State ex rel. Allstate Ins. Co. v. Gaul

Citation722 NE 2d 616,131 Ohio App.3d 419
Decision Date13 May 1999
Docket NumberNo. 75048.,75048.
PartiesThe STATE ex rel. ALLSTATE INSURANCE COMPANY v. GAUL, Judge, et al.
CourtUnited States Court of Appeals (Ohio)

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McNeal, Schick, Archibald & Biro Co., L.P.A., and Frederick E. Kramer, for relator.

McLaughlin & McCaffrey, L.L.P., Patrick M. McLaughlin, W. Joseph Melnik and Colin R. Jennings, for intervenor-relators Robert C. Corn, M.D., Highland Musculo-Skeletal Associates, and Marie Millan and James Goldman.

McCarthy, Lebit, Crystal & Haiman Co., L.P.A., David A. Schaefer and Charlene R. Mileti, for respondent Judge Daniel Gaul.

Spangenberg, Shibley & Liber, L.L.P., and William Hawal, for respondent Robert V. Housel.

Greene & McQuillan Co., L.P.A., and Jean M. McQuillan, for amicus curiae Cleveland Academy of Trial Attorneys.

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ROCCO, Presiding Judge.

Relator, Allstate Insurance Company, through George Sintsirmas, its Casualty Claims Manager (collectively, "Allstate"), and intervenor-relators, Robert Corn, M.D., an orthopaedic surgeon, Highland Musculo-Skeletal Associates ("HMSA"), the corporate entity of Corn's medical practice, Marie Millan, the Office Manager for HMSA, and James Goldman, C.P.A., the accountant for HMSA and personal accountant to Corn (collectively, "relators") are seeking a writ of prohibition against respondents. Relators claim that the respondent judge lacked authority to appoint a special master (respondent Robert V. Housel) in the underlying personal injury action and that in connection with that appointment, both respondents usurped their authority by continuing a court-ordered investigation into the compensation of Dr. Corn, who was never a party in the underlying lawsuit and who had been dismissed as a witness in the underlying lawsuit. This court issued alternative writs of prohibition and ordered respondents to show cause why a permanent writ of prohibition should not be issued. Having failed to meet that burden, based upon the unambiguous lack of jurisdiction and/or usurpation of authority to appoint a special master in these circumstances, we grant relators their requested relief and issue a permanent writ of prohibition as stated herein.

I. FACTUAL/PROCEDURAL HISTORY

This prohibition action arises as a result of orders issued by the respondent judge in the lawsuit entitled Hegedus v. Johnson and Allstate Insurance Co., Cuyahoga County Court of Common Pleas case No. 290943, filed June 13, 1995. The Hegedus case is an action for personal injury damages and underinsured motorist benefits. In the course of the litigation, the parties conducted discovery, filed various motions, and attended pretrial conferences. Defendant Johnson retained Corn to examine the plaintiff and to issue a written medical report. During discovery, the parties stipulated the confidentiality of certain materials, which the court sealed and held for in camera inspection only. On January 26, 1998, the court conducted a pretrial conference, scheduled a final pretrial conference for May 14, 1998, and set the case for trial on August 25, 1998.

On March 5, 1998, sua sponte, the respondent judge issued the following order:

"This court hereby appoints Robert V. Housel as special master in this action for the purpose of determining the issue of Dr. Corn's compensation as it relates to defense medicals. As special master, att'y Housel shall have all powers afforded by the Rules of Civil Procedure regarding discovery, including but not limited to subpoena powers, and appointing a certified public accountant. Att'y Housel shall post no bond, and he shall be compensated at a rate of $100 per hour. Costs to be taxed against defendant."

The same day, he also ordered that certain motions be held in abeyance as follows:

"Plaintiff's 5/20/97 motion to exclude testimony of defense expert, Dr. Robert Corn, defendant's 5/28/97 motion to exclude testimony of plaintiffs expert Dr. Sanford Emery, and plaintiffs 9/23/97 motion ofr sic in camera inspection of medical appointment book are hereby held in abeyance."

On March 31, 1998, plaintiff settled and dismissed with prejudice his case against defendant Michael Johnson. The respondent judge signed the stipulation for dismissal and judgment entry filed that day.

On July 28, 1998, the respondent judge scheduled a discovery hearing for September 9, 1998, granted plaintiffs September 24, 1997 motion for in camera inspection of Corn's medical appointment book, and authorized Housel to perform the inspection. He also issued the following order:

"TO: Dr. Robert Corn

Marie Millan

James Goldman

"You are commanded to appear in the Cuyahoga County Court of Common Pleas, Courtroom 19-D, Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, on September 9, 1998 at 2:30 p.m. to testify before the Honorable Daniel Gaul in a proceeding concerning discovery in the above-captioned case.

