| [1] |
COURT OF APPEALS OF OHIO, COUNTY OF OHIO,
TENTH DISTRICT, FRANKLIN
|
| [2] |
No. 96APE07-896
|
| [3] |
119 Ohio App.3d 93,
1997.OH.40197 <http://www.versuslaw.com>
|
| [4] |
April 10, 1997.
|
| [5] |
BENTLEY
v. GRANGE MUT. CAS. INS. CO. |
| [6] |
Clark, Perdue, Roberts & Scott, Douglas S. Roberts and Glen R.
Pritchard, for appellees.
Hamilton, Kramer, Myers & Cheek, Brian J. Bradigan and Thomas
J. Conkle, for appellant.
|
| [7] |
|
| [8] |
Defendant-appellant, Grange Mutual Casualty Insurance Company
("Grange"), appeals from a judgment of the Franklin County Court;
of Common Pleas declaring that plaintiffs-appellees, Kendall
R. Bentley, Herman Keith Bentley, Jr., April M. Beckley, and
Tracy L. Myers are entitled to underinsured motorist coverage.
We affirm for the reasons that follow.
|
| [9] |
On March 3, 1988, Millard Scott Bentley died while a passenger
in a motor vehicle negligently operated by Todd Tekip. Millard
was survived by his father Herman, his mother Darlene, and his
four brothers and sisters, the appellees herein. All six survivors
originally were plaintiffs in this action. The trial court granted
summary judgment against the parents based on the doctrine of
res judicata, or claim preclusion, and there has been no appeal
from that judgment. The action proceeded to a bench trial on
stipulated facts and trial briefs, whereupon the trial court
granted judgment in favor of appellees. Grange asserts two assignments
of error:
|
| [10] |
1. "The trial court erred in deciding that the plaintiffs, the
siblings of Millard Bentley, are entitled to underinsured motorist
coverage under a Grange auto insurance policy issued to Herman
Bentley, Millard's father and the executor of Millard's estate.
After Herman Bentley, as the personal representative of Millard's
estate, settled with the tortfeasor, the brothers and sisters
were no longer `legally entitled to recover,' a condition precedent
under the insurance contract to underinsured motorist benefits."
|
| [11] |
2. "Plaintiffs-appellees' claim for underinsured motorist benefits
was adjudicated to a final decision and judgment in the Court
of Common Pleas of Cuyahoga County, Herman Bentley v. Grange
(1991), case No. 193137. The trial court erred in its determination
that the decision was not a bar as to all the beneficiaries of
the estate, as the administrator of the estate is the sole person
authorized by law to prosecute a wrongful death action. In addition,
even though the remaining plaintiffs were not named parties in
the earlier suit, they were in privity with the named parties,
and they are now collaterally estopped from relitigating."
|
| [12] |
Decedent's father, Herman Bentley, was appointed administrator
of the estate. At the time of the accident, Herman was the named
insured on a policy of automobile insurance issued by appellant
with uninsured/underinsured motorist ("UM") coverage of $100,000
per person and $300,000 per occurrence. With the consent of appellant,
Tekip's insurer, Western Reserve Insurance Company, paid $100,000
as exhaustion of Tekip's policy limits for the settlement of
the wrongful death claims against Tekip. As a condition of the
settlement, Herman Bentley, in his capacity as the administrator
of the estate, released Tekip from liability. Under Ohio's wrongful
death statute, specifically R.C. 2125.02(C), the administrator
controls all wrongful death claims against the tortfeasor, including
those of appellees, the decedent's brothers and sisters. Therefore,
the settlement and release by the administrator included release
of appellees' wrongful death claims against the tortfeasor Tekip.
|
| [13] |
On July 10, 1990, an action was filed in the Cuyahoga County Court
of Common Pleas against appellant, Bentley v. Grange Mut. Ins.
