[Cite as Adkins v. Orefice, 2012-Ohio-6033.]



               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

MARY ADKINS, et al.                                :

        Plaintiffs-Appellants                      :   C.A. CASE NO. 12CA0015

vs.                                                :   T.C. CASE NO. 06CV0462

FRANCO OREFICE, ADM. OF ESTATE :                       (Civil Appeal from
 OF VERLIN PLACE                                        Common Pleas Court)
     Defendants-Appellees      :

                                               .........

                                               OPINION

                          Rendered on the 21st day of December, 2012.

                                               .........

T. Jeffrey Beausay, Atty. Reg. No. 0039436, 495 S. High Street, Suite 300, Columbus,
OH 43215
       Attorney for Plaintiffs-Appellants Mary and Timothy Adkins

Michael C. Mahoney, Atty. Reg. No. 0080111, Fifth Third Center, 1 S. Main Street, Suite
1800, Dayton, OH 45402-2017
       Attorney for Defendant-Appellee

Mark J. Sheriff, Atty. Reg. No. 0019273; Dale D. Cook, Atty. Reg. No. 0020707, 300
Spruce Street, Floor One, Columbus, OH 43215-1173
      Attorneys for Involuntary Plaintiff-Appellee Auto-Owners
        Insurance Company

                                               .........

GRADY, P.J.:

        {¶ 1} This appeal is from a final judgment for the Plaintiff in a personal injury

action, in which the trial court ordered a set off in favor of the Defendant’s subrogated insurer

for the amount of Plaintiff’s medical expenses the insurer had paid, and further awarded a
                                                                                                2

money judgment to another insurer for a non-party that had paid an additional amount of

Plaintiff’s medical expenses.    We find that the set off was proper, and will affirm the

judgment in that respect. We find that the money judgment in favor of the other insurer was

not proper because neither that insurer nor its insured had filed a claim for relief in the action

against the Plaintiff or were otherwise subrogated on her claim against the Defendant.

       {¶ 2} On May 22, 2004, Mary Adkins was injured when a car in which she was a

passenger was struck by a car driven by Verlin Place, who allegedly ran a red light. At the

time of the accident, Mary Adkins had automobile liability insurance coverage through State

Farm Mutual Automobile Insurance (“State Farm”) and Place had automobile liability

insurance coverage through American Family Insurance Group (“American Family”). The

driver of the car in which Mary Adkins was a passenger had automobile liability insurance

coverage through Auto-Owners Insurance Company (“Auto-Owners”).1

       {¶ 3} On March 30, 2006, Mary Adkins and her husband, Timothy Adkins,

commenced an action against Place for injuries and lost wages Mary Adkins sustained as a

result of the collision, and for Tim Adkins’s loss of services and consortium. Mary Adkins

sought $12,451.12 for medical and hospital expenses. When the Adkinses discovered that

Place was deceased, Franco Orefice, as administrator of the Estate of Place, was substituted as

Defendant.


             1
           The record does not contain copies of any of the insurance
    policies concerning the parties involved in the automobile
    accident. It appears undisputed, however, that the Auto-Owners
    policy contained a medical payments provision that covered up
    to $10,000.00 in medical payments incurred by passengers in
    the insured’s vehicle.
                                                                                            3

       {¶ 4} On April 3, 2008, the Estate of Place filed a motion to join State Farm and

Auto-Owners as subrogated parties pursuant to Civ.R. 21, 19, and 19.1. The trial court

granted the motion. (Dkt. 14.) State Farm and Auto-Owners then filed complaints against

the Estate of Place, seeking judgment against the Estate for amounts each spent on medical

bills incurred by Mary Adkins.

       {¶ 5} State Farm alleged that it had a subrogation claim against the tortfeasor as a

result of its policy of insurance with Mary Adkins, pursuant to which State Farm had provided

medical payments to the benefit of Mary Adkins. (Dkt. 15.) State Farm purportedly paid

$6,191.12 toward Mary Adkins’s medical bills incurred at Community Hospital.

