of the policy, read as a whole, “‘is clear and unambiguous, then its
interpretation is a matter of law and there is no issue of fact to be determined.’”
Barhorst, Inc. v. Hanson Pipe & Prods. Ohio, Inc., 2006-Ohio-6858, ¶ 10 (3d Dist.),
quoting Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15
Ohio St.3d 321, 322 (1984).
{¶45} “[W]hen an insurance contract contains exceptions to coverage, there
is a presumption that all coverage applies unless it is clearly excluded in the
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contract.” Crow at ¶ 10. “It is well established that contracts of insurance are to be
strictly construed against the insurer, especially when an exclusionary clause is at
issue.” Great Am. Assur. Co. v. Acuity, 2022-Ohio-501, ¶ 20 (12th Dist.).
“Accordingly, in order for an insurer to defeat coverage through a clause in the
insurance contract, it must demonstrate that the clause in the policy is capable of the
construction it seeks to give it, and that such construction is the only one that can be
fairly placed upon the language.” Crow at ¶ 10, quoting Bosserman Aviation Equip.
v. U.S. Liab. Ins. Co., 2009-Ohio-2526, ¶ 11 (3d Dist.). That is, “under Ohio law,
‘“an exclusion in an insurance policy will be interpreted as applying only to that
which is clearly intended to be excluded.’”” (Emphasis in original.) Grange Ins.
at ¶ 10, quoting Sauer at ¶ 11, quoting Hybud Equip. Corp. v. Sphere Drake Ins.
Co., 64 Ohio St.3d 657, 665 (1992). “However, while exclusions in insurance
contracts are read narrowly in Ohio to apply only to that which is clearly intended
to be excluded, that rule of strict construction does not permit a reviewing court to
ignore the obvious intent of an exclusionary provision.” Acuity at ¶ 20.
{¶46} “The party seeking to recover under an insurance policy bears the
burden of demonstrating that the policy provides coverage for the particular loss.”
Crow at ¶ 11. “However, ‘when an insurer denies liability coverage based upon a
policy exclusion, the insurer bears the burden of demonstrating the applicability of
the exclusion.’” Id., quoting Beaverdam Contracting, Inc. v. Erie Ins. Co., 2008-Ohio-4953, ¶ 19 (3d Dist.).
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{¶47} Here, Scott obtained an automobile insurance policy from Owners
Insurance under which she paid additional premiums for specific, distinct coverages
listed on her declarations pages. First, she purchased an “Unlicensed RV Liability”
endorsement, which provided bodily injury limits of $100,000 each person and
$300,000 each occurrence, property damage limits of $100,000 each occurrence,
and medical payments limits of $500 each person. Separately, Scott scheduled her
own 2023 Polaris Ranger XP as an insured vehicle, for which she specifically
purchased uninsured and underinsured motorist limits of $100,000 each person and
$300,000 each occurrence, as well as comprehensive and collision coverages.
{¶48} However, because Scott was injured while riding as a passenger on
Moore’s ATV rather than her own, her claim does not trigger the specific coverages
tied to her scheduled Polaris Ranger or the separate Unlicensed RV Liability
endorsement. Instead, her claim relies on the portable nature of the policy’s general
uninsured and underinsured motorist coverage, which extends first-party protection
to the named insured while occupying a non-owned automobile. Specifically, under
Section 2.b.(1) of the relevant coverage forms (forms 99302 and 99303), this
protection is explicitly extended to the named insured “when [they] are occupying
an automobile that is not covered by SECTION II - LIABILITY COVERAGE of
the policy . . . .” (Emphasis in original.) (Doc. No. 17, Ex. 1).
{¶49} Critically, even though this general coverage follows the insured into
third-party vehicles, the policy strictly limits the definition of a qualifying uninsured
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or underinsured automobile. As a threshold matter, the policy broadly defines an
“automobile” as “a passenger automobile, a truck, truck tractor, farm implement or
other land motor vehicle.”3 (Id.). However, the definitions sections of the uninsured
and underinsured motorist coverage forms explicitly dictate that an uninsured or
underinsured automobile does not include an automobile “that is designed for use
primarily off public roads except while actually on public roads.” (Id.).