Co., case No. 193137. Because the limits of the policy issued
by appellant were the same as the limits of the tortfeasor's
policy, the Cuyahoga County Court of Common Pleas, on Apris11,
1991, granted judgment in favor of appellant. The court relied
on Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d
658, syllabus, which states:
|
| [14] |
"Unless otherwise provided by an insurer, underinsured motorist
liability insurance coverage is not available to an insured where
the limits of liability contained in the insured's policy are
identical to the limits of liability set forth in the tortfeasor's
liability insurance coverage. (R.C. 3937.18[A][2], construed
and applied; Wood v. Shepard [1988], 38 Ohio St.3d 86, 526 N.E.2d
1089, distinguished and explained.)"
|
| [15] |
On October 1, 1993, the Supreme Court of Ohio expressly overruled
Hill:
|
| [16] |
"An underinsurance claim must be paid when the individual covered
by an uninsured/underinsured policy suffers damages that exceed
those monies available to be paid by the tortfeasor's liability
carriers. (Hill v. Allstate Ins. Co. [1990], 60 Ohio St.3d 243,
563 N.E.2d 658, overruled.)" Savoie v. Grange Mut. Ins. Co. (1993),
67 Ohio St.3d 500, 62(3 N.E.2d 809, paragraph three of the syllabus.
|
| [17] |
On November 23, 1993, appellees sent appellant a demand for $200,000
of underinsured motorist ("UM") benefits, which appellant denied.
|
| [18] |
On March 17, 1994, an action against appellant, case No. 94CVC-03-1856,
was filed in the Franklin County Court of Common Pleas. On October
31, 1994, the trial court issued a decision granting summary
judgment in favor of appellant on the ground that under the doctrine
of res judicata, appellees' claims were barred by the judgment
in the 1991 Cuyahoga County action. Appellees voluntarily dismissed
the action prior to judgment being entered upon that decision.
|
| [19] |
Four days later, on November 4, 1994, the complaint was refiled
in the Franklin County Court of Common Pleas under case No. 944CVH-11-7870,
the action from which this appeal arises. The plaintiffs were
Herman Bentley, decedent's father, individually and as administrator
of the estate, decedent's mother Darlene Bentley, and decedent's
four brothers and sisters. Appellant again moved for summary
judgment on the ground that, under the doctrine of res judicata
appellees' claims were barred by the judgment in the Cuyahoga
County action. On August 7, 1995, the trial court sustained appellant's
motion as to plaintiffs Herman Bentley individually and Darlene
Bentley, but overruled the motion as to the other plaintiffs
on the ground that because they were not parties in the Cuyahoga
County action, they could not be bound by that judgment.
|
| [20] |
The action proceeded to trial on stipulated facts and trial briefs.
In a June 5, 1996 decision and subsequent judgment entry,
*fn1
the court declared that appellees are entitled to UM coverage
subject to the $100,000 and $300,000 policy limits and that appellant
is obligated to submit the issue of liability and damages to
binding arbitration pursuant to the terms of the policy.
|
| [21] |
In the first assignment of error, appellant argues that appellees'
rights to UM coverage were terminated by the release of the tortfeasor
which was part of the administrator's settlement with the tortfeasor
and the tortfeasor's liability insurer.
|
| [22] |
In the UM provision of the policy issued by appellant, appellant
promises "[t]o pay all sums which the insured or his legal representative
shall be legally entitled to recover as damages from the owner
or operator of an uninsured motor vehicle because of bodily injury,
sickness or disease, including death resulting therefrom, hereinafter
called `bodily injury,' sustained by the insured, caused by accident
and arising out of the ownership, maintenance or use of such
uninsured motor vehicle." (Emphasis added.)
|
| [23] |
This language mirrors the language of R.C. 3937.18(A)(1),
*fn2
which requires UM coverage "for the protection of persons insured
* * * who are legally entitled to recover damages from owners
or operators of uninsured motor vehicles." Appellant argues that
appellees are no longer "legally entitled to recover as damages
from the owner or operator of an uninsured motor vehicle" because
their legal entitlement to recover damages from the tortfeasor
terminated when their wrongful death case against the tortfeasor
was settled in 1990. Appellant argues that because appellees
no longer have claims against the tortfeasor--that is, they are
no longer "legally entitled to recover damages" from him--appellees
have no right to UM benefits under the terms of the policy.
|
| [24] |
Appellant's interpretation of "legally entitled to recover" is
too restrictive. Although appellees no longer have claims against
the tortfeasor as a result of the settlement, the Supreme Court
in McDonald v. Republic-Franklin Ins. Co. (1989), 45 Ohio St.3d
27, 543 N.E.2d 456, paragraph two of the syllabus, held that
the right to UM coverage survives the insured's release of the
underinsured motorist from tort liability when the UM insurer
has failed to reasonably protect its subrogation rights:
|
| [25] |
"When an insured has given his underinsurance carrier notice of
a tentative settlement prior to release, and the insurer has
had a reasonable opportunity to protect its subrogation rights
by paying the underinsured motorist benefits before the release
but does not do so, the release will not preclude recovery of
underinsurance benefits." Id.
|
| [26] |
McDonald supports the proposition that an insured retains the
contract right to UM coverage despite the fact that the tort
claim against the tortfeasor has been settled, if the UM insurer
consented to the settlement. The second paragraph of the McDonald
syllabus is equally applicable when the underlying tort is subject
to the wrongful death statute. See, e.g., Cincinnati Ins. Co.
v. Jarvis (1994), 98 Ohio App.3d 165, 162-164, 648 N.E.2d 30,
34-86; Lanza-Costlow v. State Fawn Fire & Cas. Co. (1996), 115
Ohio App.3d 106, 684 N.E.2d 742; Hydel v. Cincinnati Ins. Co.
(Jan. 11, 1996), Cuyahoga App. No. 68552, unreported, 1996 WL
11316; Motorists Mut. Ins. Co. v. Cincinnati Ins. Co. (Sept.
10, 1998), Wood App. No. 92WD087, unreported, 1993 WL 342587;
Gingerich v. Nationwide Mut. Ins. Co. Aug. 13, 1990), Tuscarawas
App. No. 89AP110088, unreported, 1990 WL 120835.
|
| [27] |
Appellant relies on three cases for the proposition that an insured
has no right to UM coverage once the underlying tort claim is
settled. in Kurent v. Farmers Ins. of Columbus, Inc. (1991),
62 Ohio St.3d 242, 245-246, 581 N.E.2d 583, 535537, the court
held that Ohio residents did not have a right to UM coverage
because under the "no fault" insurance law of Michigan they were
not legally entitled to recover damages from the tortfeasor.
Thus, in Parent, the plaintiffs had never had a right to UM coverage
and the issue of settlement with the tortfeasor was moot.
|
| [28] |
In Love v. Nationwide Mut. Ins. (1995), 104 Ohio App.3d 804, 663
N.E.2d 407, the plaintiffs were sisters whose parents died in
a car accident caused by the negligence of the driver of another
car. A third sister was the administrator of the parents' estates,
and she settled the wrongful death claims. Two months later,
the plaintiffs filed UM claims with their own insurers, which
up to that point had been unaware of the plaintiffs' potential
claims and therefore unable to protect their subrogation rights.
This court upheld summary judgment in favor of the insurers based
on Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22,
621 N.E.2d 447, paragraph four of the syllabus, modified by McDonald
v. Republic-Franklin Ins. Co., supra, 45 Ohio St.3d 27, 543 N.E.2d
456, paragraph two of the syllabus. In Bogan, the Supreme Court
held that an insurer may condition UM coverage on the insured's
having protected the insurer's right to be subrogated to the
insureds' claims against the tortfeasor. This court in Love merely
followed Bogan and enforced the subrogation clauses In Love,
the insurer did not receive advance notice of the settlement;
in this case, in contrast, appellant not only had notice, it actually
consented to appellees' settlement with the tortfeasor. Love
was a correct application of Began and distinguishable from this
case.
|
| [29] |
The court in Love stated that the plaintiffs' rights to UM coverage
were terminated by the settlement of the underlying tort claims.
