Cincinnati Bell, Inc. v. Hinterlong

• Decision Date: 09 September 1981
• Docket Number: No. 80CV29138,80CV29138
• Citation: 437 N.E.2d 11,70 Ohio Misc. 38
• Parties: , 24 O.O.3d 226, 24 O.O.3d 52 CINCINNATI BELL, INC. v. HINTERLONG.
• Court: Ohio Court of Common Pleas

Page 38

70 Ohio Misc. 38

437 N.E.2d 11, 24 O.O.3d 226, 24 O.O.3d 52

CINCINNATI BELL, INC. v. HINTERLONG.

No. 80CV29138.

Hamilton County Municipal Court, Ohio.

Sept. 9, 1981.

Rich, Pott, Wetherell, Foster & Miller, and Orville J. Miller, Cincinnati, for plaintiff.

Dooley, Heath & Schneider Co., L.P.A., Milford, and Edward P. Brueggeman, Milford, for defendant.

HAIR, Judge.

This matter came before the court on a motion for summary judgment filed by plaintiff, Cincinnati Bell, Inc., pursuant to Civil Rule 56. Civil Rule 56 allows the court to grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

The court must review all evidence in a light most favorable to the non-moving party and if the court determines that reasonable minds could only reach a conclusion adverse to the non-moving party, then the motion will be granted. The court is of the opinion that the plaintiff, Cincinnati Bell, Inc., is entitled to judgment as a matter of law in the sum of four hundred and fifty-seven dollars and 79/100 ($457.79) because there is no genuine issue of fact regarding this defendant's responsibility for the damages incurred by the plaintiff, and further the court specifically finds that the various costs, inclusive of administrative and overhead expenses set out in explicit and voluminous detail within an affidavit filed by plaintiff, are properly chargeable as elements of damages, and that the plaintiff has established to the degree of certainty necessary the direct and associated administrative and overhead expenses involved in the instant case.

The procedural posture of this case is substantially as follows:

8/26/80 Plaintiff filed a Complaint for property damages to a utility pole installation resulting when an automobile operated by defendant struck said utility pole installation.

9/22/80 Defendant filed a general denial with jury demand.

10/17/80 Plaintiff filed its first request for admissions, with various exhibits attached thereto.

11/18/80 Defendant filed answers to plaintiff's first request for admissions.

11/19/80 Plaintiff filed a motion for order with respect to defendant's answers and objections to plaintiff's first request for admissions.

3/19/81 Based upon the pleadings, plaintiff's first request for admissions, defendant's answers thereto, plaintiff's motion for order with memorandum attached, and arguments of counsel, the court found that defendant's conduct herein is held to constitute negligence per se.

6/4/81 Plaintiff filed a motion for summary judgment, with a detailed affidavit of plaintiff attached thereto, supporting explicitly the necessity and reasonableness of the total costs which were directly incurred by defendant's conduct. (See the attached Exhibit A, which was the complete itemization of plaintiff's total replacement costs set out with its affidavit). In addition plaintiff filed comprehensive memoranda in support of its motion.

7/7/81 An extensive hearing was held upon plaintiff's motion, which hearing was continued in progress for either party to submit any additional reported or unreported authorities they deemed pertinent. Also plaintiff amended its prayer to $457.79 by withdrawing the $4.00 charge being item # 25 on Exhibit A herein.

7/20/81 Plaintiff submitted additional unreported cases for consideration by the court.

9/9/81 Order of summary judgment for plaintiff in the sum of $457.79, plus costs, based upon the pleadings, answers to plaintiff's first request for admissions, plaintiff's sworn affidavit with detailed exhibits, memoranda in support of motions, arguments of counsel, and all reported and unreported authorities cited to the court.

The affidavit of Edmund H. Didlake, filed by plaintiff with its motion for summary judgment, indicated that he is the district data processing manager for plaintiff; that he has personal knowledge of the facts contained in the affidavit; and also that he has years of formal educational training as well as numerous years of practical experience in determining the actual losses incurred by plaintiff in this case.

Mr. Didlake's affidavit further stated in pertinent part the following:

"1) On or about October 30, 1979, at or about 8925 Pippin Road, Hamilton County, Ohio, plaintiff was the owner of various down guys, attachments and ancillary equipment associated with utility pole installation # H-78858RE.

