[Cite as Cincinnati Ins. Co. v. Kesner, 2018-Ohio-2883.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




CINCINNATI INSURANCE CO.,                                  :

        Plaintiff-Appellant,                               :   CASE NO. CA2018-01-020

                                                           :        OPINION
    - vs -                                                           7/23/2018
                                                           :

PARON KESNER, JR.,                                         :

        Defendant-Appellee.                                :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2016-09-1928



Thomas K. McMackin, P.O. Box 145496, Cincinnati, Ohio 45250-5496, for plaintiff-appellant

John M. Holcomb, 322 High Street, Hamilton, Ohio 45011, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Cincinnati Insurance Co. ("CIC"), appeals the decision of the

Butler County Court of Common Pleas, granting defendant-appellee, Paron Kesner Jr., relief

from a default judgment.

        {¶ 2} This case arose from an automobile accident in which a vehicle driven by

Kesner crossed the center line of a roadway and struck an automobile driven by Dan Doyle.

Doyle sustained serious injuries and incurred substantial medical bills in excess of his policy
                                                                       Butler CA2018-01-020

limits. CIC paid Doyle pursuant to his policy coverage limit for uninsured motorist coverage

and became subrogated to Doyle's rights.

       {¶ 3} CIC filed a complaint on September 6, 2016 alleging Kesner negligently

operated the vehicle causing the accident and Doyle's injuries. The complaint sought to

recover $262,555.81, which CIC paid to Doyle as a result of the accident. Kesner did not

answer the complaint and, on December 22, 2016, CIC moved for default judgment. The trial

court denied this motion. CIC supplemented its motion with an affidavit from a claims

specialist and the trial court entered default judgment on March 3, 2017. On September 9,

2017, Kesner moved for relief from this judgment pursuant to Civ.R. 60(B).

       {¶ 4} Kesner averred that he was employed as a mechanic at Midwest Custom Paint

at the time of the accident. The vehicle he operated during the accident was a customer's

vehicle he was test driving following the completion of an engine replacement. Kesner

believed the vehicle to be safe and roadworthy. While test driving the vehicle, "the steering

suddenly and unexpectedly locked up, causing the vehicle to travel left-of-center into the path

of a vehicle operated by Dan Doyle." On October 12, 2016, Kesner received a summons and

a copy of the complaint by ordinary mail. Kesner presented the summons and complaint "to

Anton [last name unknown]." Kesner believed Anton to be a co-owner of Midwest Custom

Paint. Anton informed Kesner, "[d]on't worry, we'll take care of it." Kesner interpreted this

statement "to be a representation that the claim would be handled by Midwest Custom

[Paint's] liability insurance company." After several months, Kesner became aware of the

default judgment and filed his motion pursuant to Civ.R. 60(B).

       {¶ 5} The trial court granted Kesner's motion for relief from the default judgment and

certified its entry as a final appealable order pursuant to Civ.R. 54. The trial court found

Kesner's failure to timely answer the complaint constituted excusable neglect. The trial court

further found Kesner presented a possible meritorious defense pursuant to the sudden
                                              -2-
                                                                        Butler CA2018-01-020

emergency doctrine. CIC appeals the trial court's decision granting Kesner's motion for relief

from judgment.

        {¶ 6} Assignment of Error No. 1:

        {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPEL[LANT] IN ACCEPTING INADMISSIBLE HEARSAY TO ESTABLISH A MATERIAL

ELEMENT OF DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT.

        {¶ 8} CIC asserts the trial court erred in accepting inadmissible hearsay statements

material to establishing Kesner's claim of excusable neglect. CIC argues it objected to the

statements and the trial court did not fully address the objection. Rather, the trial court

prejudiced CIC by relying on the statements in its finding of excusable neglect.

        {¶ 9} Civ.R. 60(B) governs motions for relief from judgment and provides, in pertinent

part:

              On motion and upon such terms as are just, the court may
              relieve a party or his legal representative from a final judgment,
              order or proceeding for the following reasons: (1) mistake,
              inadvertence, surprise or excusable neglect; (2) newly
              discovered evidence which by due diligence could not have been
              discovered in time to move for a new trial under Rule 59(B); (3)
              fraud * * *; (4) the judgment has been satisfied, released or
              discharged * * *; or (5) any other reason justifying relief from the
              judgment. The motion shall be made within a reasonable time,
              and for reasons (1), (2) and (3) not more than one year after the
              judgment, order or proceeding was entered or taken.

(Emphasis added.)

