Repp v. Horton
| Decision Date | 29 November 1974 |
| Citation | 335 N.E.2d 722,44 Ohio App.2d 63,73 O.O.2d 57 |
| Parties | , 73 O.O.2d 57 REPP et al., Appellees, v. HORTON, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A local rule of court requiring the presence at pretrial of an insurance company representative with authority to negotiate and power to settle the case is not in conflict with Rule 16 of the Ohio Rules of Civil Procedure.
2. A local court rule which permits the trial judge to proceed ex parte if a defendant fails to appear as provided by the local rules is not unconstitutional.
3. A trial judge cannot determine that an insurance company representative lacks authority to negotiate and power to settle a case without finding that the representative lacks the ability to evaluate the claim and make reasonable offers based upon that evaluation.
Thomas A. Heffernan, Cleveland, for appellees.
Steven W. Albert and S. Burns Weston, Cleveland, for appellant.
This is an appeal from the trial court's finding that defendant did not 'appear' at pretrial as required by Cuyahoga County Common Pleas Court Rule 21(H)(2). That rule provides that at all pretrial conferences:
'If within the jurisdiction of the court, the defendant must be present except where the real party in interest is an insurance company, common carrier, corporation or other artificial legal entity in which case a representative thereof with authority to negotiate and power to settle the case must be present.'
The action arose out of an automobile accident and defendant was being represented by counsel for Motorists Mutual Insurance Company. The lowest demand being $2000 and the highest offer being $1500 counsel for both parties moved to submit the case to arbitration. The court denied the motion and set the case for pretrial. Counsel for defendant was present at the pretrial accompanied by an insurance company representative who indicated that he had authority to settle the case for the company's previous evaluation of $1500. 1 Any increased offer would have to be approved by the home office in Columbus which the representative indicated could be reached by telephone during the pretrial. The court found that a representative 'with authority to negotiate and power to settle the case' was not present as required by local Rule 21(H)(2) and proceeded to hear the case pursuant to Rule 21(G)(2) which provides that any judge presiding at a pretrial has authority:
'To order the plaintiff to proceed with the case and to decide and determine all matters ex parte upon failure of the defendant to appear in person or by counsel at any pretrial conference or trial as required in (H)(2) of this Rule.'
Defendant was not permitted to participate in the hearing on the merits and a judgment for the plaintiff was rendered.
Defendant appeals raising four issues:
1. Court Rule 21(H)(2) does not require the Motorists Mutual Insurance Company to produce a representative at a pretrial conference whose authority is unlimited 'to negotiate and . . . settle the case.'
2. If Rule 21(H)(2) requires a representative from the Motorists Mutual Insurance Company to be present at a pretrial conference with unlimited authority 'to negotiate and . . . settle the case,' then said rule violates Rule 16 of the Ohio Rules of Civil Procedure.
3. By invoking Court Rule 21(G)(2), the trial court deprived the Appellant of due process of law in violation of the Fourteenth Amendment of the United States Constitution and in violation of the Ohio Constitution's protection of every person under due course of law.
4. Court Rule 21(G)(2) as promulgated by the Cuyahoga County Common Pleas Court is in conflict with Article One Section Five of the Ohio Constitution and therefore, the Court rule is unconstitutional.
The first two issues can be analyzed together. Court Rule 21(D) provides:
It is obvious that the Common Pleas Court of Cuyahoga County looks upon a pretrial as having a primary and secondary purpose. The former is the settlement of the case and the latter is the preparation for trial should no settlement be reached. Citing federal authority appellant argues that this primary purpose of settlement violates Ohio Civil Rule 16 which deals with pretrial procedure. Rule 16 of the Federal Rules of Civil Procedure makes no mention of settlement while Ohio Civil Rule 16 provides the possibility of settlement as its first named objective. The remaining provisions of that rule pertain to matters relevant to trial preparation. It is apparent to this court that the primary and secondary purposes set forth in Court Rule 21(D) are in harmony with Rule 16 of the Ohio Rules of Civil Procedure.
The Common Pleas Court has authority to make local rules that are reasonable. See Civil Rule 83 and Meyer v. Brinsky (1935), 129 Ohio St. 371, 195 N.E. 702. Court Rule 21(H)(2) must be viewed in light of its purpose to facilitate pretrial settlements. The purpose of the pretrial is not to define the status of the negotiations as they exist up to that time. This should have been done prior to the pretrial and is the reason that a pretrial statement is required. 2 It is the purpose of the pretrial to carry the negotiations forward by a discussion of the issues and the evidence in the hope of bringing about an agreeable settlement. In its capacity as intermediary in these negotiations the court must evaluate the prospects of settlement and move toward trial preparation if settlement seems unlikely. In this context it is not unreasonable to require that parties be present who have full authority to negotiate and settle the claim.
The question of authority to 'negotiate and settle' arises at that stage of the pretrial when demands and offers are made and demands and offers are based upon the relative merits of the parties' claims. The rule requires the attendance not of a company 'parrot' but a person with a reasonably open mind clothed with the power to re-evaluate the claims in the light of the facts developed in the course of the pretrial hearing. If an insurance company representative is present at pretrial who has authority to settle the case for any amount he reasonably believes the claim to be worth based upon the evidence, then the defendant is in compliance with Court Rule 21(H)(2). On the other hand, the defendant is not in compliance if the representative is unable to evaluate the evidence and is not authorized to go beyond a pre-arranged figure even though it is obvious that the case is worth more than that amount.
In the present case the court made no finding that the representative was unable to evaluate the claim and make reasonable offers based upon that evaluation. From the record it appears that the court made...
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