Margaret S. Griffey

• Decision Date: 03 October 1986
• Docket Number: CA-2403,86-LW-3746
• Parties: Margaret S. GRIFFEY, Plaintiff-Appellee, v Semur P. RAJAN, M.D., Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

Margaret S. GRIFFEY, Plaintiff-Appellee, v Semur P. RAJAN, M.D., Defendant-Appellant.

No. CA-2403.

86-LW-3746 (5th)

Court of Appeals of Ohio, Fifth District, Richland

October 3, 1986

Civil Appeal from the Court of Common Pleas

No. 85-439-C

Larry L. Inscore, Inscore, Rinehardt, Whitney Enderle & Deweese, Mansfield, for plaintiff-appellee.

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

OPINION

WISE, Judge.

Defendant-appellant Semur P. Rajan, M.D. (appellant), appeals from the overruling of his Civ.R. 60(B) motion by the Court of Common Pleas of Richland County. Appellant raises the following four assignments of error:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY IMPUTING THE NEGLIGENCE OF APPELLANT'S INSURANCE COMPANY TO APPELLANT.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED WHEN IT REFUSED TO CONSIDER THE TWO AFFIDAVITS PROFFERED AT THE CIV.R. 60(B) HEARING BY APPELLANT ON THE ISSUE OF EXCUSABLE NEGLECT OF THE INSURANCE COMPANY.

ASSIGNMENT OF ERROR NO. III

THE CONDUCT BY THE APPELLANT'S INSURANCE COMPANY CONSTITUTED EXCUSABLE NEGLECT FOR PURPOSES OF CIVIL RULE 60(B)(1).

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED BY NOT VACATING THE DEFAULT JUDGMENT FOR $115,000 WHICH WAS PROCURED BY MISREPRESENTATION OF EVIDENCE.

Plaintiff-appellee Margaret Griffey (appellee) filed a medical malpractice action against appellant on July 15, 1985. No answer or leave to plead was ever filed on behalf of the doctor. On October 4, 1985, appellee filed a motion for default judgment which was granted on October 7, 1985. This was fifty-four days after the answer date of August 14. On October 28, 1985, a hearing was held on the issue of damages and final default judgment was entered for $115,000 plus costs.

Appellant filed a motion for relief from judgment pursuant to R. 60(B) on November 20, 1985, which was denied by the trial court

I

Appellant's first assignment of error addresses the issue of whether or not the conduct resulting in default in the case at bar is excusable neglect under Civ.R. 60(B)(1). The appellant cites Colley v. Bazell (1980), 64 Ohio St.2d 243, in support of his position that the neglect of the insurance company to respond should not be imputed on him. In Colley, the insured promptly mailed the papers to his insurance agent who promptly mailed the same to the insurance carrier. For some reason, the papers did not arrive until three days after the opposing party had moved for default judgment. The Ohio Supreme Court adopted the following rule in that case:

Where a defendant, upon being served with summons in a cause of action based on a claim for which he has liability insurance, relies upon his carrier to defend this lawsuit, his failure to file an answer or to determine independently that his carrier has failed to file timely an answer which leads to the taking of a default judgment, may constitute "excusable neglect, "depending on the facts and circumstances of the case, so as to justify relief from the default judgment pursuant to Civ.R. 60(B). (Emphasis added)

Id., syllabus 2, at 243

The Supreme Court in Colley found the short period of default to be significant. The court pointed out that the default judgment in that case was granted within a week of the defendant's failure to file a timely answer or a responsive pleading.

Colley did not hold that the neglect of the insurer to defend was not attributable to the insured, but rather it held that neglect can be excusable under certain circumstances, especially in situations where there was a very short period of default. The Supreme Court in fn. 4, p. 609, stated:

In sum, even though a defendant has promptly notified an insurance company of the filing of the lawsuit, his neglect in failing to independently determine whether an answer has been filed on his behalf may well change from "excusable" to "inexcusable" upon the passage of time,...