"You are also commanded to provide the following items to Special Master Robert V. Housel on or before August 15, 1998 at his office, Suite 1350 Illuminating Bldg., 55 Public Square, Cleveland, Ohio 44113.

"1. All Internal Revenue Service 1099 forms and/or records showing income received by Dr. Robert Corn, Highland Musculo-Skeletal Associates and/or any corporation employing Dr. Corn, from any liability insurance carrier, or any law firm or attorney.

"2. All federal, state, and local tax returns, including all attachments and forms, filed by Dr. Corn in the last five years.

"3. All federal, state, and local tax returns, including all attachments and forms, filed by Highland Musculo-Skeletal Associates and/or any corporation employing Dr. Corn for the last five years.

"4. Any office records which reflect all independent medical examinations (IMEs) conducted by Dr. Corn for the last five years, including but not limited to appointment books, computerized records, billing statements, IME reports authored by Dr. Corn, and any other written or computerized documentation for such IMEs.

"5. Any office records showing all medical examinations conducted by Dr. Corn for the last five years, including but not limited to series 300 codes, appointment books, computerized records, billing statements, audit journals, monthly reports, and any other written or computerized documentation for such exams.

"6. All office records, documents, computerized data, or other documentation of any kind, including but not limited to series 300 codes and any other nonpatient treatment codes, monthly reports and audit journals, which show income received by Dr. Corn, Highland Musculo-Skeletal Associates and/or any corporation employing Dr. Corn for IMEs, medical reports, depositions, and trial testimony performed by Dr. Corn for the last five years."

The judge also issued the following order:

"TO: Allstate Insurance Companies

State Farm Insurance Co., Middleburg Hts., Ohio

Auto Owners Insurance

Nationwide Insurance Co.

Progressive Insurance Co.

Motorists Mutual

State Farm Insurance Co., Bedford Hts., Ohio

"You are commanded to appear in the Cuyahoga County Court of Common Pleas, Courtroom 19-D, Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, on September 9, 1998 at 2:30 p.m. to testify before the Honorable Daniel Gaul in a proceeding concerning discovery in the above-captioned case.

"You are also commanded to provide the following items to Special Master Robert V. Housel on or before August 15, 1998 at his office, Suite 1350 Illuminating Bldg., 55 Public Square, Cleveland, Ohio 44113:

"All Internal Revenue Service 1099 forms and/or records of any type showing income paid by you to Dr. Robert Corn and/or Highland Musculo-Skeletal Associates, Inc., an Ohio corporation, 850 Brainard Road, Highland Heights, Ohio 44143, during the preceding five years."

On or about August 11, 1998, counsel for Allstate notified the respondent judge by way of affidavit that Corn would not be called as a witness for Allstate.1 Relators filed various motions challenging his orders and, on August 17, 1998, Allstate instituted this action in prohibition. The respondent judge was served on August 18, and the respondent special master was served on August 19, 1998.

This court granted Allstate's application for an alternative writ of prohibition and issued an alternative writ on August 21, 1998 as follows:

"Respondents, Judge Daniel Gaul and appointed special master Robert V. Housel, are hereby prohibited from enforcing or proceeding under, in any way, the discovery orders of March 5 and July 28, 1998 issued by respondent Gaul concerning Dr. Robert Corn in Cuyahoga County Court of Common Pleas Case No. CV-290943 entitled Hegedus v. Johnson, et al. until further order of this court and are hereby directed to show cause, in writing, on or before September 18, 1998, why a permanent writ of prohibition should not be issued."

On August 28, 1998, Corn and his attorney learned that information sought in the July 28 order had appeared as an exhibit to a motion filed in a lawsuit entitled Berchin v. Glassman, C.P. case No. 321675, which was pending before a different judge. They also learned on that day that Goldman had complied with the respondent judge's order of July 28, 1998 and had delivered the requested documents to the respondent special master on August 14, 1998.

Corn, HMSA, Millan and Goldman sought, inter alia, emergency relief from the respondent judge to prohibit the special master from releasing documents to the public that were delivered to him under the court order and that were not filed in the litigation. The respondent judge issued the following order on September 3, 1998:

"This action is currently before this Court for consideration of the September 1, 1998 Motion for Emergency Relief of Robert Corn, M.D., Highland Musculoskeletal Associates, Marie Millan, and James Goldman, C.P.A., wherein these non-parties...

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