[Cite as Koby v. McNamee, 2017-Ohio-1574.]


                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

Denisa K. Koby et al.,                         :

                Plaintiffs-Appellants,         :

v.                                             :                    No. 16AP-368
                                                                 (C.P.C. No. 13CV-12569)
Christina M. McNamee,                          :
                                                           (REGULAR CALENDAR)
                Defendant-Appellee.            :


                                       D E C I S I O N

                                    Rendered on April 27, 2017


                On brief: James R. Kingsley, for appellant. Argued:
                James R. Kingsley.

                On brief: John C. Nemeth & Associates, and David A. Herd,
                for appellee. Argued: David A. Herd.

                 APPEAL from the Franklin County Court of Common Pleas

TYACK, P.J.

        {¶ 1} Denisa K. Koby and Gary Koby appeal from the dismissal of their lawsuit in
the Franklin County Court of Common Pleas. For the reasons that follow, we affirm the
judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} According to the complaint, the Kobys were driving eastbound on State
Route 665 in Franklin County, Ohio, when their vehicle was struck by a motor vehicle
being driven by Christina McNamee. The collision occurred on October 6, 2008.
        {¶ 3} The Kobys filed a lawsuit against McNamee on May 5, 2010, and then
voluntarily dismissed the lawsuit September 7, 2011, as permitted by Civ.R. 41(A). The
time within which a person can refile a claim after a Civ.R. 41(A) dismissal is governed by
No. 16AP-368                                                                             2


R.C. 2305.19, the Ohio Savings Statute. Under R.C. 2305.19, the Kobys had one year in
which to refile their case.
       {¶ 4} However, on May 29, 2012, before the Kobys had refiled or were required to
refile, McNamee filed for Chapter 7 bankruptcy. An automatic stay under the United
States Bankruptcy Code commenced at the time of McNamee's Chapter 7 bankruptcy
filing and immediately stayed all proceedings against McNamee. 11 U.S.C. 362(a)(6).
During the pendency of the bankruptcy action, the Kobys were not permitted to refile
their case without being granted relief from the stay. The one-year period to refile under
the savings statute ran while McNamee's case remained pending in the bankruptcy court.
       {¶ 5} On September 25, 2012, McNamee received a personal discharge in
bankruptcy. The Kobys claimed that they were prohibited from refiling the action at that
time because the bankruptcy estate remained open. Nine months later, on June 28, 2013,
the Kobys moved the bankruptcy court for relief from the stay, and that motion was
granted on November 13, 2013. The Kobys refiled on November 15, 2013.
       {¶ 6} McNamee moved for judgment on the pleadings, asserting that the refiled
complaint was time-barred due to the termination of the automatic stay at the time of
McNamee's discharge in bankruptcy. The trial court initially denied the motion, and
McNamee moved for reconsideration as well as filing a second motion for judgment on
the pleadings as well as a motion for summary judgment with copies of documents from
the bankruptcy proceedings.
       {¶ 7} The trial court found that the Kobys were on the creditor notification list in
the bankruptcy case and were notified regarding the discharge in bankruptcy. The trial
court found that the Kobys presented no evidence that the discharge injunction did not
apply, other than to argue that they were suing McNamee as a nominal party because they
could not maintain a direct cause of action against McNamee's insurer until they received
a judgment against McNamee. However, the trial court further found that the complaint
did not indicate that McNamee was a nominal party or that the Kobys were not seeking a
personal judgment against McNamee. Accordingly, the trial court found that the Kobys
were barred by the discharge injunction from filing the matter against McNamee.
No. 16AP-368                                                                                3


       {¶ 8} The trial court then granted the motion for reconsideration and concluded
that judgment on the pleadings was appropriate, or in the alternative, that McNamee had
established that she was entitled to summary judgment. This appeal followed.
II. ASSIGNMENT OF ERROR
       {¶ 9} The Kobys assign a single error for our consideration:
              THE TRIAL COURT COMMITTED PREJUDICIAL
              ERROR WHEN IT DISMISSED PLAINTIFFS'
              COMPLAINT:
                  (1) FOR FAILURE TO STATE A CLAIM AND
                  (2) BY GRANTING DEFENDANT SUMMARY
                      JUDGMENT.

