Byrd v. Smith

Decision Date19 July 2006
Docket NumberNo. 2005-0797.,2005-0797.
PartiesBYRD et al., Appellants, v. SMITH; Continental Casualty Company, Appellee.
CourtOhio Supreme Court
850 N.E.2d 47
110 Ohio St.3d 24
2006-Ohio-3455
BYRD et al., Appellants,
v.
SMITH; Continental Casualty Company, Appellee.
No. 2005-0797.
Supreme Court of Ohio.
Submitted December 14, 2005.
Decided July 19, 2006.

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COPYRIGHT MATERIAL OMITTED

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Gary A. Rosenhoffer, for appellants.

Reminger & Reminger Co., L.P.A., Robert W. Hojnoski, and Joseph W. Borchelt, for appellee.

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LANZINGER, J.


{¶ 1} This case is before the court on a certified conflict over whether a party's affidavit that is inconsistent with or contradictory to the party's deposition testimony should be considered by the trial court in deciding a motion for summary judgment.

Procedure

{¶ 2} Bryan Byrd was injured in an automobile accident in Clermont County on August 3, 2000, when a pickup driven by Glenn Smith went left of center and hit his van. The van that Byrd was driving was owned or leased by Byrd's employer, Fred DeBra Company, and was insured by a commercial policy issued to DeBra's parent company, Emcor Group, Inc., by Continental Casualty Company.

{¶ 3} As part of the litigation that ensued, Byrd and Tammy Murray, now his wife, Tammy Byrd, filed a complaint in Clermont County Court of Common Pleas seeking uninsured/underinsured-motorist ("UM/UIM") coverage under the policy issued to Emcor. The suit against Continental was based on Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 710 N.E.2d 1116, which had expanded UM/UIM coverage under an employer's policy to its employees.

{¶ 4} On January 26, 2004, citing Westfield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, which significantly limited Scott-Pontzer, Continental filed a motion for summary judgment. The motion was supported by the May 25, 2001 deposition of Bryan Byrd and rested upon Continental's contention that Byrd was not within his scope of employment with DeBra when the accident occurred.

{¶ 5} In response, the Byrds filed a motion to strike on January 28, 2004. A few days later, the Byrds also filed a motion for summary judgment on the issue of coverage and a memorandum in opposition to Continental's motion, accompanied by Byrd's own affidavit. In this affidavit, Byrd asserted that while he was employed by DeBra, he wore a pager, he received and responded to pages both during and outside "normal" working hours, he drove a truck with a sign that stated that DeBra was available for 24-hour service, and, as long as he was driving a company vehicle with such signage, he considered that he "was working and advertising for The Fred DeBra Company."

{¶ 6} The trial court denied Byrd's motion to strike Continental's untimely motion and granted Continental summary judgment.1 The trial court noted Byrd's admission that he had been driving home from Tammy's father's house and held that Byrd did not qualify as an insured, since he was not within the scope of his employment with DeBra when the accident happened. The decision, however, did not refer in any way to Byrd's affidavit.

{¶ 7} The Twelfth District Court of Appeals affirmed. Byrd v. Smith (Feb. 7, 2005), Clermont App. No. CA2004-08-067. In disposing of the assignment of error relating to Byrd's affidavit, the appellate court cited Golden v. Kearse (June 7, 1999), Butler App. No. CA98-08-164, 1999 WL 374128, for the proposition that "neither a movant nor a respondent can prevail on summary judgment by creating an issue of material fact through the use of contradictory or conflicting summary judgment materials." Id. at ¶ 4. The ruling was certified pursuant to S.Ct.Prac.R. IV(1) as being in conflict with Retterer v.

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Whirlpool Corp. (1996), 111 Ohio App.3d 847, 677 N.E.2d 417, a decision of the third appellate district. Byrd v. Smith, 106 Ohio St.3d 1409, 2005-Ohio-3154, 830 N.E.2d 343.

{¶ 8} As certified and accepted, the issue is "[w]hether it is proper for courts to disregard an affidavit inconsistent with or contradictory to prior deposition testimony when ruling on a motion for summary judgment." Id.

{¶ 9} Appellants, Bryan and Tammy Byrd, argue that a trial court should always consider a nonmoving party's supplemental or contradictory affidavit "so long as a plausible or credible explanation is given for the apparent conflict," while appellee, Continental Casualty Company, argues that it is proper for the court to disregard an affidavit inconsistent with or contradictory to earlier deposition testimony when it decides a summary judgment motion.

Summary Judgment; Civ.R. 56

{¶ 10} The procedure set forth in Ohio Civ.R. 56 is modeled after the federal rule that authorizes summary judgment in appropriate cases. See Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, at ¶ 16, citing 1970 Staff Notes to Civ.R. 56. Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. The burden of showing that no genuine issue of material fact exists falls upon the party who files for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. Once the movant supports his or her motion with appropriate evidentiary materials, the nonmoving party "may not rest upon mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E).

{¶ 11} As the United States Supreme Court has observed, the Federal Rules of Civil Procedure are "designed `to secure the just, speedy and inexpensive determination of every action.' Fed. Rule Civ. Proc. 1 * * *. Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis." Celotex Corp. v. Catrett (1986), 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265.

{¶ 12} Before ruling on a motion for summary judgment, the trial court's obligation is to read the evidence most favorably for the nonmoving party to see if there is a "genuine issue of material fact" to be resolved. Only if there is none does the court then decide whether the movant deserves judgment as a matter of law. The material issues of each case are identified by substantive law. As the United States Supreme Court has explained, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202.

Material Issues

{¶ 13} In the present case, whether Byrd's injury occurred within the scope of

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his employment is a factual issue material to his potential UM/UIM coverage.

{¶ 14} Appellee, Continental, rested its motion for summary judgment filed January 26, 2004, on Byrd's May 25, 2001 deposition testimony that stated he was on a personal errand at the time of the accident, having just stopped by Tammy's father's house to pick up a car part to repair her brother's car. Appellee thus argues that Byrd was not within the scope of his employment and, as a matter of law, not entitled to coverage under his employer's policy under Galatis.

{¶ 15} In attempting to demonstrate that there is a genuine issue of material fact, Byrd submitted an affidavit dated February 2, 2004,...

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