[Cite as Fleming v. Whitaker, 2013-Ohio-2418.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
GEORGE FLEMING JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12-CA-19 WILL WHITAKER, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Mount Vernon Municipal Court, Case No. 12-SMI-00082
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 10, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
GEORGE FLEMING BRIAN C. REED PRO SE REESE, PYLE, DRAKE & MEYER Post Office Box 961 36 North Second Street, P. O. Box 919 Mount Vernon, Ohio 43050 Newark, Ohio 43058-0919 Knox County, Case No. 12-CA-19 2
Wise, P. J.
{¶1} Appellant George Fleming appeals the decision of the Mount Vernon
Municipal Court, Knox County, which dismissed, under Civ.R. 12(B)(6), his small claims
complaint against Appellees State Farm Mutual Automobile Insurance Company (“State
Farm”) and Will Whitaker. The relevant facts leading to this appeal are as follows.1
{¶2} Appellant was purportedly involved in an automobile accident on or about
June 20, 2007 with an insured of Appellee State Farm. Appellant’s claim against State
Farm has apparently still not been resolved to his satisfaction.
{¶3} On July 20, 2012, appellant filed a small claims action in the Mount
Vernon Municipal Court, Knox County, against Appellee State Farm and Appellee Will
Whitaker, a claim representative for State Farm. Appellant therein alleged: “Defendant
refuses to pay valid insurance claim.” Appellant further asked for judgment in the
amount of $3,000.00 plus interest.
{¶4} On August 7, 2012, appellees filed a motion to dismiss appellant’s action,
claiming, inter alia, that appellant had failed to state a cognizable claim for relief.
{¶5} On August 14, 2012, appellant filed a “notice of opposition to defendants’
motion to dismiss.” Appellees filed a reply thereto on August 10, 2012.
{¶6} On August 14, 2012, the trial court issued a judgment entry granting
appellees’ motion to dismiss on the grounds that appellant was not permitted to file a
direct action against State Farm or its representative and, in the alternative, that the
statute of limitations had passed.
1 Appellant’s brief does not include a statement of the facts, and his short statement of the case provides very limited procedural details. See App.R. 16(A). Knox County, Case No. 12 CA 19 3
{¶7} On September 12, 2012, appellant filed a notice of appeal. He herein
raises the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT DISMISSED
THIS CASE WITHOUT HEARING APPELLANT’S EVIDENCE.”
I.
{¶9} In his sole Assignment of Error, appellant contends the trial court erred in
granting appellees’ motion to dismiss. We disagree.
{¶10} In the judgment entry under appeal in the case sub judice, the trial court
referenced the “direct action” rule. This rule provides that in Ohio “[a]n injured person
may sue a tortfeasor's liability insurer, but only after obtaining judgment against the
insured.” Marks v. Allstate Ins. Co., 153 Ohio App.3d 378, 794 N.E.2d 129, 2003-Ohio-
4043, ¶ 17, quoting Chitlik v. Allstate Ins. Co. (1973), 34 Ohio App.2d 193, 63 O.O.2d
364, 299 N.E.2d 295, paragraph two of the syllabus.
{¶11} The holding in Chitlik, supra, was based in part on R.C. 3929.06, which
presently reads in pertinent part as follows:
{¶12} “(A)(1) If a court in a civil action enters a final judgment that awards
damages to a plaintiff for injury, death, or loss to the person or property of the plaintiff or
another person for whom the plaintiff is a legal representative and if, at the time that the
cause of action accrued against the judgment debtor, the judgment debtor was insured
against liability for that injury, death, or loss, the plaintiff or the plaintiff's successor in
interest is entitled as judgment creditor to have an amount up to the remaining limit of
liability coverage provided in the judgment debtor's policy of liability insurance applied to
the satisfaction of the final judgment. Knox County, Case No. 12 CA 19 4
{¶13} “(2) If, within thirty days after the entry of the final judgment referred to in
division (A)(1) of this section, the insurer that issued the policy of liability insurance has
not paid the judgment creditor an amount equal to the remaining limit of liability
coverage provided in that policy, the judgment creditor may file in the court that entered
the final judgment a supplemental complaint against the insurer seeking the entry of a
judgment ordering the insurer to pay the judgment creditor the requisite amount. Subject
to division (C) of this section, the civil action based on the supplemental complaint shall
proceed against the insurer in the same manner as the original civil action against the
judgment debtor.
{¶14} “(B) Division (A)(2) of this section does not authorize the commencement
of a civil action against an insurer until a court enters the final judgment described in
division (A)(1) of this section in the distinct civil action for damages between the plaintiff
and an insured tortfeasor and until the expiration of the thirty-day period referred to in
division (A)(2) of this section.
{¶15} “ *** ”
{¶16} In the case sub judice, appellant has made no attempt, either in the trial
court or in his appellate brief, to document the existence of a “judgment against the
insured” that would supply the legal prerequisite for his direct action against Appellee
State Farm and its claim representative. Had appellant merely documented to the trial
court the existence of such a final judgment in his response to appellees’ motion to
dismiss (and had appellant provided a compelling response to appellees’ claim that the
statute of limitations had passed), the court could have moved on to other issues in the
case. In his reply brief, appellant nonetheless seems to argue that because R.C. Knox County, Case No. 12 CA 19 5
1925.04(B) permits the filing of a small claims action in “concise, nontechnical form,” he
should have been allowed to present his evidence and not been subjected to a court
dismissal via motion by appellees. However, just as in Marks, supra, this Court has long
recognized that R.C. 3929.06 “is clear that a direct action against the insurer of a
tortfeasor is permissible only upon the recovery by the injured party of a final judgment.”
Secrest Trucking, Inc. v. Szerzinski, Stark App.No. CA-7298, 1988 WL 17839
(emphasis added). We are unpersuaded by appellant’s suggestion that R.C. 1925.04(B)
overrides the obligation of a plaintiff in appellant’s situation to comply with the direct
action rule under Ohio law.
{¶17} Appellant, in his reply brief, also directs us to Civ.R. 1(C)(4), which states
that the Civil Rules are inapplicable to small claims matters under Chapter 1925,
although only “to the extent that they would by their nature be clearly inapplicable.”
Appellant also directs us to R.C. 1925.16, which states in pertinent part: “Except as
inconsistent procedures are provided in this chapter or in rules of court adopted in
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[Cite as Fleming v. Whitaker, 2013-Ohio-2418.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
GEORGE FLEMING JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12-CA-19 WILL WHITAKER, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Mount Vernon Municipal Court, Case No. 12-SMI-00082
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 10, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
GEORGE FLEMING BRIAN C. REED PRO SE REESE, PYLE, DRAKE & MEYER Post Office Box 961 36 North Second Street, P. O. Box 919 Mount Vernon, Ohio 43050 Newark, Ohio 43058-0919 Knox County, Case No. 12-CA-19 2
Wise, P. J.
{¶1} Appellant George Fleming appeals the decision of the Mount Vernon
Municipal Court, Knox County, which dismissed, under Civ.R. 12(B)(6), his small claims
complaint against Appellees State Farm Mutual Automobile Insurance Company (“State
Farm”) and Will Whitaker. The relevant facts leading to this appeal are as follows.1
{¶2} Appellant was purportedly involved in an automobile accident on or about
June 20, 2007 with an insured of Appellee State Farm. Appellant’s claim against State
Farm has apparently still not been resolved to his satisfaction.
{¶3} On July 20, 2012, appellant filed a small claims action in the Mount
Vernon Municipal Court, Knox County, against Appellee State Farm and Appellee Will
Whitaker, a claim representative for State Farm. Appellant therein alleged: “Defendant
refuses to pay valid insurance claim.” Appellant further asked for judgment in the
amount of $3,000.00 plus interest.
{¶4} On August 7, 2012, appellees filed a motion to dismiss appellant’s action,
claiming, inter alia, that appellant had failed to state a cognizable claim for relief.
{¶5} On August 14, 2012, appellant filed a “notice of opposition to defendants’
motion to dismiss.” Appellees filed a reply thereto on August 10, 2012.
{¶6} On August 14, 2012, the trial court issued a judgment entry granting
appellees’ motion to dismiss on the grounds that appellant was not permitted to file a
direct action against State Farm or its representative and, in the alternative, that the
statute of limitations had passed.
1 Appellant’s brief does not include a statement of the facts, and his short statement of the case provides very limited procedural details. See App.R. 16(A). Knox County, Case No. 12 CA 19 3
{¶7} On September 12, 2012, appellant filed a notice of appeal. He herein
raises the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT DISMISSED
THIS CASE WITHOUT HEARING APPELLANT’S EVIDENCE.”
I.
{¶9} In his sole Assignment of Error, appellant contends the trial court erred in
granting appellees’ motion to dismiss. We disagree.
{¶10} In the judgment entry under appeal in the case sub judice, the trial court
referenced the “direct action” rule. This rule provides that in Ohio “[a]n injured person
may sue a tortfeasor's liability insurer, but only after obtaining judgment against the
insured.” Marks v. Allstate Ins. Co., 153 Ohio App.3d 378, 794 N.E.2d 129, 2003-Ohio-
4043, ¶ 17, quoting Chitlik v. Allstate Ins. Co. (1973), 34 Ohio App.2d 193, 63 O.O.2d
364, 299 N.E.2d 295, paragraph two of the syllabus.
