[Cite as Adkins v. Orefice, 2012-Ohio-6033.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
MARY ADKINS, et al. :
Plaintiffs-Appellants : C.A. CASE NO. 12CA0015
vs. : T.C. CASE NO. 06CV0462
FRANCO OREFICE, ADM. OF ESTATE : (Civil Appeal from OF VERLIN PLACE Common Pleas Court) Defendants-Appellees :
.........
OPINION
Rendered on the 21st day of December, 2012.
T. Jeffrey Beausay, Atty. Reg. No. 0039436, 495 S. High Street, Suite 300, Columbus, OH 43215 Attorney for Plaintiffs-Appellants Mary and Timothy Adkins
Michael C. Mahoney, Atty. Reg. No. 0080111, Fifth Third Center, 1 S. Main Street, Suite 1800, Dayton, OH 45402-2017 Attorney for Defendant-Appellee
Mark J. Sheriff, Atty. Reg. No. 0019273; Dale D. Cook, Atty. Reg. No. 0020707, 300 Spruce Street, Floor One, Columbus, OH 43215-1173 Attorneys for Involuntary Plaintiff-Appellee Auto-Owners Insurance Company
GRADY, P.J.:
{¶ 1} This appeal is from a final judgment for the Plaintiff in a personal injury
action, in which the trial court ordered a set off in favor of the Defendant’s subrogated insurer
for the amount of Plaintiff’s medical expenses the insurer had paid, and further awarded a 2
money judgment to another insurer for a non-party that had paid an additional amount of
Plaintiff’s medical expenses. We find that the set off was proper, and will affirm the
judgment in that respect. We find that the money judgment in favor of the other insurer was
not proper because neither that insurer nor its insured had filed a claim for relief in the action
against the Plaintiff or were otherwise subrogated on her claim against the Defendant.
{¶ 2} On May 22, 2004, Mary Adkins was injured when a car in which she was a
passenger was struck by a car driven by Verlin Place, who allegedly ran a red light. At the
time of the accident, Mary Adkins had automobile liability insurance coverage through State
Farm Mutual Automobile Insurance (“State Farm”) and Place had automobile liability
insurance coverage through American Family Insurance Group (“American Family”). The
driver of the car in which Mary Adkins was a passenger had automobile liability insurance
coverage through Auto-Owners Insurance Company (“Auto-Owners”).1
{¶ 3} On March 30, 2006, Mary Adkins and her husband, Timothy Adkins,
commenced an action against Place for injuries and lost wages Mary Adkins sustained as a
result of the collision, and for Tim Adkins’s loss of services and consortium. Mary Adkins
sought $12,451.12 for medical and hospital expenses. When the Adkinses discovered that
Place was deceased, Franco Orefice, as administrator of the Estate of Place, was substituted as
Defendant.
1 The record does not contain copies of any of the insurance policies concerning the parties involved in the automobile accident. It appears undisputed, however, that the Auto-Owners policy contained a medical payments provision that covered up to $10,000.00 in medical payments incurred by passengers in the insured’s vehicle. 3
{¶ 4} On April 3, 2008, the Estate of Place filed a motion to join State Farm and
Auto-Owners as subrogated parties pursuant to Civ.R. 21, 19, and 19.1. The trial court
granted the motion. (Dkt. 14.) State Farm and Auto-Owners then filed complaints against
the Estate of Place, seeking judgment against the Estate for amounts each spent on medical
bills incurred by Mary Adkins.
{¶ 5} State Farm alleged that it had a subrogation claim against the tortfeasor as a
result of its policy of insurance with Mary Adkins, pursuant to which State Farm had provided
medical payments to the benefit of Mary Adkins. (Dkt. 15.) State Farm purportedly paid
$6,191.12 toward Mary Adkins’s medical bills incurred at Community Hospital.
Auto-Owners alleged that it had a subrogation claim against the tortfeasor as a result of its
insurance policy that provided medical payments coverage to Mary Adkins on behalf of the
owner of the vehicle in which Mary Adkins was a passenger. (Dkt. 25.) Auto-Owners
purportedly paid $10,000.00 toward Mary Adkins’s medical bills.
