Koby v. McNamee
2017 Ohio 1574
Ohio Ct. App.2017Background
- On Oct. 6, 2008, the Kobys were injured when Christina McNamee struck their vehicle.
- The Kobys initially sued McNamee on May 5, 2010, then voluntarily dismissed the suit on Sept. 7, 2011, invoking Civ.R. 41(A) and the Ohio savings statute (R.C. 2305.19) to preserve a one-year refiling period.
- McNamee filed Chapter 7 bankruptcy on May 29, 2012; an automatic stay immediately prohibited the Kobys from pursuing claims against her while the bankruptcy case was pending.
- McNamee received a discharge on Sept. 25, 2012; the Kobys waited until Nov. 15, 2013 to refile their complaint (they moved for stay relief in bankruptcy in June 2013 and obtained it Nov. 13, 2013).
- The trial court concluded the discharge terminated the automatic stay for actions against the debtor, the Kobys’ refiling was untimely (they missed the 30-day grace period under 11 U.S.C. 108(c) after termination of the stay), and dismissed the complaint; the Kobys appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs could sue the debtor nominally to pursue insurer recovery | Kobys: they needed to sue McNamee as a nominal defendant to later pursue the insurer; discharge did not bar such nominal actions | McNamee: discharge bars actions to collect from debtor personally; any suit against debtor must comply with stay/discharge timing | Court: Plaintiffs may sue debtor nominally to reach insurer, but complaint must allege nominal-defendant status; Kobys’ complaint did not do so |
| Whether the automatic stay remained in effect such that refiling was tolled beyond discharge | Kobys: estate remained open; insurer/insurance proceeds were property of the estate, so stay continued and tolled refiling | McNamee: in Chapter 7 the stay terminates on discharge; 30-day grace under §108(c) applies—refiling window began at discharge | Court: Stay terminated at discharge; 30-day grace applied; plaintiffs missed the period and suit was untimely |
| Whether refiled complaint alleged it was only a prerequisite to suing insurer (avoid personal liability) | Kobys: refiled complaint was effectively against insurer (prerequisite to insurer claim) | McNamee: complaint sought judgment against her; no insurer named; no nominal-defendant allegation | Court: Complaint contained no allegation that McNamee was a nominal defendant or that judgment sought only to reach insurer—so treated as action against debtor |
| Whether dismissal on pleadings/summary judgment was appropriate | Kobys: dismissal improper because stay/estate status tolled refiling; factual disputes exist | McNamee: entitlement to judgment as a matter of law due to discharge and missed refiling period; provided bankruptcy documents | Court: No error—judgment on pleadings and/or summary judgment appropriate because plaintiffs could prove no timely claim |
Key Cases Cited
- State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565 (1996) (standard for judgment on the pleadings)
- Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96 (8th Dist. 1992) (pleading standard when ruling on Civ.R. 12(C))
- Peterson v. Teodosio, 34 Ohio St.2d 161 (1973) (tests for dismissal on pleadings)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978) (summary judgment standard)
- Wolfe v. Wright, 65 Ohio App.3d 36 (8th Dist. 1990) (bankruptcy protection of debtor does not create third-party beneficiary rights for insurer)
- In re Christian, 180 B.R. 548 (Bankr. E.D. Mo. 1995) (permitting nominal-debtor suits to reach insurer while protecting debtor from personal liability)
- In re Morris, 430 B.R. 824 (Bankr. W.D. Tenn. 2010) (discussing limited exception to discharge injunction allowing nominal-debtor suits against insurers)