IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Annette Combs et al.,
:
Plaintiffs-Appellants,
:
No. 99AP-822
v.
:
(REGULAR CALENDAR)
Allstate Insurance Company et al.,
:
Defendants-Appellees.
:
O P I N I O N
Rendered on June 29, 2000
Wilcox, Schlosser & Bendig Co., L.P.A., and Charles H.
Bendig, for appellants.
Crabbe, Brown, Jones, Potts & Schmidt, and Daniel J. Hurley,
for appellee Allstate Insurance Company.
Garson & Associates Co., L.P.A., and Christian R. Patno, for
appellee.
APPEAL from the Franklin County Court of Common Ple as.
PETREE, J.
In this appeal we are again asked to determine whet her the Franklin County
Court of Common Pleas properly granted summary judg ment to defendant Allstate
Insurance Company (“Allstate”).
1
1
Plaintiffs’ first appeal was filed with this cou rt on January 16, 1998, but was dismissed on Septem ber 22,
1998, for lack of a final appealable order.
Combs v. Allstate Ins. Co. (Sept. 22, 1998), Franklin App. No.
98AP-10, unreported.
No. 99AP-822
2
This action is the result of injuries sustained by
plaintiff Annette Combs. On
the afternoon of October 13, 1995, Mrs. Combs was r eturning to work when she stopped
at the intersection of Main Street and Briar Cliff
Drive. After coming to a stop, the traffic
signal changed allowing vehicles in her lane to pro ceed. As she entered the intersection,
Mrs. Combs claims that an unidentified vehicle trav eling south on Briar Cliff negligently
ran a red light. In order to avoid a collision wit h that vehicle, Mrs. Combs braked and
abruptly swerved, striking the curb of the roadway with her right front tire.
On August 22, 1996, plaintiff, Annette Combs, and h er husband John
Combs, filed suit with the Franklin County Court of
Common Pleas. In that complaint,
plaintiffs set forth three claims. In their first
claim, plaintiffs seek uninsured/underinsured
motorist benefits alleging that as a direct and pro ximate result of the negligence of the
unknown driver, Mrs. Combs sustained severe and per manent injuries to her neck and
shoulder which diminish all prospects for future em ployment. Plaintiffs’ second and third
claims set forth a loss of consortium claim by John
Combs, and a subrogation claim for
the payment of accident-related medical expenses by defendant United HealthCare of
Ohio.
On June 26, 1997, Allstate moved for summary judgme nt on the plaintiffs’
uninsured/underinsured motorist claim arguing: (1) that the plaintiffs have no evidence of
physical contact between the unidentified vehicle a nd Mrs. Combs’ vehicle, and (2) that
the plaintiffs have failed to come forward with ind ependent witnesses corroborating the
accident as required by Girgis v. State Farm Mut. Auto. Ins. Co. (1996), 75 Ohio St.3d
302.
No. 99AP-822
3
In response, plaintiffs filed a two paragraph “Memo randum Contra Motion
for Summary Judgment/Motion for Summary Judgment” o n July 18, 1997. In the first
paragraph of that document, plaintiffs confirmed th at they have been unable to identify or
locate the other vehicle, and have found no other w itness to the incident as required by
Ohio law. In the second paragraph, plaintiffs move d for summary judgment against
Allstate in the amount of $5,000, for the medical p ayment benefits included in plaintiffs’
insurance policy.
On December 10, 1997, the trial court entered summa ry judgment in favor
of Allstate on the plaintiffs’ uninsured/underinsur ed motorist claim.
Plaintiffs then
improperly filed a notice of appeal, which was dism issed by this court as the trial court
had not yet ruled upon plaintiffs’ subrogation or m edical payments claim. See Combs v.