{¶ 6} On October 3, 2011, Defendant filed a motion to exclude evidence of
Plaintiffs’ claimed medical expenses, or in the alternative to order a post-verdict setoff of
$6,191.12. According to Defendant, American Family (Place’s insurer) had paid $6,191.12
to State Farm in full satisfaction of medical bills incurred by Mary Adkins during her stay at
Community Hospital. Attached to Defendant’s motion were exhibits that purported to show
that American Family had paid State Farm $6,191.12 pursuant to an arbitration award as
reimbursement for State Farm’s payment of Mary Adkins’s medical bill with Community
Hospital. The exhibits also purported to show that Auto-Owners had paid $10,000.00 to 4
Mary Adkins pursuant to a medical expenses provision of an insurance policy with the driver
of the automobile in which Mary was a passenger.
{¶ 7} On December 1, 2011, the trial court overruled Defendant’s motion to exclude
evidence of insurance coverage, but held in abeyance the motion to order a post-verdict setoff
in the amount of $6,191.12.
{¶ 8} On December 13, 2011, the jury returned a general verdict in favor of
Plaintiffs. Further, an interrogatory was submitted to and completed by the jury. The
interrogatory asked the jury to “state the total amount of damages that will fairly and
completely compensate the plaintiffs for each category of loss.” The interrogatory listed
“Mary Adkins” and “Timothy Adkins.” Under the Mary Adkins heading, the interrogatory
had blank spaces for “Medical Expenses,” “Pain and Suffering,” and “Total (Mary Adkins).”
The jury filled in $12,704.12 for Medical Expenses and $11,200.00 for Pain and Suffering,
resulting in a total award of $23,904.12 for Mary Adkins. Under the Timothy Adkins
heading, the interrogatory had blank spaces for “Spousal Consortium,” “Increased Care
Burden,” and “Total (Timothy Adkins).” The jury filled in $1,000.00 for Spousal
Consortium and $1,000.00 for Increased Care Burden, totaling a $2,000.00 award for Timothy
Adkins. Finally, the jury filled in $25,904.12 next to the “Total Damages” heading for the
Plaintiffs. (Dkt. 78.)
{¶ 9} On February 10, 2012, the trial court entered judgment on the jury’s verdict in
favor of Mary Adkins and Timothy Adkins. (Dkt. 85.) The trial court wrote, in part:
This matter was before the Court on February 3, 2012 on the
defendant’s motion for a post-verdict setoff in the amount of $6,191.12. * * * 5
Plaintiff incurred a medical bill from Community Hospital in the
amount of $6,191.12. The Ohio Department of Jobs & Family Services
(ODJFS) paid $3,309.78 toward that bill. Auto Owners paid $4,179 toward
that bill. State Farm paid the full amount of $6,191.12 but was reimbursed in
full by American Family Insurance pursuant to an arbitration decision.
Accordingly, Community Hospital received $13,679.90 which is a
$7,488.78 overpayment. Plaintiffs paid nothing toward the bill. Plaintiff was
awarded judgment in the amount of $25,904.12 which included the $6,191.12
in Community Hospital medical expenses.
Plaintiffs argue that the payment of $6,191.12 by American Family to
reimburse State Farm pursuant to the arbitration decision was a voluntary act
and should provide no lawful basis for the setoff. However, that arbitration
decision was in fact binding upon American Family. * * *
Defendant’s motion for a post-verdict setoff in the amount of $6,191.12
is hereby SUSTAINED. Plaintiff cannot expect to receive and retain a jury
award for a medical bill that has already been paid by an insurance company
and thus receive a windfall in the amount of $6,191.12.
The $25,904.12 jury award shall therefore be setoff by $6,191.12,
making judgment against defendant in the amount of $19,713. Of that
amount, $11,200 shall be paid to Mary Adkins, $2,000 shall be paid to
Timothy Adkins, and the remaining amount of $6,513 shall be paid to the 6
proper subrogated parties who are the real parties in interest herein including,
but not necessarily limited to, ODJFS and Auto Owners.
{¶ 10} The Adkinses filed a timely notice of appeal, raising the following Assignment
of Error:
{¶ 11} “THE TRIAL COURT ERRED IN REDUCING THE JURY VERDICT BY
AWARDING RECOVERY TO THE SUBROGATED LIENHOLDERS.”
