[Cite as Doner v. Auto-Owners Ins. Co., 2016-Ohio-6979.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




DIRK L. DONER,                                             CASE NO. 1-16-14

       PLAINTIFF-APPELLANT,

      v.

AUTO-OWNER'S INSURANCE CO.,                                OPINION

       DEFENDANT-APPELLEE.



                  Appeal from Allen County Common Pleas Court
                                   Civil Division
                           Trial Court No. CV2016 0058

                         Judgment Reversed, Cause Remanded

                         Date of Decision: September 26, 2016



APPEARANCES:

           Kenneth J. Ignozzi for Appellant

           J. Alan Smith for Appellee
Case No. 1-16-14


WILLAMOWSKI, J.

           {¶1} Plaintiff-appellant Dirk Doner (“Donor”) brings this appeal from the

judgment of the Court of Common Pleas of Allen County granting the motion to

dismiss of defendant-appellee Home-Owner’s Insurance Company (“HOIC”).1

Doner alleges that the trial court erred by 1) determining that he materially

prejudiced HOIC’s subrogation rights; 2) dismissing the complaint without

specifying that it was without prejudice; and 3) denying the motion for relief from

judgment on the mistaken conclusion that Doner lacked a meritorious claim. For

the reasons set forth below, the judgment is reversed.

           {¶2} On February 3, 2014, Doner was driving in Florida when his vehicle

was struck by one driven by Antonio Smith (“Smith”), a resident of Florida. Doc.

1. Home-Owner’s advanced Doner the liability coverage limits of $10,000 provided

by Smith’s insurance policy. Id. On January 29, 2016, Doner filed his complaint

against HOIC to collect underinsured motorist coverage as provided by his own

policy. Id. On February 25, 2016, HOIC filed a motion to dismiss for failure to join

a required party. Doc. 4. Part of the basis for the motion was the language of the

policy, which provided in relevant part as follows.

           [1]c. Under Uninsured Motorist Coverage and/or Underinsured
           Motorist Coverage, any person making claim must:




1
    The complaint erroneously identified the defendant as Auto-Owners Insurance Co.

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Case No. 1-16-14


      (1) give us written notice and documentation of loss;

      (2) submit to examinations by physicians we select as often as we
      require; and

      (3) authorize us to obtain medical reports and other pertinent records.

      We must be given copies of the legal papers if suit is brought against any
      person believed to be legally responsible.

      2. ASSIST AND COOPERATE

      a. You and any person seeking coverage under this policy must
      cooperate with us in the investigation settlement or defense of any claim
      or suit. This includes submitting to a statement under oath and giving
      us access to any documents which we request.

      ***

      [3]a. If we make a payment under this policy and the person to or
      for whom payment is made has a right to recover damages from
      another, we will be entitled to that right. That person shall do
      everything necessary to transfer that right to us and shall do
      nothing to prejudice it.

      b. The person to or for whom payment is made under Uninsured
      Motorist Coverage and/or Underinsured Motorist Coverage must
      hold in trust for us his rights of recovery against any legally liable
      person. He must do all that is proper to secure such rights and
      must do nothing to prejudice them. He must take any required
      action in his name to recover damages and reimburse us out of
      any proceeds to the extent of our payment.

Section V, page 12.    Under the Underinsured Motorist Coverage, the policy

provided as follows.

      [2]a. We will pay compensatory damages, including but not
      limited to loss of consortium, any person is legally entitled to
      recover from the owner or operator of an underinsured
      automobile because of bodily injury sustained by an injured


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Case No. 1-16-14


         person while occupying an automobile that is covered by
         SECTION II – LIABILITY COVERAGE of the policy.

         ***

         [2]d. Whether an injured person2 is legally entitled to recover
         damages and the amount of the damages shall be determined by
         agreement between the injured person and us. We will not be
         bound by any judgments for damages obtained or settlements
         made without our written consent.

         ***

         [6]a. TIME LIMITATION FOR ACTIONS AGAINST US

         Any person seeking Underinsured Motorist Coverage must make
         a claim and bring suit for compensatory damages in accordance
         with the terms and conditions of this policy. Such claim must be
         made and suit must be brought:

         (1) within three years after the occurrence; or

         (2) within one year after the liability insurer for the owner or
             operator of the automobile liable to the injured person has
             become the subject of insolvency proceedings in any state

         whichever is later and provided that the person making the claim
         has not prejudiced our subrogation rights.


Underinsured Motorist Coverage. The “we” and “us” in the above provisions refers

to HOIC. Section I, 14. Doner filed his response on March 10, 2016. Doc. 5. On

March 11, 2016, the trial court granted the motion to dismiss, but stated that it had

seen no response from Doner. Doc. 6.



2
  The term “injured person” is not defined in this section, but in this case, the injured person was also the
insured.

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Case No. 1-16-14


       {¶3} On March 14, 2016, Doner filed a motion for reconsideration and

motion for relief from judgment on the grounds that the trial court had not

considered his response to the motion to dismiss prior to granting the motion. Doc.

7. On April 5, 2016, the trial court granted the motion to reconsider due to the

failure to review Doner’s response, vacated the March 11, 2016, judgment entry,

but then denied the Civil Rule 60(B) motion and granted the motion to dismiss.

Doc. 8. The judgment entry did not indicate whether the dismissal was with or

without prejudice. Id. Doner then filed a timely notice of appeal from both the

March 11, 2016, and the April 5, 2016, entries and raises the following assignments

of error.

                            First Assignment of Error

       The trial court erred in dismissing [Doner’s] complaint against
       [HOIC’s] subrogation rights.

                          Second Assignment of Error

       The trial court erred in dismissing [Doner’s] complaint without
       specifying the dismissal was without prejudice.

                           Third Assignment of Error

       The trial court abused its discretion in denying [Doner’s] motion
       for relief from judgment based upon the erroneous conclusion
       that [Doner] did not have a meritorious claim.

       {¶4} Before we address the assignments of error, we must first address an

issue with the April 5, 2016, judgment entry. This court notes that this entry grants

the motion for reconsideration, but denies the motion for relief from judgment. A

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motion for reconsideration in the trial court is a nullity.         Pitts v. Dept. of

Transportation, 67 Ohio St.2d 378, 423 N.E.2d 1105, (1981), paragraph one of the

syllabus. See also, Miller v. Cass, 3d. Dist. Crawford No. 3-09-15, 2010-Ohio-

1930, ¶ 44 and Bower, et al. v. Merkle, et al., Allen C.P. No. CV2015 0543, (Mar.

7, 2016) (denying motion for reconsideration as a nullity). “Furthermore, any order

that a trial court enters granting or denying any such motion is also a legal nullity.”

Miller, supra at ¶ 44. Thus, the granting of the motion for reconsideration in this

case was a nullity. This then leaves this court with only the denial of the motion for

relief from judgment pursuant to Civil Rule 60(B) from the April 5, 2016 judgment

entry and the March 11, 2016, judgment entries as the basis for the appeal.

       {¶5} Doner alleges in the first assignment of error that the trial court erred in

granting the motion to dismiss. HOIC filed the motion to dismiss alleging that

Doner had failed to join Smith as an indispensable party pursuant to Civil Rule

12(B)(7).

       Every defense, in law or fact, to a claim for relief in any pleading,
       whether a claim, counterclaim, cross-claim, or third-party claim,
       shall be asserted in the responsive pleading thereto if one is
       required, except that the following defenses may at the option of
       the pleader be made by motion: * * * (7) failure to join a party
       under Rule 19 or Rule 19.1. A motion making any of these
       defenses shall be made before pleading if a further pleading is
       permitted.

Civil Rule 12(B)(7). Civil Rule 19 provides guidance for determining whether a

party needs to be joined for just adjudication.


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Case No. 1-16-14


       (A) Persons to be joined if feasible. A person who is subject to
       service of process shall be joined as a party in the action if (1) in
       his absence complete relief cannot be accorded among those
       already parties, or (2) he claims an interest relating to the subject
       of the action and is so situated that the disposition of the action in
       his absence may (a) as a practical matter impair or impeded his
       ability to protect that interest or (b) leave any of the persons
       already parties subject to a substantial risk of incurring double,
       multiple, or otherwise inconsistent obligations by reason of his
       claimed interest, or (3) he has an interest relating to the subject of
       the action as an assignor, assignee, subrogor, or subrogee. If he
       has not been so joined, the court shall order that he be made a
       party upon timely assertion of the defense of failure to join a party
       as provided in Rule 12(B)(7). * * *

       (B) Determination by Court whenever joinder not feasible. If
       a person as described in subdivision (A)(1), (2), or (3) hereof
       cannot be made a party, the court shall determine whether in
       equity and good conscience the action should proceed among the
       parties before it, or should be dismissed, the absent person being
       thus regarded as indispensable. The factors to be considered by
       the court include: first, to what extent a judgment rendered in
       the person’s absence might be prejudicial to him or those already
       parties; second, the extent to which, by protective provisions in
       the judgment, by the shaping of relief, or other measures, the
       prejudice can be lessened or avoided; third, whether a judgment
       rendered in the person’s absence will be adequate; fourth,
       whether the plaintiff will have an adequate remedy if the action is
       dismissed for nonjoinder.

Civ.R. 19.

       {¶6} In this case, there is no question that Smith has no connection to Ohio

which would grant the trial court personal jurisdiction over him, so it would not be

feasible to join him as a defendant. Thus, the issue before this court is whether

Smith is an indispensable party as defined by Civ.R. 19(B).



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       {¶7} A review of both the March 11, 2016 and April 5, 2016 judgment entries

indicate that although the question before the trial court was whether Smith was an

indispensable party as defined by Civ.R. 19(B), this was not the question answered

by the trial court. Instead, the trial court sua sponte ruled that Doner had prejudiced

HOIC’s subrobation rights and that HOIC had no obligation to provide coverage.

See Doc. 8 at 4 and Doc. 6 at 2. No party alleged that the subrogation rights had

been prejudiced. HOIC merely stated that if Smith were not joined, its subrogation

rights may “potentially” be prejudiced. Doc. 4 at 5. Civil Rule 19(B) requires the

trial court to consider at least four factors. The trial court in this case did not do so,

instead choosing to answer a question which was not asked and to which Doner had

no opportunity to respond. Therefore, the trial court erred in granting the motion to

dismiss and the first assignment of error is sustained.

       {¶8} In the second assignment of error, Doner claims that the trial court erred

by failing to state that the dismissal was without prejudice. Having found that the

granting of the motion to dismiss was in error, this assignment of error is moot and

we will not address it at this time. App.R. 12(A)(1)(c). Doner claimed in the third

assignment of error that the trial court erred in denying the Civil Rule 60(B) motion

for relief from judgment. Having determined that the Civil Rule 12(B)(7) motion

was improperly granted in the first assignment of error, the third assignment of error

is also moot and will not be addressed. Id.



                                           -8-
Case No. 1-16-14


       {¶9} Having found error prejudicial to the appellant, the judgment of the

Court of Common Pleas of Allen County is reversed and the matter is remanded for

a determination as to whether Smith is an indispensable party and such further action

as may be necessary.

                                                                Judgment Reversed
                                                                  Cause Remanded

PRESTON and ROGERS, J.J., concur.

/hls




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