Allstate Ins. Co. (Sept. 22, 1998), Franklin App. No. 98AP-10, unrep orted
The record was returned to the trial court for furt her proceedings on
September 30, 1998. After additional briefing, the
trial court rendered a decision on
June 30, 1999, in which it granted Allstate summary
judgment, and denied plaintiffs
summary judgment, on the medical payments claim. T he court also denied the plaintiffs’
summary judgment on their subrogation claim against defendant United HealthCare of
Ohio. Plaintiffs now appeal, raising the following four assignments of error:
[I.] The lower court erred in granting summary judg ment to
defendant Allstate Insurance Company on the claim b y
plaintiff Annette Combs.
[II.]
The lower court erred in granting summary jud gment to
defendant Allstate Insurance Company on the loss of
consortium claim of plaintiff John Combs, there bei ng
independent corroborative evidence sufficient to sa tisfy the
No. 99AP-822
4
Girgis standard for Mr. Comb’s independent loss of
consortium claim.
[III.]
The lower court erred in denying summary jud gment to
plaintiff on her medical payments claim, and imposi ng
summary judgment against plaintiff on her medical p ayments
and other claims due to plaintiff’s failure to appe ar at a
medical examination initially scheduled without cou rt order,
and subsequently scheduled by court order, but less than two
weeks after the court order for medical examination , the court
abusing its discretion in imposing a discover [ sic] sanction of
this severity for a non-willful, inadvertent, failu re to appear at a
medical examination where plaintiff had been cooper ating in
all aspects of discovery to that point.
[IV.]
The lower court erred in failing to grant pla intiff’s
motion for summary judgment against defendant healt hcare
provider since this provider waived all rights in t his matter by
failing to file [sic] notice of appeal in the first appellate
proceeding.
When presented with an appeal from a motion for sum mary judgment, this
court applies the same standard applied by the tria l court, considering the motion as if it
had been presented to this court first.
Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d
102. Under the Ohio Rules of Civil Procedure, in o rder to establish the entitlement to
summary judgment, a party must establish: (1) that
there is no genuine issue as to any
material fact; (2) that reasonable minds can come t o but one conclusion, a conclusion
which is adverse to the nonmoving party; and (3) th at the party is entitled to judgment as
a matter of law. Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64.
In determining whether a genuine question of materi al fact exists, a court
must view the evidence in a light most favorable to
the nonmoving party.
Temple v.
Wean (1977), 50 Ohio St.2d 317. However, provided the m oving party has satisfied his
or her burden, the nonmoving party is not permitted to rest upon the allegations or denials
No. 99AP-822
5
contained in his or her pleadings, but must come fo rth with specific facts showing the
existence of a genuine issue for trial. Civ.R. 56( E); Wing v. Anchor Media, Ltd. of Texas
(1991), 59 Ohio St.3d 108, 111, following Celotex v. Catrett (1986), 477 U.S. 317.
The key issue in this case is the application of th e rule of law set forth by
the Ohio Supreme Court in Girgis, supra. Therein, the Supreme Court held that Ohio law
precludes insurance contract provisions which requi re actual physical contact between
vehicles as a prerequisite to recovery. However, i n balancing the interests of insured’s
against those of insurers, the court developed the
corroborative evidence test. The
Supreme Court held that:
The test to be applied in cases where an unidentifi ed driver’s
negligence causes injury is the corroborative evide nce test,
which allows the claim to go forward if there is in dependent
third-party testimony that the negligence of an uni dentified
vehicle was a proximate cause of the accident. ***
[Id. at
paragraph two of the syllabus.]
Plaintiffs assert the testimony of Mrs. Combs’ trea ting physician, in addition
to the testimony of John Combs, provides sufficient corroborative evidence to allow Mrs.
Combs’ claim for uninsured/underinsured motorist be nefits to proceed to trial. Similarly,
John Combs asserts that the testimony of his wife p rovides sufficient corroborative
evidence to allow his claim for loss of consortium
to proceed to trial. Plaintiffs’ argument
notwithstanding, the testimony of these three indiv iduals does not meet the test of
independent third-party testimony set forth in Girgis, as applied by this court in Muncy v.
