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Estate of Brummitt v. Ohio Mutual Insurance Group

Court of Appeals of Ohio, Sixth District, Erie

November 9, 2017

The Estate of Faye Brummitt, Deceased, et al. Appellant
v.
Ohio Mutual Insurance Group, etc. Appellee

         Trial Court No. 2016-CV-0716

          Florence J. Murray, Dennis E. Murray, Sr., Donna J. Evans and Joseph A. Galea, for appellant.

          D. Wesley Newhouse, William H. Prophater, Jr. and Michael S. Kolman, for appellee.

          DECISION AND JUDGMENT

          SINGER, J.

         {¶ 1} This case is before the court on the appeal of appellant, Estate of Faye Brummitt, from the March 17, 2017 judgment of the Erie County Court of Common Pleas, granting summary judgment to appellee, Ohio Mutual Insurance Group ("OMIG"). For the reasons that follow, we affirm the trial court's judgment.

         Assignment of Error

         {¶ 2} Appellant sets forth the following assignment of error:

In its March 17, 2017 Judgment Entry (the "Judgment") the trial court erred in determining that, in a previously filed case [Brummitt, et al. v. Seeholzer, et al, 2011-CV-0626 ("Brummitt I ")] wherein that court ordered bifurcation of two separate causes of action (one for negligence and the other for insurance bad faith) against two separate defendants (the negligent driver and the decedent's UIM carrier) that the Plaintiff/ Appellant, The Estate of Faye Brummitt, had no right to voluntarily dismiss her second cause of action, against her UIM carrier for bad faith misconduct, under Civ.R. 41(A)(1)(a) without prejudice after the first trial concluded with a jury trial verdict awarding damages to the Estate against the negligent driver. The first jury trial was for injuries caused by the negligence of the underinsured motorist defendant. The second trial was against the Estate's decedent's UIM carrier, Ohio Mutual Insurance Company DBA Ohio Mutual Insurance Group ("OMIG"), for insurance company bad faith misconduct. The first cause Brummitt I, upon motion of OMIG was bifurcated by court order to require that the two causes of action be tried separately. The trial court's March 17, 2017 Judgment erroneously held that the first jury trial by thePlaintiff/Appellant, for her injuries at the hands of a negligent underinsured driver, had also commenced the cause of action for the second jury trial, for bad faith, thereby prohibiting her Estate from voluntarily dismissing her Bad Faith claim without prejudice under Civ.R. 41(A)(1)(a) prior to the commencement of that trial. According to the trial court, the Estate's dismissal was not without prejudice because the second jury trial to include bad faith against OMIG had already commenced with the first jury trial for damages thus converting her attempted voluntary dismissal into a dismissal with prejudice as to OMIG.

         Background Facts

         {¶ 3} The facts of this case are fully set forth in Brummitt v. Seeholzer, 6th Dist. Erie No. E-13-035, 2015-Ohio-71. The facts relevant to this appeal follow.

         {¶ 4} On September 25, 2010, Faye Brummitt and her husband, Bobby Brummitt, and Bobby's brother and sister-in-law, Willard and Vicky Brummitt ("the Brummitts") were traveling in a vehicle when a vehicle driven by Dylan Seeholzer ran a stop sign and a collision occurred. The Brummitts all suffered serious injuries, and Vicky died. Six months after the accident, Faye was diagnosed with cancer and died one month later.

         {¶ 5} At the time of the accident, Bobby and Faye Brummitt had uninsured/underinsured motorists ("UIM") benefits through OMIG, with a limit of $500, 000.

          Procedural History

         {¶ 6} In September 2011, Bobby Brummitt, individually and as executor of the Estate of Faye Brummitt, filed a complaint in the Erie County Court of Common Pleas, being case No. 2011-CV-0626, against Seeholzer for negligence and loss of consortium. He also sought a declaratory judgment that he was entitled to UIM and medical benefits from OMIG, and further alleged that OMIG failed to negotiate the payment of UIM and medical benefits in good faith. In December 2012, an amended complaint was filed.

         {¶ 7} OMIG filed a motion to bifurcate, pursuant to Civ.R. 42(B), and to stay discovery on the bad faith claim. The trial court granted the motion and ordered that the damages issue be tried first, and the bad faith claims be tried later.

         {¶ 8} A trial was held on the damages issue in April 2013, and the jury awarded damages in favor of Bobby Brummitt, individually and as executor of the Estate of Faye Brummitt. The trial court, in its May 23, 2013 judgment entry, included Civ.R. 54(B) language, stating there was no just reason for delay as the bad faith claims remained pending. Bobby Brummitt, individually and as executor of the Estate of Faye Brummitt, filed a motion for a new trial or, alternatively, for additur; the motion was denied. An appeal was taken wherein it was alleged, inter alia, that the trial court erred when it bifurcated the damages portion of the case from the bad faith claims. Brummitt, 6th Dist. Erie No. E-13-035, 2015-Ohio-71, ¶ 18. We found, inter alia, the trial court did not abuse its discretion when it bifurcated for trial the breach of contract and bad faith claims. Id.We affirmed the trial court's judgment. Id. The matter returned to the trial court for further proceedings on the bad faith claims.

         {¶ 9} On December 3, 2015, a "Notice of Voluntary Dismissal as to Plaintiff, Estate of Bobby J Brummitt, Only" was filed which set forth "[t]he Estate of I. Faye Brummitt, Bobby Brummitt Executor hereby voluntarily dismisses only the Estate's bad faith cause of action against Ohio Mutual Insurance Group." In January 2016, a jury trial commenced on Bobby Brummitt's bad faith claim against OMIG, and the jury returned a verdict in his favor. OMIG filed an appeal, case No. E-16-020, which remains pending.

         {¶ 10} On November 15, 2016, appellant filed a class action complaint in the trial court, case No. 2016-CV-0716, against OMIG. In December 2016, OMIG filed a motion to dismiss or in the alternative a motion for summary judgment. On March 17, 2017, the trial court granted summary judgment to OMIG; appellant appealed.

         Assignment of Error

         {¶ 11} Appellant contends the trial court erred when it granted summary judgment to OMIG and determined the estate could not voluntarily dismiss the bad faith claim without prejudice under Civ.R. 41(A)(1)(a) because the first jury trial on ...


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