Intercity Auto Sales, Inc. v. EvansIntercity Auto Sales, Inc. v. Evans
JOURNAL ENTRY AND OPINION
INTERCITY AUTO SALES, INC. PLAINTIFF-APPELLANT vs. JAMES E. EVANS, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-703686
RELEASED AND JOURNALIZED: March 24, 2011
Robert N. Pelunis
P.O. Box 39242
Cleveland, Ohio 44139
ATTORNEYS FOR APPELLEES
For James E. Evans
Vincent E. Cononico
55 Public Square, Suite 1331
Cleveland, Ohio 44113
For Allstate Insurance Co.
Darrel A. Bilancini
Savoy & Bilancini
595 West Broad Street
Elyria, Ohio 44035
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Intercity Auto Sales, Inc. appeals from the trial court order thаt granted summary judgment to defendant-appellee Allstate Insurance Company on Intercity’s complaint.
{¶ 2} Intercity brought claims against Allstate for “bad faith” and “punitive damages.” It presents fоur assignments of error in which it claims summary judgment on those claims was improper. This court disagrees.
{¶ 3} Interсity filed its complaint in this action against James Evans and Allstate. In Count One, Intercity alleged that Evans negligently operated his vehicle in reverse, thereby proximately causing “physical damаge” to an automobile owned by Intercity, and that Evans accepted liability for his negligence.
{¶ 4} In Count Two, Intercity alleged that Allstate “insured” Evans, “accepted liability on behalf of its insured,” but, after an inordinate period of time, “refused to pay” for Intercity’s full loss of the use of its vehicle. Intercity claimed Allstate acted in “bad faith” in processing “this claim.”
{¶ 5} In Count Three, Intercity assеrted a claim for “punitive damages” due to Allstate’s “extreme and outrageous” conduct in three respects, viz., “not looking at” Intercity’s vehicle or providing a “comparable rеntal car” for Intercity’s use, in unnecessarily “extending the loss of use” of the vehicle to Intercity, and in “attempting to require that [Intercity] take the vehicle to another body shop * * * .”
{¶ 6} Allstate filеd an answer in which it admitted it insured Evans and accepted his liability for the accident, but denied the remaining pertinent
{¶ 7} Subsequently, Allstate filed a motion for summary judgment on Intercity’s claims against it. Allstate argued that since the policy of insurance was with Evans, and since Intercity had not obtained a judgment against Evans on its claim of negligence, Intercity had no cognizable claim against Allstate. Allstate did not attach any evidentiary material to its motion, since its аrgument was based solely on Ohio law.
{¶ 8} Intercity filed a brief in opposition to Allstate’s motion. Intercity argued that it had brought its claim against Allstate because Allstate had “committed a tort against” Intercity. Intercity attached to its brief the affidavit of George R. Sapir, a “duly authorized officer.” Although Sapir did not profess to have any personal knowledge, his affidavit nevertheless rеstated the pertinent allegations of the complaint.
{¶ 9} After Allstate filed a reply brief, the trial court granted its motion for summary judgment on the complaint. The trial court informed Intercity that it “must first obtain judgment against Evans before being permitted to maintain an action against Evans’ insurer.”
{¶ 10} Intercity thereafter dismissed its claims against Evans with prejudice, and obtained a final order from the trial сourt pursuant to
{¶ 11} “I. The trial court did not properly grant Appellees’ [sic] motion for summary judgment.
{¶ 12} “a. appellant demоnstrated the existence of genuine issues of material fact with respect to the claim of bad faith against Appellee.
{¶ 13} “b. appellant demonstrated the existence of genuine issues of material fact with respect to their [sic] claim of actual notice against Appellee.1
{¶ 14} “II. The trial court improperly granted summary judgment on issues of damages and рunitive damages that are properly questions of fact for a jury to decide.
{¶ 15} “III. The trial court did not consider that Appellant’s case against Appellee was as an actuаl tortfeasor, not one of a third-party beneficiary.
{¶ 17} Although phrased in alternate ways, Intercity simply argues that summary judgment on its claims against Allstate was improper, because the issues presented in this case did not involve a matter of law. Its argument is rejected.
{¶ 18}
{¶ 19} “ * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulаtions of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law. No evidence or stipulation may be considered except as stated in this rule. * * * ”
{¶ 20} In reviewing a trial court’s ruling on a motion for summary judgment, an appellate court applies the same analysis a trial court is requirеd to apply in the first instance. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121. If a document presented by a party does not fall within any of the categories listed in the
{¶ 21} According to
{¶ 22} Although Intercity asserted genuine issues of material fact existed in this case, it presented no evidence cognizable under
{¶ 23} Clearly, an insurance company has a duty to act in gоod faith in settling claims, but that duty is owed only to the insured. Pasipanki v. Morton (1990), 61 Ohio App.3d 184, 185, 572 N.E.2d 234. The duty arises independent of the contract of insurance, and permits the insured to bring a cause of action against his insurer in tort. Stevenson v. First Am. Title Ins. Co., Fairfield App. No. 05-CA-39, 2004-Ohio-6461, ¶23, citing Hoskins v. Aetna Life Ins. Co.(1983), 6 Ohio St.3d 272, 452 N.E.2d 1315, parаgraph one of the syllabus.
{¶ 24} The insurer owes no duty to third parties. Pasipanki. A third party, therefore, has no cause of action for bad faith against the tortfeasor’s insurance company. Schneider v. Eady, Lorain App. Nos. 07CA009273 and 07CA009305, citing Chitlik.
{¶ 25} Intercity strenuously argued that Allstate’s actions toward it gave rise to liability in tort.2 However, Intercity can cite no authority that actually supports its argument. Intercity obtained no judgment against Evans to enforce against his insurer; indeed, the record reflects Intercity settled with Evans. This sort of situation was considered by the Ninth District in Calich v. Allstate Ins. Co., Summit App. No. 21500, 2004-Ohio-1619, which expressed the following concern at ¶8:
{¶ 26} “ * * * Allowing the filing of such a bad faith claim can potentially encourage a judgment-proof tortfeasor to conspire with the plaintiff and enter an agreement for an astronomical sum with a full release to the tortfeasor. Even if the tortfeasor is not judgment-proof, he still escapes liаbility as a result of the full release. This result is extremely beneficial to the tortfeasor, who escapes liability, and to the plaintiff, who has the potential to gain a sum of money that greatly exceeds his or her actual injuries. Such a ‘manufacturing’ of these bad faith claims, as between the tortfeasor and the plaintiff, puts an insurance company in a precarious situаtion, without a legitimate opportunity to properly protect itself from a bad faith claim. This Court will not promote the manufacturing of these bad faith claims. More
{¶ 27} Since Intercity had no cognizable clаim against Allstate for bad faith, its claim for punitive damages also failed. The Ohio Supreme Court has held that “no civil cause of action in this state may be maintained simply for punitive damages.” Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶13. See, also, Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 650, 1994-Ohio-324, 635 N.E.2d 331, which held that, since “punitive damages are awarded as a mere incident of the cause of action in which they are sought * * *, compensable harm stemming from a cognizable cause of action must be shown to exist before punitive damages can be considered.” Intercity had no cognizable cause of action against Allstate in this case, therefore, it hаd no claim for punitive damages.
{¶ 28} In light of the record and the foregoing, the trial court correctly granted summary judgment in favor of Allstate on Intercity’s complaint.
{¶ 29} Consequently, Intercity’s assignments оf error are overruled. Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this apрeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, JUDGE
MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR