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Heintzelman, et al. v. Air Experts

October 10, 2011

HEINTZELMAN, ET AL. PLAINTIFFS-APPELLANTS
v.
AIR EXPERTS, INC., ET AL. DEFENDANTS-APPELLEES



Appeal from the Court of Common Pleas, Case No. 04CVH-04-233

The opinion of the court was delivered by: Farmer, J.

Cite as Estate of Heintzelman v. Air Experts, Inc.,

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT:

APPEARANCES:

JUDGES: Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J.

OPINION

Affirmed

{¶1} In August of 1999, Jeffrey and Margaret Heintzelman hired Tom Martel, dba Martel Heating and Cooling, to install an attic air conditioner in their home. The air conditioner never worked properly. Mr. Martel attempted to fix the problem, but was unsuccessful.

{¶2} In 2001, the Heintzelmans hired Air Experts, Inc. to fix the air conditioner. Air Experts was unable to repair the unit and the problems continued.

{¶3} On July 15, 2002, Mr. Heintzelman went to the attic to examine leaking from the air conditioner. Mr. Heintzelman was electrocuted by an unprotected outlet providing power to the condensation pump leading to the air conditioner. The outlet had been installed by Mr. Martel.

{¶4} At the time of the installation of the air conditioner, Mr. Martel was insured under a commercial insurance policy issued by appellee, American Family Insurance, Policy No. 34-X03305-01. The policy was in effect from May 18, 1999 to May 18, 2000, with a limit of $500,000.00.

{¶5} On December 10, 2002, appellant, the Estate of Jeffrey K. Heintzelman, together with Mrs. Heintzelman, filed a complaint against Mr. Martel and Air Experts, claiming wrongful death and negligent infliction of serious emotional distress (Case No. 02CVH-12-712). Appellee defended Mr. Martel in the lawsuit. On March 16, 2003, appellant dismissed the action without prejudice.

{¶6} On December 4, 2003, appellee filed a declaratory judgment action (Case No. 03CVH-12-896), seeking a judgment that it did not have a duty to indemnify Mr. Martel for any damages awarded in the case. Appellee did not join appellant as a party nor did appellant seek to intervene.

{¶7} On March 4, 2004, appellee filed a motion for default judgment based upon Mr. Martel's failure to answer or otherwise defend the action. The trial court granted the motion on March 10, 2004. In March of 2007, Mr. Martel filed a motion to vacate the default judgment. By judgment entry filed March 12, 2007, the trial court denied the motion, finding the motion was untimely filed.

{¶8} On April 9, 2004, appellants again filed a complaint against Mr. Martel and Air Experts (Case No. 04CVH-04-233). A jury trial commenced on February 28, 2005. The jury found in favor of appellant, awarding the estate $1,014,186.00 and Mrs. Heintzelman $2,650,000.00 on her emotional distress claim. The award to Mrs. Heintzelman was subsequently reversed by this court. See, Estate of Heintzelman v. Air Experts, Inc., Delaware App. No. 2005-CAPE-08-0054, 2006-Ohio-4832, (hereinafter "Heintzelman I").

{¶9} On May 10, 2005, while the appeal was pending, appellant filed a supplemental complaint against appellee, claiming appellee must indemnify Mr. Martel (Case No. 04CVH-04-233). Appellee filed a motion for summary judgment on October 6, 2005, claiming in part that appellant could not collaterally attack the default judgment in favor of appellee and against Mr. Martel, and Mr. Martel was not entitled to coverage under the insurance policy. The trial court stayed the case pending the outcome of the appeal.

{¶10} On August 23, 2006, Mr. Martel filed a separate complaint against appellee, claiming fraud and misrepresentation regarding coverage under the policy and over the default judgment in the declaratory judgment action (Case No. 06CVH-08-761).

{¶11} On December 15, 2006, appellee filed a motion to dismiss Mr. Martel's complaint, claiming res judicata because of the declaratory judgment decision in Case No. 03CVH12-0896. By judgment entry filed February 1, 2007, the trial court granted the motion. On appeal, this court reversed, finding res judicata did not apply to the specific claims made by Mr. Martel. Martel v. American Family Insurance Company, Delaware App. No. 07CAE020012, 2007-Ohio-4819.

{¶12} Upon remand by this court in Heintzelman I, the trial court adjusted the award for emotional distress to $0 (Case No. 04CVH-04-233). See, Judgment Entry filed August 6, 2007. By separate entry filed August 6, 2007, the trial court granted appellee's motion for summary judgment that had been stayed in Case No. 04CVH04- 0233, finding appellant was bound by the default judgment rendered against Mr. Martel in Case No. 03CVH12-0896. On appeal, this court reversed the trial court's decision granting appellee's motion for summary judgment, finding appellant as a judgment creditor was not bound by the declaratory judgment because appellee had initiated the declaratory judgment against its insured, Mr. Martel. See, Estate of Heintzelman v. Air Experts, Inc., Delaware App. No. 07CAE090054, 2008-Ohio-4883, (hereinafter

"Heintzelman II"). The Supreme Court of Ohio affirmed the decision in Heintzelman II. See, Estate of Heintzelman v. Air Experts, Inc., 126 Ohio St.3d 138, 2010-Ohio-3264.

{¶13} Upon remand by this court in Heintzelman II, affirmed by the Supreme Court of Ohio, the trial court entertained motions for summary judgment filed by appellant and appellee on the issue of insurance coverage on the wrongful death award. By judgment entry filed April 29, 2011, the trial court denied appellant's motion and granted appellee's motion, finding the subject insurance policy was not in effect at the time of appellant's death, appellee had not waived its defense of no coverage, and the doctrine of estoppel did not apply.

{ΒΆ14} Appellant filed an appeal and this matter is now before this court for consideration. ...


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