III. STANDARD OF REVIEW
       {¶ 10} Civ.R. 12(C) states that "[a]fter the pleadings are closed but within such
times as not to delay the trial, any party may move for judgment on the pleadings."
Dismissal under Civ.R. 12(C) is appropriate when the court: "(1) construes the material
allegations in the complaint, with all reasonable inferences to be drawn therefrom, in
favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could
prove no set of facts in support of his claim that would entitle him to relief." State ex rel.
Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996), citing Lin v. Gatehouse
Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992); see also, Peterson v. Teodosio, 34
Ohio St.2d 161, 165-66 (1973). Therefore, Civ.R. 12(C) requires the court to determine
that there are no material issues of fact and that the movant is entitled to judgment as a
matter of law. Pontious at 570, citing Burnside v. Leimbach, 71 Ohio App.3d 399, 403
(10th Dist.1991). A judgment on the pleadings dismissing an action is subject to a de novo
standard of review in the court of appeals. Smith v. Ohio Dept. of Transp., 10th Dist. No.
15AP-521, 2015-Ohio-5240, ¶ 6.
       {¶ 11} With respect to summary judgment, Civ.R. 56(C) provides that summary
judgment is appropriate if: (1) no genuine issue of material fact remains to be litigated; (2)
the moving party is entitled to judgment as a matter of law; and, (3) viewing the evidence
in favor of the nonmoving party, reasonable minds can come to but one conclusion, that
conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 66 (1978). Appellate review of summary judgment is de novo.
No. 16AP-368                                                                              4


Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12,
citing Byrd v. Arbors East Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-
3935.
IV. ANALYSIS
              A. Effect of Discharge in Bankruptcy
        {¶ 12} When a debtor receives a discharge in bankruptcy, she is relieved of
personal liability for pre-petition debt, and the discharge enjoins any action to collect,
recover, or offset a discharged obligation. McClung v. McClung, 10th Dist. No. 03AP-156,
2004-Ohio-240, ¶ 12; 11 U.S.C. 524(a). Although McNamee's discharge in bankruptcy
protects her from personal liability, counsel for the Kobys argues that it is permissible to
proceed against a debtor as a nominal defendant if such an action is necessary to prove
liability as a prerequisite to recovery from the liability insurer. We agree.
        {¶ 13} In the case of In re Morris, 430 B.R. 824 (Bnkr.W.D.Tenn.2010), the
bankruptcy court discussed cases in which the courts have found that 11 U.S.C. 524, which
governs the effect of the discharge in bankruptcy, allows a creditor to proceed against the
debtor as a nominal defendant in order to pursue recovery from a third party such as a
liability insurer. The court determined that "[a]llowing parties to proceed in this manner
protects the debtor from any personal liability in accordance with the discharge injunction
of § 524(a)(2) and imposes on an insurance company 'no exposure greater than what it
had agreed to in the insurance contract with the debtor.' " Id. at 828, quoting In re
Christian, 180 B.R. 548, 550 (Bankr.E.D.Mo. 1995); see also Wolfe v. Wright, 65 Ohio
App.3d 36, 37 (8th Dist.1989) ("The protection provided to a debtor under Section 362 of
the Bankruptcy Code does not extend as a third-party beneficiary right to the insurer.").
By recognizing this limited exclusion from the discharge injunction, an aggrieved party
may pursue a claim against a non-debtor third party, the debtor will still be protected
from any personal liability that may result from the aggrieved party's actions, and the
insurance company will still be potentially liable since the discharge did not erase the
insurance company's liability. In re Christian at 550; In re Morris at 829.
        {¶ 14} Under Ohio law, a claimant is not permitted to sue a defendant's insurance
company directly, but must sue the alleged tortfeasor first. R.C. 3929.06; McLynas v.
Karr, 10th Dist. No. 03AP-1075, 2004-Ohio-3597, ¶ 28.
No. 16AP-368                                                                             5


       {¶ 15} R.C. 3929.06(B) provides:
               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.

