Paul Thompson Ikirt v. Hobert Stephens, 81-LW-1268

• Decision Date: 27 January 1981
• Docket Number: 81-LW-1268,6877
• Parties: PAUL THOMPSON IKIRT Plaintiff-Appellant, v. HOBERT STEPHENS Defendant-Appellee. CASE
• Court: Ohio Court of Appeals

PAUL THOMPSON IKIRT Plaintiff-Appellant, v. HOBERT STEPHENS Defendant-Appellee.

No. 6877.

81-LW-1268 (2nd)

Court of Appeals of Ohio, Second District Montgomery

January 27, 1981

MICHAEL R. ECKHART, Attorney at Law, 301 Far Oaks building, 2801 Far Hills Avenue, Dayton, Ohio 45419 Attorney for Plaintiff-Appellant.

CARL ANTHONY CRAMER, Attorney at Law, 3508 Wilmington Pike Kettering, Ohio 45429 Attorney for Defendant-Appellee.

OPINION

CRAMER J. (By Assignment)

Appellant, hereinafter designated plaintiff, appeals from the judgment of the Common Pleas Court of Montgomery County Ohio, overruling his motion to vacate judgment. The trial court's entry overruling the motion to vacate was filed May 23, 1980.

A single assignment of error is urged:

"THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF-APPELLANT'S MOTION TO VACATE JUDGMENT WHEN THE TRIAL COURT FOUND THAT THE CLAIMS OF PAUL THOMPSON IKIRT AND TRAVELER'S INDEMNITY COMPANY HAD BEEN MERGED IN THE KETTERING COURT JUDGMENT."

The following, labeled "Statement of Facts" was taken from the plaintiff's brief: (The defendant-appellee filed no brief here)

"On January 23, 1976, Plaintiff, Paul T. Ikirt's automobile was negligently run into by Defendant, Hobert Stephens. A short time after the collision, Plaintiff, Paul T. Ikirt, sued the Defendant in the Kettering Municipal Court, Small Claims Division, Case No. 76-CV-I-128. The Plaintiff obtained recovery on said suit in the sum of $300.00. Subsequent to the filing and recovery of the funds in the small claims court of Kettering, the insurance company for Plaintiff, Paul T. Ikirt, The Travelers Indemnity Company, paid on or about December 27, 1978, the sum of $15,000.00 to Plaintiff, Paul T. Ikirt, under the Uninsured Motorists Coverage section of Plaintiff, Ikirt's insurance policy. Defendant, Hobert Stephens, had no insurance at the time of the collision.

On January 18, 1978, Plaintiff, Paul T. Ikirt and his wife, Mary B. Ikirt, filed a Complaint against the Defendant in the Common Pleas Court of Montgomery County, Ohio for personal injuries suffered in the automobile collision on January 23, 1976. Upon payment on December 27, 1978 by Travelers Indemnity Company to Plaintiff, Paul T. Ikirt of the $15,000.00, Travelers Indemnity Company became subrogated to all of the rights and claims that Paul T. Ikirt had up to the sum of $15,000.00.

On December 19, 1979, Defendant filed a Motion to Dismiss the Complaint for the reason that Plaintiff, Paul T. Ikirt, had previously obtained a judgment of $300.00 in the Kettering Municipal Court Small Claims Division and therefore Plaintiff was splitting his cause of action and the matter in the Common Pleas Court was res judicata. In its Decision on that Motion on January 11, 1980, the Court specifically indicated that 'no response has been filed to the Motion to Dismiss by Plaintiff.'

On January 18, 1980, Plaintiff filed a Motion for Reconsideration of the Court's January 11, 1980 decision for the reason that Plaintiff had filed a response on January 8, 1980, but the Clerk had not delivered it to the Court in time for its Decision. The Court on February 8, 1980, issued a decision on Plaintiff's Motion for Reconsideration wherein the Court concluded that it was controlled by Rush v. The City of Maple Heights, 167 O. S. 221, and for the reason that there was no showing that there was a subrogated claim by insurance company in the case. On February 26, 1980, the Plaintiff filed a Motion to Vacate the Order of Dismissal entered by the Court on February 8, 1980. In its Motion and in a Supplemental Memorandum, the Plaintiff represented that there was a subrogated insurance company involved, to-wit: Travelers Indemnity Company, and that he had been paid by Travelers and that his rights had been assigned to Travelers. In a Supplemental Memorandum, it was stated that although the case could continue with Ikirt as Plaintiff, nevertheless Plaintiff moved the Court to permit Travelers Indemnity Company to be substituted as the party plaintiff with no change in the Complaint.

