2014 Ohio 410
Ohio Ct. App.2014Background
- On Jan. 19, 2011, James T. Cheeks, Jr. drove left-of-center and collided with Ronald Posey’s vehicle in Stark County, Ohio. Posey’s car was totaled.
- State Farm (appellee) paid Posey $35,757.19 for the vehicle loss and $200 for rental expenses; net salvage recovered was $6,075.37; State Farm sought subrogation for $29,881.82 plus interest and costs.
- State Farm sued Cheeks on Jan. 16, 2013; Cheeks answered and disputed liability and damages; State Farm moved for summary judgment on May 22, 2013.
- State Farm supported the motion with affidavits (Posey and company rep Maria Fisher) documenting total-loss valuation (NADA), payments made, tax/title amounts, and that the policy allowed subrogation.
- Cheeks argued comparative negligence and that tax/title fees should not be included; he also challenged evidentiary sufficiency of the affidavits and absence of the insurance policy attachment.
- Trial court granted summary judgment for State Farm for $29,881.82 plus costs and 3% statutory interest; Cheeks appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of affidavits (Fisher/NADA/salvage) | Affidavits establish total loss, valuation, payments, and salvage; support summary judgment. | Affidavits defective: non‑creator of NADA report, inadequate salvage explanation. | Court refused new arguments raised only on appeal; no review — summary judgment stands. |
| Inclusion of tax and title in damages | Taxes and title are proximate costs caused by negligence; recoverable to make insured whole. | Fair market value damages should not include tax/title fees. | Taxes/title admissible; Fisher’s figures uncontradicted; included in award. |
| Need to attach insurance policy to prove subrogation | Posey’s and Fisher’s affidavits show existence of coverage and subrogation rights. | State Farm should have attached a certified copy of the policy. | Policy need not be attached when affidavits/testimony establish subrogation; summary judgment proper. |
| Comparative negligence (Posey’s fault) | Posey’s affidavit denies contributing to accident; Cheeks admitted left-of-center and allegedly fell asleep. | Cheeks argued factual dispute about comparative negligence requiring jury. | Cheeks produced no Civ.R. 56 evidence disputing Posey; no genuine issue of material fact; summary judgment proper. |
Key Cases Cited
- Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (Ohio 1981) (summary judgment not appropriate when reasonable minds could differ on material facts)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (Ohio 1987) (appellate review of summary judgment uses same standard as trial court)
- Doe v. Shaffer, 90 Ohio St.3d 388, 738 N.E.2d 1243 (Ohio 2000) (de novo review of summary judgment)
- Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (moving party’s initial burden in summary judgment and burden shift rules)
- Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (Ohio 1984) (court may not resolve ambiguities in evidence on summary judgment)
- Chemical Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624 (Ohio 1989) (insurer subrogated to insured’s rights)
- Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (Ohio Ct. App.) (non‑moving party must produce evidentiary materials to show genuine issue)
- Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (Ohio Ct. App.) (definition of material fact in summary judgment context)
- Lippy v. Society Nat’l Bank, 88 Ohio App.3d 33, 623 N.E.2d 108 (Ohio Ct. App.) (issues not raised at trial generally waived on appeal)