Finn v. James A. Rhodes State Coll.

• Decision Date: 20 December 2010
• Docket Number: No. 1–10–47.,1–10–47.
• Citation: 191 Ohio App.3d 634,947 N.E.2d 236,266 Ed. Law Rep. 958
• Parties: FINN, Appellant,v.JAMES A. RHODES STATE COLLEGE, Appellee.
• Court: Ohio Court of Appeals

191 Ohio App.3d 634

947 N.E.2d 236

266 Ed. Law Rep. 958

2010 -Ohio- 6265

FINN, Appellant,

v.JAMES A. RHODES STATE COLLEGE, Appellee.

No. 1–10–47.

Court of Appeals of Ohio, Third District, Allen County.

Decided Dec. 20, 2010.

Drew R. Massi, for appellant.Reid T. Caryer, for appellee.WILLAMOWSKI, Presiding Judge.

[Ohio App.3d 635] {¶ 1} Plaintiff-appellant, Lisa R. Finn, appeals the judgment of the Allen County Court of Common Pleas granting summary judgment in favor of defendant-appellee, James A. Rhodes State College, finding that Finn failed to point to any admissible summary-judgment evidence that would create a genuine issue of material fact. On appeal, Finn contends that the trial court erred in deciding that her claim was barred by Ohio's sovereign-immunity statute and res judicata. For the reasons set forth below, the judgment is reversed and the cause is remanded.

{¶ 2} In December 2009, Finn filed a complaint alleging a third-party-beneficiary breach-of-contract case against James A. Rhodes State College, formerly known as Lima Technical College, claiming that the college breached its promise to provide liability-insurance coverage to her and fellow students. The claim was made after Finn (f.k.a. Lisa R. Fleming) sustained an injury on April 12, 1995, when she was enrolled in the college's physical-therapy program and was participating in a Therapeutic Procedures II laboratory class. Finn was injured when a fellow student, under the supervision of the college's instructors, was practicing physical-therapy maneuvers on Finn and dislocated her knee. Finn claimed that she sustained further injuries when her instructor tried to reset the knee.

{¶ 3} On April 4, 1997, Finn filed a lawsuit against the student and against the college for negligence. See Fleming v. Sheets, Allen County case No. CV97 04 [Ohio App.3d 636] 0253. The college tendered its defense of the lawsuit to its insurance company, Continental Insurance Company, in accordance with the policy's notice provisions. On May 26, 1998, the trial court granted summary judgment in favor of the college, finding that the college was a political subdivision and was entitled to sovereign immunity pursuant to R.C. 2744.02(A). Finn voluntarily dismissed her lawsuit against the student.

{¶ 4} On March 27, 2000, Finn refiled the lawsuit against the student, although the case was stayed shortly thereafter when the student filed for bankruptcy.¹ On February 2, 2005, the lawsuit was reactivated, but the student did not participate in the litigation or attempt to defend herself. The court granted Finn's unopposed motion for summary judgment as to liability and awarded damages in the amount of $288,392.99. Fleming v. Sheets, Allen County case No. CV00 03 0215 (Mar. 5, 2007 judgment entry). However, the trial court granted judgment only to the extent that liability insurance was available to defend and indemnify the student because her personal collectability for the liability had been discharged in bankruptcy. Id. (Jan. 8, 2007 judgment entry).

{¶ 5} Finn then filed a supplemental complaint against Continental claiming that Continental was liable for the judgment that Finn had obtained against the student.² The trial court granted summary judgment in favor of Continental, finding that Finn and the other student were not insureds under the college's insurance policy and that the policy was not intended to extend coverage to students who injured fellow students in classroom exercises. Id. (Sept. 9, 2009 judgment entry, p. 4–5).

{¶ 6} On December 29, 2009, Finn filed a complaint against the college in the case before us now, alleging that the college had breached its agreement to provide liability insurance covering students while they were participating in physical-therapy laboratory exercises. As Exhibit 1 to the complaint, Finn attached a one-page copy of a document discussing the topics of “Clinical Application Coursework” and “Insurance.” The “Insurance” section stated:

[Ohio App.3d 637] Liability insurance is provided through Lima Technical College. This insurance will cover working with fellow students in the laboratory as subjects and with actual patients in the clinic.

Finn claimed that she was a third-party beneficiary of this agreement between the college and the student who caused her injury and, therefore, she was damaged in the amount of $288,392.99 by the college's failure to satisfy liability claims arising out of laboratory work between the students.

{¶ 7} The college filed a Civ.R. 12(B)(6) motion to dismiss (in lieu of an answer), stating that Finn's complaint failed to state a claim upon which relief could be granted because she had not alleged any exception to the college's sovereign immunity pursuant to R.C. 2744.02(B)(1) through (5) and because her claim was barred by res judicata based upon the previous lawsuits. The college maintained (1) that Finn was relitigating the matter by bringing “the identical claims for damages she brought twice before” and (2) that it was undisputed that the college was “entitled to tort liability immunity.” The college also filed a motion requesting a stay of discovery.

{¶ 8} The parties filed several additional responsive motions (Finn's response to the motion to dismiss, the college's reply, Finn's surreply, and the college's reply to Finn's surreply) prior to the trial court's decision. The trial court concluded that the bar of res judicata could not be raised in a motion to dismiss because it would require the trial court to consider matters outside the pleadings. As a result, the trial court converted the college's motion to dismiss into a motion for summary judgment and allowed the parties an additional 30 days in which “to file additional evidentiary material * * *, to request an extension, if needed, under Civ.R. 56(F) and in which to request an oral hearing.”

{¶ 9} On June 2, 2010, the college filed a supplemental memorandum along with affidavits ³ from its controller/assistant treasurer and its vice president for business, testifying that the college had obtained general commercial insurance coverage but that the coverage did not extend to student-on-student injuries sustained during classroom activities. They further testified that although Finn and her classmate who caused the injury were students at the college, they were not volunteers or employees of the college so as to bring them within the policy's coverage. The affidavit of the vice president of business who had purchased the insurance policy in effect during 1995 testified that “[a]t the time the College purchased this insurance policy, it was understood that the policy would not [Ohio App.3d 638] extend coverage to students of the college who injured fellow students while participating in classroom exercises.”

{¶ 10} Finn filed a memorandum of supplemental authority on June 9, 2010, setting forth her arguments against summary judgment with attachments consisting of (1) a copy of the September 9, 2009 judgment entry in Fleming v. Sheets, Allen County case No. CV00 03 0215, (2) a copy of the memorandum in opposition to Continental's motion for summary judgment that was apparently submitted by Finn in case No. CV00 03 0215, and (3) a copy of the unauthenticated Exhibit 1 that was attached to her complaint (see above).

{¶ 11} After considering the parties' briefs and evidence, the trial court concluded that the college had demonstrated that it was entitled to summary judgment and that Finn had not introduced any admissible Civ.R. 56 evidence in response to the motion. The trial court granted summary judgment in favor of the college on June 22, 2010, finding that the college had produced evidence that it had not intended to provide insurance coverage to students of the college for student-on-student injuries sustained during classroom activities and that Finn had failed to produce evidence that created a genuine issue regarding that fact. Finn timely appeals this decision, raising the following three assignments of error for our review.

First Assignment of Error

The trial court erred in granting the summary judgment motion of [the college] on the basis that the College did not provide liability coverage to [Finn] and fellow students; there was no evidence produced that [the college] did not promise to provide such coverage.

Second Assignment of Error

The trial court erred in granting the summary judgment motion of [the college] on the basis that [Finn] produced no evidence that her claim fit within an exception to O.R.C. 2744.02(A), Ohio's tort sovereign immunity statute; there was no evidence produced that her action was not a contract action as pled, exempted by O.R.C. 2744.09 from sovereign immunity.

Third Assignment of Error

The trial court erred in granting the summary judgment motion of [the college] because once it converted this motion to dismiss into a motion for summary judgment, it did not require [the college] to delineate with specificity the basis upon which summary judgment was sought so as to allow [Finn] a meaningful opportunity to respond.

{¶ 12} Appellate courts review decisions on summary judgment de novo, viewing the facts as most favorable to the nonmoving party and resolving any doubt in favor of that party. [Ohio App.3d 639] Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Because it is a procedural device that terminates litigation, summary judgment must be awarded with caution. Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau (2000), 88 Ohio St.3d 292, 725 N.E.2d 646.

{¶ 13} Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686–687, 653 N.E.2d 1196.

{¶ 14} The party moving for summary judgment has...