Coburn v. Auto-Owners Ins. Co.

• Decision Date: 15 July 2010
• Docket Number: No. 09AP-923.,09AP-923.
• Citation: 2010 -Ohio- 3327,938 N.E.2d 400
• Parties: COBURN et al., Appellants, v. AUTO-OWNERS INSURANCE COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

938 N.E.2d 400

2010 -Ohio- 3327

COBURN et al., Appellants,

v.AUTO-OWNERS INSURANCE COMPANY et al., Appellees.

No. 09AP-923.

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

Decided July 15, 2010.

Scott Elliot Smith, L.P.A., and Scott Elliot Smith, Dublin, for appellant Gregory Coburn.

Weston Hurd, L.L.P., and Steven G. Carlino, Columbus, for appellee Auto-Owners Insurance Company.

Lane Alton & Horst, L.L.C., and Thomas J. Keener, Columbus, for appellee Gianna M. Domine.

John C. Cahill, Columbus, for appellee Donald Kleinhenz.

PEGGY L. BRYANT, Judge.

*327 {¶ 1} Plaintiff-appellant, Gregory Coburn, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motions of defendants-appellees, Donald Kleinhenz, Gianna M. Domine, and Auto-Owners Insurance Company ("Auto-Owners"). Because the trial court erred in granting summary judgment to Kleinhenz, rendering potentially pertinent other rulings that the trial court deemed moot, we reverse in part.

I. Facts and Procedural History

{¶ 2} On December 31, 2006, at approximately 3:15 p.m., Coburn was driving his Toyota Camry south on Riverside Drive, or State Route 257, north of the Columbus Zoo. At the same time, Kleinhenz was driving a Honda Accord north. Kleinhenz drove left of the center line and struck plaintiff's vehicle. Domine was traveling directly behind Kleinhenz in a Honda CR-V. Although she struck Kleinhenz's vehicle as it sat in the northbound lane, she did not hit Coburn's vehicle.

{¶ 3} Coburn filed a complaint on October 17, 2008, against Anthem Blue Cross and Blue Shield, Auto-Owners, Kleinhenz, Domine and her father, and several John Does. Coburn sought (1) damages for personal injury arising from the automobile accident and (2) a declaratory judgment against Auto-Owners and Anthem Blue Cross & Blue Shield regarding the parties' rights under the policies of insurance. Inter-party pleading as well as lengthy and complicated discovery followed, leading to dismissed parties and dispositive motions.

{¶ 4} Pursuant to Civ.R. 41(A), Coburn dismissed his claims and causes of action against Anthem Blue Cross and Blue Shield, his uninsured/underinsured-motorist claim against Auto-Owners, his claims, cross-claim and counterclaim against Domine's father, and his punitive-damages claim against Kleinhenz. Over the course of approximately six months, a number of dispositive motions also were filed:

• Coburn filed a motion for summary judgment against Kleinhenz on December 26, 2008.

• On March 27, 2009, Auto-Owners filed a motion for summary judgment on its counterclaim against Coburn, assertingthat Auto-Owners was entitled to full reimbursement from Coburn if he obtained a verdict against the alleged tortfeasors.

*328 • Coburn filed a motion for summary judgment against Domine and a motion for apportionment of liability among the defendants on April 16, 2009.

• Kleinhenz filed a motion for summary judgment on April 20, 2009, alleging that Coburn had signed an agreement and release.

• Auto-Owners supplemented its motion for summary judgment on April 24, 2009, alleging that when Coburn signed the release without Auto-Owners' consent, he prejudiced Auto-Owners' right to subrogation.

• Coburn filed a motion for partial summary judgment, asking the trial court for both a determination that Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, does not apply and a protective order to preclude defendants from further discovering his medical contractual write-offs under his health-insurance contract.

• On May 5, 2009, Domine filed a motion for summary judgment.

• Coburn filed a cross-motion for summary judgment against Auto-Owners.

{¶ 5} On August 25, 2009, the trial court journalized an entry after holding a status conference on July 21, 2009. The trial court expressed concern over the number of filed motions, 22 at that point, including seven summary-judgment motions. The court prohibited the parties from filing any new motions and advised that any issues that the parties could not resolve among themselves should be brought to the court's attention.

