Provenzano v. Yarnish
2016 Ohio 7181
| Ohio Ct. App. | 2016Background
- Plaintiff Lori Provenzano was injured in a 2010 automobile accident and sued for UM/UIM benefits against Mora Yarnish and Western United Insurance Company; policy limits relevant to dispute were $50,000/$100,000 with a $50,000 UM/UIM limit.
- The amended complaint (April 9, 2013) correctly named Western United but the envelope and summons were addressed to "Western Union;" service was attempted on CT Corporation System (CT), Western United’s statutory agent.
- CT signed the certified-mail return receipt and sent a rejection letter to plaintiff’s counsel; that letter referenced Western United in its body but CT did not mark "refused" on the envelope.
- Western United did not answer; plaintiff obtained a default judgment and a damages hearing produced a judgment of $729,796.96 against Western United.
- Western United later moved to vacate under Civ.R. 60(B) and for lack of proper service; the common pleas court vacated the default judgment, concluding service was not perfected and, alternatively, that Civ.R. 60(B) relief was warranted; plaintiff appealed.
Issues
| Issue | Provenzano's Argument | Western United's Argument | Held |
|---|---|---|---|
| Whether service on Western United was proper when CT signed return receipt despite summons/envelope naming "Western Union" | Service on CT (statutory agent) created a presumption of proper service; CT’s signature without marking refusal perfected service | The summons/envelope named the wrong entity; CT’s handling and rejection letter rebut presumption and show service was not properly directed to Western United | Service was not perfected; trial court did not abuse discretion in finding no proper service |
| Whether the trial court abused its discretion by accepting Western United’s sur-reply raising Civ.R. 60(B) | Sur-reply raised Civ.R. 60(B) for first time and was filed too late; it should have been struck | Civ.R. 60(B) issues were raised in the initial brief and the court reasonably exercised discretion to accept the sur-reply | Trial court did not abuse its broad discretion in accepting the sur-reply; plaintiff’s motion to strike properly denied |
| Whether vacatur of the default judgment was an abuse of discretion (Civ.R. 60(B)) | CT’s failure to forward or its clerical errors are not excusable neglect; Western United had notice or plaintiff is entitled to judgment | CT’s mishandling constitutes excusable neglect; vacatur appropriate under Civ.R. 60(B)(1) or (5); plaintiff’s default judgment possibly fraudulent given policy limits | Trial court acted within discretion to grant relief under Civ.R. 60(B); neglect was excusable under the circumstances and vacatur was proper |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due-process notice must be reasonably calculated to inform interested parties)
- Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290 (1981) (service and notice are elementary due-process requirements)
- Mitchell v. Mitchell, 64 Ohio St.2d 49 (1980) (presumption that service is proper when reasonably calculated to notify defendant)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976) (standards for relief under Civ.R. 60(B))
- Patton v. Diemer, 35 Ohio St.3d 68 (1988) (trial court’s inherent power to vacate void judgments)
- Rafalski v. Oates, 17 Ohio App.3d 65 (1984) (failure of service may support relief under Civ.R. 60(B)(5))