Marilyn J. Kettler v. James R. Gordon, 84-LW-2774

• Decision Date: 07 March 1984
• Docket Number: TRIAL NO. A-8107760,84-LW-2774,C-830367
• Parties: MARILYN J. KETTLER and WILLIAM B. KETTLER, Plaintiffs-Appellants, v. JAMES R. GORDON and McLEAN TRUCKING COMPANY, Defendants-Appellees. APPEAL
• Court: Ohio Court of Appeals

MARILYN J. KETTLER and WILLIAM B. KETTLER Plaintiffs-Appellants, v. JAMES R. GORDON and McLEAN TRUCKING COMPANY Defendants-Appellees.

No. C-830367, TRIAL NO. A-8107760.

84-LW-2774 (1st)

Court of Appeals of Ohio, First District Hamilton

March 7, 1984

Civil Appeal from Court of Common Pleas.

Mr Thomas D. Shackleford, 224 Reading Road, P.O. Box 256, Mason, Ohio 45040, for Plaintiffs-Appellants.

Messrs. Lindhorst & Dreidame, Jay R. Langenbahn, of counsel, 1200 American Building, Cincinnati, Ohio 45202, for

Defendants-Appellees.

DECISION.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the briefs and oral arguments of counsel.

On September 21, 1979, defendant-appellee Gordon was operating a tractor-trailer on a certain public highway in Hamilton County, Ohio when a collision occurred between that vehicle and one operated by plaintiff-appellant Marilyn Kettler. The other appellant here is William Kettler, husband. The tractor-trailer operated by Gordon was owned by defendant-appellee McLean Trucking Company.

A property damage subrogation action was brought by appellants' insurer, Cincinnati Insurance Company, in the Hamilton County Municipal Court. The insureds, viz. the Kettlers, were not parties in the aforesaid case, nor did the appellees (Gordon and the McLean Company) move in any way to join the Kettlers in that action. The property damage subrogation action came on for trial before a Municipal Court referee whose finding in favor of Gordon and the McLean Company subsequently was approved by a judge of the Municipal Court on December 2, 1980.®1¯

Footnote 1 . Without intending criticism, the Report of the Trial Referee is very compact. Although alluding to the accident the report contains few details. It is, however, decisive in two respects it recommends judgment for Gordon and the McLean Company (which the court below rendered), and it indicates that Marilyn Kettler testified at the hearing before the referee and provided her version of the accident.

The Municipal Court judgment in favor of Gordon and the McLean Company was appealed to the First District Court of Appeals. We reviewed it and affirmed. Cincinnati Insurance Company v. James R. Gordon and McLean Trucking Company, No. C-800978 (1st Dist. Dec. 2, 1981).

A subsequent action was brought on September 21, 1981 in the Court of Common Pleas for damages for injuries to Marilyn Kettler and for medical expenses and lost services allegedly incurred by William Kettler. A motion for summary judgment was made by Gordon and the McLean Company which the Common Pleas Court granted in their favor, holding that "[Gordon and the McLean Company] have shown that the identical issue of liability has previously been litigated between the identical in interest parties in a subrogation case for property damage in the Municipal Court of this county." This appeal ensued with a single assignment of error urged by the Kettlers, viz., that the trial court erred to their prejudice in granting Gordon's and the McLean Company's motion for summary judgment.®2¯

Footnote 2 . In their memorandum supporting their motion for summary judgment appellees Gordon and the McLean Company place great reliance on the doctrine of res judicata. Although res judicata and collateral estoppel often are used interchangeably, at times without justification, we emphasize that the defense advanced here by Gordon and the McLean Company should correctly be designated collateral estoppel rather than res judicata.

Generally where a person suffers both personal injury and property damage as a result of the same wrongful act, only a single cause of action arises in favor of such person. 1 O. Jur. 3d ?? ] 93 (1977). However, the Ohio Supreme Court has carved out an exception, or qualification, to this general rule in the case of a ?? automobile insurer as here. The apposite cases are The Hoosier Casualty Co. v. Davis (1961), 172 Ohio St. 5, 173 N.E.2d 349 and Nationwide Ins. Co. v. Steigerwalt (1970), 21 Ohio St. 2d 87, 255 N.E.2d 570.

In the Hoosier case the Supreme Court held the following in these paragraphs of the syllabus:

1. Where one person suffers both personal injury and property damage as a result of the same wrongful act, only a single cause of action arises in favor of such person. (Rush v. City of Maple Heights, 167 Ohio St., 221, approved and followed.)

2. Where, by virtue of a prior contract of indemnity and subrogation, an insurer pays its insured for property damage sustained and becomes thereby subrogated to the rights of its insured to the amount of such payment, such insurer may prosecute a separate action against the party causing such injury to the extent of the amount paid under such contract. (Paragraphs six, seven and eight of the syllabus of Vasu v. Kohlers, Inc., 145 Ohio St., 321, approved and followed.)

Additionally the court in the Hoosier case stated:

Ultimately this court adopted what it considered to be the majority and better rule in this country that where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises in favor of that person.

But had the original action for property damages been brought by the insurance company, as in the Vasu case, a judgment either for or against it could not be res judicate as to the insured in his act ion against the tort-feasor because there would not be an exact identity of parties. State, ex rel. Ohio Water Service Co., v. Mahoning Valley Sanitary District, 169 Ohio St., 31, 157 N.E.2d, 116.

It is perhaps desirable, to the end of minimizing litigation, that insured and insurer join in bringing one action to recover both the deductible and nondeductible portions of property damage. But it is not necessary to do so, although such joinder may be required upon motion of the tort-feasor. [Citations omitted. 172 Ohio St., 9; 173 N.E.2d, 351.]

The Supreme Court in Nationwide held (paragraph 2 of the syllabus):

2. For the limited purpose of prosecution of a claim under a policy of automobile insurance, a single cause of action may be divided to the extent that the insurer, subrogated to a part of a claim assigned by the insured, may prosecute its

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