        {¶ 10} To prevail on a motion brought under Civ. R. 60(B), the movant must

demonstrate that (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds of

relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or

proceeding was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47
                                              -3-
                                                                            Butler CA2018-01-020

Ohio St. 2d 146 (1976), paragraph two of the syllabus. Failing to meet any one of these

three factors is fatal, for all three must be satisfied in order to gain relief. First Fin. Bank, N.A.

v. Grimes, 12th Dist. Butler No. CA2010-10-268, 2011-Ohio-3907, ¶ 14.

       {¶ 11} The decision to grant or deny a Civ.R. 60(B) motion lies in the sound discretion

of the trial court and will not be reversed on appeal absent an abuse of that discretion. Cox

v. Zimmerman, 12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 14, citing Strack

v. Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion connotes more than an

error of law or judgment; it implies the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 12} Pursuant to Evid.R. 801(C), "'[h]earsay' is a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted." Further, "[a] witness is barred on hearsay grounds from testifying as to

the statements made by another only when the statement is offered to prove the truth of the

matter asserted in the statement, and only where the statement falls outside any exceptions

to the rule against hearsay as set forth in, e.g., Evid.R. 803 and 804." State v. Carter, 72

Ohio St.3d 545, 549 (1995). A statement which explains the actions of a person to whom the

statement was made, and is offered to show why the person acted in a particular manner

rather than to prove the truth of the statement, is not hearsay. State v. Maurer, 15 Ohio St.3d

239, 262-64 (1984).

       {¶ 13} CIC contends the trial court abused its discretion in relying on the following

averments to make its excusable neglect finding:

               11. I immediately presented the Summons and a copy of the
               Complaint to Anton [last name unknown], whom I understood to
               be the co-owner of Midwest Custom Paint.

               12. And upon receiving the Summons and copy of the Complaint,
               Anton replied "Don’t worry, we'll take care of it." I took this to be

                                                 -4-
                                                                       Butler CA2018-01-020

              a representation that the claim would be handled by Midwest
              Custom [Paint's] liability insurance company.

Specifically, CIC takes issue with the trial court's reliance on Anton's statement and claims it

is inadmissible hearsay not within an exception.

       {¶ 14} Contrary to CIC's assertion otherwise, we find Anton's statement is not

hearsay because it was not offered to prove the truth of the matter asserted. Rather, Kesner

offered the statement to demonstrate the effect it had on him and to explain his inaction with

respect to answering CIC's complaint. See id. at 264. Thus, the statement was offered to

show Kesner's interpretation that he need not take any further action in the case, as opposed

to being offered to prove that Anton or Midwest Custom Paint would in fact handle the matter

from there on forward.

       {¶ 15} Accordingly, the trial court did not abuse its discretion in relying on the

statement and CIC's first assignment of error is overruled.

       {¶ 16} Assignment of Error No. 2:

       {¶ 17} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND TO THE

PREJUDICE OF THE PLAINTIFF-APPELLANT, IN HOLDING THAT A MECHANIC WHO IS

OPERATING A MOTOR VEHICLE THAT MALFUNCTIONS MECHANICALLY CAN CLAIM

THE DEFENSE OF "SUDDEN EMERGENCY" BECAUSE THE INSTRUMENT OF THE

EMERGENCY CANNOT BE UNDER THE CONTROL OF THE PERSON CLAIMING THE

DEFENSE.

       {¶ 18} CIC contends the trial court erred as a matter of law in finding Kesner

presented a meritorious defense pursuant to the sudden emergency doctrine. Specifically,

CIC asserts the defense is inapplicable because Kesner (1) was an expert mechanic, in

control of the vehicle that caused the sudden emergency, and (2) the emergency was caused

by a mechanical failure in the car that Kesner worked on as a mechanic.


                                              -5-
                                                                          Butler CA2018-01-020

       {¶ 19} The trial court found Kesner presented a meritorious defense pursuant to the

sudden emergency doctrine. To prevail on a motion pursuant to Civ.R. 60(B), a movant need

not prove that a claim or defense will actually prevail. Ross Chevrolet v. Adams, 36 Ohio

St.3d 17, 20 (1988). Rather, the movant's burden is to demonstrate the existence of a

meritorious claim or defense by alleging operative facts with enough specificity to permit the

trial court to determine whether the movant's asserted claim or defense could be successfully

argued at trial. Id. at 20-21.