"2) The various costs as utilized by Plaintiff in arriving at their damages herein have been previously reviewed and approved by: the Federal Communications Commission (FCC); the Public Utilities Commission of Ohio (PUCO); the Internal Revenue Service (IRS); Coopers & Lybrand, an independent " Big Eight" certified Public Accounting Firm; and the Internal Audit Staff of Cincinnati Bell, Inc. No significant errors or deviations from sound accounting practices and procedures were noted, by any of these reviewing and approving entities regarding any and all costs determined herein.

"3) Plaintiff has complied with all State statutes and Rules and Regulations of both the FCC and PUCO in arriving at the damages set out within the Complaint herein.

"4) A detailed analysis of the actual, total costs incurred by Plaintiff, solely as a direct and proximate result of the wrongful misconduct of Defendant herein, is set out upon the attached Exhibit: A which is hereby incorporated by reference as part and parcel of this particular Affidavit, the same as if rewritten herein.

"A) All said costs are the fair and reasonable actual costs for material, plant motor vehicle, plant labor, plant payroll and supporting labor, engineering labor, engineering payroll and supporting labor, and voucher expense, which were required to restore Plaintiff's damaged facilities to the same or similar condition as they existed immediately prior to the time of Defendant's wrongful misconduct hereof. All said costs do no more than make Plaintiff whole and have no profit contained therein whatsoever.

"B) All said costs are only to perform necessary repairs upon only that equipment owned by Plaintiff, and which was directly and proximately damaged solely by the wrongful misconduct of Defendant herein.

"C) Plaintiff is the owner of all materials and motor vehicles set out within Exhibit: A, and utilized its own technically proficient laborers in performing the various tasks indicated thereon. All said costs are to perform only those necessary repairs necessitated by the wrongful misconduct of Defendant.

"D) There is a very limited market, if any, for the various facilities of Plaintiff, which were damaged by Defendant herein. Rather said facilities are part and parcel of the overall integral communications system utilized by Plaintiff in serving its various customers within this community.

"E) All costs herein represent actual costs incurred solely as the result of the wrongful misconduct of Defendant; are applied in strict accordance with sound accounting principles and procedures; are formulated from years of experience and are continually updated.

"F) Plaintiff has actually mitigated Defendant's overall damages herein, by utilizing its own technically proficient internal employees. Such is the case because an outside independent contractor, proficient in performing the repairs herein, submitted a bid to perform the same repairs as performed by Plaintiff hereof, at a total costs in excess of Plaintiff's damages as set out within the Complaint.

"G) The data contained within Exhibit: A was formulated near the time of the damages herein; with the objective of determining actual lost sustained by Plaintiff, and not for the sole objective of litigation; has been transmitted by persons with knowledge; and as a regular practice of Plaintiff is kept and maintained in its routine course of business.

"H) All tasks and costs shown herein, constituted non-productive re-work on damaged facilities, which were caused by the wrongful misconduct of Defendant, and such non-productive re-work directly and proximately prevented Plaintiff from performing productive, new-construction activities and also various preventive, inspection activities so as to fulfill its primary mission of providing and maintaining effective and efficient tele-communications systems to its customers within this community.

"I) The total, actual costs incurred by Plaintiff as the direct and proximate result of solely Defendant's wrongful misconduct; which are the fair and reasonable repair costs to restore Plaintiff's facilities to the same or similar condition as they existed immediately prior to the damages hereof; and which do no more than make Plaintiff whole, without any profit whatsoever; are $461.79."

After the plaintiff supported its motion for summary judgment with sworn testimony, the affidavit with Exhibit A attached hereto, defendant could not rest on the mere allegations of his general denial but must demonstrate by documents of equal evidentiary quality that there was at least one genuine issue of material fact. Civ.R. 56(E); Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146; Johnson v. Bromer (Hamilton Co. Ct. of Appeals, No. C-790521, Oct. 8, 1980), unreported.

The defendant came forward with no equal evidentiary matter, nor affidavits, nor memoranda whatsoever, to refute or contest the appropriateness of plaintiff's copious and detailed affidavit.

Inasmuch as defendant admitted driving his motor vehicle across the double yellow center line and totally off the left hand side of the roadway in striking plaintiff's utility pole installation, this court found negligence per se based upon Brandt v. Mansfield Rapid Transit, Inc. (1950), 153 Ohio St. 429, 41 O.O. 428, 92 N.E.2d 1; Gelfand v. Strohecker, Inc. (N.D.E.D.Ohio 1956), 4 O.O.2d 446, 150 F.Supp. 655; and Chambers v. McFerren (1959), 168 Ohio St. 398, 7 O.O.2d 247, 155 N.E.2d 917.

Having dealt previously with the...