Background

• Warren filed a complaint on February 17, 2010 in Summit County Court of Common Pleas against the Estate of Gregory Durham and Progressive alleging a 2006 automobile accident and seeking damages and declarations regarding uninsured/underinsured motorist coverage.
• The case caption indicated it was a re-filed action; Warren alleged Durham died in 2006.
• The Estate moved to dismiss under Civ.R. 12(B)(6) arguing the claim was time-barred by the statute of limitations and that the savings statute did not apply; Progressive opposed, and Warren opposed, asserting the savings statute applied and timeliness.
• The trial court granted the Estate’s motion, concluding the savings statute did not apply because Warren did not commence or attempt to commence the prior action; dismissal followed.
• Warren moved to certify the dismissal as a final appealable order under Civ.R. 54(B); the trial court granted certification.
• The Ninth District Court of Appeals reversed, holding that the trial court relied on facts outside the complaint and erred in dismissing under the statute of limitations; the matter was remanded for proceedings consistent with the opinion.

Issues

Key Cases Cited

• Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156 (Ohio 2011) (de novo review of Civ.R. 12(B)(6) dismissal standard)
• Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231 (Ohio App. 2000) (notice pleading sufficiency and tolling considerations)
• Cotton v. Anderson, 2007-Ohio-6548 (9th Dist. 2007) (review limits when considering evidence outside the complaint)
• Lansing v. Hybud Equip. Co., 2002-Ohio-5869 (5th Dist. 2002) (requirement to convert for Civ.R. 56 if outside evidence is used)