{¶ 12} Plaintiffs argue that the trial court erred by (1) reducing the jury verdict
through a setoff of $6,191.12 from the jury’s award of medical expenses and (2) ordering that
Mary Adkins pay to Auto-Owners and ODJFS the remaining $6,513.00 of the medical
expenses she was awarded by the jury in order to reimburse them for amounts they
purportedly had paid toward Plaintiff’s medical bills. We will address these arguments in
turn.
The $6,191.12 Setoff
{¶ 13} “Allowance of a setoff is a matter within the sound discretion of the trial court,
and the court’s decision will not be set aside absent a clear abuse of discretion.” Fickes v.
Kirk, 11th Dist. Trumbull No. 2006-T-0094, 2007-Ohio-6011, ¶ 10 (Citation omitted.) In
AAAA Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990), the Supreme Court held:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is
to be expected that most instances of abuse of discretion will result in decisions 7
that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would
support a contrary result.
{¶ 14} Plaintiffs argue that the trial court’s setoff of $6,191.12 was improper because
American Family’s payment to State Farm, pursuant to mandatory inter-company arbitration,
was a voluntary payment. Further, according to Plaintiffs, State Farm failed to commence an
action against the defendant tortfeasor within the two-year statute of limitations applicable to
a suit seeking recovery for bodily injury. R.C. 2305.10.
{¶ 15} The two-year statute of limitations expired on May 22, 2006, two years after
the date of the automobile accident. State Farm did not file its complaint against Defendant
until 2008. Plaintiffs argue that because the statute of limitations had expired, State Farm
could no longer state a valid claim against the tortfeasor, and therefore neither could it have a
valid claim against the tortfeasor’s insurer, American Family. Because American Family was
not legally obligated to pay State Farm any amount on State Farm’s subrogated claim, the
payment by American Family on behalf of Defendant was a voluntary payment. We do not
agree.
{¶ 16} In Holibaugh v. Cox, 167 Ohio St. 340, 148 N.E.2d 677 (1958), a plaintiff
injured in an automobile collision commenced an action against the tortfeasor within the 8
two-year statute of limitations applicable to a claim for bodily injury. The plaintiff’s insurer
was joined as a party plaintiff after the two-year statute of limitations had expired. The
Supreme Court found that the unity of interest between the insured and the insurer allowed the
insurer to gain the benefit of the insured’s timely commencement of the action for statute of
limitations purposes. The Supreme Court held, at paragraph one of the syllabus:
Where an insured is injured by a tort-feasor, is reimbursed for a part of
his damages by the insurer and, accordingly, assigns a part of his interest in the
claim against the tort-feasor to such insurer, the insured may timely commence
an action against the tort-feasor for the full amount of damages resulting from
the tort and thereby effect a compliance with the statute of limitations
pertaining to such indivisible chose in action as to parties united in interest
with him, but the insurer must be joined as a party united in interest at any
stage of the action, where he or the plaintiff so moves or where such issue is
raised by the defendant tort-feasor. (Citations omitted.)
{¶ 17} In the present case, Mary Adkins filed her personal injury claim within the
statute of limitations. Defendant Estate of Place moved to add State Farm, Adkins’s insurer,
as a party after the two-year statute of limitations had expired. After the trial court granted
Defendant’s motion, State Farm filed a complaint against Defendant, the tortfeasor. State
Farm’s complaint was filed well after the statute of limitations had expired. However, the
Adkinses had commenced their action against Defendant within the two-year statute of
limitations. Therefore, pursuant to Holibaugh, State Farm gains the benefit of the Adkinses’
(its insured’s) timely commencement of the action against Defendant. 9
{¶ 18} Since State Farm’s complaint against Defendant was timely filed, American
Family’s payment to State Farm pursuant to mandatory arbitration was not a voluntary
payment. Rather, American Family’s payment was a payment that was mandatory pursuant
to the arbitration decision and the law of subrogation. The $6,191.12 medical bill had been
fully paid by State Farm, not Mary Adkins. And American Family, as Defendant’s insurer,
paid $6,191.12 directly to State Farm to reimburse State Farm as a subrogated party.
American Family thus succeeded to the interests of State Farm with respect to State Farm’s
right of reimbursement from Mary Adkins from the award for medical expenses she obtained.
