Fleming v. Whitaker
2013 Ohio 2418
Ohio Ct. App.2013Background
- June 20, 2007 auto accident involving State Farm insured; Fleming sues State Farm and Whitaker in small claims for $3,000; August 7, 2012 motion to dismiss filed for failure to state a claim; August 14, 2012 dismissal granted on direct action and statute of limitations grounds; September 12, 2012 Fleming appeals the dismissal; trial court relied on direct action rule and limitations to dismiss; court affirms based on lack of final judgment against insured and compliance with direct action rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was proper under Civ.R. 12(B)(6) for failure to state a claim | Fleming argues trial court should hear evidence and not dismiss | State Farm/Whitaker contend direct action rule bars suit absent final judgment against insured | Yes; dismissal affirmed due to no final judgment against insured. |
| Whether direct action against insurer is permissible without a final judgment against the insured | Fleming relies on small-claims form to bypass final-judgment prerequisite | Direct action permitted only after final judgment against the insured | No; direct action requires a final judgment against the insured. |
| Whether Civ.R. 12(B)(6) in small claims conflicts with R.C. Chapter 1925 | Civ.R. rules applicable; 1925 overrides | No conflict; small-claims procedures conform with Civ.R. 12(B)(6) | No conflict; Civ.R. 12(B)(6) proper in small claims. |
Key Cases Cited
- Marks v. Allstate Ins. Co., 153 Ohio App.3d 378 (Ohio 2003) (direct action requires final judgment against insured)
- Chitlik v. Allstate Ins. Co., 299 N.E.2d 295 (Ohio App.2d 1973) (set forth the direct action rule and related prerequisites)
- Folck v. Khanzada, 2012-Ohio-4971 (2d Dist. Ohio 2012) (confirms Civ.R. 12(B)(6) application in small claims is not inconsistent with Chapter 1925)