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Cincinnati Insurance Co. v. Kesner

Court of Appeals of Ohio, Twelfth District, Butler

July 23, 2018

CINCINNATI INSURANCE CO., Plaintiff-Appellant,
v.
PARON KESNER, JR., Defendant-Appellee.

          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2016-09-1928

          Thomas K. McMackin, for plaintiff-appellant

          John M. Holcomb, for defendant-appellee

          OPINION

          RINGLAND, J.

         {¶ 1} Plaintiff-appellant, Cincinnati Insurance Co. ("CIC"), appeals the decision of the Butler County Court of Common Pleas, granting defendant-appellee, Paron Kesner Jr., relief from a default judgment.

         {¶ 2} This case arose from an automobile accident in which a vehicle driven by Kesner crossed the center line of a roadway and struck an automobile driven by Dan Doyle. Doyle sustained serious injuries and incurred substantial medical bills in excess of his policy limits. CIC paid Doyle pursuant to his policy coverage limit for uninsured motorist coverage and became subrogated to Doyle's rights.

         {¶ 3} CIC filed a complaint on September 6, 2016 alleging Kesner negligently operated the vehicle causing the accident and Doyle's injuries. The complaint sought to recover $262, 555.81, which CIC paid to Doyle as a result of the accident. Kesner did not answer the complaint and, on December 22, 2016, CIC moved for default judgment. The trial court denied this motion. CIC supplemented its motion with an affidavit from a claims specialist and the trial court entered default judgment on March 3, 2017. On September 9, 2017, Kesner moved for relief from this judgment pursuant to Civ.R. 60(B).

         {¶ 4} Kesner averred that he was employed as a mechanic at Midwest Custom Paint at the time of the accident. The vehicle he operated during the accident was a customer's vehicle he was test driving following the completion of an engine replacement. Kesner believed the vehicle to be safe and roadworthy. While test driving the vehicle, "the steering suddenly and unexpectedly locked up, causing the vehicle to travel left-of-center into the path of a vehicle operated by Dan Doyle." On October 12, 2016, Kesner received a summons and a copy of the complaint by ordinary mail. Kesner presented the summons and complaint "to Anton [last name unknown]." Kesner believed Anton to be a co-owner of Midwest Custom Paint. Anton informed Kesner, "[d]on't worry, we'll take care of it." Kesner interpreted this statement "to be a representation that the claim would be handled by Midwest Custom [Paint's] liability insurance company." After several months, Kesner became aware of the default judgment and filed his motion pursuant to Civ.R. 60(B).

         {¶ 5} The trial court granted Kesner's motion for relief from the default judgment and certified its entry as a final appealable order pursuant to Civ.R. 54. The trial court found Kesner's failure to timely answer the complaint constituted excusable neglect. The trial court further found Kesner presented a possible meritorious defense pursuant to the sudden emergency doctrine. CIC appeals the trial court's decision granting Kesner's motion for relief from judgment.

         {¶ 6} Assignment of Error No. 1:

         {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPEL[LANT] IN ACCEPTING INADMISSIBLE HEARSAY TO ESTABLISH A MATERIAL ELEMENT OF DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT.

         {¶ 8} CIC asserts the trial court erred in accepting inadmissible hearsay statements material to establishing Kesner's claim of excusable neglect. CIC argues it objected to the statements and the trial court did not fully address the objection. Rather, the trial court prejudiced CIC by relying on the statements in its finding of excusable neglect.

         {¶ 9} Civ.R. 60(B) governs motions for relief from judgment and provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud * * *; (4) the judgment has been satisfied, released or discharged * * *; or (5) any other reason justifying relief from the judgment. The motion shall be made within a ...

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