{¶50} Therefore, applying the plain and ordinary meaning of the policy’s
language, the policy clearly and unambiguously excludes coverage for accidents
involving an off-road vehicle unless that vehicle is on a public roadway at the time
of the accident. Because it is undisputed that Moore’s ATV was an off-road vehicle
and the accident occurred off of a public roadway, Moore’s ATV fails to meet the
contractual definition of an uninsured or underinsured automobile. Therefore,
Owners Insurance possessed a valid legal excuse for non-performance.
{¶51} Nevertheless, because the plain language of the policy clearly and
unambiguously bars recovery, Scott’s claim relies on the premise that this exclusion
renders the coverage inherently illusory. That is, Scott contends that the policy is
illusory because the only circumstance under which the uninsured or underinsured
3
See generally R.C. 3937.18 (establishing the framework for uninsured and underinsured motorist coverage in Ohio and permitting insurers to define “uninsured automobile” and “underinsured automobile” within their policies, subject to statutory minimum requirements). While R.C. 3937.18 sets the statutory boundaries for uninsured or underinsured offerings, Ohio courts consistently uphold policy language that defines “uninsured automobile” or “underinsured automobile” to exclude off-road vehicles from the scope of coverage. See State Auto. Ins. Co. v. Pasquale, 2007-Ohio-970, syllabus (holding that “[a]n insurance policy may exclude off-road vehicles from uninsured- and underinsured-motorist coverage”); State Farm Mut. Auto. Ins. Co. v. Grace, 2009-Ohio-5934, ¶ 36.
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motorist exclusion would not apply—an ATV being operated on a public road—is
itself a violation of Ohio law, meaning the coverage theoretically exists but cannot
be lawfully triggered, rendering the premium paid for that protection a nullity.
{¶52} “‘An insurance provision is illusory when it appears to grant a benefit
to the insured, although in reality it does not.’” Cincinnati Specialty Underwriters
Ins. Co. v. Larschied, 2014-Ohio-4137, ¶ 33 (3d Dist.), quoting Beaverdam
Contracting, Inc. v. Erie Ins. Co., 2008-Ohio-4953, ¶ 49 (3d Dist.). “An illusory
promise is a promise that lacks consideration and thus, is unenforceable.” McGlone
v. Motorist Mut. Ins., 2001 Ohio App. LEXIS 1626, *10 (3d Dist.). However,
“when some benefit to the insured is evident from the endorsement, the endorsement
is not an illusory contract.” Id. See also Larschied at ¶ 33 (“So long as an exclusion
does not eliminate all coverage under a policy, it will not render the policy
illusory.”).
{¶53} Based on our review of the record before us, we conclude that the trial
court did not err by granting summary judgment in favor of Owners Insurance since
the plain language of the insurance policy provides uninsured and underinsured
motorist coverage for ATV accidents that occur on public roadways. See Larschied
at ¶ 34 (concluding that an insurance policy is not illusory simply because it contains
a specific exclusion, provided the exclusion does not eliminate all coverage and the
policy still protects the insured against other foreseeable claims). Even though Scott
argues that this coverage is illusory because R.C. 4519.41 generally prohibits
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operating ATVs on public roads, this statutory prohibition does not render the
contractual coverage nonexistent. As the trial court correctly noted, operating an
ATV illegally on a public roadway does not negate the coverage under the policy.
Because a factual circumstance exists that would trigger the insurer’s obligation to
pay—specifically, an uninsured or underinsured motorist accident occurring on a
public roadway—a benefit to the insured is evident from the language of the
contract. See McGlone at *10 (concluding that an insurance contract did not contain
an illusory promise because a benefit to the insured was indeed evident from the
contractual language establishing the insurer had foregone its right to force
arbitration).