       {¶ 20} Kesner concedes in his affidavit that he travelled left of center and struck

Doyle's vehicle. R.C. 4511.25(A) governs the lanes of travel upon roadways and provides, in

pertinent part, that "[u]pon all roadways of sufficient width, a vehicle or trackless trolley shall

be driven upon the right half of the roadway * * *." The statute further provides certain

exceptions inapplicable to this case. R.C. 4511.25(A)(1)-(5). The Ohio Supreme Court has

held that R.C. 4511.25 imposes "a mandatory duty upon a motorist to drive solely upon the

right half of a roadway except under specifically designated circumstances, and an

unexcused failure to comply with that duty constitutes negligence per se." Zehe v. Falkner,

26 Ohio St.2d 258 (1971), paragraph one of the syllabus, citing Oechsle v. Hart, 12 Ohio

St.2d 29 (1967). As mentioned above, Kesner concedes that he went left of center and

therefore violated R.C. 4511.25. However, Kesner argues that he had a valid excuse for the

violation.

       {¶ 21} To constitute a legal excuse for failure to comply with a safety statute, a

motorist must show that something over which he had no control, or an emergency not of his

making, made it impossible for him to comply with the statute. Spalding v. Waxler, 2 Ohio

St.2d 1, 4-5 (1965).      "[E]very unexpected occurrence does not constitute a sudden

emergency." Oechsle at 34. A self-created emergency, one arising from the driver's own

conduct or from circumstances under his control, cannot serve as an excuse. Spalding at 6.
                                                -6-
                                                                       Butler CA2018-01-020

       {¶ 22} CIC asserts our opinion in Franklin v. Stamper, 12th Dist. Butler No. CA85-10-

119, 1986 Ohio App. LEXIS 7758, (Aug. 4, 1986), is dispositive of the issue of whether

Kesner presented a meritorious defense in his Civ.R. 60(B) motion. In Franklin, a motorist

travelled left of center and struck another vehicle. Id. at *2. The motorist was forced to slam

on his brakes to avoid a front-end collision when another driver suddenly swerved into his

lane. Id. After hitting the brakes, the motorist's car malfunctioned and travelled across the

line in the center of the roadway causing a collision with another vehicle. Id. The motorist

argued that he travelled left of center because of an internal mechanical problem, but for

whose presence, the accident would not have occurred. Id. at *9-10. We held that the

motorist was responsible for the maintenance and repair of his motor vehicle. Id. at *10.

Thus, the emergency was under the motorist's control, and therefore, the motorist could not

avail himself of the sudden emergency defense. Id. at *11.

       {¶ 23} Ohio Supreme Court precedent is consistent with our opinion in Franklin with

respect to other motor vehicle mechanical failures, operator failures, and weather conditions,

causing a sudden emergency. Moore v. Siebelt, 6 Ohio St.2d 115, 116 (1966) (holding tire

failure cannot serve as a legal excuse for failing to comply with assured-clear-distance-ahead

statute); Zehe at paragraph four of the syllabus (holding sudden emergency defense was

unavailable to a motorist who misjudged the amount time he had to pass another vehicle);

Oechsle at 34 (finding an icy patch on the road is foreseeable and a motorist must operate a

vehicle at a speed appropriate for the weather).

       {¶ 24} However, each of the above instances involved a vehicle driven by a regular

operator or owner of the vehicle. In this case, Kesner was neither a regular operator nor an

owner of the vehicle involved in the collision. Rather, Kesner merely performed mechanical

work on the vehicle's engine within the scope of his employment. Kesner did not perform any

mechanical work to any other part of the vehicle, namely, the mechanism responsible for
                                              -7-
                                                                     Butler CA2018-01-020

controlling the steering of the vehicle. Further, Kesner believed the vehicle was safe and

roadworthy. Thus, while a regular operator or owner of a motor vehicle is charged with the

maintenance and repair of said vehicle, Kesner, as a mechanic who does not regularly

operate or own the vehicle, would have no knowledge of any steering-related issues with the

vehicle.

       {¶ 25} As mentioned above, Kesner's burden was not to prove that the sudden

emergency defense will actually prevail. Rather, Kesner was required to set forth operative

facts to permit the trial court to determine whether he asserted a defense that could be

successfully argued at trial. We find Kesner met this burden by setting forth operative facts

that permitted the trial court to determine whether the emergency was self-created, and thus,

whether the sudden emergency doctrine could be successfully argued at trial. Therefore, we

find the trial court did not abuse its discretion in granting Kesner's motion for relief from

judgment.

       {¶ 26} Accordingly, CIC's second assignment of error is overruled and the judgment

of the trial court is affirmed.


       S. POWELL, P.J., and HENDRICKSON, J., concur.




                                             -8-
