Griffey v. Rajan, 86-1917

Citation33 Ohio St.3d 75,514 N.E.2d 1122
Decision Date10 November 1987
Docket NumberNo. 86-1917,86-1917
PartiesGRIFFEY, Appellee, v. RAJAN, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

A trial court does not abuse its discretion in overruling a Civ.R. 60(B)(1) motion for relief from a default judgment on the grounds of excusable neglect, if it is evident from all of the facts and circumstances in the case that the conduct of the defendant, combined with the conduct of those persons whose conduct is imputable to the defendant, exhibited a disregard for the judicial system and the rights of the plaintiff. (Colley v. Bazell [1980], 64 Ohio St.2d 243, 18 O.O.3d 442, 416 N.E.2d 605, and GTE Automatic Electric v. ARCIndustries [1976], 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, followed.)

On July 15, 1985 appellee, Margaret S. Griffey, filed a complaint against appellant, Semur P. Rajan, M.D., seeking damages for alleged medical malpractice. Appellant was vacationing in India; however, on July 17 service of process was obtained via certified mail on Sally L. Thompson, a secretary at appellant's office. Appellant returned from India on July 22 and went back to work either that day or the next.

Thompson informed appellant of the summons and complaint. Appellant instructed her to telephone his insurance carrier, P.I.E. Mutual Insurance Company ("P.I.E."), which she did that same day. She was told that a person named Rosemary Smith would be handling the matter, and that Smith would return the call when she became available. However, no one from P.I.E. ever returned the call, and Thompson forgot about the lawsuit in the press of her regular duties.

Answer day was August 14, 1985. No answer or other responsive pleading was ever filed by or on behalf of appellant. On October 4, 1985, seventy-nine days after service of process and fifty-one days after answer day, appellee moved for a default judgment. The court granted the motion on October 7, and after holding a hearing on the issue of damages, entered judgment for appellee on October 28 for $115,000, plus costs.

On November 20, 1985 appellant moved for relief from the judgment under Civ.R. 60(B), 1 alleging that (1) his failure to answer was the result of "mistake, inadvertence or excusable neglect," and (2) appellee had misrepresented her amount of recoverable damages to the court by failing to disclose her receipt of workers' compensation benefits. The trial court denied appellant's motion, finding that P.I.E. had committed inexcusable neglect and that such neglect was imputable to appellant. The court of appeals affirmed, reasoning that appellant himself had committed inexcusable neglect by failing to follow-up and see what action, if any, P.I.E. was taking on his behalf.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Inscore, Rinehardt, Whitney & Enderle, Larry L. Inscore and Michael L. Inscore, Mansfield, for appellee.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., Matthew Moriarty, Janis L. Small, Cleveland, Brown, Bemiller, Murray & McIntyre and William Travis McIntyre, Mansfield, for appellant.

HERBERT R. BROWN, Justice.

A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion. See, e.g., Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66, 18 OBR 96, 98, 479 N.E.2d 879, 882; Colley v. Bazell (1980), 64 Ohio St.2d 243, 18 O.O.3d 442, 416 N.E.2d 605; Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 11, 7 O.O.3d 5, 6, 371 N.E.2d 214, 216; GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. With that narrow standard of review in mind, this case requires us to resolve the following issues: (1) whether the conduct of P.I.E. is imputable to appellant; (2) whether the conduct of appellant and/or P.I.E. amounted to inexcusable neglect; and (3) whether appellee committed misrepresentation by failing to disclose her receipt of workers' compensation benefits to the trial court? For the following reasons, we affirm the judgment of the court of appeals.

I

In GTE, supra, we held that "the neglect of a party's attorney will be imputed to the party for purposes of Civ.R. 60(B)(1)." Id. at paragraph four of the syllabus. In GTE, the defendant was served with a complaint, which it turned over to its attorney. The attorney failed to plead or otherwise defend, and, thirty-four days after service, a default judgment was taken. The trial court granted the defendant's subsequent Civ.R. 60(B)(1) motion for relief from the judgment, finding that the neglect of the attorney was not imputable to the defendant. We disagreed, adopting the reasoning espoused by the United States Supreme Court in Link v. Wabash R.R. Co. (1962), 370 U.S. 626, 633-634 and 634, fn. 10, 82 S.Ct. 1386, 1390-91 and 1390, fn. 10, 8 L.Ed.2d 734:

" 'There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent * * *.

