Rakich v. Anthem Blue Cross & Blue Shield

• Decision Date: 24 July 2007
• Docket Number: No. 06AP-1067.,06AP-1067.
• Citation: 2007 Ohio 3739,875 N.E.2d 993,172 Ohio App.3d 523
• Parties: RAKICH, Appellant, v. ANTHEM BLUE CROSS AND BLUE SHIELD et al., Appellees.
• Court: Ohio Court of Appeals

875 N.E.2d 993

172 Ohio App.3d 523

2007-Ohio-3739

RAKICH, Appellant, v. ANTHEM BLUE CROSS AND BLUE SHIELD et al., Appellees.

No. 06AP-1067.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 24, 2007.

Smith, Phillips & Assoc., Janet L. Phillips, and Scott Elliott Smith, Columbus, for appellant.

Tina Taylor Pecuszok, for appellees.

FRENCH, Judge.

{¶ 1} Plaintiff-appellant, Cheryl Rakich, appeals from the final judgment of the Franklin County Court of Common Pleas dismissing her claims against defendants-appellees, Erica M. Kanoski and John E. Kanoski, and incorporating the prior interlocutory judgment denying appellant's motion for summary judgment and granting appellees' motion for summary judgment. Because the trial court erred in ruling on the parties' motions for summary judgment, we reverse.

{¶ 2} On March 31, 2005, appellant and her husband, Duke Rakich (collectively, "plaintiffs"), filed the instant action against Anthem Blue Cross and Blue Shield, appellees, and various John Does, alleging claims arising out of an automobile collision that occurred on April 13, 2004. In the complaint, appellant asserted a claim for personal injury against appellees and a claim for declaratory judgment regarding subrogation rights against Anthem Blue Cross and Blue Shield, her medical insurer.¹ As part of her claim against appellees, appellant alleged:

As a direct and proximate result of the Defendant's negligent acts, [appellant] incurred undetermined miscellaneous expenses in the past and expects to incur miscellaneous expenses into the future including but not limit[ed] to property damage diminutive value to the vehicle involved in the collision.

The complaint also included Duke Rakich's claim against appellees for loss of consortium.

{¶ 3} On December 27, 2005, plaintiffs moved for summary judgment on the issue of liability. The trial court granted the plaintiffs' unopposed motion for summary judgment on liability on May 16, 2006.

{¶ 4} On April 4, 2006, the trial court conducted a status conference and ordered the plaintiffs to file a motion for partial summary judgment regarding the availability of a claim for the diminished value of their vehicle after it was repaired on or before May 26, 2006. According to plaintiffs, the parties and the trial court agreed that the motion would address only whether such a claim exists in Ohio. On April 13, 2006, plaintiffs filed their motion for summary judgment regarding their right to assert a claim for the diminished value of their vehicle after it was repaired. On April 20, 2006, appellees filed a combined memorandum in opposition to plaintiffs' motion for summary judgment and in support of their own motion for summary judgment regarding the availability of a claim for diminished value. The parties fully briefed both motions for summary judgment.

{¶ 5} On August 7, 2006, the trial court issued a decision and entry denying plaintiffs' motion for summary judgment and granting appellees' motion for summary judgment regarding the availability of a claim for the postrepair diminished value of plaintiffs' vehicle. The trial court concluded that Ohio law provides two exclusive and alternative methods to calculate property damages: diminution of value and cost of repairs. Because plaintiffs had already recovered the cost of repairs to their vehicle, the trial court concluded that "plaintiffs cannot present evidence of the future lesser resale value of their vehicle in order to establish their property damage."

{¶ 6} On September 25, 2006, the trial court entered final judgment dismissing plaintiffs' claims with prejudice. Appellant filed a timely notice of appeal and now asserts the following single assignment of error:

The trial court erred in holding that plaintiff appellant was not entitled to present evidence on the diminished value of her automobile, which was damaged by the defendant's negligence.

In her assignment of error, appellant challenges the trial court's ruling on the parties' motions for summary judgment regarding the availability of a claim for the diminished value of her automobile. Specifically, appellant challenges the trial court's legal conclusion that she was, as a matter of law, prohibited from obtaining property damages for the postrepair diminished value of her vehicle, as a result of its having been involved in a collision, in addition to recovering the cost of repairs.