Auto-Owners alleged that it had a subrogation claim against the tortfeasor as a result of its

insurance policy that provided medical payments coverage to Mary Adkins on behalf of the

owner of the vehicle in which Mary Adkins was a passenger. (Dkt. 25.) Auto-Owners

purportedly paid $10,000.00 toward Mary Adkins’s medical bills.

       {¶ 6} On October 3, 2011, Defendant filed a motion to exclude evidence of

Plaintiffs’ claimed medical expenses, or in the alternative to order a post-verdict setoff of

$6,191.12. According to Defendant, American Family (Place’s insurer) had paid $6,191.12

to State Farm in full satisfaction of medical bills incurred by Mary Adkins during her stay at

Community Hospital. Attached to Defendant’s motion were exhibits that purported to show

that American Family had paid State Farm $6,191.12 pursuant to an arbitration award as

reimbursement for State Farm’s payment of Mary Adkins’s medical bill with Community

Hospital. The exhibits also purported to show that Auto-Owners had paid $10,000.00 to
                                                                                            4

Mary Adkins pursuant to a medical expenses provision of an insurance policy with the driver

of the automobile in which Mary was a passenger.

        {¶ 7} On December 1, 2011, the trial court overruled Defendant’s motion to exclude

evidence of insurance coverage, but held in abeyance the motion to order a post-verdict setoff

in the amount of $6,191.12.

        {¶ 8} On December 13, 2011, the jury returned a general verdict in favor of

Plaintiffs.   Further, an interrogatory was submitted to and completed by the jury.       The

interrogatory asked the jury to “state the total amount of damages that will fairly and

completely compensate the plaintiffs for each category of loss.” The interrogatory listed

“Mary Adkins” and “Timothy Adkins.” Under the Mary Adkins heading, the interrogatory

had blank spaces for “Medical Expenses,” “Pain and Suffering,” and “Total (Mary Adkins).”

The jury filled in $12,704.12 for Medical Expenses and $11,200.00 for Pain and Suffering,

resulting in a total award of $23,904.12 for Mary Adkins.         Under the Timothy Adkins

heading, the interrogatory had blank spaces for “Spousal Consortium,” “Increased Care

Burden,” and “Total (Timothy Adkins).”           The jury filled in $1,000.00 for Spousal

Consortium and $1,000.00 for Increased Care Burden, totaling a $2,000.00 award for Timothy

Adkins. Finally, the jury filled in $25,904.12 next to the “Total Damages” heading for the

Plaintiffs. (Dkt. 78.)

        {¶ 9} On February 10, 2012, the trial court entered judgment on the jury’s verdict in

favor of Mary Adkins and Timothy Adkins. (Dkt. 85.) The trial court wrote, in part:

                This matter was before the Court on February 3, 2012 on the

        defendant’s motion for a post-verdict setoff in the amount of $6,191.12. * * *
                                                                                   5

       Plaintiff incurred a medical bill from Community Hospital in the

amount of $6,191.12.     The Ohio Department of Jobs & Family Services

(ODJFS) paid $3,309.78 toward that bill. Auto Owners paid $4,179 toward

that bill. State Farm paid the full amount of $6,191.12 but was reimbursed in

full by American Family Insurance pursuant to an arbitration decision.

       Accordingly, Community Hospital received $13,679.90 which is a

$7,488.78 overpayment. Plaintiffs paid nothing toward the bill. Plaintiff was

awarded judgment in the amount of $25,904.12 which included the $6,191.12

in Community Hospital medical expenses.

       Plaintiffs argue that the payment of $6,191.12 by American Family to

reimburse State Farm pursuant to the arbitration decision was a voluntary act

and should provide no lawful basis for the setoff. However, that arbitration

decision was in fact binding upon American Family. * * *

       Defendant’s motion for a post-verdict setoff in the amount of $6,191.12

is hereby SUSTAINED. Plaintiff cannot expect to receive and retain a jury

award for a medical bill that has already been paid by an insurance company

and thus receive a windfall in the amount of $6,191.12.

