Heuser v. Crum, 71-793

• Decision Date: 12 July 1972
• Docket Number: No. 71-793,71-793
• Citation: 285 N.E.2d 340,31 Ohio St.2d 90
• Parties: , 60 O.O.2d 56 HEUSER et al., Appellants, v. CRUM, Admx., et al., Appellees.
• Court: Ohio Supreme Court

Page 90

31 Ohio St.2d 90

285 N.E.2d 340, 60 O.O.2d 56

HEUSER et al., Appellants, v. CRUM, Admx., et al., Appellees.

No. 71-793.

Supreme Court of Ohio.

July 12, 1972.

Syllabus by the Court

1. Where it does not appear that any claim covered by an automobile liability insurance policy of a decedent has been filed against the estate of the decedent within the period specified in R.C. § 2117.09, or as provided in and within the time specified in R.C. § 2117.07, such policy is not an asset of the decedent's estate within the meaning of R.C. § 2117.07. (Paragraph two of the syllabus in Meinberg v. Glaser, 14 Ohio St.2d 193, 237 N.E.2d 605, approved and followed.)

2. Where it is alleged in an action for bodily injuries that such injuries were proximately caused by the negligence of a decedent and that he had a policy of insurance insuring him against liability for such negligence, and it does not appear that any other claims covered by such insurance have been asserted, such action may be brought against the executor or administrator of such decedent, and decedent's liability insurer, at any time within the statute of limitations on such actions without presenting a claim against the estate within the time specified in R.C. § 2117.06 or R.C. § 2177.07, and timely service of summons upon the insurer-defendant is sufficient to commence the action.

Appellants herein were injured on April 1, 1968, while riding in an automobile driven by decedent, Wetzel Crum. Loretta Crum was appointed administratrix of the decedent's estate and she served in that capacity until discharged on March 29, 1969.

On March 20, 1970, appellants filed an action in the Court of Common Pleas, seeking damages for personal injuries, naming as defendants the present apellees, Loretta Crum, administratrix, and State Farm Insurance Co., Inc., the decedent's liability insurer. The only source from which recovery was sought was the decedent's insurance policy. No application to reopen the estate or to reappoint the administratrix was made at that time.

On April 9, 1970, the Probate Court entered an order which directed that the estate of Wetzel Crum, deceased, 'shall remain open for the sole purposes of administration of the personal injury law suit against the administratrix, and State Farm Insurance.'

On April 10, 1970, Loretta Crum filed a motion to have herself dismissed from the action and to have the praecipe for service of summons set aside, and State Farm Insurance filed a demurrer to the petition for damages.

The Court of Common Pleas allowed both the motion and the demurrer and that decision was affirmed by the Court of Appeals.

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

Murray & Murray Co., L. P. A., and Jerry B. Murray, Sandusky, for appellants.

Steinemann, Zeiher, Beamer & Schell and George C. Steinemann, Sandusky, for appellees.

HERBERT, Judge.

It is clear that appellants were barred from presenting claims against the assets of the estate of Wetzel Crum. ¹ They did not 'present their claims to the * * * administrator * * * within four months after the date of the appointment of the * * * administrator * * * pursuant to R.C. § 2117.06, or within the nine-month time then specified in R.C. § 2117.07. See, Fortelka v. Meifert (1964), 176 Ohio St. 476, 200 N.E.2d 318; Beach v. Mizner (1936), 131 Ohio St 481, 3 N.E.2d 417. Likewise, they were precluded by the terms of R.C. § 3929.06 from instituting any action directly against the decedent's liability insurer because they failed to first obtain a 'final judgment' against the administratrix 'for loss or damage on account of bodily injury.' See Luntz v. Stern (1939), 135 Ohio St. 225, 20 N.E.2d 241. However, other factors in this case require further discussion.

The last paragraph in R.C. § 2117.07, added to the statute by an amendment effective August 9, 1963, states: 'Nothing in this section or in section 2117.06 * * * shall reduce the time mentioned in section * * * 2305.10 * * * provided that no portion of any recovery on a claim brought pursuant to such section * * * shall come from the assets of an estate * * *.' R.C. § 2305.10 as the two-year statute of limitation on actions for bodily injury.

We had occasion to discuss the effect of the 1963 amendment in Meinberg v. Glaser (1968), 14 Ohio St.2d 193, 237 N.E.2d 605. There, we held that 'where it does not appear that any claim covered by an automobile liability insurance policy of a decedent has been filed against the estate of the decedent within * * * (the times specified in R.C. § 2117.06 or R.C. § 2117.07), such policy is not an asset of the estate of the decedent * * *.' We also held that 'where it is alleged in an action for bodily injuries * * * that such injuries * * * were proximately caused by the negligence of a decedent and that he had a policy insuring him against liability for such negligence and it does not appear that any other claims covered by such insurance have been asserted, such action may be brought against the executor or administrator of such decedent at any time within two years after the cause thereof arose without presenting a claim against the estate within the four-month time specified in Section 2117.06, Revised Code or as provided in and within the nine-month time specified in Section 2117.07, Revised Code.'

The procedural guidelines of Meinberg are applicable to the facts of the instant case. Appellants sought no assets of the estate. They alleged personal injuries proximately caused by the way in which decedent operated his vehicle, and that decedent had a policy insuring him against liability for such conduct. Under Meinberg and R.C. § 2305.17, ² appellants' action would have been duly commenced if they had properly summoned the administratrix within one year after March 20, 1970. If judgment was obtained against her, the provisions of R.C. § 3929.06 would operate to secure the covered portion of its recovery from the decedent's insurer.

In the instant case, and unlike the procedure followed by the parties in Meinberg, appellants named both the former administratrix and decedent's liability insurer as defendants, and attempted to obtain service upon both. Although their action was filed within the statute of limitation and they did serve the defendant liability insurer within time, service of summons upon the decedent's representative was never acquired.

From the foregoing, it becomes evident that the issue now presented is whether the service obtained upon the decedent's liability insurer, under the facts before us, was sufficient to commence appellants' action below.

By operation of law, the decedent's liability insurer is now the sole entity that can be required to respond in possible damages to the appellants' allegations. As such, it is only defendant below which has any interest in the outcome of this litigation. It arrives at this position by virtue of the contract it made with the decedent and the consideration which supports that contract. The presence of a legal representative of the estate under these facts has become perfunctory; a methodical posture which is maintained out of a desire to obviate any possibility that the existence of an insurer as a party defendant could influence the verdict of the jury. In order to implement that posture, these appellants' best course of action would have been to have had the administratrix reappointed, or 'some other suitable person' appointed, to receive service of summons (see In re Estate of George, infra) and have acquired service upon such person in his representative capacity. Nevertheless, we are convinced...