Cincinnati Ins. Co. v. Porter

• Decision Date: 21 November 1989
• Docket Number: No. 89CV-F-37,89CV-F-37
• Citation: 61 Ohio Misc.2d 116,575 N.E.2d 522
• Parties: CINCINNATI INSURANCE COMPANY v. PORTER et al.
• Court: Ohio Court of Common Pleas

Page 116

61 Ohio Misc.2d 116

575 N.E.2d 522

CINCINNATI INSURANCE COMPANY v. PORTER et al.

No. 89CV-F-37.

Belmont County Court of Ohio.

Decided Nov. 21, 1989.

Syllabus by the Court

1. When the insurer of a tortfeasor satisfies a claim of subrogation by the insurer of the claimant for payments made under its medical payments' coverage to the claimant, the right of subrogation is satisfied and extinguished, thus leaving nothing to which the tortfeasor's insurer can succeed.

2. The proper procedure to claim a credit for advanced medical payments made by the insurer of a tortfeasor is to seek post-judgment relief, prior to satisfaction of judgment, in the court which renders the judgment allegedly incorporating the advanced payments.

Burech & Sargus and Stanley G. Burech, St. Clairsville, for plaintiff.

Gold, Khourey & Turak and Louis H. Khourey, Moundsville, W.Va., for defendants.

HARRY W. WHITE, Judge.

This matter is before the court on the memoranda of counsel, the court having previously found that the material facts herein are not contradicted in the pleadings.

On December 19, 1985, an employee of Associated Paper Stock, Inc. (plaintiff's insured) was involved in a motor vehicle collision with defendant Marcelene Porter. As a result of that accident, Mrs. Porter and her husband, Clyde, filed suit against plaintiff's insured for personal injury and loss of consortium, respectively. Trial was held before a jury which rendered a verdict in favor of the Porters in the sum of $50,000. Judgment on the verdict was satisfied, in full, by plaintiff, Cincinnati Insurance Company, on the day it was entered.

While the claim was pending, the Porters submitted to their own insurer, Nationwide Insurance Company ("Nationwide"), a claim for payment of medical bills incurred as a result of the accident in the amount of $1,194, which was paid to the Porters by Nationwide under the medical payments' coverage of their own insurance policy. Nationwide's policy with the Porters granted it the "right of subrogation" for such payment. Subsequently, Nationwide demanded payment from plaintiff for the amount paid to the Porters, which plaintiff eventually paid in full.

The medical bills for which these payments were made were introduced in evidence at the personal injury trial. Plaintiff now claims that the Porters have recovered twice for the same expense and that it has succeeded to Nationwide's right of subrogation under its contract with the Porters and seeks a judgment against the Porters for $1,194.

In support of its claim, plaintiff cites Edwards v. Passarelli Bros. Automotive Serv., Inc. (1966), 8 Ohio St.2d 6, 37 O.O.2d 298, 221 N.E.2d 708, 25 A.L.R.3d 1087, paragraph two of the syllabus, which held that "[w]here an advance payment is made to a possible tort-claimant upon condition that such payment is to be credited to the amount of any final settlement or judgment in favor of such tort-claimant, such sum shall be credited to any final judgment * * *." However, in Edwards, supra, the credit was not sought by virtue of a subrogation right to which the party claiming the credit had succeeded. In Edwards, supra, the credit was the result of a contractual condition established directly between the claimant and the alleged tortfeasor's insurer on behalf of the tortfeasor.

This is not a distinction without a difference. The "right of subrogation" to which plaintiff claims to have succeeded is set forth in the insurance contract between Nationwide and the Porters as follows:

"SUBROGATION

"We have the right of subrogation under the Physical Damage, Auto Liability, Medical Payments, Family Compensation, and Comprehensive Family Liability coverages in this...