Kuhn v. 21st Century Ins. Co.
| Decision Date | 11 June 2012 |
| Docket Number | Case No. 2011 CA 00232 |
| Citation | 2012 Ohio 2598 |
| Parties | ESKIN KUHN, on behalf of himself and all other persons similarly situated Plaintiff-Appellant/Cross-Appellee v. 21ST CENTURY INSURANCE COMPANY Def.-Appellee/Cross-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, J.
For Plaintiff-Appellant/Cross-Appellee
ALLEN SCHULMAN, JR.
BRIAN L. ZIMMERMAN
SCHULMAN ZIMMERMAN & ASSOC.
For Defendant-Appellee/Cross-Appellant
STEPHAN C. KREMER
REMINGER CO. LPA
THEODORE R. SCARBOROUGH
SIDLEY AUSTIN LLP
{¶1} Appellant Eskin Kuhn appeals the decision of the Court of Common Pleas, Stark County, which dismissed his complaint for breach of contract, bad faith, fraud, and punitive damages against Appellee 21st Century Insurance Company. The relevant facts leading to this appeal are as follows.
{¶2} In early December 2008, Appellant Kuhn purchased an "Ohio Personal Automobile Policy" from Appellee 21st Century. One of the coverage options in the policy was captioned "Coverage C - Medical Payments," which stated in pertinent part as follows:
{¶3} "OUR PROMISE TO YOU - PART II
{¶4} "We will pay reasonable expenses incurred within one year from the date of accident by or on behalf of a person insured for necessary medical and funeral services because of bodily injury caused by an auto accident and sustained by a person insured under this part."
{¶5} Plaintiff's Exhibit A at page 5.
{¶6} On December 21, 2008, after the aforementioned policy went into effect, appellant was involved in an automobile accident. Appellant has alleged that he sent copies to appellee of his medical bills regarding injuries sustained in the accident, but that appellee failed to make full payments on his behalf.
{¶7} On April 21, 2009, appellant filed a complaint in the Stark County Court of Common Pleas on behalf of himself and other similarly situated individuals against Defendants AIG National Insurance Company, Inc., AIG Casualty Company, AIG Centennial Insurance Company, AIG Premier Insurance Company, 21st CenturyInsurance Company, AIU Insurance Company, the Insurance Company of the State of Pennsylvania, National Union Fire Insurance Company of Pittsburgh, and American Home Assurance Company.
{¶8} On May 26, 2009, the aforementioned insurance companies, as defendants, removed appellant's action to the United States District Court for the Northern District of Ohio, Eastern Division, which became assigned as case number 5:09CV1202. Following the removal, the insurance companies jointly filed a motion to dismiss appellant's complaint pursuant to Fed.R.Civ.P. 12(b)(6). On December 31, 2009, the United States District Court granted in part the aforesaid motion to dismiss and dismissed all insurance company defendants except 21st Century Insurance Company, appellee herein. The District Court remanded appellant's action against Appellee 21st Century to the Stark County Court of Common Pleas for further proceedings. See Kuhn v. AIG National Insurance Co., Inc., (N.D. Ohio 2009), 2009 WL 5219034.
{¶9} On December 8, 2010, appellant filed his "First Amended Class Action Complaint" for damages in the Stark County Court of Common Pleas.1 On February 18, 2011, Appellee 21st Century filed a motion to dismiss appellant's said first amended complaint, pursuant to Civ.R. 12(B)(6) and 9(B). Appellee therein claimed that the first amended complaint failed to state a cause of action upon which relief could be granted and that appellant failed to set forth sufficient allegations to support his claims. Appellant filed a memorandum in opposition to appellee's motion to dismiss on March 3, 2011.
{¶10} On August 26, 2011, a mediation hearing between appellant and appellee took place, with the trial court acting as the mediator. On August 30, 2011, the trial court granted, in part, appellee's motion to dismiss, finding that appellant did not have standing to sue appellee. The court further determined that there had been no provision of depositions and/or discovery, and that appellant had failed to produce evidence during the mediation in support of his allegations set forth in the first amended complaint. The court thereupon dismissed Counts II, III, and IV of appellant's first amended complaint. Count I (breach of contract) was ordered set for trial.
{¶11} On September 13, 2011, appellant filed a motion asking the trial court to reconsider its decision of August 30, 2011. In the meantime, appellee filed a motion to dismiss for lack of subject matter jurisdiction and failure to prosecute on September 7, 2011. The court denied appellee's motion to dismiss and appellant's motion for reconsideration on September 21, 2011.
{¶12} Based upon the trial court's ruling at that point, appellant conceded at the final pre-trial that the court had effectively dismissed all claims against appellee. The trial court thereupon dismissed Count I of appellant's first amended complaint via judgment entry filed September 23, 2011. The court then dismissed the entire action with prejudice.
{¶13} On October 20, 2011, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶14} "I. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT.
{¶15}
{¶16} Appellee 21st Century filed a notice of cross-appeal on October 31, 2011. It herein raises the following two Assignments of Error on cross-appeal:
{¶17} "I. EVEN IF PLAINTIFF HAD NOT SURRENDERED HIS CONTRACT CLAIM, IT WAS CLEARLY MOOT.
{¶18}
{¶19} As an initial matter, we address appellee's procedural response that appellant effectively waived his present appellate arguments, at least as to the breach of contract count, by informing the court at the final pre-trial, via counsel, that he had no remaining claims following the court's ruling of August 30, 2011. See Judgment Entry, September 23, 2011. However, in Ohio appellate jurisprudence, the waiver doctrine is not absolute. See, e.g., Gross v. State Med. Bd. of Ohio, Franklin App.No. 08AP-437, 2008-Ohio-6826, ¶ 11, citing Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 279, 617 N.E.2d 1075. Because waiver is a discretionary doctrine, an appellate court may decline to apply it in the interests of justice. See State v. Ruby, 149 Ohio App.3d 541, 778 N.E.2d 101, 2002-Ohio-5381, ¶ 86. Under the circumstances of this case, we find appellant's acquiescence against further pursuit of the breach of contract claim in his amendedcomplaint, following the trial court's decision to dismiss all other counts, should not act as a waiver of the entire appeal presently before us.
{¶20} In his First Assignment of Error, appellant contends the trial court erred in dismissing his first amended complaint under Civ.R. 12(B)(6). We agree.
{¶21} A Civ.R. 12(B)(6) motion to dismiss alleging failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378. Therefore, the court will determine only whether the allegations contained in the complaint are legally sufficient to state a claim. Id. Our appellate standard of review on a Civ.R. 12(B)(6) motion is de novo. Bratton v. Couch, Morgan App.No. CA02-012, 2003-Ohio-3743, ¶ 8. Under a de novo analysis, we must accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Kramer v. Installations Unlimited (2002), 147 Ohio App.3d 350, 353, 770 N.E.2d 632, 2002-Ohio-1844.
{¶22} In reviewing a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, a trial court may not consider matters outside the pleadings unless the court converts the motion to dismiss into a motion for summary judgment. Smith v. Lurie, Cuyahoga App.No. 97360, 2012-Ohio-499, ¶ 11. In addition, a court must notify all parties that it has so converted a Civ.R.12(B)(6) motion into a motion for summary judgment. See State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97, 563 N.E.2d 713.
{¶23} In the case sub judice, the trial court noted in its August 30, 2011 judgment entry that appellant had incurred a bill for ambulance services totaling $878.00 from Tri-Division Ambulance. The trial court concluded that the the sum of $133.56, the difference between what appellee originally deemed reasonable to pay the ambulance company ($744.44) and the total bill ($878.00). Id. at 2. The court further noted, in pertinent part: ***." Id. at 2-3, emphasis in original.
{¶24} ...
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