It is that statement in Love upon which appellant relies. Though
correct as a general rule, McDonald demonstrates that this statement
is not an unconditional proposition of law. Appellant's error
is applying statements from Love out of the context in which
they were made, that context being one in which the UM insurer
had no advance notice of the settlement with the tortfeasor.
|
| [30] |
Regrettably, however, this court made the same mistake of applying
Love out of context in the third case upon which appellant relies,
Sparks v. State Farm Mut. Auto. Ins. Co. (Oct. 24, 1995), Franklin
App. No. 95APE03-339, unreported, 1995 WL 632081, discretionary
appeal allowed (1996), 75 Ohio St.3d 1476, 663 N.E.2d 1308, appeal
dismissed on application of the parties in (1997), 78 Ohio St.3d
1471, 678 N.E.2d 580. The majority in Sparks, inappropriately
relying on language in Love, held that despite the fact that
the UM insurer consented to the administrator's settlement with
the tortfeasor,
*fn4
the wrongful death statutory beneficiaries could not recover
UM benefits because the settlement terminated their legal entitlement
to recover front the tortfeasor. We agree with appellant that
Sparks stands for an unconditional proposition of law that an
insured has no right to UM coverage once the underlying tort
claim is settled. Because the holding of Sparks is contrary to
the second paragraph of the syllabus of McDonald, 45 Ohio St.3d
27, 543 N.E.2d 456, we decline to follow it. The court in Sparks
should have held that the plaintiffs retained their UM contract
rights because their UM insurer consented to the settlement.
|
| [31] |
Under McDonald, because appellant consented to the settlement
in which appellees' wrongful death claims against the tortfeasor
were released, the release did not effect a forfeiture of appellees,
contract rights to UM coverage. The first assignment of error
is not well taken.
|
| [32] |
In the second assignment of error, appellant argues that because
the issue of whether appellees retain their rights to UM coverage
was determined in the 1991 Cuyahoga County action, they are barred
by the doctrine of collateral estoppel, or issue preclusion,
from litigating the issue here. In the 1991 Cuyahoga County action,
the court declared that under Hill v. Allstate Ins. Co., 50 Ohio
St.3d 243, 553 N.E.2d 658, syllabus, overruled by Savoie, 67
Ohio St.3d 500, 620 N.E.2d 809, paragraph three of the syllabus,
because the limits of the policy issued by appellant were the
same as the liability limits of the tortfeasor's policy, plaintiffs
Herman and Darlene Bentley had no right to UM coverage. Savoie
revealed that decision to be incorrect, and appellees now seek
to assert their rights to UM coverage.
|
| [33] |
Because appellees were neither parties to the Cuyahoga County
action nor in privity with the parties, the doctrine of collateral
estoppel is inapplicable.
|
| [34] |
"Collateral estoppel (issue preclusion) prevents parties or their
privies from relitigating facts and issues in a subsequent suit
that were fully litigated in a prior suit. Collateral estoppel
applies when the fact or issue (1) was actually and directly
litigated in the prior action, (2) was passed upon and determined
by a court of competent jurisdiction, and (3) when the party
against whom collateral estoppel is asserted was a party in privity
with a party to the prior action." Thompson v. Wing (1994), 70
Ohio St.3d 176, 183, 637 N.E.2d 917, 922-923.
|
| [35] |
The doctrine of res judicata, which encompasses both claim preclusion
and issue preclusion, is necessary to promote finality of judgments
and prevent multiplicity of litigation, but it should not be
permitted to encroach upon fundamental rights, Whitehead v. Gen.
Tel. Co. (1969), 20 Ohio St.2d 108, 116, 49 O.O.2d 435, 439-440,
254 N.E.2d 10, 15, including the right to due process.
|
| [36] |
"The doctrine of res judicata rests at bottom upon the ground
that the party to be affected, or some other with whom he is
in privity, has litigated or had an opportunity to litigate the
same matter in a former action in a court of competent jurisdiction.
* * * The opportunity to be heard is an essential requisite of
due process of law in judicial proceedings. * * * And as a state
may not, consistently with the Fourteenth Amendment, enforce
a judgment against a party named in the proceedings without a
hearing or an opportunity to be heard * * * so it cannot, without
disregarding the requirement of due process, give a conclusive
effect to a prior judgment against one who is neither a party
nor in privity with a party therein." Postal Telegraph Cable
Co v. City of Newport, Ky. (1918), 247 U.S. 464, 476, 38 S.Ct.
566, 570-571, 62 L.Ed 1215, 1221.
|
| [37] |
In this case, the first two elements of collateral estoppel as
set forth in Thompson are presumed satisfied. Appellant's second
assignment of error is based on the argument that the third element
is also satisfied, that is, that appellees were in privity with
their parents, Herman and Darlene, who were the plaintiffs in
the Cuyahoga County action. Therefore, the issue presented is
whether persons who are wrongful death statutory beneficiaries
of a single decedent and who have identical rights to UM coverage
under a single insurance policy are in privity with each other
within the meaning of the doctrine of
collateral estoppel so that an adjudication of the right of one
to UM coverage will be binding on the others.
|
| [38] |
"Generally, a person is in privity with another if he succeeds
to an estate or an interest formerly held by another." Whitehead,
20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, at paragraph
four of the syllabus. Appellees did not succeed to an interest
of their parents. Their rights to UM coverage, although identical,
are independent of the rights of their parents. Under the Restatement
of the Law 2d, Judgments, other factors can contribute to a determination
of privity, but appellant has not alleged that appellees controlled
the Cuyahoga County action,
*fn5
that appellees agreed to be bound by the Cuyahoga County action,
*fn6
that appellees were represented by their parents in the Cuyahoga
County action,
*fn7
or that there existed between appellees and their parents any
substantive legal relationship resulting in preclusion.
*fn8
"Most courts * * * will not bind a nonparty to a decision adverse
to his interests merely because a common question of fact or
law exists in the cases and the nonparty had the same general
interest as one of the parties to the lawsuit." Semmel, Collateral
Estoppel, Mutuality and Joinder of Parties (1968), 68 Colum.L.Rev.
1457, 1460. Appellees were entitled to their individual day or
days in court and were under no obligation to make their day
in court the same as that of their parents.
|
| [39] |
The Supreme Court of Ohio has shown that it is willing to relax
the mutuality requirement where justice would reasonably require
it. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d
193, 199, 2 OBR 732, 737-738, 443 N.E.2d 978, 984-985. The court
in Goodson stated that many factors, considerations, and elements
enter into any judgment of a court and that the benefits garnered
from applying collateral estoppel in a particular case must be
balanced against the costs. "The major risk linked to such an
application," the court stated, "is that of an erroneous determination
in the first case." Id. at 201-202, 2 OBR at 739-741, 443 N.E.2d
at 985-987. In this case, justice requires enforcement of the
mutuality requirement, because allowing appellant the application
of defensive collateral estoppel would mean giving effect to
a judgment that we now know in the light of Savoie to have been
erroneous.
|
| [40] |
Appellant also argues that the doctrine of collateral estoppel
applies because appellees were in privity with the administrator
of the estate, who was a plaintiff in the Cuyahoga County action.
This argument fails for lack of proof. The burden is on the party
asserting collateral estoppel to prove all the elements thereof,
and no evidence regarding the parties to the Cuyahoga County
action was introduced for purpose of trial.
*fn9
Moreover, courts have stated that an administrator does not have
standing to enforce the UM rights of the wrongful death statutory
beneficiaries. See Smith v. Erie Ins. Group (1990), 61 Ohio App.3d
794, 797, 673 N.E.2d 1174, 1176-1177; Cincinnati Ins. Co. v.
