Pottorf v. SellPottorf v. Sell
Richard S. Davis for Appellants
Edward T. Mohler for Appellees
{¶1} Plaintiffs-Appellants Sherry and Douglas Pottorf appeal from the November 10, 2008 judgment of the Court of Common Pleas of Shelby County, Ohio, granting summary judgment in favor of Defendant-Appellee Nationwide Mutual Fire Insurance Company (“Nationwide“).
{¶2} Appellant Sherry Pottorf was injured in a motor vehicle accident caused by the negligence of Defendant Tracy Sell (“Sell“) on July 19, 2005. At the time of the accident, Pottorf had uninsured/underinsured-motorist (“UM/UIM“) coverage with Nationwide. She also had medical payments coverage through the same policy. Sell had liability insurance through American Family Insurance Company with a policy limit of $50,000.00, at the time of the accident. In July of 2006, Nationwide paid $20,000.00 to Sherry Pottorf for the injuries she sustained as a result of the accident.
{¶3} On July 18, 2007, Sherry Pottorf and her husband, Douglas, filed a complaint in the Shelby County Court of Common Pleas, naming Sell as the sole defendant. In the complaint, the Pottorfs claimed damages in excess of $150,000.00. The matter proceeded to mediation in June of 2008, and a pre-trial scheduling conference was had on July 16, 2008. The trial court set a final pre-trial date and jury trial date for later in the year. On August 26, 2008, an agreed judgment entry was filed, permitting the Pottorfs to file an amended complaint.
No lawsuit may be filed against us by anyone claiming any of the coverages provided in this policy until the said person has fully complied with all the terms and conditions of this policy . . . under the Uninsured Motorists coverage of this policy, any lawsuit must be filed against us: a) within three (3) years from the date of the accident[.]
{¶4} The Pottorfs timely responded on October 24, 2008, and Nationwide filed a reply to that response on October 31, 2008. The trial court granted summary judgment in favor of Nationwide on November 10, 2008. This judgment was certified as a final appealable order pursuant to
{¶5} The Pottorfs now appeal, asserting one assignment of error.
THE TRIAL COURT ERRED IN GRANTING APPELLEE’ [sic] MOTION FOR SUMMARY JUDGMENT AS IS [sic] DID NOT APPLY THE PROPER STANDARD FOR DECIDING A MOTION FOR SUMMARY JUDGMENT; IT DID NOT APPLY THE PROVISION OF CIVIL RULE 15, NOR WAS APPELLANT PROVIDED AN OPPORTUNITY TO DEMONSTRATE THE UNFAIR AND DECEPTIVE PRACTICES OF APPELLEE.
{¶7} The party moving for summary judgment bears the initial burden of identifying the basis for its motion in order to allow the opposing party a “meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d 798. The moving party also bears the burden of demonstrating the absence of a genuine issue of material fact as to an essential element of the case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Once the moving party demonstrates that he is entitled to summary judgment, the burden shifts to the non-moving party to produce evidence on any issue which that party bears the burden of production at trial. See
{¶8} On appeal, the Pottorfs argue that the trial court erred in granting summary judgment in favor of Nationwide for three reasons. First, they maintain that genuine issues of material fact exist. Second, the Pottorfs assert that they filed suit within the required three-year time period because of the “relation back” provision in
{¶9} Initially, we note that there appears to be no dispute that Sell was negligent, causing the accident. Nor does there appear to be any dispute that the Pottorfs had a valid insurance policy with Nationwide on the date of the accident, which included UM/UIM coverage, and that Sherry Pottorf‘s physical injuries
Claimed Issues of Material Fact as to the Application of the Three-Year Period to the Circumstances of This Case
{¶10} The Supreme Court has repeatedly held that “‘the legal basis for recovery under the uninsured motorist coverage of an insurance policy is contract and not tort.‘” Angel v. Reed, 119 Ohio St.3d 73, 2008-Ohio-3193, 891 N.E.2d 1179, at ¶ 10, quoting Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 632, 635 N.E.2d 323 (other citations omitted). Ordinarily, causes of action based on contracts have a fifteen year statutory time limitation. Miller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624, 1994-Ohio-160, 635 N.E.2d 317. “However, the parties to a contract may validly limit the time for bringing an action on a contract to a period that is shorter than the general statute of limitations for a written contract, as long as the shorter period is a reasonable one.” Id.
{¶11} In Miller, the Court found that a two-year limitation period was a “‘reasonable and appropriate’ period of time in which to require an insured who has suffered bodily injury to commence an action under the uninsured/underinsured-motorist provisions of an insurance policy.” Angel, 2008-Ohio-3193, at ¶ 12, quoting Miller, 69 Ohio St.3d at 625, 635 N.E.2d 317. This same time limitation in an insurance contract with an UM/UIM provision was once again found valid in Angel. Angel, 2008-Ohio-3193, at ¶ 13. Additionally,
{¶12} In the case sub judice, the policy states that any suit filed against Nationwide under the uninsured motorist provision, which also includes underinsured motorist coverage, must be brought within three years from the date of the accident. In light of Angel, Miller, and
{¶13} Nevertheless, the Pottorfs maintain that they did not know the policy limits of Sell‘s liability coverage until the court-ordered mediation was held in June of 2008. Accordingly, they claim they were unaware that they would need to make a claim under their UM/UIM provision until such time, which is why their suit against Nationwide was not filed until after they learned of Sell‘s policy limits. As a result, the Pottorfs claim these circumstances tolled the running of the three-year period until the discovery of the relevant information in June of 2008,
{¶14} However, the Ohio Supreme Court rejected a similar argument in Angel. See Angel, 2008-Ohio-3193, at ¶ 17-19. In Angel, the tortfeasor, Reed, reported that he had liability insurance, but after three years, the plaintiff discovered Reed‘s policy was cancelled three months before the accident. Id. at ¶¶ 2, 16. The plaintiff argued that she had no way of knowing that Reed did not have insurance and that the two-year limitation period in her uninsured motorist coverage could not begin to run until she learned of his status. Id. at ¶ 16. The Court rejected this contention, noting that “‘all that was necessary to determine Reed‘s insurance status was to contact Nationwide. There is no reason why it should have taken Angel three years to realize Reed was uninsured.‘” Id. at ¶ 17, quoting Angel v. Reed, Geauga App. No. 2005-G-2669, 2007-Ohio-1069, at ¶ 27 (Grendell, J., dissenting).
{¶15} The same is true for the Pottorfs. At any time Sell‘s insurance company could have been contacted to determine the policy limits. In addition, the mechanisms in the discovery portions of the Civil Rules could have been utilized to determine Sell‘s liability coverage, if any. To the contrary, the record is devoid of any interrogatories, requests for admissions, and/or requests for production of documents, whereby a copy of Sell‘s insurance policy could have
Relation Back under Civil Rule 15(C)
{¶16} The next question is whether the amendment of the Pottorfs’ complaint on August 26, 2008, relates back to the original date of the filing of the complaint on July 18, 2007. If it does, then the suit against Nationwide would have been deemed commenced within the three-year limitations period and summary judgment would have been inappropriate.
{¶17}
[a]n amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been brought against him.
{¶18} In this case, the parties do not dispute that the Pottorfs’ amended complaint satisfied the first requirement that it arise out of the same conduct, transaction, or occurrence as the original complaint. Further, when construing the evidence in a light most favorable to the Pottorfs, Nationwide received notice of the institution of the action prior to the expiration of the three-year limitations period.
{¶20} Nevertheless, the “relation back” theory fails on the third requirement. The Pottorfs do not contend that their original complaint contained a misnomer or that they made a mistake as to the identity of the proper party. Rather, they assert that they did not know Sell‘s policy limitations and that they would need to make a claim for UM/UIM coverage. This circumstance is not the kind of problem
{¶21} The Pottorfs were aware of their UM/UIM coverage with Nationwide. They also filed their original complaint against Sells an entire year prior to the expiration of the contractual limitations period in their Nationwide policy, which gave them ample opportunity to ascertain what, if any, and how much insurance coverage Sells had. Lastly, the Pottorfs did not file a motion for
{¶22} In any event, there was no mistake in identity as to the proper party to sue as provided for in
Claimed “Unconscionability” of the Three-Year Contract Provision
{¶23} Lastly, the Pottorfs assert that summary judgment was improper without first addressing whether the limitations period in the policy with Nationwide was void due to the unfair or deceptive practices and/or provisions by Nationwide. In support, the Pottorfs maintain that the limitations period for suit to invoke the UM/UIM coverage in the policy is in a portion separate from the UM/UIM provisions, which is a deceptive and unfair act. More particularly, they contend that the UM/UIM portion of the policy appears to be complete and thus creates the impression that following that section alone is all an insured needs to do in order to make a claim.
{¶24} Notably, the Pottorfs failed to raise this issue in its response to Nationwide‘s summary judgment motion in the trial court. “A party‘s failure to raise an issue in response to an adverse party‘s motion for summary judgment
{¶25} The policy contains a Table of Contents immediately following the declarations page and two endorsements. There are four areas of coverage listed in this table, including “Uninsured Motorists” coverage, pages U1-U5. Immediately thereafter is a section entitled “General Policy Conditions.” Included in this list is a sub-section entitled “Suit Against Us” at page G3, which is located three pages after the UM coverage section. As previously noted, this sub-section states:
10. SUIT AGAINST US
No lawsuit may be filed against us by anyone claiming any of the coverages provided in this policy until the said person has fully complied with all the terms and conditions of this policy, including but not limited to the protection of our subrogation rights.
Subject to the preceding paragraph, under the Uninsured Motorists coverage of this policy, any lawsuit must be filed against us:
(a) within three (3) years from the date of the accident; or
(b) within one (1) year after the Liability insurer for the owner or operator of the motor vehicle liable to the insured has become the subject of insolvency proceedings in any state;
whichever is later.
{¶26} This language is substantially similar to the policy provisions found to be valid by the Ohio Supreme Court in Angel, supra, and Miller, supra. Further, the words used are clear and unambiguous as required to limit the time for bringing an action on a contract to a period that is shorter than the general statute of limitations for a written contract. See Angel, 2008-Ohio-3193, at ¶ 11, citing Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-Ohio-5410, 835 N.E.2d 692, at ¶ 11. Moreover, the three year limitations period has been expressly endorsed by the Ohio General Assembly in enacting
{¶27} Accordingly, we find that the trial court did not err in granting summary judgment in favor of Nationwide. Therefore, the Pottorfs’ sole assignment of error is overruled, and the November 10, 2008 Judgment Entry of the Shelby County Court of Common Pleas is affirmed.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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