American Select Ins. Co. (June 30, 1998), Franklin App. No. 97APE09-1226, u nreported,
England v. Grange Mut. Cas. Co. (Dec. 23, 1997), Franklin App. No. 97APE07-894,
No. 99AP-822
6
unreported, or Willford v. Allstate Indem. Co. (Nov. 10, 1997), Franklin App. No.
97APE05-657.
In Muncy, this court explained that corroborative evidence i s evidence
which supplements evidence that has already been gi ven and which tends to strengthen
or confirm it. “It is additional evidence, of a di fferent character, to the same point.”
Muncy, supra, citing State v. Economo (1996), 76 Ohio St.3d 56. The testimony of the
plaintiff’s physician is based entirely upon statem ents made by the plaintiff during the
course of her treatment. Clearly, any knowledge of the events which occurred is not the
product of the physician’s personal observation tha t another vehicle was the proximate
cause of the plaintiff’s accident. Plaintiff’s phy sician did not personally observe the
accident, nor did he personally observe anything in dicating that another car was involved.
Obviously, his testimony does not provide independe nt corroborative evidence under
Girgis.
Likewise, the testimony of John Combs does not prov ide independent
corroborative evidence of his wife’s accident. Alt hough he observed damage to his wife’s
vehicle, John Combs did not observe the accident, n or did he observe anything indicating
that another car was involved. Thus, his testimony , like that of the physician, does not
amount to independent corroborative evidence under Girgis.
Finally, Mrs. Combs’ testimony clearly cannot serve
as independent
corroborative evidence sufficient to support her ow n claim, nor may it serve as
independent evidence supporting the claim of her hu sband. The claim of John Combs for
loss of consortium is derivative of his wife’s clai m. That is, his claim is dependent upon
No. 99AP-822
7
the existence of a legally cognizable claim by Mrs.
Combs. Bowen v. Kil-Kare, Inc.
(1992), 63 Ohio St.3d 84.
As noted, Girgis permits a claim for uninsured motorist coverage ba sed
upon the negligence of an unidentified individual, when the existence of that individual,
and his or her negligence, is corroborated by indep endent third-party testimony. Because
there is no independent evidence that another vehic le was involved, Mrs. Combs cannot
establish a cognizable claim, and the claim of her
husband therefore fails. Therefore,
plaintiffs’ first and second assignments of error m ust be overruled.
In their third assignment of error, plaintiffs cont end the trial court erred when
it denied them summary judgment on the medical paym ents claim, instead, granting
summary judgment to Allstate. Civ.R. 56(C) provide s that:
*** Summary judgment shall be rendered forthwith if
the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact a nd that the
moving party is entitled to judgment as a matter of
law. ***
On numerous occasions, Ohio courts have clearly exp lained that in order to
carry this burden:
*** [T]he movant must be able to point to evidentiary m aterials
of the type listed in Civ.R. 56(C) that a court is to consider in
rendering summary judgment.
***
These evidentiary
materials must show that there is no genuine issue
as to any
material fact, and that the moving party is entitle d to judgment
as a matter of law. *** [ Dresher v. Burt (1996), 75 Ohio St.3d
280, 292 (emphasis added).]
A review of plaintiffs’ one-page motion for summary judgment reveals that it
falls short of establishing plaintiffs’ entitlement to judgment as a matter of law. Although
No. 99AP-822
8
Mrs. Combs maintains she has incurred medical expen ses in excess of $25,000, she has
failed to submit or direct the court’s attention to
a single piece of admissible evidence
demonstrating these expenses. Indeed, the only pie ce of potentially proper evidence, the
affidavit of the plaintiff, was not sworn, and ther efore does not constitute proper evidence
under Civ.R. 56.
It is not the court’s responsibility to search the
record for evidence which
might support the plaintiffs’ claim for summary jud gment. Because plaintiffs failed to
establish that they are entitled to judgment upon t heir medical payments claim, the trial
court did not err when it overruled the plaintiffs’
motion for judgment as a matter of law.
