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Richard L. Warmack v. Timothy Arnold

October 26, 2011

RICHARD L. WARMACK AND STATE AUTO INSURANCE COMPANY OF OHIO, PLAINTIFFS-APPELLEES,
v.
TIMOTHY ARNOLD, DEFENDANT-APPELLANT.



Civil Appeal From: Hamilton County Municipal Court TRIAL NO. 10CV-13581

Per curiam.

Cite as Warmack v. Arnold,

OPINION ON RECONSIDERATION.

Judgment Appealed From Is:

Please note: This case has been removed from the accelerated calendar.

{¶1} Defendant-appellant Timothy Arnold appeals the judgment of the Hamilton County Municipal Court in favor of plaintiff-appellee State Auto Insurance Company of Ohio ("State Auto") on its claim for subrogation. The judgment was entered following a bench trial.

{¶2} In its complaint against Arnold, State Auto asserted that it had provided collision insurance coverage to plaintiff-appellee Richard L. Warmack. State Auto alleged that, pursuant to that insurance policy, it had been "required to and did pay to and/or on behalf of its Insured the sum of $4,075.00 under the Collision coverage provision and is thereby subrogated in that amount, less a net salvage recovery of $772.77."

{¶3} At trial, the parties stipulated to the following facts. On March 12, 2009, Arnold had been operating a motor vehicle and had caused damage to Warmack's parked vehicle. Arnold had then gone to Warmack's home and had admitted that he was responsible for the damage. The two had exchanged their automobile-insurance information and their telephone numbers.

{¶4} Warmack testified that Arnold had returned to his home with a check for $250. According to Warmack, he told Arnold that he could not accept it. Warmack also testified that his car had been insured by State Auto, and that he had presented a claim for the damages that had been caused by Arnold. State Auto had declared the car a total loss and had issued Warmack a check for $4,075, the value of his car.

{¶5} Counsel for State Auto asked Warmack the following question: "To the extent payments were made by State Auto, did you give them a right to pursue the party whom they felt was responsible for the accident? That is, did you give State Auto a right of subrogation, a right to settle those payments?" Warmack replied that he had.

{¶6} In addition, State Auto placed into evidence Warmack's certificate of title, photographs of damage, a market-value report for the car, a salvage receipt, and a copy of a draft issued by Tom Duffy Insurance to Warmack for $4,075.00. The draft contained the language, "This check represents payment of your claim for the coverage indicated," and "Loss Date 03-12-2009." Warmack testified that the draft had been issued to him by State Auto.

{¶7} Arnold testified that he had presented a check for $250 to Warmack, but that Warmack had wanted cash rather than a check. According to Arnold, he paid Warmack $250 cash. In addition, Arnold submitted into evidence a document signed by Warmack after the collision that listed Warmack's name and address and contained the following language: "To Whom it May Concern: I, Richard Warmack, hereby attest that Tim Arnold is not responsible financially, legally, or criminally for the damage done to my Cadillac on 03/12/2009. I do fully accept his $250 offer to completely fix all damages; even if estimates may exceed this amount. I will not seek further insured remedies, reconciliation or any compensation whatsoever. I do solemnly relieve Tim Arnold of any debt, responsibility or liability that he may carry. Respectfully resolved, * * * Richard Warmack."

{¶8} Following the trial, the trial court awarded State Auto $3,302.23, the difference between the amount it had paid to Warmack for the vehicle's loss and the amount it had recovered for the salvage of the vehicle.

{ΒΆ9} Arnold appealed, arguing that the trial court erred in granting judgment for State Auto. As noted by State Auto in its appellate brief, Arnold was "essentially claiming that the judgment against ...


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