{¶54} Consequently, the policy does not contain an illusory promise and is
enforceable as written. See Thiemens v. Grange Mut. Cas. Co., 2013-Ohio-1643, ¶
49 (5th Dist.) (determining that an insurance policy was not illusory because several
circumstances would trigger coverage and thus grant a benefit to the insured).
Accordingly, because the contract is valid, the trial court properly applied the plain
language of the policy, which explicitly excludes coverage for accidents involving
an off-road vehicle off a public highway. Thus, since it is undisputed that Scott’s
injuries resulted from an off-road accident, the trial court properly concluded that
Owners Insurance was entitled to summary judgment as to Scott’s breach of contract
claim. See Acuity, 2022-Ohio-501, at ¶ 32 (12th Dist.).
{¶55} Scott’s Second assignment of error is overruled.
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Fourth Assignment of Error
The Trial Court committed prejudicial error to Plaintiff by
striking her class action allegations.
{¶56} In her fourth assignment of error, Scott argues that the trial court by
striking her class action allegations. Specifically, she contends that, because she
established her underlying causes of action for breach of contract and bad faith
against Owners Insurance, the trial court’s decision to strike the class allegations—
which was based entirely on its granting of summary judgment against her on the
breach of contract claim—was improper.
Standard of Review
{¶57} “A trial judge has broad discretion in determining whether a class
action may be maintained and that determination will not be disturbed absent a
showing of an abuse of discretion.” Marks v. C.P. Chem. Co., 31 Ohio St.3d 200
(1987). Again, an abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶58} “However, the trial court’s discretion, while expansive, ‘“is not
unlimited, and indeed is bounded by and must be exercised within the framework
of Civ.R. 23.”’” Midland Funding LLC v. Colvin, 2019-Ohio-5382, ¶ 16 (3d Dist.),
quoting State ex rel. Davis v. Pub. Emps. Retirement Bd., 2006-Ohio-5339, ¶ 20,
quoting Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d 67, 70 (1998). “‘“The trial
court is required to carefully apply the class action requirements and conduct a
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rigorous analysis into whether the prerequisites of Civ.R. 23 have been satisfied.”’”
Id., quoting Davis at ¶ 20, quoting Hamilton at 70.
Analysis
{¶59} “Civ.R. 23 sets forth the requirements for maintaining a class action.
Stammco, L.L.C. v. United Tel. Co., 2010-Ohio-1042, ¶ 6. Before a trial court grants
class certification, it must find that the requirements of Civ.R. 23(A) have been met
and that the class fits within one of the Civ.R. 23(B) categories.” Rimedio v.
SummaCare, Inc., 2004-Ohio-4971, ¶ 18 (9th Dist.). Those requirements include:
“(1) an identifiable class must exist and the definition of the class must
be unambiguous; (2) the named representatives must be members of
the class; (3) the class must be so numerous that joinder of all
members is impracticable; (4) there must be questions of law or fact
common to the class; (5) the claims or defenses of the representative
parties must be typical of the claims or defenses of the class; (6) the
representative parties must fairly and adequately protect the interests
of the class; and (7) one of the three Civ.R. 23(B) requirements must
be met.”
Stammco at ¶ 6, quoting Hamilton at 71. “The party moving for class certification
must prove each of these seven requirements by a preponderance of the evidence.”
Midland Funding at ¶ 14. A plaintiff’s failure to satisfy any single prerequisite will
defeat a request for class certification. Id.
{¶60} To satisfy the second requirement, “the named plaintiff must be a
member of the class he or she seeks to represent and, in connection with this
requirement, must have standing.” Wilson v. Directions Credit Union, 2024-Ohio105, ¶ 15 (6th Dist.). See Woods v. Oak Hill Community Med. Ctr., 134 Oho App.3d
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261, 268 (4th Dist. 1999) (“The standing inquiry is part and parcel of the
requirement that the representative is a member of the class he seeks to represent.”).
“To have standing, the party must allege a personal stake in the outcome of the
controversy.” Wilson at ¶ 15. See Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d 67,
74 (1998) (explaining that a plaintiff must possess the same interest and suffer the
same injury as the class members to have standing as a class representative). “Thus,
if a named plaintiff purporting to represent a class does not establish the requisite
standing, he may not seek relief on behalf of himself or any other member of the
class.” Woods at 269.
{¶61} The timing of a trial court’s decision regarding the maintainability of
a class action is left to its sound discretion and need only be made at a time that is
“fair and reasonable to all parties.” Rece v. Dominion Homes, Inc., 2008-Ohio-24,
¶ 12 (10th Dist.). As Ohio courts have recognized, addressing class certification
prior to determining the merits of the underlying claims can sometimes “result in
unnecessary discovery procedures and the unjustified and unnecessary expenditure
of judicial time and energy.” Id. See also Castillo v. Nationwide Fin. Servs., 2003-Ohio-4766, ¶ 26 (10th Dist.) (“A court may defer a class certification question until
after deciding the defendant’s motion for summary judgment, thus ‘winnow[ing]
out substantively deficient class actions, prior to class certification.’”), quoting
Thomas v. Moore USA, Inc., 194 F.R.D. 595, 603 (S.D.Ohio 1999). Therefore, it is
entirely proper for a trial court to resolve a dispositive motion on the named
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plaintiff’s individual claims before reaching the issue of class certification. See
Rece at ¶ 17; Castillo at ¶ 26.
{¶62} When a trial court resolves the merits of the plaintiff’s individual
claims prior to certification, no controversy remains. Castillo at ¶ 26. See also
Stewart v. Farmers Ins. of Columbus, 2026-Ohio-1451, ¶ 22 (8th Dist.) (“Where the
named plaintiff’s individual claim becomes moot before class certification,
dismissal of the entire action, including the class claims, is required.”).
“Certification of a class is the critical act which reifies the unnamed class members
and, critically, renders them subject to the court’s power.” Gembarski v.
PartsSource, Inc., 2019-Ohio-3231, ¶ 31, quoting Larsen v. Citibank FSB (In re
Checking Account Overdraft Litigation), 780 F.3d 1031, 1037 (11th Cir. 2015).
Absent class certification, there is no justiciable controversy between a defendant
and the unnamed putative class members. Id.
{¶63} In this case, the trial court struck Scott’s class action allegations after
determining that, because it had granted summary judgment in favor of Owners
Insurance as to her individual breach of contract claim, she no longer possessed a
valid claim to serve as the class representative. Because the trial court properly
dismissed Scott’s bad faith and civil RICO claims under Civ.R. 12(B)(6) and
properly granted summary judgment as to her breach of contract claim before any
class was certified, Scott lost her personal stake in the controversy and lacked
standing to represent the class. See Rece, 2008-Ohio-24, at ¶ 17 (10th Dist.) (finding
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no abuse of discretion where the trial court immediately proceeded to the merits on
summary judgment before ruling on class certification). Therefore, the trial court
did not abuse its discretion by striking Scott’s class action allegations as moot. See
Castillo, 2003-Ohio-4766, at ¶ 26 (10th Dist.) (concluding that a trial court is
permitted to declare a plaintiff’s attempt to obtain class action status moot once it
determines the underlying cause of action is meritless),
{¶64} Scott’s fourth assignment of error is overruled.
Third Assignment of Error
The Trial Court committed prejudicial error to Plaintiff by not
allowing Plaintiff to file her second amended complaint.
{¶65} In her third assignment of error, Scott argues that the trial court erred
by denying her request to file a second amended complaint. However, at oral
argument, Scott orally moved to withdraw this assignment of error, stating that a
settlement outside the record has rendered the issue moot. Accordingly, we decline
to address it. See App.R. 12(A)(1)(c).
{¶66} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Mark C. Miller, Judge
John R. Willamowski, Judge
DATED:
/hls
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