       {¶ 16} Therefore, in order to pursue recovery from McNamee's liability insurer, the
Kobys were required to sue McNamee first. McNamee's discharge in bankruptcy shields
her from personal liability, but the action is still necessary in order for the Kobys to
pursue their tort claim against McNamee's insurance carrier. According to McNamee's
pre-trial statement, she has an insurance policy with liability limits of $100,000. (May 5,
2015 Pre-Trial Statement at 7.)
       {¶ 17} A review of the Kobys' complaint, however, reveals that there is no
statement, indication, or suggestion that McNamee was being pursued as a nominal
defendant or that the lawsuit was being brought as an action against property of the
bankruptcy estate. The complaint did not allege that the claim was a prerequisite to
making a claim against liability insurance.     There is no mention of any insurance
company. The complaint does not state that the Kobys were seeking to recover the
insurance proceeds from McNamee's automobile liability insurance policy. There was no
other defendant in the re-filed complaint against whom a judgment could have been
sought besides McNamee. It did not state that judgment was not being sought against
McNamee personally. The complaint does not name McNamee as a nominal defendant,
and it does not allege that judgment is being sought as a prerequisite to make a claim
against liability insurance.
       {¶ 18} However, it remains the law in Ohio that a plaintiff cannot commence a civil
action against an insurer until a court enters the final judgment in a civil action between
the plaintiff and the tortfeasor. Therefore, the Kobys were entitled to pursue their civil
action against McNamee but only as a prerequisite to obtaining recovery from McNamee's
liability insurer.
No. 16AP-368                                                                               6


               B. Timeliness of the Re-filed Complaint
        {¶ 19} The next issue that must be determined is whether the re-filed complaint

was timely.

        {¶ 20} The Kobys contend that their refiled lawsuit is not against McNamee, the
debtor, but is against her liability insurance, which they believe to be property of the
bankruptcy estate. The Kobys appear to be arguing that the automatic stay as to this
purported asset of the estate remained in place even after McNamee received her
discharge in bankruptcy. They claim that in the case of an act against property of the
estate, the stay continues until the property is no longer property of the estate. See 11
U.S.C. 362(c)(1) ("Except as provided in subsections (d), (e), (f), and (h) of this section--
(1) the stay of an act against property of the estate under subsection (a) of this section
continues until such property is no longer property of the estate.")
        {¶ 21} Even if this is true, the Kobys have failed to explain why they needed to wait
until the stay was lifted as to this asset before they could proceed with their lawsuit
against McNamee after McNamee received her discharge in bankruptcy on September 25,
2012.    The re-filed complaint was directed against McNamee personally, not her
insurance company, in order to establish her liability for the automobile accident, and the
Kobys acknowledge that it is necessary to establish liability against the tortfeasor before
one can proceed against the tortfeasor's insurer.
        {¶ 22} Therefore, despite the assertion by the Kobys that the bankruptcy estate
remained open after the discharge, McNamee argues that fact is of no import because the
date of her discharge in bankruptcy is the event which triggered the 30-day grace period
in which the Kobys could refile their complaint.
        {¶ 23} McNamee directs us to another section of the Bankruptcy Code that governs
the termination of the stay in Chapter 7 proceedings. 11 U.S.C. 362(c)(2)(C) provides that
in Chapter 7 cases, the automatic stay under 11 U.S.C. 362 terminates automatically at the
earliest of when (1) the case is closed, (2) the case is dismissed, or (3) the discharge is
granted. Gruber v. Gruber, 6th Dist. No. OT-10-003, 2010-Ohio-4326, ¶ 2; May v. May,
4th Dist. No. 11CA910, 2012-Ohio-2348, ¶ 30.
No. 16AP-368                                                                                7


        {¶ 24} Since the savings statute had expired before that date, 11 U.S.C. 108(c)
provides a 30-day grace period after the conclusion of the automatic stay to re-file their
complaint. Basie v. Mt. Sinai Med. Ctr., 8th Dist. No. 89852, 2007-Ohio-6060, ¶ 15, 22.
The Kobys did not comply with the grace period and did not file for another year.
        {¶ 25} McNamee received a discharge in bankruptcy on September 25, 2012, and
the automatic stay ended by law. The Kobys filed their complaint against McNamee
personally, and they waited more than one year after she had received her discharge in
bankruptcy to do so. This case is not some kind of in rem action against an asset of the
bankruptcy estate, but rather is a direct action against the debtor to establish liability for
the automobile accident. Therefore, the debtor’s discharge in bankruptcy is the event that
started the clock running again on the plaintiffs’ action against McNamee to establish
liability.
        {¶ 26} Accordingly, the trial court did not err in dismissing the complaint.
V. CONCLUSION
        {¶ 27} The assignment of error is overruled and the judgment of the Franklin
County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                       BROWN and LUPER SCHUSTER, JJ., concur.