       The $25,904.12 jury award shall therefore be setoff by $6,191.12,

making judgment against defendant in the amount of $19,713.              Of that

amount, $11,200 shall be paid to Mary Adkins, $2,000 shall be paid to

Timothy Adkins, and the remaining amount of $6,513 shall be paid to the
                                                                                               6

        proper subrogated parties who are the real parties in interest herein including,

        but not necessarily limited to, ODJFS and Auto Owners.

        {¶ 10} The Adkinses filed a timely notice of appeal, raising the following Assignment

of Error:

        {¶ 11} “THE TRIAL COURT ERRED IN REDUCING THE JURY VERDICT BY

AWARDING RECOVERY TO THE SUBROGATED LIENHOLDERS.”

        {¶ 12} Plaintiffs argue that the trial court erred by (1) reducing the jury verdict

through a setoff of $6,191.12 from the jury’s award of medical expenses and (2) ordering that

Mary Adkins pay to Auto-Owners and ODJFS the remaining $6,513.00 of the medical

expenses she was awarded by the jury in order to reimburse them for amounts they

purportedly had paid toward Plaintiff’s medical bills. We will address these arguments in

turn.

The $6,191.12 Setoff

        {¶ 13} “Allowance of a setoff is a matter within the sound discretion of the trial court,

and the court’s decision will not be set aside absent a clear abuse of discretion.” Fickes v.

Kirk, 11th Dist. Trumbull No. 2006-T-0094, 2007-Ohio-6011, ¶ 10 (Citation omitted.) In

AAAA Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990), the Supreme Court held:

               “Abuse of discretion” has been defined as an attitude that is

        unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

        (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is

        to be expected that most instances of abuse of discretion will result in decisions
                                                                                               7

         that are simply unreasonable, rather than decisions that are unconscionable or

         arbitrary.

                 A decision is unreasonable if there is no sound reasoning process that

         would support that decision. It is not enough that the reviewing court, were it

         deciding the issue de novo, would not have found that reasoning process to be

         persuasive, perhaps in view of countervailing reasoning processes that would

         support a contrary result.

         {¶ 14} Plaintiffs argue that the trial court’s setoff of $6,191.12 was improper because

American Family’s payment to State Farm, pursuant to mandatory inter-company arbitration,

was a voluntary payment. Further, according to Plaintiffs, State Farm failed to commence an

action against the defendant tortfeasor within the two-year statute of limitations applicable to

a suit seeking recovery for bodily injury. R.C. 2305.10.

         {¶ 15} The two-year statute of limitations expired on May 22, 2006, two years after

the date of the automobile accident. State Farm did not file its complaint against Defendant

until 2008. Plaintiffs argue that because the statute of limitations had expired, State Farm

could no longer state a valid claim against the tortfeasor, and therefore neither could it have a

valid claim against the tortfeasor’s insurer, American Family. Because American Family was

not legally obligated to pay State Farm any amount on State Farm’s subrogated claim, the

payment by American Family on behalf of Defendant was a voluntary payment. We do not

agree.

         {¶ 16} In Holibaugh v. Cox, 167 Ohio St. 340, 148 N.E.2d 677 (1958), a plaintiff

injured in an automobile collision commenced an action against the tortfeasor within the
                                                                                              8

two-year statute of limitations applicable to a claim for bodily injury. The plaintiff’s insurer

was joined as a party plaintiff after the two-year statute of limitations had expired. The

Supreme Court found that the unity of interest between the insured and the insurer allowed the

insurer to gain the benefit of the insured’s timely commencement of the action for statute of

limitations purposes. The Supreme Court held, at paragraph one of the syllabus:

               Where an insured is injured by a tort-feasor, is reimbursed for a part of

       his damages by the insurer and, accordingly, assigns a part of his interest in the

       claim against the tort-feasor to such insurer, the insured may timely commence

       an action against the tort-feasor for the full amount of damages resulting from

       the tort and thereby effect a compliance with the statute of limitations

       pertaining to such indivisible chose in action as to parties united in interest

       with him, but the insurer must be joined as a party united in interest at any

       stage of the action, where he or the plaintiff so moves or where such issue is

       raised by the defendant tort-feasor. (Citations omitted.)