Based on the particular facts before us, the trial court did not abuse its discretion in ordering
that a $6,191.12 setoff in favor of the Estate of Place be applied to the $12,704.12 in medical
expenses awarded to Mary Adkins.
The $6,513.00 Reimbursement
{¶ 19} After the trial court ordered a setoff of $6,191.12 to the jury’s award of medical
expenses to Mary Adkins, that left $6,513.00 in medical expenses owed by Defendant to Mary
Adkins. Rather than follow the jury’s verdict and interrogatory response, and award the
remainder to Mary Adkins, the trial court ordered the remaining $6,513.00 paid to ODJFS and
Auto-Owners, which the trial court found were the real parties in interest. Plaintiffs argue
that the trial court erred in doing so because Auto-Owners never filed a complaint against 10
Mary Adkins that would allow the trial court to award to Auto-Owners monies that the jury
had awarded solely to Mary Adkins.2 We agree.
{¶ 20} The trial court’s decision to redistribute the remaining $6,513.00 awarded to
the Plaintiffs is different from the setoff that the trial court also ordered. The setoff was
required because Defendant, through its insurer, had already paid part of the judgment for
medical expenses when it paid $6,191.12 to State Farm, Mary Adkins’s insurer. Unlike the
setoff, the trial court’s redistribution of the remainder of Mary Adkins’s award for her medical
expenses did not reduce the judgment against Defendant. Rather, the trial court rewrote the
jury’s verdict by ordering Plaintiffs to give Auto-Owners and ODJFS, both third parties,
$6,513.00.
{¶ 21} In essence, the trial court awarded affirmative relief to Auto-Owners and
against Mary Adkins by ordering that money the jury awarded to Mary Adkins should instead
be paid to Auto-Owners. However, Auto-Owners failed to file a claim for relief against Mary
Adkins. A trial court, and a jury for that matter, are constrained by the pleadings filed in an
action. Mary Adkins pled a claim for relief against Defendant. Also, Auto-Owners pled a
claim for relief against Defendant. The jury, however, awarded money damages to the
Adkinses, not to Auto-Owners. Further, Auto-Owners did not plead any claim for relief
against the Adkinses or the tortfeasor that would allow the trial court to order Plaintiffs to pay
any amount to Auto-Owners.
{¶ 22} It is undisputed that the Auto-Owners insurance policy that covered the driver
of the car in which Mary Adkins was a passenger contained a medical payments provision that
2 Plaintiffs do not dispute the award to ODJFS. 11
provided medical payments coverage for bodily injury caused by an accident involving the
driver’s car regardless of fault. Presumably, the policy identified and contemplated medical
payments coverage for individuals such as Mary Adkins who are injured while passengers in
the driver’s car. Auto-Owners, as a result of paying benefits to Mary Adkins under the terms
of the insurance policy, arguably became subrogated to her rights against Defendant, the
tortfeasor, on a third-party beneficiary theory. Qualchoice, Inc. v. Brotherhood Ins. Co., 5th
Dist. Stark No. 06CA20, 2007-Ohio-226, ¶ 16. That right is not predicated on a contract
between Auto-Owners and Mary Adkins, but on the fact that Mary Adkins accepted benefits
from Auto-Owners. Nevertheless, the existence of an inchoate third-party beneficiary
relationship between Mary Adkins and Auto-Owners does not automatically entitle
Auto-Owners to a share of the monies awarded by the jury to Mary Adkins. Rather,
Auto-Owners was required to file a complaint against Mary Adkins on a third party
beneficiary claim in order to create a basis on which the trial court could award Auto-Owners
any part of the award Mary Adkins obtained against the tortfeasor in the present action.
Auto-Owners failed to do that.
{¶ 23} Further, the relationship between Mary Adkins and Auto-Owners is different
from the direct, contractual relationship between the insurer and insured in Holibaugh that
allowed the insurer to gain the benefit of its insured’s compliance with the statute of
limitations. The driver of the car in which Mary Adkins was a passenger is not a party to this
action. The driver of the vehicle, not Mary Adkins, was Auto-Owners’s insured. It is
undisputed that Auto-Owners did not file its complaint against the Estate of Place within the
two-year statute of limitations applicable to actions for bodily injury. In short, there is not the 12
same unity of interest between Auto-Owners and its insured, or Mary Adkins, that there was
between the insurer and insured involved in Holibaugh. The complaint and claim for relief
Auto-Owners filed against Place, the tortfeasor, is therefore barred by the applicable two-year
statute of limitations.
{¶ 24} Based on our review of the record before us, we find that the trial court erred in
ordering that any part of the $6,513.00 of the jury’s award of medical expenses to Mary
Adkins should instead be paid to Auto-Owners. Consequently, the assignment of error is
overruled, in part, and sustained, in part. The judgment of the trial court will be affirmed to
the extent it ordered a setoff in the amount of $6,191.12, but it will be reversed to the extent it
awarded monies to Auto-Owners. The trial court’s judgment will be modified to award
$19,713.00 to Plaintiffs Mary and Timothy Adkins. The award to ODJFS will be affirmed.
DONOVAN, J., concurs.
HALL, J., concurring in part and dissenting in part:
{¶ 25} The first issue addressed by Appellant in her assignment of error asserts that
the claims of the insurers, subrogated as a result of making medical payments on behalf of the
plaintiff, were filed beyond the two-year statute of limitation and should have been dismissed.
What appellant fails to recognize is that her complaint, which was timely filed, made a claim
against the defendant for the same medical expenses. When the court granted the defense
motion to join the real parties in interest, State Farm Insurance and Auto-Owners Insurance
both filed their complaints as involuntary plaintiffs. As real parties in interest, those parties
stepped into the shoes of the original plaintiff for recovery of the medical expenses they had
paid. Because the plaintiff’s original complaint was timely, the effective substitution of the 13
two insurance companies to pursue the medical claims that they paid was timely and not
barred by the statute of limitation. Accordingly, I agree that the first issue in the assignment of
error should be overruled.
{¶ 26} In order to explain my dissent regarding the second issue raised by Appellant,
additional facts are essential:
{¶ 27} Mary Adkins was a passenger in her sister-in-law’s vehicle when she was
injured in a motor-vehicle accident caused by Vernon Place, who was insured by American
Family. Mary Adkins was separately insured by State Farm under a policy that had medical
payments coverage. In addition, her sister-in-law had insurance coverage with Auto-Owners,
which also had medical payments coverage applicable to occupants of the sister-in-law’s
vehicle.
{¶ 28} Adkins answered interrogatories on June 1, 2007 that, among other things, had
asked her to state whether she had received any collateral benefits. (Question 16). She
answered: “My insurance company (State Farm) has paid $6,191.12 towards medical bills.
Bob and Vicky [the sister-in-law] Adkins’ insurance company (Auto-Owners Insurance) has
paid $10,000.00.”3 The next question stated: “For each collateral benefit listed in your answer
to interrogatory 16, state which ones are subject to rights of recoupment through subrogation,
trust agreement, contract lien, or otherwise?” She answered: “State Farm and Auto-Owners
3 The interrogatories and answers were filed as exhibit A to the defendant’s Motion to Exclude Medical Expenses filed October 3, 2011. 14
Insurance.”Id. (Emphasis added). Months later, her deposition was taken on December 17,
2007. She again admitted that State Farm and Auto-Owners paid for her medical bills.4
{¶ 29} On April 3, 2008, the defense filed a “Motion to Join Subrogated Parties,”
specifically State Farm and Auto-Owners insurance, asserting that they were the real parties in
interest for recovery of the medical bills that they paid. The plaintiff did not oppose this
motion. On April 29, 2008, the trial court sustained the motion. On June 3, 2008, State Farm
filed a complaint as an involuntary plaintiff for recovery of medical expenses it paid.
Auto-Owners filed its complaint as an involuntary plaintiff on August 11, 2008.
{¶ 30} The case then languished due to a purported settlement that had been enforced
by the trial court. At that time, the court stated: “The Court most certainly understands that
there are four claimants in this case: (1) Mary Adkins, (2) Tim Adkins [her husband], (3) State
Farm, and (4) Auto-Owners.” (Entry filed August 27, 2008, Dkt. #31). The entry ordered
enforcement of the settlement, including repayment of the subrogated claims of State Farm
and Auto-Owners. The settlement order was appealed to this court, which reversed and
remanded for a hearing on whether the plaintiff had authorized a settlement. Rather than
submit to such a hearing, the plaintiff voluntarily dismissed the complaint under Civ. R.
