Lawreszuk v. Nationwide Ins. Co.

• Decision Date: 29 December 1977
• Citation: 392 N.E.2d 1094,59 Ohio App.2d 111
• Parties: , 13 O.O.3d 165 LAWRESZUK et al., Appellants, v. NATIONWIDE INSURANCE COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 111

59 Ohio App.2d 111

392 N.E.2d 1094, 13 O.O.3d 165

LAWRESZUK et al., Appellants, v. NATIONWIDE INSURANCE COMPANY, Appellee. ^*

Court of Appeals of Ohio, Ninth District, Lorain County.

Dec. 29, 1977.

Syllabus by the Court

1. An injured plaintiff has no statutory or common law right to a direct recovery from a tortfeasor's insurance company.

2. Where a tortfeasor is deceased, an injured plaintiff must, prior to or contemporaneous with a suit against the tortfeasor's insurer, obtain some judgment against the tortfeasor as represented either by an administrator or by a "suitable" person other than the insurance company.

3. A court may effectively grant leave to file a motion by considering and ruling on the merits of the motion.

4. A motion to dismiss based on grounds not waived by failure to present them in an earlier pleading or motion can be considered as a motion for judgment on the pleadings under Civ.R. 12(C) or as a motion to dismiss under Civ.R. 12(B) (6), either of which may be made without leave of court.

Edward Kancler, Cleveland, for appellants.

Walter J. Morey, Elyria, for appellee.

VICTOR, Judge.

Plaintiff-appellant, Michael Lawreszuk, brought this action directly and solely against the insurance company of a decedent, Donna Logan, who allegedly injured him in an automobile accident. No estate for the alleged tortfeasor was opened, and no administrator was appointed. The trial judge dismissed the action on defendant's second motion to dismiss.

Plaintiff appeals and claims as error:

"1. Under the authority of Heuser v. Crum, 31 Ohio St.2d 90, 285 N.E.2d 340 (1972), when a tortfeasor dies in a motor vehicle collision, and no estate is ever opened for said decedent, but decedent was covered by liability insurance, suit may be brought directly against the insurer, and service of summons thereon is sufficient to commence and maintain the action. By reason thereof, it is prejudicial error to grant the liability insurer's motion to dismiss and motion for summary judgment.

"2. The action of the Trial Court, in granting Dismissal and Summary Judgment after initially overruling said Motion, nine months earlier, constitutes prejudicial error, especially when no new matter was presented to the Court respecting the renewed Motion to Dismiss and/or for Summary Judgment.

"3. The trial court committed prejudicial error in holding that Heuser v. Crum, supra, only applies to cases where plaintiffs failed to first obtain judgment against decedent's estate, and that such judgment must first be obtained before proceeding against the insurer.

"4. The trial court committed prejudicial error in granting defendant-appellee's Motion to Dismiss and for Summary Judgment, when defendant-appellee had failed to affirmatively plead either misjoinder or non-joinder of parties defendant."

We first consider those assignments of error arguing the applicability of Heuser v. Crum (1972), 31 Ohio St.2d 90, 285 N.E.2d 340, and then those claims of error dealing with the trial court's handling procedure on the motions to dismiss.

Assignments of Errors One and Three

Both claims of error present the major issue in this appeal: whether an injured plaintiff may directly sue a decedent tortfeasor's insurance company when no administrator was appointed for the tortfeasor, or whether the claim against the insurance company may proceed only after (or if joined with) an action against either the estate or a representative of the decedent.

Plaintiff maintains that Heuser v. Crum, supra, stands for the proposition that the direct action may be maintained under the facts of this case, I. e., where no estate was opened and no administrator or representative was appointed.

Prior to Heuser, plaintiff could not maintain a suit against a tortfeasor's insurer until he obtained a judgment against the tortfeasor or against the tortfeasor's estate. Canen v. Kraft (1931), 41 Ohio App. 120, 180 N.E. 277; Steinbach v. Maryland Cas. Co. (1921), 15 Ohio App. 392; see also, Luntz v. Stern (1939), 135 Ohio St. 225, 20 N.E.2d 241; Chitlik v. Allstate Ins. Co. (1973), 34 Ohio App.2d 193, 299 N.E.2d 295.

The Supreme Court altered that rule in Heuser insofar as it permitted an action to be maintained jointly against a decedent tortfeasor's estate and the insurance company. The court recognized that, requiring the presence in the action of the administrator or of another "suitable person," was essentially requiring the trial court to maintain a masquerade on behalf of the insurance company.

More is involved than the doctrine that the jury should not discover the insurance company's availability as a source of funds. In the absence of some judgment against the insured or the insured's representative, there is no legal liability to pay. The insurance company's liability is only derivative. It is only liable if the alleged tortfeasor has been found liable.

While an injured party has a "substantial" right on the tortfeasor's policy from the time of injury, that right is not vested until a judgment against the tortfeasor is secured. Hartford Accident & Indemnity Co. v. Randall (1932), 125 Ohio St. 581, 183 N.E. 433. The injured party is not a third party beneficiary of the insurance contract. Chitlik v. Allstate Ins. Co., supra; cf. Alms & Doepke Co. v. Johnson (1954), 98 Ohio App. 78, 128 N.E.2d 250. The injured plaintiff has no statutory or common law right to recover directly on the insurance contract.

If the tortfeasor is deceased, the plaintiff must, prior to or contemporaneously with the suit against the insurance company, obtain some judgment against the tortfeasor as represented by an administrator or by some "suitable" person other than the...