Curtin & Associates has been monitoring the progress of a case that is significant for the insurance industry. Accordingly, our Newsletter was delayed inasmuch as the case was just decided on August 8, 2007 and the firm wanted to immediately summarize the case in our July Newsletter. Therefore, the July Newsletter has been held pending the anticipated announcement of this decision.
Curtin & Associates oftentimes receives inquiries pertaining to the propriety of filing an Answer on behalf of an insured even if service has not been perfected. The Ohio Supreme Court has handed down a decision which clearly indicates that an answer may be filed on behalf of the insured providing the affirmative defense of insufficiency of service of process has been incorporated into the Answer.
Sufficiency Of Service – Motion To Dismiss For Lack Of Sufficient Service Upheld Despite Active Participation By The Defendant In The Litigation
Gliozzo v. Univ. Urologists of Cleveland, 2007 WL 2141603 (Ohio), 2007-Ohio-3762:
In Gliozzo v. Univ. Urologists of Cleveland, the Ohio Supreme Court heard a matter stemming from a medical malpractice claim filed on November 14, 2003. Noting that the plaintiff had one year in which to perfect service pursuant to O.R.C.P. 3(A), the Court observed that service had been attempted by certified mail but failed and no further attempt was ever made to serve the defendants.
On February 10, 2004, a stipulated motion allowing the defendants until March 9 to answer the plaintiff’s complaint was filed. Thereafter, the defendants filed an answer denying the allegations contained in the complaint and also specifically including the affirmative defense of insufficiency of service and statute of limitations. The trial was set for April 13, 2005 and a dispositive motion cut-off was set of January 28, 2005.
The defense never filed a motion to dismiss within the dispositive motion cut-off date. Rather, on April 4, 2005, the defendants filed a motion to dismiss due to the failure to perfect service. The trial court dismissed the case but, at the appellate level, the Eighth District Court of Appeals reversed the lower court apparently due to the defendants’ active participation in the case which led the appellate court to conclude that the defense had waived the insufficiency of service issue. A discretionary appeal was accepted by the Ohio Supreme Court.
The Court began its analysis by noting that the defense of insufficiency of service is governed by O.R.C.P. 12(B) requiring the defense to be raised by motion or set forth in a responsive pleading. The failure to take either of those procedural steps would constitute a waiver of that defense. The Court next looked to precedent and examined its prior decision in First Bank of Marietta v. Cline (1984) 12 Ohio St.3d 317 wherein the Court had held that even proceeding to a jury trial did not constitute a waiver of the defense on the issue of service.
The Court thereafter concluded, based upon the Ohio Rules of Civil Procedure and prior case law on the same topic, the following in paragraphs 11 – 13 of its opinion:
“Both Civ.R. 12 and our decision in Cline support the conclusion that when the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party’s active participation in litigation of a case does not constitute waiver of that defense. Civ.R. 12(H)(1) does not include a party’s participation in the case as a method of waiver. In our interpretation of the rule in Cline, we determined that a properly asserted and preserved defense may be raised even after trial has begun. Nothing in the facts here causes us to reconsider that conclusion.
Appellants did not file a pre-answer motion, but instead properly raised the affirmative defense of insufficiency of service of process by including it in their answer, as Civ.R. 12 requires.
...
The only way in which a party can voluntarily submit to a court’s jurisdiction, however, is by failing to raise the defense of insufficiency of service of process in a responsive pleading or by filing certain motions before any pleading. (citation omitted). Only when a party submits to jurisdiction in one of these manners will the submission constitute a waiver of the defense.”
Based upon that decision, an answer can be filed but it is imperative to assert the requisite 12(B) defense. Only Judge Pfeifer dissented noting in paragraph 20 of his dissent the following:
“In allowing the dismissal of this case, the majority is not cautiously exercising judicial discretion, it is elevating legalistic rules over substance and subverting justice. Sadly, we are returning to the days of yore, when the pleadings ruled, and notice was just a salutary goal. Before you know it, demurrer will be back. I dissent.”
Dismissal Other Than On The Merits Is Appealable
Natl. City Commercial Capital Corporation v. AAAA At Your Serv., Inc., (2007)
114 Ohio St.3d 82:
In Natl. City Commercial Capital Corporation v. AAAA At Your Serv., Inc., the Ohio Supreme Court dealt with a case wherein National City Corporation had filed an action in the Butler County Court of Common Pleas asserting jurisdiction with regard to a business dispute. The defendants filed a motion to dismiss claiming that Ohio did not have personal jurisdiction and the trial court granted that motion to dismiss.
The unique aspect of this case was summarized in the certified question stated by the court in paragraph 1 of its opinion:
“The certified question is ‘whether a dismissal other than on the merits which prevents re-filing in the trial court is a final, appealable order.’ For the reasons that follow, we conclude that such a dismissal is a final, appealable order.”
The unique aspect of the case is that typically a dismissal otherwise than on the merits does not meet the traditional definition of a “final order.” The court summarized the difficult position National City would be in in paragraph 8 of its opinion wherein it stated the following:
“Ordinarily, a dismissal ‘otherwise than on the merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order. In this case, however, National City cannot refile. In essence, a final judgment has been rendered against National City because the cause has been disposed of and there is nothing left for the determination of the trial court.”
The court was troubled by the inequitable position National City would find itself in and summarized the inequity in paragraph 9 of its opinion wherein it stated as follows:
“National City has a contract that it is seeking to enforce, but upon a determination that the trial court lacks personal jurisdiction over the defendant, National City is prevented from enforcing that right. If the trial court’s decision is not final and appealable, National City is prevented even from challenging the trial court’s decision to dismiss its case. The injustice of this result is manifest and is proven by a simple example. Suppose a person who had never been in a state other than Ohio or a country other than the United States sued another person who had never been in a state other than Ohio or a country other than the United States, and suppose further that the trial judge dismissed the case for lack of personal jurisdiction. According to the rule of law proposed by the appellants, the losing party would have no right to appeal – not in Ohio, not in another state, not in another country. Such a rule of law cannot stand.”
The Court concluded by noting that even though the dismissal was otherwise than on the merits, the dismissal was a final appealable order.
Judge Pfeifer wrote in the majority in this matter and Judge O’Donnell was the singular dissent.
Trial Updates
Curtin & Associates is pleased to review significant jury trials recently completed by our office:
Stewart v. Friedrichsen, Cuyahoga County Court of Common Pleas Case No. CV 03 513345 – On July 26, 2007, G. Michael Curtin tried a case involving a negligent free passenger as well as a driver, both of whom asserted a claim against Mr. Friedrichsen, claiming negligence. The jury returned a verdict finding 100% negligence attributable to the plaintiff driver thereby operating as a bar to the claim of the plaintiff passenger.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Curtin & Associates has been monitoring the progress of a case that is significant for the insurance industry. Accordingly, our Newsletter was delayed inasmuch as the case was just decided on August 8, 2007 and the firm wanted to immediately summarize the case in our July Newsletter. Therefore, the July Newsletter has been held pending the anticipated announcement of this decision.
Curtin & Associates oftentimes receives inquiries pertaining to the propriety of filing an Answer on behalf of an insured even if service has not been perfected. The Ohio Supreme Court has handed down a decision which clearly indicates that an answer may be filed on behalf of the insured providing the affirmative defense of insufficiency of service of process has been incorporated into the Answer.
Sufficiency Of Service – Motion To Dismiss For Lack Of Sufficient Service Upheld Despite Active Participation By The Defendant In The Litigation
Gliozzo v. Univ. Urologists of Cleveland, 2007 WL 2141603 (Ohio), 2007-Ohio-3762:
In Gliozzo v. Univ. Urologists of Cleveland, the Ohio Supreme Court heard a matter stemming from a medical malpractice claim filed on November 14, 2003. Noting that the plaintiff had one year in which to perfect service pursuant to O.R.C.P. 3(A), the Court observed that service had been attempted by certified mail but failed and no further attempt was ever made to serve the defendants.
On February 10, 2004, a stipulated motion allowing the defendants until March 9 to answer the plaintiff’s complaint was filed. Thereafter, the defendants filed an answer denying the allegations contained in the complaint and also specifically including the affirmative defense of insufficiency of service and statute of limitations. The trial was set for April 13, 2005 and a dispositive motion cut-off was set of January 28, 2005.
The defense never filed a motion to dismiss within the dispositive motion cut-off date. Rather, on April 4, 2005, the defendants filed a motion to dismiss due to the failure to perfect service. The trial court dismissed the case but, at the appellate level, the Eighth District Court of Appeals reversed the lower court apparently due to the defendants’ active participation in the case which led the appellate court to conclude that the defense had waived the insufficiency of service issue. A discretionary appeal was accepted by the Ohio Supreme Court.
The Court began its analysis by noting that the defense of insufficiency of service is governed by O.R.C.P. 12(B) requiring the defense to be raised by motion or set forth in a responsive pleading. The failure to take either of those procedural steps would constitute a waiver of that defense. The Court next looked to precedent and examined its prior decision in First Bank of Marietta v. Cline (1984) 12 Ohio St.3d 317 wherein the Court had held that even proceeding to a jury trial did not constitute a waiver of the defense on the issue of service.
The Court thereafter concluded, based upon the Ohio Rules of Civil Procedure and prior case law on the same topic, the following in paragraphs 11 – 13 of its opinion:
“Both Civ.R. 12 and our decision in Cline support the conclusion that when the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party’s active participation in litigation of a case does not constitute waiver of that defense. Civ.R. 12(H)(1) does not include a party’s participation in the case as a method of waiver. In our interpretation of the rule in Cline, we determined that a properly asserted and preserved defense may be raised even after trial has begun. Nothing in the facts here causes us to reconsider that conclusion.
Appellants did not file a pre-answer motion, but instead properly raised the affirmative defense of insufficiency of service of process by including it in their answer, as Civ.R. 12 requires.
...
The only way in which a party can voluntarily submit to a court’s jurisdiction, however, is by failing to raise the defense of insufficiency of service of process in a responsive pleading or by filing certain motions before any pleading. (citation omitted). Only when a party submits to jurisdiction in one of these manners will the submission constitute a waiver of the defense.”
Based upon that decision, an answer can be filed but it is imperative to assert the requisite 12(B) defense. Only Judge Pfeifer dissented noting in paragraph 20 of his dissent the following:
“In allowing the dismissal of this case, the majority is not cautiously exercising judicial discretion, it is elevating legalistic rules over substance and subverting justice. Sadly, we are returning to the days of yore, when the pleadings ruled, and notice was just a salutary goal. Before you know it, demurrer will be back. I dissent.”
Dismissal Other Than On The Merits Is Appealable
Natl. City Commercial Capital Corporation v. AAAA At Your Serv., Inc., (2007)
114 Ohio St.3d 82:
In Natl. City Commercial Capital Corporation v. AAAA At Your Serv., Inc., the Ohio Supreme Court dealt with a case wherein National City Corporation had filed an action in the Butler County Court of Common Pleas asserting jurisdiction with regard to a business dispute. The defendants filed a motion to dismiss claiming that Ohio did not have personal jurisdiction and the trial court granted that motion to dismiss.
The unique aspect of this case was summarized in the certified question stated by the court in paragraph 1 of its opinion:
“The certified question is ‘whether a dismissal other than on the merits which prevents re-filing in the trial court is a final, appealable order.’ For the reasons that follow, we conclude that such a dismissal is a final, appealable order.”
The unique aspect of the case is that typically a dismissal otherwise than on the merits does not meet the traditional definition of a “final order.” The court summarized the difficult position National City would be in in paragraph 8 of its opinion wherein it stated the following:
“Ordinarily, a dismissal ‘otherwise than on the merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order. In this case, however, National City cannot refile. In essence, a final judgment has been rendered against National City because the cause has been disposed of and there is nothing left for the determination of the trial court.”
The court was troubled by the inequitable position National City would find itself in and summarized the inequity in paragraph 9 of its opinion wherein it stated as follows:
“National City has a contract that it is seeking to enforce, but upon a determination that the trial court lacks personal jurisdiction over the defendant, National City is prevented from enforcing that right. If the trial court’s decision is not final and appealable, National City is prevented even from challenging the trial court’s decision to dismiss its case. The injustice of this result is manifest and is proven by a simple example. Suppose a person who had never been in a state other than Ohio or a country other than the United States sued another person who had never been in a state other than Ohio or a country other than the United States, and suppose further that the trial judge dismissed the case for lack of personal jurisdiction. According to the rule of law proposed by the appellants, the losing party would have no right to appeal – not in Ohio, not in another state, not in another country. Such a rule of law cannot stand.”
The Court concluded by noting that even though the dismissal was otherwise than on the merits, the dismissal was a final appealable order.
Judge Pfeifer wrote in the majority in this matter and Judge O’Donnell was the singular dissent.
Trial Updates
Curtin & Associates is pleased to review significant jury trials recently completed by our office:
Stewart v. Friedrichsen, Cuyahoga County Court of Common Pleas Case No. CV 03 513345 – On July 26, 2007, G. Michael Curtin tried a case involving a negligent free passenger as well as a driver, both of whom asserted a claim against Mr. Friedrichsen, claiming negligence. The jury returned a verdict finding 100% negligence attributable to the plaintiff driver thereby operating as a bar to the claim of the plaintiff passenger.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.