Trial Court No. CI-97-3356
The opinion of the court was delivered by: Resnick, M. L., J.
DECISION AND JUDGMENT ENTRY
This case is before the court on appeal from the grant of summary judgment by the Lucas County Court of Common Pleas in favor of appellees, State Farm Life Insurance Company ("State Farm"), and Dianne L. Michael. Appellant, Mark A. Michael, appeals those judgments and asserts the following assignments of error:
"1. THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S, MOTION TO DEEM PORTIONS OF DIANNE MICHAEL'S ADMITTED [sic] BECAUSE OF PATENT SHAM RESPONSES."
"2. THE TRIAL COURT ERRED IN HOLDING THAT THE ONE YEAR STATUTE OF LIMITATIONS APPLICABLE TO ASSAULT AND BATTERY APPLIED TO THIS CIVIL CONSPIRACY TO DEFRAUD AN INSURER OF LIFE INSURANCE PROCEEDS THAT WAS TO BE CARRIED INTO EFFECT BY THE DEATH OF MARK MICHAEL, AND BY FAILING TO APPLY R.C. 2305.09(D).
"3. THE TRIAL COURT ERRED IN HOLDING, AS A MATTER OF LAW, THAT MARK MICHAEL KNEW, OR BY THE EXERCISE OF REASONABLE DILIGENCE SHOULD HAVE KNOWN, THAT DIANNE MICHAEL WAS A PART OF SUCH CONSPIRACY FOR THE APPLICATION OF THE LIMITATION SET FORTH IN R.C. 2305.111.
"4. THE TRIAL COURT ERRED IN HOLDING THAT STATE FARM WAS NOT NEGLIGENT BECAUSE IT HAD NO KNOWLEDGE OF DIANNE MICHAEL'S INTENT WHEN IT WAS UNDISPUTED THAT DIANNE MICHAEL WAS AN AGENT OF STATE FARM AND HER ACTUAL KNOWLEDGE OF THE PERSON'S FORGERY OF THE APPLICATION AND THE PERSON SUBMITTING THE APPLICATIONS MOTIVE FOR DOING SO IS ATTRIBUTED AS A MATTER OF LAW TO STATE FARM."
The undisputed facts of this case are as follows. Dianne L. Michael and Mark A. Michael were married in 1982. Either in 1986 or 1987, Dianne Michael became an agent of State Farm. In 1989, 1990 and 1992, Dianne filed applications for life insurance policies in the name of appellant. Appellant testified that the signature on these applications was not his signature and insisted that he gave his ex-wife permission to use his signature for only the 1989 policy.
On April 4, 1995, appellant was contacted by a medical facility that performs physicals on individuals who apply for life insurance. At that point, appellant and Dianne Michael were experiencing severe marital problems, and appellant knew that he neither wanted nor applied for another life insurance policy. Appellant called Dianne. She told him that this was a "re-entry" of his life insurance in order to obtain premiums at a lower rate. Appellant then agreed to the re-entry; he conceded in his deposition testimony that this was not a new policy, but was, indeed, a re-entry for the purpose of maintaining or reducing his insurance premium. When he went for the physical, appellant learned that the amount for which he was insured under this particular policy was $250,000.
On April 26, 1995, appellant arrived home at approximately eleven-thirty in the evening. The outside lighting around the home and garage was "unplugged" and it was dark. After appellant exited his vehicle, he was attacked and beaten with a police baton, suffering severe head injuries. It was, within a short time, learned that appellant's assailant was Dianne's purported lover, Jonathan Scott Sass. Sass was arrested for felonious assault and convicted.
On April 25, 1997, appellant commenced the instant case against State Farm, Dianne Michael and Holly Hammond. Hammond, who was a roommate of Sass at the time of the assault, was the owner of the police baton used in the attack on appellant. Count One of the complaint alleged that Jonathan Sass and Dianne Michael conspired to murder appellant in order to obtain the proceeds of the $250,000 life insurance policy, and that because Dianne was an agent of State Farm, State Farm was responsible for its agent's: "securing a life insurance policy on the life of Mark A. Michael and knowing that the signature on the policy was forged and knowing that it was to constitute proceeds for such murder attempted."
In Count Two, appellant maintained that Jonathan Sass, Dianne Michael and State Farm, through its agent, Dianne Michael, conspired to "defraud" appellant of his "right to his signature, the right to insure his life, and the right to receive the proceeds of any insurance." Count Three claimed that Holly Hammond negligently gave, or allowed Sass access to, the baton used in the assault. Appellant also asserted that State Farm was negligent in issuing a life insurance policy in his name without knowing that his signature was forged and that the policy would provide the incentive to murder him.
After answering, the three named defendants each filed motions for summary judgment/motions to dismiss for failure to state a claim upon which relief could be granted. The trial court granted all three motions. The court determined that appellant's civil conspiracy claims were barred by the one year statute of limitations applicable to actions for assault and battery, as set forth in R.C. 2305.111. The court held that appellant failed to offer any facts demonstrating that Holly Hammond breached a duty, if any, owed to appellant and granted Hammond's motions for summary judgment *fn1 . The court also granted State Farm's motion for summary judgment on Count 3, finding that "no evidence was presented that State Farm had any knowledge of Diane [sic] Michael's intent [to murder appellant]."
We shall first consider appellant's second and third assignments of error as they both relate to appellant's conspiracy claims. In his second assignment of error, appellant contends that the trial court erred in referring to the "underlying cause of action" in order to determine the statute of limitations applicable to the civil conspiracy claims. Appellant suggests that the four year statute of limitations found in R.C. 2305.09(D), as applicable to cases involving injury not otherwise enumerated in R.C. Chapter 2305, should be employed in civil conspiracy cases. In the alternative, appellant argues that the underlying cause of action is fraud, a cause of action with a four year statute of limitations. See R.C. 2305.09(C). In his third assignment of error, ...