Jarvis(1994), 98 Ohio App.3d 155, 163, 648 N.E.2d 30, 36-86 (citing
Smith); Hydel, supra (citing Jarvis).
|
| [41] |
Because appellees were neither parties to the Cuyahoga County
action nor in privity with the parties, the doctrine of collateral
estoppel is inapplicable. The second assignment of error is not
well taken.
|
| [42] |
For the foregoing reasons, both assignments of error are overruled,
and the judgment of the Franklin County Court of (common Pleas
is affirmed.
|
| [43] |
Judgment affirmed.
|
| [44] |
|
| [45] |
CLOSE, J., dissents.
|
| [46] |
CLOSE, Judge, dissenting.
|
| [47] |
I am troubled by the majority's holding in its second assignment
of error. All matters in this case were resolved on April 11,
1991, when judgment was granted in favor of appellant in the
Court of Common Pleas of Cuyahoga County, Herman Bentley v. Grange,
case No. 193127. Relying on Hill v. Allstate Ins. Co. (1990),
60 Ohio St.3d 243, 553 N.E.2d 658, the court in Bentley disposed
of the case in accordance with the then prevailing law, finding
that, because the tortfeasor's insurance policy limits were identical
to that of the Bentleys, the Bentleys were not entitled to underinsured
motorist coverage under their policy with Grange. Apparently,
no appeal was filed from that trial court decision. Although
Bentley was accurately decided at that time, two and one-half
years later the Supreme Court of Ohio expressly overruled Hill
in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.2d 600,
620 N.E.2d 809, prompting appellants to seek additional recovery
under the underinsured motorist portion of their policy pursuant
to the Savoie holding. The trial court held that, while the doctrine
of res judicata precluded the parents from bringing another action,
the siblings of the decedent, as separate parties, were not precluded
from bringing a wrongful death action for underinsured motorist
coverage. In reaching that decision, it was necessary for the
trial court to find that the parents, and Herman Bentley, in
particular, brought the action individually and not as a representative
of their decedent son's estate.
|
| [48] |
I respectfully dissent from the majority view, in that I believe
that appellees are collaterally estopped from asserting their
wrongful death claim. The Ohio Supreme Court in Thompson v. Wing
(1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917, 922-928, established
a three-prong test necessary for collateral estoppel:
|
| [49] |
"Collateral estoppel applies when the fact or issue (1) was actually
and directly litigated in the prior action, (2) was passed upon
and determined by a court of competent jurisdiction, and (3)
when the party against whom collateral estoppel is asserted was
a party in privity with a party to the prior action." Id., citing
Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d
435, 254 N.E.2d 10, paragraph two of the syllabus.
|
| [50] |
As the first two prongs are satisfied, it is the third prong of
the Thompson test that is at issue here, i.e., whether the siblings
were in privity to the parties of the first action.
|
| [51] |
First, I point out that R.C. 2125.02(A)(1) provides:
|
| [52] |
"[A]n action for wrongful death shall be brought in the name of
the personal representative of the decedent for the exclusive
benefit of the surviving spouse, the children, and the parents
of the decedent, all of whom are rebuttably presumed to have
suffered damages by reason of the wrongful death, and for the
elusive benefit of the other next of kin of the decedent." (Emphasis
added.)
|
| [53] |
The language contained in this statute mandates that the action
for wrongful death be brought only by a personal representative.
A major policy reason behind the enactment of this statute is
so that defendants "`may not again be haled into court to answer
for the same wrong.'" Bunnell v. Maynard (1970), 21 Ohio St.2d
108, 110, 50 O.O.2d 268, 269-270, 255 N.E.2d 628, 629, quoting
Douglas v. Daniels Bros. Coal Co. (1939), 135 Ohio St. 641, 647,
15 O.O. 12, 15, 22 N.E.2d 195, 198. The Ohio Supreme Court in
Ramsey v. Neiman (1994), 69 Ohio St.3d 508, 511, 634 N.E.2d 211,
213, states:
|
| [54] |
"[G]ood policy reasons exist for requiring, as a condition precedent
to the maintenance of a wrongful death action, that the person
bringing the action be appointed by a court. Such a requirement
eliminates the possibility that the defendant will face more
than one lawsuit. It also allows for potential conflicts of interest
to be revealed in advance of the filing of the action. And it
ensures to some degree that the wrongful death action will be
brought by a person who will act in the best interests of the
beneficiaries, the real parties in interest."
|
| [55] |
I believe that the claim in the instant case is predicated upon
a wrongful death. Keeping in mind R.C. 2125.02(A)(1) and its
mandate, we look, first, at the fact that the probate court approved
the settlement of a wrongful death claim made by the father and
administrator, Herman Bentley. Whether the caption or style of
the case showed Herman Bentley as administrator is irrelevant
because the wrongful death action could have been brought only
by Herman Bentley, administrator of the estate of Millard Bentley.
The court, in its disposition of the matter, treated the case
like a wrongful death case. Second, in the parents' action for
declaratory judgment in the Cuyahoga County court, they unsuccessfully
soughsto recover underinsured motorist benefits for the wrongful
death of their son. Further, in appellees' current action filed
in the Franklin County Court of Common Pleas, Count One, paragraph
5, of appellees' complaint reads: "The decedent is survived by
next of kin who have sustained damages pursuant to the Ohio Wrongful
Death Statute as a result of the death of the decedent." Clearly,
both actions sought to relitigate the wrongful death claim in
the instant action. Appellees are collaterally estopped from
bringing this claim because it is the same issue that was previously
decided by the Cuyahoga County Court of Common Pleas. Tennant
v. State Farm Mut. Ins. Co. (1991), 81 Ohio App.3d 20, 610 N.E.2d
437. While siblings of the decedent are, by statute, entitled
to pursue a wrongful death claim as "next of kin," Shoemaker
v. Crawford (1991), 78 Ohio App.3d 63, 603 N.E.2d 1114, appellees
may not bring a claim that is barred by collateral estoppel.
|
| [56] |
Further, appellees are collaterally estopped because they are,
by way of privity, the same parties to the original action. "Privity"
has been defined as "mutual or successive relationships to the
same right of property, or such as identification of interest
of one person with another as to represent the same legal right."
Black's Law Dictionary (6 Ed.1990) 1199. Assuming, as we would
have this court do, that Herman Bentley brought a wrongful death
claim in his capacity as administrator of Millard Bentley's estate,
we should hold that appellees are in privity with Herman Bentley
as administrator. "`It is the duty of a fiduciary of an estate
to serve as representative of the entire estate. Such fiduciary,
in the administration of an estate, owes a duty to beneficiaries
to act in a manner which protects the beneficiaries interests.
We believe that this duty places the beneficiaries in privity
with the executor.'" Weisberger v. Home Ins. Con (1991), 76 Ohio
App.3d 391, 394, 601 N.E.2d 660, 662-663, citing Elam v. Hyatt
Legal Serv. (1989), 44 Ohio St.3d 175. 641 N.E.2d 616. The privity,
then, is between the beneficiaries (the siblings) and the administrator
(Herman Bentley). Under any reasonable definition, these parties
were in "privity" and, therefore, are bound collaterally by the
judgment of the Cuyahoga County Court of Common Pleas.
|
| [57] |
For the foregoing reasons, I would sustain the second assignment
of error and reverse the judgment of the trial court.
|
|
|
|
| Opinion Footnotes | |
|
|
|
| [58] |
*fn1
The judgment entry erroneously states that the case was decided
on summary judgment.
|
| [59] |
*fn2
R.C. 3937.18 was substantially amended after decedent's death
and the Supreme Court's decision in Savoie, supra.
|
| [60] |
*fn3
The rule of Logan was applied in these other wrongful death
cases: Frazier v. United Ohio Ins. Co. (June 27, 1995), Franklin
App. No. 94APE09-1339, unreported, 1995 WL 390945; Bacon v. W.