{¶ 6} The trial court subsequently issued three separate decisions: one granted Kleinhenz's summary-judgment motion, the second granted summary-judgment to Domine, and the third granted Auto-Owners' summary-judgment motion; the trial court denied Coburn's motions for summary judgment against Kleinhenz, Domine, and Auto-Owners. In a separate decision and entry, the trial court denied as moot Coburn's three motions to compel discovery, Auto-Owners' motion for protective order, Coburn's motion for partial summary judgment regarding Robinson v. Bates, and Kleinhenz's motions to compel discovery and in limine. Coburn appeals.

II. Assignments of Error

{¶ 7} On appeal, Coburn assigns the following errors:

I. The court erred in prohibiting the parties from filing any document with the clerk of courts as set forth in its journal entry of August 25, 2009.

II. The court erred in granting defendant Donald Kleinhenz's motion for summary judgment, filed April 20, 2009.

III. The court erred in granting defendant Gianna Domine's motion for summary judgment, filed May 5, 2009.

*329 IV. The court erred in denying plaintiff's motion for summary judgment against defendant Donald Kleinhenz, filed December 26, 2008.

V. The court erred in denying plaintiff's motion for summary judgment against defendant Gianna Domine, filed April 16, 2009.

VI. The court erred in denying as moot plaintiff's motion to compel discovery, filed April 9, 2009.

VII. The court erred in denying as moot plaintiff's motion to compel discovery, filed June 17, 2009.

VIII. The court erred in denying as moot plaintiff's motion to compel discovery, filed July 10, 2009.

IX. The court erred in denying as moot plaintiff's motion for partial summary judgment regarding Robinson v. Bates and motion for a protective order, filed April 29, 2009.

X. The court erred in granting defendant/involuntary plaintiff Auto-Owners Insurance Company's motion for summary judgment, filed March 27, 2009.

XI. The court erred in denying plaintiff's cross-motion for summary judgment against defendant/involuntary plaintiff Auto-Owners Insurance Company, filed July 7, 2009.

For ease of discussion, we address the assignments of error out of order, all of which challenge the trial court's determinations of the parties' summary-judgment motions.

{¶ 8} An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41, 654 N.E.2d 1327; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265. Summary judgment is proper only when the parties moving for summary judgment demonstrate that (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 677 N.E.2d 343.

{¶ 9} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in *330 Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id.; Vahila v. Hall (1997), 77 Ohio St.3d 421, 674 N.E.2d 1164. Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430; Civ.R. 56(E). See also Castrataro v. Urban (Mar. 7, 2000), 10th Dist. No. 99AP-219, 2000 WL 254315.

III. Second and Fourth Assignments of Error—Release from Liability

{¶ 10} Coburn's second and fourth assignments of error contend that the trial court erred when it both granted Kleinhenz's summary-judgment motion and denied his summary-judgment motion against Kleinhenz. In granting summary judgment to Kleinhenz, the trial court determined that Coburn had released Kleinhenz from liability when, shortly after the accident, he signed a release with Kleinhenz's insurer, Nationwide Mutual Insurance Company.

{¶ 11} In response to Coburn's summary-judgment motion, Kleinhenz submitted the affidavit of Debbie Vandyne-Elliott, an insurance adjuster at Nationwide, who was initially assigned Coburn's claim. In early January 2007, several days after the accident, she met with Coburn, who signed an agreement and release on January 4, 2007. She delivered two settlement checks to Coburn, one for $2,189.60 andone for $2,717.88, both of which Coburn cashed. Kleinhenz argued that since Coburn signed a release and accepted settlement money, he is barred from pursuing his claim against Kleinhenz, particularly because Coburn failed to return the settlement money before attempting to challenge the release.

{¶ 12} Coburn responded that Kleinhenz and Nationwide had abandoned the release and initiated a new offer to Coburn. To support his contentions, Coburn filed the deposition of Constance Johnson, a special claims representative with Nationwide, who testified that Coburn's file was closed after the settlement and release in January 2007. Nevertheless, after a telephone call from a member of Coburn's family informing Nationwide of Coburn's brain hematoma and surgery, Johnson reopened the...