Bigelow v. American Family Insurance: Bad News for Consumers and Consumer Law Attorneys in Ohio
Ohio's Fifth District Court of Appeals recently decided the case of Bigelow v. Am. Family Ins., 2016-Ohio-3311, which unfortunately dealt a swift blow to consumers and consumer law attorneys in Ohio.
In that case, the Plaintiff was in a car accident. She asked her auto insurance company to only use original equipment manufacturer (“OEM”) parts to repair her car. However, the insurance company used non-OEM parts anyway, presumably just to save a few dollars. However, the insurance company failed to obtain her signature notifying her of the use of non-OEM parts when it issued a repair estimate. Under the Ohio Consumer Sales Practices Act (CSPA), specifically R.C. 1345.82, that is unlawful (at least if the CSPA applies - more on this below). After she found out, she filed a lawsuit. She won on her CSPA claim on summary judgment (an impressive feat by her attorney, to be sure). She was awarded actual damages of $161.19, treble (triple) damages of $483.57, expenses of $326.44, expert witness fees of $4,272.15 and (most importantly!) attorney fees in the amount of $17,640.00. She and her attorney must have been very pleased with the result.
However, the insurance company appealed, arguing that the CSPA did not apply because its repair of the Plaintiff's vehicle was not a "consumer transaction," one of the requirements that must be satisfied in order for the CSPA to apply. The Fifth District (well-known for having very smart Judges) found in favor of the Plaintiff (called the "Appellee" on appeal) for the most part, ruling that the CSPA did in fact apply and upholding all the damages except the expert witness fees. Then the insurance company appealed again, to the Supreme Court of Ohio. The Supreme Court then decided a different case that presented the same issue - Dillon v. Farmers Insurance of Columbus, Inc., 145 Ohio St.3d 113, 2015-Ohio-5407, -- N.E.3d --. In that case, the Supreme Court ruled in favor of the insurance company, holding that an insurance company's repair of a vehicle does not qualify as a "consumer transaction" and therefore the CSPA does not apply.
The Supreme Court then kicked the Bigelow case back down to the Fifth District, who had no choice but to follow the ruling in Dillon and completely wipe out the award to the Plaintiff, leaving her and her attorney with nothing. While the Plaintiff's attorney can still boast about the original ~$22,000.00 he/she won, this must be a very bitter pill to swallow.
Alex Durst is a Cincinnati consumer protection law attorney with The Durst Law Firm. Licensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or firstname.lastname@example.org.