Thus, to the extent that the plaintiffs’ third assi gnment of error challenges the trial court’s
refusal to enter judgment in their favor, that assi gnment of error is overruled.
In their third assignment of error, plaintiffs also
challenge the entry of
summary judgment in Allstate’s favor. During disco very, Allstate informally scheduled
Mrs. Combs to attend an independent medical examina tion (“IME”). That examination
was set for May 20, 1997; however, Mrs. Combs faile d to attend. In response, defendant
filed a Civ.R. 35 motion to compel, seeking both th e plaintiff’s attendance, as well as the
payment of the physician’s cancellation fee. Defen dant’s motion was granted by the trial
court on July 14, 1997. However, while the trial c ourt ordered Mrs. Combs to submit
herself for a prospective examination, it held that Allstate had failed to seek a court order
as required by Civ.R. 53 prior to scheduling the ex amination. Therefore, the court
concluded that Mrs. Combs was not required to atten d the May 20, 1997 IME.
While Allstate’s Civ.R. 35 motion was pending, Alls tate scheduled Mrs.
Combs for another examination. That examination wa s set for July 28, 1997, however,
No. 99AP-822
9
Mrs. Combs again failed to appear. Thereafter, def endant moved, and was granted,
summary judgment upon the plaintiffs’ medical payme nts claim.
Allstate relies upon Hipkins v. State Farm Mut. Ins. (Mar. 17, 1998), Licking
App. No. 96CA00161, unreported, for the proposition that a failure to attend a medical
examination operates as a bar to recovery. However , the factual scenario in Hipkins is
one in which the plaintiff claimed benefits for phy sical injuries, but at the same time
refused to submit to any IME. Therefore, the court ’s holding in Hipkins is not controlling.
Before the trial court, and now on appeal, Mrs. Com bs states that she failed
to attend the second examination because Allstate s cheduled that examination prior to
the court’s July 14, 1997, order granting its Civ.R . 35 motion for an order of examination.
Thus, Mrs. Combs claims that there was some “confus ion” as to whether she was
required to appear for the second IME.
When reviewing Allstate’s motion for summary judgme nt upon the plaintiffs’
medical payments claim, we find that the situation presented is not one in which the Mrs.
Combs has refused to submit to an IME. In regard t o the first IME, the trial court
specifically held that Allstate had failed to prope rly schedule the examination, and
consequently, that Mrs. Combs was not required to a ttend. In regard to the second IME,
Mrs. Combs alleges that she was unsure as to whethe r she was required to attend, as the
examination had been scheduled prior to the court’s order granting Allstate’s Civ.R. 35
motion.
While some form of sanction for Mrs. Combs’ failure
to attend the July 28,
1997, examination might be appropriate, in our view , Allstate has failed to establish that
Mrs. Combs’ failure to attend the July 28, 1997, IM E entitles Allstate to summary
No. 99AP-822
10
judgment on plaintiffs’ medical payments claim. As such, plaintiffs’ assignment of error
challenging the entry of summary judgment in favor of Allstate on the medical payments
claim is sustained.
In their fourth assignment of error, plaintiffs mai ntain the trial court erred
when it overruled their motion for summary judgment
against defendant United
HealthCare of Ohio. Plaintiffs’ November 12, 1998
motion is premised solely upon the
contention that United’s right of subrogation shoul d be barred, as United “failed” to file a
notice of appeal from the trial court’s December 10 , 1997 decision. Specifically, plaintiffs
argued:
*** This Court, [the Franklin County Court of Commo n Pleas]
on December 10, 1997, granted Defendant Allstate su mmary
judgment and ordered dismissal of the entire case, entering a
Final Appealable order. Plaintiffs Annette Combs a nd John
Combs filed a Notice of Appeal within Rule and went
forward
to the Appellate Court to litigate their respective
claims
against Defendant Allstate Insurance Company.