       {¶ 17} In the present case, Mary Adkins filed her personal injury claim within the

statute of limitations. Defendant Estate of Place moved to add State Farm, Adkins’s insurer,

as a party after the two-year statute of limitations had expired. After the trial court granted

Defendant’s motion, State Farm filed a complaint against Defendant, the tortfeasor. State

Farm’s complaint was filed well after the statute of limitations had expired. However, the

Adkinses had commenced their action against Defendant within the two-year statute of

limitations. Therefore, pursuant to Holibaugh, State Farm gains the benefit of the Adkinses’

(its insured’s) timely commencement of the action against Defendant.
                                                                                                9

       {¶ 18} Since State Farm’s complaint against Defendant was timely filed, American

Family’s payment to State Farm pursuant to mandatory arbitration was not a voluntary

payment. Rather, American Family’s payment was a payment that was mandatory pursuant

to the arbitration decision and the law of subrogation. The $6,191.12 medical bill had been

fully paid by State Farm, not Mary Adkins. And American Family, as Defendant’s insurer,

paid $6,191.12 directly to State Farm to reimburse State Farm as a subrogated party.

American Family thus succeeded to the interests of State Farm with respect to State Farm’s

right of reimbursement from Mary Adkins from the award for medical expenses she obtained.

 Based on the particular facts before us, the trial court did not abuse its discretion in ordering

that a $6,191.12 setoff in favor of the Estate of Place be applied to the $12,704.12 in medical

expenses awarded to Mary Adkins.



The $6,513.00 Reimbursement

       {¶ 19} After the trial court ordered a setoff of $6,191.12 to the jury’s award of medical

expenses to Mary Adkins, that left $6,513.00 in medical expenses owed by Defendant to Mary

Adkins. Rather than follow the jury’s verdict and interrogatory response, and award the

remainder to Mary Adkins, the trial court ordered the remaining $6,513.00 paid to ODJFS and

Auto-Owners, which the trial court found were the real parties in interest. Plaintiffs argue

that the trial court erred in doing so because Auto-Owners never filed a complaint against
                                                                                               10

Mary Adkins that would allow the trial court to award to Auto-Owners monies that the jury

had awarded solely to Mary Adkins.2 We agree.

       {¶ 20} The trial court’s decision to redistribute the remaining $6,513.00 awarded to

the Plaintiffs is different from the setoff that the trial court also ordered. The setoff was

required because Defendant, through its insurer, had already paid part of the judgment for

medical expenses when it paid $6,191.12 to State Farm, Mary Adkins’s insurer. Unlike the

setoff, the trial court’s redistribution of the remainder of Mary Adkins’s award for her medical

expenses did not reduce the judgment against Defendant. Rather, the trial court rewrote the

jury’s verdict by ordering Plaintiffs to give Auto-Owners and ODJFS, both third parties,

$6,513.00.

       {¶ 21} In essence, the trial court awarded affirmative relief to Auto-Owners and

against Mary Adkins by ordering that money the jury awarded to Mary Adkins should instead

be paid to Auto-Owners. However, Auto-Owners failed to file a claim for relief against Mary

Adkins. A trial court, and a jury for that matter, are constrained by the pleadings filed in an

action. Mary Adkins pled a claim for relief against Defendant. Also, Auto-Owners pled a

claim for relief against Defendant. The jury, however, awarded money damages to the

Adkinses, not to Auto-Owners. Further, