Clawson v. Hts. Chiropractic Physicians, L.L.C.
2020 Ohio 5351
Ohio Ct. App.2020Background
- Cynthia Clawson sued chiropractor Don Bisesi and his employer Heights Chiropractic for allegedly rupturing her breast implant during treatment; damages sought exceeded $25,000.
- Original suit filed in 2016 was voluntarily dismissed; Clawson refiled on August 10, 2018 under Ohio’s saving statute.
- Service of the refiled complaint was attempted at 661 Coconut Grove Ave., West Melbourne, FL; Federal Express return receipt was signed by "B. Kanapill."
- Bisesi filed a motion to dismiss for insufficient service, submitting an affidavit that he had not lived at that address since June 2018, did not know the signer, and never received the complaint.
- Trial court dismissed Bisesi for insufficient service and then granted summary judgment to Heights Chiropractic on the ground that employer liability depended on a viable claim against Bisesi.
- On appeal the court affirmed the dismissal of Bisesi but reversed summary judgment for Heights Chiropractic, allowing the respondeat superior claim against the employer to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service of process | Clawson: serving a person at Bisesi's last known address creates a rebuttable presumption of proper service; Bisesi's affidavit does not overcome that presumption and the court should have held an evidentiary hearing | Bisesi: presumption rebutted by sworn affidavit showing he no longer lived at the address, the signer was not him, and he never received the papers; dismissal proper without a hearing | Affirmed: presumption of service was rebutted by uncontroverted affidavit; no hearing required where process was sent to wrong address and plaintiff offered no contrary sworn fact |
| Employer liability after employee dismissal | Clawson: Heights Chiropractic remains liable under respondeat superior even though Bisesi was dismissed for lack of service; Comer (agency-by-estoppel for independent contractors) does not apply here because this is an employer-employee relationship | Heights Chiropractic: once the agent (Bisesi) is dismissed, plaintiff's claim against the principal must fail (relying on Comer and related authority) | Reversed summary judgment: plaintiff may pursue the undisputed employer under respondeat superior despite dismissal of the employee for lack of service |
Key Cases Cited
- Comer v. Risko, 833 N.E.2d 712 (Ohio 2005) (narrow holding: hospitals may be liable under agency-by-estoppel for independent-contractor physician negligence in limited circumstances)
- Losito v. Kruse, 24 N.E.2d 705 (Ohio 1940) (traditional rule that plaintiff may sue master or servant; judgment against one does not bar action against the other until satisfied)
- Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 913 N.E.2d 939 (Ohio 2009) (applied Comer to partner/firm malpractice; relationship analyzed as distinct from employer-employee)
- Capital One Bank v. Smith, 154 N.E.3d 240 (Ohio App. 2020) (defendant’s sworn statement that he did not reside at served address rebuts presumption of proper service)