{¶ 7} Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107, 614 N.E.2d 765; Brown at 711, 622 N.E.2d 1153. Summary judgment is appropriate only when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46. When, as here, the propriety of the trial court's grant of summary judgment involves only questions of law, a reviewing court has complete and independent authority. Am. Motorists Ins. Co. v. Olin Hunt Specialty Prod., Inc. (Sept. 20, 2001), Franklin App. No. 00AP-1313, 2001 WL 1098013, citing Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

{¶ 8} The rules controlling recovery of compensatory damages to personal property generally apply to cases involving damage to vehicles. Maloney v. Gen. Tire Sales, Inc. (1973), 34 Ohio App.2d 177, 183, 63 O.O.2d 289, 296 N.E.2d 831. Thus, we remain mindful that in a tort action, the measure of damages is that which will make the injured party whole. Corwin v. St. Anthony Med. Ctr. (1992), 80 Ohio App.3d 836, 840, 610 N.E.2d 1155, citing Pryor v. Webber (1970), 23 Ohio St.2d 104, 52 O.O.2d 395, 263 N.E.2d 235.

{¶ 9} With respect to a party's right to recover for damage to his or her vehicle caused by the negligence of another, Ohio courts have provided specific guidance. The Ohio Supreme Court set forth the general rule for calculating such damages in Falter v. Toledo (1959), 169 Ohio St. 238, 8 O.O.2d 226, 158 N.E.2d 893. There, the Supreme Court held that "the owner of a damaged motor vehicle may recover the difference between its market value immediately before and immediately after the collision." Id. at paragraph one of the syllabus. This is the preferred method of computing damages. Erie Ins. Co. v. Howard, Summit App. No. 21999, 2004-Ohio-5171, 2004 WL 2244489, at ¶ 14. When a vehicle is damaged only to such an extent that it is reparable within a reasonable time, the owner may also recover for the loss of use of the vehicle for the reasonable time necessary to make the repairs. Hayes Freight Lines v. Tarver (1947), 148 Ohio St. 82, 35 O.O. 60, 73 N.E.2d 192, paragraph two of the syllabus. When a vehicle cannot be repaired, the general rule is that the owner may recover the difference between the market value of the vehicle immediately before the damage and the salvage value of the wreckage. Maloney, 34 Ohio App.2d at 184, 63 O.O.2d 289, 296 N.E.2d 831.

{¶ 10} In Falter, the Supreme Court considered a procedural question of pleading relating to the plaintiffs' claim for damage to their automobile. The plaintiffs had alleged the reasonable costs to repair their damaged automobile, stating that that amount represented the depreciation in the reasonable value of the automobile as a result of a collision. The trial court denied the defendants' motion to strike the plaintiffs' allegation regarding the costs of repair and entered judgment in favor of the plaintiffs. On appeal, the defendants argued that the plaintiffs were required to allege the difference between the market value of their vehicle immediately before and after the collision and not the cost of repairs. Noting the plaintiffs' allegation that the cost of repairs equaled the depreciation of their vehicle as a result of the collision, the Supreme Court found that it was not erroneous for the plaintiffs to plead the reasonable cost of repairs, stating:

Of course it was not necessary to do so since it would have been sufficient for the plaintiffs to allege the difference in the market value before and after the collision. But it clearly was proper for the plaintiffs to allege, prove and recover the reasonable cost of repairs, provided that such cost did not exceed the difference in market value before and after the collision.

Falter, 169 Ohio St. at 240, 8 O.O.2d 226, 158 N.E.2d 893. Thus, while approving the pleading of the cost of repairs as a means of establishing damage to an automobile, the Supreme Court limited recovery based on the cost of repairs to the difference in market value before and after the collision to prevent the plaintiffs from benefiting from their loss. Id., citing Gass v. Agate Ice Cream, Inc. (1934), 264 N.Y. 141, 190 N.E. 323, 324 (holding that because a plaintiff recovers the reasonable market value of his vehicle immediately before the accident when the vehicle is totally destroyed, he may not recover a greater amount for mere repairs).

{¶ 11} When proving damages to a vehicle with evidence of the cost of repairs, the plaintiff is ordinarily also required to present evidence of the market value of the vehicle before and after the accident so that the court may ensure that the cost of repairs does not exceed the difference in market value. In Allstate Ins. Co. v. Reep (1982), 7 Ohio App.3d 90,...