41(A), on January 21, 2010, and promptly re-filed it in Delaware County Common Pleas
Court on February 1, 2010. Although the independent claims of State Farm and Auto-Owners
were not dismissed in Clark County, Auto-Owners intervened in Delaware County to protect
its interests. The plaintiff did not file anything in response to the intervening complaint.
4 Mary Adkins Deposition at 69-70. 15
Eventually, the Delaware County case was nearing trial. In a February 3, 2011 filing, counsel
for Auto-Owners explained: “Auto-Owner’s counsel has discussed the possibility of
stipulating to Auto-Owners subrogation claim at the trial of this matter. Both Plaintiff’s and
Defendant’s counsel have indicated they will endeavor to agree to some type of stipulation.
Auto-Owner’s counsel anticipates such stipulation will be agreed upon during the Final
Pretrial set for February 7, 2011.” However, in a judgment entry filed February 7, 2011, the
Delaware County Common Pleas Court transferred the case back to Clark County, finding that
“plaintiff is forum shopping after receiving an adverse ruling in Clark County.” (Judgment
Entry Granting Defendant’s Motion to Transfer Venue to Clark County at 2).
{¶ 31} Once back in Clark County, the trial court held that the case had not been
settled, and the matter was reset for trial. Auto-Owners did not participate in the trial. State
Farm had already been reimbursed from American Family as a result of intercompany
arbitration. As indicated, the court already had determined that State Farm and Auto-Owners
were real parties in interest and that the plaintiff had admitted the two insurers had a claim for
reimbursement. It is readily apparent that there were no factual issues relating to the
subrogation claims, and the court permitted the presentation of medical bills, without the
introduction of insurance rights for reimbursement, as suggested by defense counsel in a
Reply Memorandum in Further Support of Motion to Exclude Evidence, filed October 18,
2011 (Dkt. #72), in order not to prejudice or diminish the plaintiff’s claims in the jury’s view.
The reimbursement claims then could be resolved on purely legal issues after the verdict. In
routine personal-injury trials subrogated insurers often will not participate at trial to avoid 16
introduction of the specter of insurance, or insurance subrogation, with post-verdict resolution
of those claims. That is precisely what the trial court did here.
{¶ 32} I note that it is the duty of the appellant to demonstrate the error asserted. The
plaintiff did not submit a transcript of any of the trial proceedings, or, if one exists, of the
hearing set for February 3, 2012 concerning post-verdict set offs. In that circumstance, we
should presume the regularity of the trial court’s proceedings. Natl. City Bank v. Beyer, 89
Ohio St.3d 152, 160, 2000-Ohio-126, 729 N.E.2d 711, 718 (presuming regularity of trial
court’s proceedings and judgment where a transcript either was not prepared or was not
included in the record).
{¶ 33} The majority decision allows partial payment for Mary Adkins’ hospital bill,
for the fifth time. First, Auto-Owners’ payment to Mary Adkins of the remaining $4,179.00 of
its applicable $10,000.00 coverage was to reimburse her for the $6,191.12 hospital bill.
(Exhibit C to Motion to Exclude Medical Expenses filed October 3, 2011). Second, State
Farm paid the same bill (and claimed subrogation). Id. (Exhibit D). Third, the Ohio
Department of Job and Family Services paid the bill, although in a reduced amount. Id.
(Exhibit B).5 Fourth, American Family reimbursed State Farm for payment of the bill as a
result of intercompany arbitration. Id. (Exhibits E & F). Fifth, the majority allows Mary
Adkins to keep all insurance proceeds paid to her by Auto-Owners, including the part for
reimbursement of the hospital bill. The majority opinion reaches this result based on a belief
that Auto-Owners had to bring an action against Mary Adkins. I disagree.
