The Estate of Faye Brummitt, Deceased, et al. Appellant
Ohio Mutual Insurance Group, etc. Appellee
Court No. 2016-CV-0716
Florence J. Murray, Dennis E. Murray, Sr., Donna J. Evans and
Joseph A. Galea, for appellant.
Wesley Newhouse, William H. Prophater, Jr. and Michael S.
Kolman, for appellee.
DECISION AND JUDGMENT
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.
2} Appellant sets forth the following assignment of
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
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
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
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
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.
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 ...