Defendants United HealthCare Services Incorporated
and
United HealthCare of Ohio, although notified of the
final
Appealable Order did not file any Notice of Appeal,
and
waived all remedies challenging the Final Appealabl e Order
issued by this Court.
Plaintiff Annette Combs states the Defendant subrog ated
medical providers waived all rights and remedies ag ainst
Plaintiffs and against Defendant Allstate Insurance Company
when they elected not to appeal the final Appealabl e Order of
December 10, 1997. ***
Plaintiffs’ reasoning inexplicably ignores this cou rt’s ruling, issued less than
two months prior to their motion, which held that t he trial court’s December 10, 1997
decision was not a final appealable order. Moreove r, United’s claim, if any, is dependent
upon the plaintiffs’ right to recover medical payme nt benefits from Allstate. An “insurer-
No. 99AP-822
11
subrogee cannot succeed to or acquire any right or
remedy not possessed by its insured-
subrogor.” Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins . Co. (1989), 42 Ohio
St.3d 40, paragraph one of the syllabus. As the pl aintiff’s health insurer, United succeeds
to the rights, and the benefit of all remedies, ava ilable to the plaintiff. Id. at 42. In other
words, United “stands in the shoes of” the plaintif f. See, e.g., Universal Veneer Mill Corp.
v. Buckeye Union Ins. Co. (Nov. 10, 1998), Franklin App. No. 98AP-20, unrepo rted.
The burden of demonstrating their entitlement to su mmary judgment rests
squarely upon the plaintiffs’ shoulders. To that e nd, the precise issue raised by the
plaintiffs in their fourth assignment of error is w hether United lost its contractual right of
subrogation when it failed to appeal an order which was not appealable. Clearly it did not.
Accordingly, plaintiffs’ fourth assignment of error is overruled.
For the foregoing reasons, plaintiffs’ first, secon d, and fourth assignments of
error are overruled, and plaintiffs’ third assignme nt of error is sustained in part and
overruled in part.
The judgment of the Franklin C ounty Court of Common Pleas is
affirmed in part and reversed in part, and this mat ter is remanded to that court for further
proceedings upon the plaintiffs’ medical payments c laim.
Judgment affirmed in part, reversed
in part, and cause remanded.
BRYANT, J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
I respectfully dissent.
No. 99AP-822
12
Annette Combs and John Combs had a policy of insur ance with Allstate
Insurance Company ("Allstate") on October 13, 1995.
Annette alleges that during the
afternoon of October 13, 1995, she swerved to avoid
another vehicle which ran a red
light. The other vehicle kept right on going and c ould not be identified.
Annette says that when she swerved sharply to avoi d the other vehicle, she
ran into the curb so hard that it damaged the rim t o her right front tire. She also claims
injuries as a result of the force of striking the c urb.
Annette and John Combs now probably have serious d oubts that they were
"in good hands with Allstate." Allstate has refuse d to pay anything for Annette's injuries—
not even her medical bills which purportedly now ex ceed $25,000.
I would find the history obtained by Annette's tre ating physician to be
sufficient independent corroborative evidence of An nette's version of the facts. Medical
histories are as a rule admissible under the Ohio R ules of Evidence. See Evid.R. 803(4).
Further, John Combs’ seeing the damaged tire rim i s sufficient corroborative
evidence as to Annette's claims.
Finally, the Supreme Court of Ohio should use this
case to clarify the
holding in Girgis v. State Farm Mut. Auto. Ins. Co. (1996), 75 Ohio St.3d 302. "Good
neighbor" State Farm refused to pay the Girgis fami ly until the Supreme Court of Ohio
found that insurance contracts could not legally co ntain provisions which required actual
physical contact between vehicles before payment wa s due. The Supreme Court of Ohio
should reach a similar result under the facts of th e Combs case.
No. 99AP-822
13
Since a majority of this panel allows enforcement
of a provision in an
insurance contract which I believe the Supreme Cour t of Ohio has held to be
unenforceable, I respectfully dissent.