Am. Ins. Co. (1996), 115 Ohio App.3d 433, 685 N.E.2d 781; Eilerman
v. Colegate (1996), 115 Ohio App.3d 344, 685 N.E.2d 548; Critoria
v. Cincinnati Ins. Co. (Feb. 12, 1996), Stark App. No.1995CA00248,
unreported. 1996 WL 74084.
|
| [61] |
*fn4
Sparks involved only one insurer: the tortfeasor, the decedent,
and the wrongful death statutory beneficiaries were all insured
by policies issued by State Farm. Therefore, it was as if State
Farm as UM insurer of the wrongful death statutory beneficiaries
"consented" to the settlement with State Farm as the tortfeasor's
liability insurer.
|
| [62] |
*fn5
Restatement of the Law 2d, Judgments (1982) 382, Section 39,
provides: "A person who is not a party to an action but who controls
or substantially participates in the control of the presentation
on behalf of a party is bound by the: determination of issues
decided as though he were a party."
|
| [63] |
*fn6
Restatement of the Law 2d, Judgments (1982), Section 40, provides:
"A person who agrees to be bound by the determination of issues
in art action between others is bound in accordance with the
terms of his agreement."
|
| [64] |
*fn7
Restatement of the Law 2d, Judgments (1982) 393, Section 41,
provides:
|
| [65] |
"(1) A person who is not a party to an action but who is represented
by a party is bound by and entitled to the benefits of a judgment
as though he were a party. A person is represented by a party
who is:
|
| [66] |
"(a) The trustee of an estate or interest of which the person
is a beneficiary; or
|
| [67] |
"(b) Invested by the person with authority to represent him in
an action; or
|
| [68] |
"(c) The executor, administrator, guardian, conservator, or similar
judiciary manager of an interest of which the person is a beneficiary;
or
|
| [69] |
"(d) An official or agency invested by law with authority to represent
the person's interests; or
|
| [70] |
"(e) The representative of a class of persons similarly situated,
designated as such with the approval of the court, of which the
person is a member.
|
| [71] |
"(2) A person represented by a party to an action is bound by
the judgment even though the person himself does not have notice
of the action, is not served with process, or is not subject
to service of process. Exceptions to this general rule are stated
in 42."
|
| [72] |
*fn8
See Restatement of the Law 2d, Judgments (1982) 1-124, Sections
43-61 (Topic 2: Substantive Legal Relationships Resulting in
Preclusion).
|
| [73] |
*fn9
The trial court found that there was no evidence that the administrator
was a party in the Cuyahoga County action. Even the evidence
filed for purposes of summary judgment suggests that appellant's
argument is disingenuous. It appears that the plaintiffs in the
Cuyahoga County action were the parents individually, not the
administrator. A copy of the complaint in the Cuyahoga County
action was attached to appellant's November 21, 1995 motion for
reconsideration of the trial court's August 7, 1995 decision
denying summary judgment. The caption of the complaint identifies
the plaintiffs as "HERMAN BENTLEY" and "DARLENE BENTLEY," not
Herman Bentley as administrator. The complaint identifies itself
as a "COMPLAINT FOR DECLARATORY JUDGMENT ON INSURER'S OBLIGATION
UNDER UNDERINSURED MOTORIST COVERAGE," an action an administrator
does not have standing to pursue. The complaint's prayer for
relief reads:
|
| [74] |
"WHEREFORE, plaintiff demands judgment:
|
| [75] |
"I. Determining plaintiffs are insured under the underinsured
motorist coverage provision of their policy with defendant;
|
| [76] |
"II. Determining their rights and the obligations of defendant
under the policy;
|
| [77] |
"III. Directing the defendant to submit plaintiffs' claim to recover
damages pursuant to Revised Code 2125.02 for wrongful death under
the underinsured motorist provision of the policy; and
|
| [78] |
"IV. For costs."
|
| [79] |
Appellant's January 19, 1995 motion for summary judgment includes
as Exhibit B a photocopy of the journal entry in the Cuyahoga
County action, at the top of which is handwritten "Herman Bentley
et al. vs. Grange Mutual Ins. Co." The record does not contain
a copy of the trial court's opinion.
|