Globe Am. Cas. Co. v. Cleveland
| Decision Date | 19 December 1994 |
| Docket Number | No. 66613,66613 |
| Citation | 99 Ohio App.3d 674,651 N.E.2d 1015 |
| Parties | GLOBE AMERICAN CASUALTY COMPANY, Appellee, v. CITY OF CLEVELAND, Appellant. * |
| Court | Ohio Court of Appeals |
Lawrence D. Leeders, Cleveland, for appellee.
Sharon Sobol Jordon, Director of Law, Kathleen A. Hannan, Jr., Chief Asst., Charles E. Hannan, Jr., Asst. Director of Law, Cleveland, for appellant.
Defendant-appellant city of Cleveland, Ohio ("Cleveland") appeals from a September 20, 1993 judgment of the Cleveland Municipal Court adopting the report of the referee and, thus, finding in favor of plaintiff-appellee Globe American Casualty Company ("Globe") in the amount of $7,260. The facts were undisputed.
On or about March 16, 1990, a 1986 Chevrolet Blazer which was insured by Globe was stolen in Columbus, Ohio. Globe, thereafter, compensated its insured Mark Murphy ("Murphy") and, thus, Globe obtained title to the Blazer. On June 1, 1990, the Cleveland Police Department impounded the Blazer which was in the possession of Crystal Goodgame ("Goodgame"). On June 4, 1990, the Cleveland Police Department identified the Blazer as the one stolen from Murphy and so informed Murphy of the Blazer's impoundment. Murphy, thereafter, notified Globe and Globe subsequently made arrangements with the Cleveland Police Department to recover the Blazer.
On June 9, 1990, however, the Cleveland Police Department released the Blazer to Goodgame, i.e., to the same person who was in possession of the Blazer when it was impounded by the police. Globe learned of this release on June 13, 1990 when a representative of Globe came to Cleveland to take possession of the Blazer. The Blazer was recovered a few months later by the Cleveland Police Department and returned to Globe. Nonetheless, by the time the Blazer was returned to Globe, it had been stripped and, therefore, possessed a salvage value of $1,840 instead of its actual cash value of $9,100, thus, the judgment for $7,260.
Globe, thereafter, commenced the case sub judice against Cleveland alleging negligence and breach of bailment. In its answer, Cleveland pleaded, inter alia, the affirmative defense of sovereign immunity. The case sub judice was, thereafter, heard by a referee.
On April 16, 1993, the referee issued a report, which was not journalized until June 9, 1993, recommending in favor of Globe. Although the referee recognized Cleveland's statutory grant of sovereign immunity contained in R.C. Chapter 2744, the referee relied upon R.C. 2744.02(B)(5), which provides an exception to the sovereign immunity grant when another Revised Code statute expressly imposes liability. In the report, the referee found that R.C. 2933.41 imposed a mandatory duty upon the Cleveland Police Department to return the Blazer to the titled owner, viz., Globe and, therefore, Cleveland was not entitled to sovereign immunity in the case sub judice.
The report of the referee stated in relevant part as follows:
On the same date the referee's report was journalized, June 9, 1993, the trial court journalized an entry finding for Globe against Cleveland in the amount of $7,260.
On June 23, 1993, fourteen days after the report of the referee was filed, Cleveland filed objections to the report of the referee. 1 In its objections, Cleveland argued that R.C. 2744.02(B)(5) provides an exception to the sovereign immunity doctrine only when liability is expressly imposed upon the political subdivision by another section of the Ohio Revised Code. Cleveland further argued that R.C. 2933.41 does not expressly impose liability upon the city but, rather, merely establishes the city's responsibilities and, therefore, does not provide an exception to the sovereign immunity doctrine. Globe filed a brief in opposition to Cleveland's objections arguing, inter alia, that R.C. 2933.41 does indeed provide an exception to the sovereign immunity doctrine.
On September 20, 1993, the Cleveland Municipal Court overruled Cleveland's objections to the referee's report and ordered the judgment entry of June 9, 1993, finding in favor of Globe, to remain in full force and effect. Cleveland, however, was not served notice by the trial court of the September 20, 1993 order. Thereafter, on November 17, 1993, Globe sought and received an order in aid of execution of judgment. Cleveland, upon service of the order in aid of execution, searched the Cleveland Municipal Court docket and discovered, on or about December 1, 1993, the final order entered September 20, 1993 adjudicating the case sub judice.
On December 3, 1993, Cleveland filed a notice of appeal to this appellate court stating that, pursuant to Civ.R. 58, Cleveland was not served with notice of the final judgment in the case sub judice. Cleveland, also on December 3, 1993, sought and was granted a stay of execution of judgment pending appeal. On August 9, 1994, this appellate court sua sponte ordered the within appeal to go forward pursuant to Civ.R. 58(B).
Appellant's sole assignment of error follows:
"The trial court erred in entering judgment against the city of Cleveland, as the City of Cleveland is immune from liability pursuant to Chapter 2744 of the Ohio Revised Code."
This assignment lacks merit.
R.C. 2744.02 states in relevant part as follows:
Pursuant to R.C. 2744.01, the police power to impound an allegedly stolen motor vehicle constitutes a governmental function. 2
In the case sub judice, Cleveland, therefore, possessed sovereign immunity with respect to the loss incurred by Globe unless it can be demonstrated that, pursuant to R.C. 2744.02(B)(5), supra, another Revised Code section expressly imposed liability upon Cleveland. The Cleveland Municipal Court, as noted supra, held that R.C. 2933.41 constitutes an exception to the sovereign immunity doctrine and we are inclined to agree with this determination.
R.C. 2933.41 states in relevant part as follows:
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