On March 31, 1980, the court, in a lengthy decision, discussed cases pertaining to splitting of a cause of action and res judicata. The Court stated in its decision of March 31 that Travelers Indemnity Company was a subrogated insurer and had been paid by Plaintiff, Paul Ikirt. However, the trial Court determined whether or not Travelers Indemnity Company was in the case or was a subrogated insurer, or had paid Plaintiff Ikirt sums, was immaterial for the reason that the case was controlled by Rush v. City of Maple Heights and therefore, Plaintiff having recovered $300.00 in the Small Claims Court of Kettering could not bring another action for personal injuries, nor could Plaintiff's subrogated insurer bring an action for the monies it had paid Plaintiff. On May 23, 1980, the trial court issued an Entry whereby the Court formally overruled the Plaintiff's Motion to Vacate with respect to the claims of Paul Ikirt and Travelers Indemnity Company due to the fact that their claims had been merged in the Kettering Court judgment. The Motion to Vacate was granted with respect to the claim of Mrs. Ikirt for loss of consortium due to the fact that her claim had not been merged in the Kettering Court Judgment. It is from this final entry that Plaintiff appeals."

The trial judge, in his "Decision on Plaintiff's Motion to Vacate Judgment" stated he granted the defendant's motion to dismiss "because the plaintiff had not brought his claim for personal injury together with his claim for property damage." It was his view that the case of Rush v. City of Maple Heights, 167 Ohio St. 221 (1958) was controlling.

The plaintiff filed his motion for reconsideration of the court's decision sustaining the motion of defendant to dismiss because the plaintiff's memorandum contra to the motion to dismiss had not reached the court until after the decision was tendered. In support of plaintiff's motion for reconsideration and further in support of his contention that the court should vacate its judgment granting defendant's motion to dismiss, he cited and relied upon the case of Nationwide Ins. Co. v. Steigerwalt, 21 Ohio St. 2d 87, (1970).

Rush held 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, the different injuries occasioned thereby being separate items of damages from such act. . ."

In Steigerwalt, supra, the Supreme Court of Ohio held as set forth in the following three (3) paragraphs of the Syllabus:

"1. Where, prior to filing a lawsuit under the provisions of the subrogation clause in an automobile insurance contract, the insurer is assigned a part of the insured's claim for damages resulting from an automobile collision, the insurer is in privity with the insured. (Paragraph seven of the syllabus of Vasu v. Kohlers, 145 Ohio St. 321, overruled).

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 claim in a separate action against the tortfeasor. (Hoosier Casualty Co. v. Davis, 172 Ohio St. 5, approved and followed.)

3. The failure of a defendant in a motor vehicle negligence action to act at the first opportunity to require joinder of the insurer or to consolidate for trial the prosecution of separate causes of action, filed by those in privity, arising from one claim pending in the same court, is a waiver of any bar to the prosecution of a separate cause of action by the assignee-insurer and a waiver of the right to assert the doctrine of estoppel to prevent relitigation of issues previously determined."

The trial judge stated he affirmed his decision to dismiss for the reason "that there was no showing that an insurance company had been subrogated to a part of plaintiff's claim." In response to the plaintiff's claim that the Travelers Indemnity Company had paid plaintiff for his medical expenses and therefore came within Steigerwalt exception to the rule in Rush, the court stated that the present action's complaint had but the name of the plaintiff on it and not Travelers and the insurance agreement was not attached to the pleading as required by Rule 10(D), which would indicate that the suit was brought on behalf of Travelers.

However, the court concluded that:

"The styling of the complaint, however, is immaterial to the result the court has come to. The court is of the opinion that the facts of this case are controlled by Rush v. Maple Heights, 167 Ohio St. 221 (1958). The exception provided by Nationwide Ins. Co. v. Steigerwalt, 21 Ohio St. 2d 87 (1970) is inapplicable in this case."

It was the trial judge's opinion that the pendency of multiple suits in Steigerwalt rendered it inapplicable to the case at bar. He interpreted Steigerwalt as holding that the failure there-

"to join the parties in one action or to consolidate the cases with the knowledge that both were pending, acted as a waiver of the rule that plaintiff must bring all his damage claims in one cause of action. It is only when two separate cases are pending simultaneously and they both involve the same cause of action, that defendant's failure to object allows an insurance company to maintain a separate cause of action arising out of the same wrongful act. See, Shaw v. Chell, 176 Ohio St. 375 (1964); Hoosier Casualty Co. v. Davis, 172 Ohio St. 5 (1961)."

The plaintiff argues that a showing had been made that there was a subrogated claim by the insurance company; that in his motion to vacate and supplemental memorandum, he made it known to the court that there...