Branscom v. Birtcher

• Decision Date: 22 September 1988
• Docket Number: No. 88AP-303,88AP-303
• Citation: 55 Ohio App.3d 242,563 N.E.2d 731
• Parties: BRANSCOM, Appellant, v. BIRTCHER, Appellee. *
• Court: Ohio Court of Appeals

Page 242

55 Ohio App.3d 242

563 N.E.2d 731

BRANSCOM, Appellant, v. BIRTCHER, Appellee. ^*

No. 88AP-303.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 22, 1988.

Syllabus by the Court

1. Parties seeking refuge under R.C. 2305.19, the savings statute, must meet two requirements. The first of these is either the commencement or the attempted commencement of the action before the expiration of the statutory limitations period for such actions. The second is a failure otherwise than upon the merits.

2. Where an action is filed within the statute of limitations but service is not completed on the defendant within one year after the filing of the action (and before the statute of limitations has run), a voluntary dismissal of the action followed by its refiling does not invoke the benefits of the savings statute, R.C. 2305.19, and the refiled action is barred by the statute of limitations.

3. Although it cannot be said that under no circumstances would service on an insurance company constitute service on a defendant, a defendant is not effectively served when his insurer signs a certified mail receipt for the summons and complaint, the insurer's address is not that of defendant's residence, business, or office, and the only relationship between the defendant and his insurer is the contract of insurance.

Terry D. Van Horn, Columbus, for appellant.

Robert E. Frost & Associates and Mark S. Maddox, Columbus, for appellee.

STRAUSBAUGH, Judge.

This is an appeal by plaintiff from a judgment of the court of common pleas dismissing her negligence action. The trial court determined that plaintiff could not refile her complaint because of the bar imposed by the applicable statute of limitations.

As a result of an August 19, 1984 automobile accident, plaintiff Linda L. Branscom initiated a suit in negligence against defendant Duane E. Birtcher on August 19, 1986. When plaintiff was unable to obtain certified mail service on defendant, plaintiff appointed a special process server on August 5, 1987 in an attempt to locate and serve defendant. Additionally, plaintiff requested certified mail service on defendant in care of the Atlanta Casualty Insurance Company at their business address in Norcross, Georgia, also on August 5, 1987. This service was signed for at the address of Atlanta Casualty Insurance Company on August 12, 1987.

Subsequently, on October 13, 1987, defendant filed a motion to dismiss the action because of insufficient service of process. Before that motion could be ruled upon by the trial court, plaintiff voluntarily dismissed the action pursuant to Civ.R. 41(A)(1). Plaintiff then refiled the complaint on November 4, 1987, obtaining certified mail service on defendant on January 4, 1988. Thereafter, on January 22, 1988, defendant moved the trial court to dismiss plaintiff's complaint pursuant to R.C. 2305.10. Following plaintiff's response to defendant's Civ.R. 12(B) motion to dismiss, the trial court rendered a decision on February 29, 1988, dismissing plaintiff's complaint. Thereafter, upon plaintiff's motion to reconsider, the common pleas court entered final judgment on March 10, 1988, dismissing plaintiff's complaint for the reason that plaintiff failed to timely obtain service on defendant in the initial negligence suit.

From that decision, plaintiff now appeals, setting forth a single assignment of error:

"The Court committed prejudicial error when it did not properly apply Ohio Revised Code § 2305.19, the saving[s] statute, to the refiling of the Plaintiff's complaint."

Plaintiff maintains that the judgment of the trial court was erroneous for two reasons. First, plaintiff argues that she was able to voluntarily dismiss her case pursuant to Civ.R. 41(A)(1)(a) any time after it was filed so long as she complied with the Civil Rules. Second, it is plaintiff's position that the savings statute applies to this matter since the original action was either commenced or attempted to be commenced within the meaning of R.C. 2305.19.

As support for her initial contention, plaintiff relies on Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337. Plaintiff maintains that there is no requirement in Civ.R. 41(A)(1) that a defendant be served before a stipulated dismissal is entered. Accordingly, plaintiff argues that a party may dismiss an action pursuant to Civ.R. 41(A)(1) anytime after it is filed, and thereafter refile the case under the savings statute.

We find that plaintiff misapprehends the issue resolved by the Supreme Court of Ohio in Frysinger, supra. In that case, the court was concerned with the interaction of Civ.R. 41(A)(1) and the savings statute set forth in R.C. 2305.19. That section states, in part:

"In an action commenced, or attempted to be commenced, if in due time * * * the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * * "

Specifically, the Supreme Court decided that a voluntary dismissal under Civ.R. 41(A)(1) constituted a failure "otherwise than upon the merits" such that a plaintiff who had timely filed suit could recommence the action within one year of the dismissal. Id. at paragraph two of the syllabus.

Clearly, parties seeking refuge under R.C. 2305.19 must meet two requirements. The first one of these is either the commencement or the attempted commencement of the action before the expiration of the statutory limitations period for such actions. The second is a failure otherwise than upon the merits. See DiCello v. Palmer (Feb. 12, 1980), Franklin App. No. 79AP-402, unreported, at 3. The Frysinger court addressed only the second requirement, since Frysinger had clearly commenced her action within the statutory period. Id. at 39, 512 N.E.2d at 339. The Supreme Court did not find that Civ.R. 41(A)(1) expanded the limitations period beyond that established by either the Civil Rules or statute, and we decline to so hold. Accordingly, plaintiff's reliance on Frysinger, supra, is misplaced.

Turning to plaintiff's second contention, a more vexatious problem arises. Specifically, plaintiff maintains that service was completed on defendant when the certified mail receipt was signed by Atlanta Casualty Insurance Company on August 12, 1987. Alternatively, plaintiff argues that the action was attempted to be commenced within the meaning of the savings statute since her complaint was filed in good faith followed by service within one year of the filing, which service, although later determined to be ineffective, constituted an attempt to commence the action within the meaning of R.C. 2305.19 and Howard v. Allen (1971), 28 Ohio App.2d 275, 57 O.O.2d 415, 277 N.E.2d 239.

In either event, an action is commenced or attempted to be commenced only if effective service of process is obtained upon a defendant. Lash...