{¶11} The holding in Chitlik, supra, was based in part on R.C. 3929.06, which
presently reads in pertinent part as follows:
{¶12} “(A)(1) If a court in a civil action enters a final judgment that awards
damages to a plaintiff for injury, death, or loss to the person or property of the plaintiff or
another person for whom the plaintiff is a legal representative and if, at the time that the
cause of action accrued against the judgment debtor, the judgment debtor was insured
against liability for that injury, death, or loss, the plaintiff or the plaintiff's successor in
interest is entitled as judgment creditor to have an amount up to the remaining limit of
liability coverage provided in the judgment debtor's policy of liability insurance applied to
the satisfaction of the final judgment. Knox County, Case No. 12 CA 19 4
{¶13} “(2) If, within thirty days after the entry of the final judgment referred to in
division (A)(1) of this section, the insurer that issued the policy of liability insurance has
not paid the judgment creditor an amount equal to the remaining limit of liability
coverage provided in that policy, the judgment creditor may file in the court that entered
the final judgment a supplemental complaint against the insurer seeking the entry of a
judgment ordering the insurer to pay the judgment creditor the requisite amount. Subject
to division (C) of this section, the civil action based on the supplemental complaint shall
proceed against the insurer in the same manner as the original civil action against the
judgment debtor.
{¶14} “(B) Division (A)(2) of this section does not authorize the commencement
of a civil action against an insurer until a court enters the final judgment described in
division (A)(1) of this section in the distinct civil action for damages between the plaintiff
and an insured tortfeasor and until the expiration of the thirty-day period referred to in
division (A)(2) of this section.
{¶15} “ *** ”
{¶16} In the case sub judice, appellant has made no attempt, either in the trial
court or in his appellate brief, to document the existence of a “judgment against the
insured” that would supply the legal prerequisite for his direct action against Appellee
State Farm and its claim representative. Had appellant merely documented to the trial
court the existence of such a final judgment in his response to appellees’ motion to
dismiss (and had appellant provided a compelling response to appellees’ claim that the
statute of limitations had passed), the court could have moved on to other issues in the
case. In his reply brief, appellant nonetheless seems to argue that because R.C. Knox County, Case No. 12 CA 19 5
1925.04(B) permits the filing of a small claims action in “concise, nontechnical form,” he
should have been allowed to present his evidence and not been subjected to a court
dismissal via motion by appellees. However, just as in Marks, supra, this Court has long
recognized that R.C. 3929.06 “is clear that a direct action against the insurer of a
tortfeasor is permissible only upon the recovery by the injured party of a final judgment.”
Secrest Trucking, Inc. v. Szerzinski, Stark App.No. CA-7298, 1988 WL 17839
(emphasis added). We are unpersuaded by appellant’s suggestion that R.C. 1925.04(B)
overrides the obligation of a plaintiff in appellant’s situation to comply with the direct
action rule under Ohio law.
{¶17} Appellant, in his reply brief, also directs us to Civ.R. 1(C)(4), which states
that the Civil Rules are inapplicable to small claims matters under Chapter 1925,
although only “to the extent that they would by their nature be clearly inapplicable.”
Appellant also directs us to R.C. 1925.16, which states in pertinent part: “Except as
inconsistent procedures are provided in this chapter or in rules of court adopted in
furtherance of the purposes of this chapter, all proceedings in the small claims division
of a municipal court are subject to the Rules of Civil Procedure ***.” He thus suggests,
in apparent reference to the trial court’s reliance on Civ.R. 12(B)(6), that the Civil Rules
and the Ohio Revised Code are in conflict. However, we agree with the conclusion of
the Second District Court of Appeals in Folck v. Khanzada, Clark App.No. 2012–CA–18,
2012-Ohio-4971, that the application of Civ.R. 12(B)(6) in small claims matters is not
inconsistent with R.C. Chapter 1925. Id. at f.n. 1. Knox County, Case No. 12 CA 19 6
{¶18} Accordingly, we find the trial court did not err in dismissing appellant’s
complaint against appellees on the basis that it violated the direct action rule.2
{¶19} Appellant's sole Assignment of Error is overruled.
{¶20} For the reasons stated in the foregoing opinion, the decision of the Mount
Vernon Municipal Court, Knox County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
___________________________________
JUDGES JWW/d 0915
2 Although appellees herein additionally respond that appellant’s complaint was also properly dismissed as being violative of the statute of limitations and the doctrine of res judicata, we find further analysis of those issues unnecessary. As an appellate court, we are hesitant to issue advisory or merely academic rulings. See, e.g., In re Merryman/Wilson Children, Stark App.Nos. 2004 CA 00056 and 2004 CA 00071, 2004– Ohio–3174, ¶ 59. Knox County, Case No. 12-CA-19 7
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
GEORGE FLEMING : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : WILL WHITAKER, et al. : : Defendants-Appellees : Case No. 12-CA-19
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Mount Vernon Municipal Court of Knox County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES