Sprague v. Simon, No. 2000-A-0007.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: FORD, Presiding
• Citation: 144 Ohio App.3d 437,760 NE 2d 833
• Docket Number: No. 2000-A-0007.
• Decision Date: 14 May 2001
• Parties: SPRAGUE, Exr., Appellant, v. SIMON et al.; Schroeder et al., Appellees.

144 Ohio App.3d 437
760 NE 2d 833

SPRAGUE, Exr., Appellant,
v.
SIMON et al.; Schroeder et al., Appellees.*

No. 2000-A-0007.

Court of Appeals of Ohio, Eleventh District, Ashtabula County.

Decided May 14, 2001.

144 Ohio App.3d 438

Cohen Manos, Pappas & Stefanski Co. and John M. Manos, for appellant.

Reminger Baker, Hackenberg & Collins and I. James Hackenberg, for appellees.

FORD, Presiding Judge.

This is an appeal from the Ashtabula County Court of Common Pleas. Appellant, Fred W. Sprague, executor of the estate of Sharon M. Sprague ("Sharon"), deceased, appeals a judgment entry granting summary judgment in favor of Nationwide Insurance Company ("Nationwide") and appellees, David A. Schroeder, Esq. ("Attorney Schroeder") and the law firm of Swensen, Perer, Johnson & McCandless.¹

144 Ohio App.3d 439

The record reveals that on December 16, 1991, appellant's deceased wife, Sharon, was operating a vehicle that was involved in a collision. Apparently, Sharon hit black ice, which caused her car to skid to the right side of a bridge. Her car was then clipped by a vehicle operated by Kent E. Kibler ("Kibler"). Sharon's car spun around to the left side of the bridge and was struck by a tractor-trailer operated by Nelson D. Case ("Case").² As a result of the accident, Sharon died. The passenger in her truck, Andrea Wilcox ("Wilcox"), her son's fiancée, was severely injured and filed a personal injury claim ("the Wilcox claim") on November 18, 1992, in the Ashtabula County Court of Common Pleas against appellant, as executor of Sharon's estate, Kibler, Case, and his employer, Erskine Trucking, Inc.

Appellant independently hired Thomas J. Simon, Esq. ("Attorney Simon") to file a cross-claim against Kibler, Case, and Erskine Trucking, Inc., seeking recovery for the death of his wife. Nationwide, who was the auto insurance carrier insuring appellant and Sharon, also retained defense counsel in Ohio, Attorney William E. Riedel ("Attorney Riedel").³ The Wilcox claim was ultimately dismissed in August 1993, for failure of jurisdiction over Kibler, the driver of the motor vehicle, who was a Pennsylvania resident.

Wilcox refiled the matter in Pennsylvania on November 5, 1993. Subsequently, Nationwide referred its defense in the matter to a Pennsylvania attorney, appellee Attorney Schroeder with the law firm of Swensen, Perer, Johnson & McCandless for the personal injury claim filed against appellant by Wilcox. In a letter dated November 16, 1993, Attorney Riedel notified Attorney Simon, appellant's attorney, that the case had been refiled in Pennsylvania, and recommended that Attorney Simon should obtain counsel in Pennsylvania to prosecute the cross-claim filed on behalf of appellant. However, the record revealed that no further action was taken by appellant or Attorney Simon to prosecute the cross-claim in Pennsylvania, and the statute of limitations expired on December 16, 1993.

On December 15, 1994, appellant commenced a legal malpractice action in the Cuyahoga County Court of Common Pleas against Attorney Simon, the law firm where he was a partner, and the partners individually. Appellant claimed that Attorney Simon failed to preserve the statute of limitations and prosecute a survivorship and wrongful death claim on behalf of the estate of his deceased

144 Ohio App.3d 440

wife, Sharon. Attorney Simon filed a motion to dismiss on March 7, 1995, claiming that the wrongful death or survivorship action was appellee Attorney Schroeder's responsibility. Attorney Simon amended his motion to dismiss on November 27, 1995, to include a motion for change of venue. In a judgment entry dated February 13, 1996, the Cuyahoga County Court of Common Pleas denied Attorney Simon's motion to dismiss but transferred the matter to the Ashtabula County Court of Common Pleas

On April 29, 1997, appellant amended his complaint and joined appellees and Nationwide as new party defendants. Appellees filed a motion for summary judgment on July 15, 1998. Nationwide submitted its motion for summary judgment on July 30, 1998. Appellant filed briefs in opposition to both motions for summary judgment.

In a judgment entry dated January 3, 2000, the trial court granted appellees' motion for summary judgment and Nationwide's motion for summary judgment. The trial court concluded that "there was no contractual responsibility or liability on the part of Nationwide to represent appellant except as provided by the insurance policy." The trial court explained:

"Nationwide was only obligated to provide a defense to the Wilcox claims and this was done appropriately. In addition, * * * Attorney Riedel...