5 ODJFS evidently was reimbursed when it was later discovered that the plaintiff had other applicable insurance benefits. 17
{¶ 34} Auto-Owners was the real party in interest with regard to its payment of
medical bills causally related to the accident. As indicated in Auto-Owners’ brief:
“Auto-Owners was not present for this portion of the trial by agreement of counsel, and the
jury did not consider any insurance payments.” (Brief of Auto-Owners filed January 25, 2012,
at 2). Plaintiff’s reply brief does not challenge this assertion. The reply brief again raises the
statute-of-limitation issue, and, for the first time, claims Auto-Owners did not assert a claim
against Mary Adkins. But as a subrogated party and a real party in interest, Auto-Owners had
no reason to do so.
{¶ 35} In ordering part of the jury award to be paid to Auto-Owners, the trial court
recognized that the insurance company was a subrogated party. (Dkt. #85 at 1). The majority
notes that Auto-Owners “arguably became subrogated” to Mary Adkins’ rights to the extent
that it paid her benefits. The majority correctly observes that such a subrogation right was not
contractual, as there is no evidence of a contract between Auto-Owners and Mary Adkins.6
Instead, Auto-Owners had a right to legal or equitable subrogation under which a “subrogee
steps into the shoes of the subrogor * * *.” Blue Cross and Blue Shield of Ohio v. Hrenko,
8th Dist. Cuyahoga No. 63907, 1993 WL 398508, *2 (Oct. 7, 1993). The subrogor in the
present case was Mary Adkins.
{¶ 36} The trial court also recognized that Auto-Owners was a “real party in interest”
to the extent that it paid Mary Adkins benefits. For that reason, the trial court sustained an
unopposed motion by Defendant Estate of Place to join Auto-Owners as a party under Civ.R.
6 We do not know whether Adkins’ application for medical payments benefits involved a contract for reimbursement because no such documentation is of record. 18
19. (Dkt. #12). The phrase “real party in interest” means “‘one who has a real interest in the
subject matter of the litigation, and not merely an interest in the action itself, i.e., one who is
directly benefitted or injured by the outcome of the case.’” (Emphasis sic). Countrywide
Home Loans, Inc. v. Swayne, 2d Dist. Greene No. 2009 CA 65, 2010-Ohio-3903, ¶28, quoting
Shealy v. Campbell, 20 Ohio St.3d 23, 24, 485 N.E.2d 701 (1985). To the extent that
Auto-Owners qualified as a real party in interest, it essentially took the place of Mary Adkins,
having a direct interest in the lawsuit and being entitled to reimbursement from the tortfeasor
for the benefits it paid her.
{¶ 37} I am unpersuaded that Auto-Owners, as a subrogated party and a real party in
interest, was required to file a claim against Mary Adkins, the person from whom it derived
its status and with whom its interests were aligned. As a subrogee, Auto-Owners stepped into
Mary Adkins’ shoes. As a real party in interest, Auto-Owners took the place of Mary Adkins
to the extent that it was entitled to reimbursement from the tortfeasor. If Auto-Owners had not
been joined as a party, I would agree that it would not be entitled to a portion of the jury
award. Its only recourse would be to file a separate action to obtain compensation from Mary
Adkins. But Auto-Owners was joined as an involuntary plaintiff. That being so, I see no
reason why it should be required to sue Mary Adkins to obtain reimbursement from the
tortfeasor’s estate, which also was a party. This is particularly true given Mary Adkins’ prior
admission that Auto-Owners had paid her medical bills and was entitled to subrogation. 19
{¶ 38} Finally, it is difficult to reconcile the trial court’s order to reimburse $62.317 to
ODJFS, which was not a party. Although medical-reimbursement information was available
and exchanged, there is nothing in the record, or the court’s decision, to indicate how that
resolution was reached. On that issue alone, I would remand the matter to the trial court to
clarify how it arrived at its conclusion.
Copies mailed to:
T. Jeffrey Beausay, Esq. Michael C. Mahoney, Esq. Mark J. Sheriff, Esq. Dale D. Cook, Esq. Hon. Douglas M. Rastatter
7 The trial court does not specifically refer to this amount as what is due to ODJFS. But the plaintiff admits in her brief that $62 is the amount of the claimed reimbursement. And the reimbursement documentation (Exhibit B to Motion to Exclude Medical Expenses filed October 3, 2011), if the hospital bill refunded to ODJFS is deleted, reveals the medicaid claim is $62.31.