" ' * * * [K]eeping this suit alive merely because * * * [defendant] should not be penalized for the omissions of his own attorney would be visiting the sins of * * * [defendant's] lawyer upon the * * * [plaintiff ].' " (Emphasis added.) GTE, supra, 47 Ohio St.2d at 152, 1 O.O.3d at 89-90, 351 N.E.2d at 117. See, also, Moore, supra, 18 Ohio St.3d at 68, 18 OBR at 99-100, 479 N.E.2d at 883-884; Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 15 OBR 505, 474 N.E.2d 328, syllabus.

We believe the GTE rule should apply to the cause sub judice. Appellant chose P.I.E. as his malpractice insurance carrier and notified it of the lawsuit pending against him, with the understanding that P.I.E. would provide him with a defense to that suit. Appellee should not be made to suffer for P.I.E.'s neglect, when it was appellant who contracted with P.I.E. and brought P.I.E. into the case.

Appellant contends that he should not be responsible for P.I.E.'s neglect because P.I.E. was not his agent. Appellant reasons that no agency existed here because he had no right of control over P.I.E. See Ross v. Burgan (1955), 163 Ohio St. 211, 219, 56 O.O. 218, 221, 126 N.E.2d 592, 596, 50 A.L.R.2d 1275, 1280. While appellant's argument has a superficial appeal, we resist the temptation to let our determination of whether P.I.E.'s neglect is imputable to appellant rest upon a mechanical labeling of the relationship between an insurer and its insured. 2

Although the courts are divided on the issue, there is a wealth of authority from outside Ohio supporting the imputation of an insurance company's neglect in defending a lawsuit to its insured. See, e.g., Stevens v. Gulf Oil Corp. (1971), 108 R.I. 209, 274 A.2d 163; Stephens v. Childers (1952), 236 N.C. 348, 72 S.E.2d 849; Leslie v. Spencer (1935), 170 Okl. 642, 42 P.2d 119; Chmielewski v. Marich (1954), 2 Ill.2d 568, 119 N.E.2d 247, 42 A.L.R.2d 1023. In Ward v. Cook United, Inc. (Mo.App.1975), 521 S.W.2d 461, 473, the court persuasively reasoned:

"Reason and logic render impossible the acceptance of any real distinction between the inexcusable neglect of a lawyer (held in Missouri to be imputable to his client) and the inexcusable neglect of a claims manager and attorney for the defendant's insurer. Both occupy a contractual relationship with the client, the prime purpose of which is to handle the litigation within the framework of judicial proceedings. But even of more significant force is that by undertaking such responsibilities they also assume an obligation to third parties interested in the matter and to the courts administering and judicially determining the controversy."

We agree. Therefore, we hold that for purposes of a Civ.R. 60(B)(1) motion for relief from a default judgment on the grounds of excusable neglect, the neglect of a defendant's insurance company in failing to file an answer or other responsive pleading to a complaint against defendant is imputable to the defendant.

II

Because we hold that an insurance company's neglect in failing to file an answer or other responsive pleading is imputable to its insured, it follows that the conduct of the insurance company and the conduct of the insured must be examined together to determine whether excusable or inexcusable neglect has occurred. See GTE, supra, 47 Ohio St.2d at 153, 1 O.O.3d at 90, 351 N.E.2d at 117.

We make this examination in light of our holding in Colley v. Bazell supra. In Colley, the defendant, an attorney, was served with a complaint which he forwarded to his insurance agent within two days. Four days later, the insurance agent sent the complaint to the broker for the defendant's insurance carrier, who mailed the complaint to the carrier within nine more days. Apparently due to a delay in the mails, the complaint did not reach the insurance carrier until nineteen days after it was sent--on the same day that a default judgment was taken against the defendant. The trial court overruled the defendant's Civ.R. 60(B)(1) motion, holding that the defendant should have independently taken steps to ensure that a responsive pleading was filed by the answer day. We disagreed, and stated:

"In our view, the concept of 'excusable neglect' must be construed in keeping with the proposition that Civ.R. 60(B)(1) is a remedial rule to be liberally construed, while bearing in mind that Civ.R. 60(B) constitutes an attempt to 'strike a proper balance between the conflicting principles that litigation must be brought to...

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