Schisler v. Columbus Med. Equip.
2016 Ohio 3302
Ohio Ct. App.2016Background
- On Dec. 12, 2011 an automobile accident injured Vernon Schisler; his original complaint (Dec. 20, 2013) named Columbus Medical Equipment (CME) and “John Doe.”
- Schisler amended the complaint (Dec. 23, 2013) substituting Robert Jones for John Doe; service by certified mail was completed for both CME and Jones.
- Discovery showed the accident actually occurred Dec. 12, 2011 (not Dec. 21), and Jones had been out of Ohio for ~27 days during the limitations period.
- Defendants moved for summary judgment (statute of limitations) and moved for judgment on the pleadings as to Jones (arguing Civ.R. 15(D) was not followed: summons lacked “name unknown” and service was not personal).
- Trial court granted defendants’ motions, dismissing the complaint; the court of appeals affirmed as to CME (time-barred) but reversed as to Jones, holding Civ.R.15(A) amendment before the limitations period expired allowed the filing and service as was done.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 15(D) strictly applied so failure to include “name unknown” in the summons and to effect personal service required dismissal of the John Doe → Jones amendment | Schisler: Civ.R. 15(D) applies only when relation back under Civ.R. 15(C) is needed; here the amended complaint was filed within the applicable limitations period as to Jones under Civ.R. 15(A) so 15(D) is inapplicable | Defendants: Civ.R. 15(D) mandates the summons contain “name unknown” and personal service; failure to comply is fatal regardless of other rules | Court: Reversed dismissal as to Jones — because amendment under Civ.R. 15(A) was filed while limitations were tolled as to Jones, strict 15(D) formalities did not bar the claim |
| Whether the claim against CME (derivative employer liability) is time-barred despite tolling for Jones’s absence | Schisler: Tolling of limitations for Jones’s ~27‑day absences should toll the derivative claim against CME | CME: CME was amenable to service during the limitations period (statutory agent, open for business); the claim against CME accrued more than two years after the accident and is untimely | Court: Affirmed summary judgment for CME — plaintiff’s derivative claim against employer is time‑barred because CME was amenable to service and the action was filed after the statutory period |
Key Cases Cited
- Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576 (1994) (trial court may take judicial notice of its own docket)
- Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (statute‑of‑limitations bar should not be determined by motion to dismiss if complaint does not conclusively show time bar)
- Erwin v. Bryan, 125 Ohio St.3d 519 (2010) (Civ.R. 15(D) permits suing a defendant by fictitious name only if complaint avers inability to discover name, summons contains "name unknown," and personal service is made)
- Amerine v. Haughton Elevator Co., 42 Ohio St.3d 57 (1989) (personal service required under Civ.R. 15(D); certified mail insufficient)
- Doe v. First United Methodist Church, 68 Ohio St.3d 531 (1994) (statute of limitations applicable to employee applies equally to employer under respondeat superior)
- Peterson v. Teodosio, 34 Ohio St.2d 161 (1973) (Civ.R. 12(C) motion decides questions of law and requires that no factual issues exist)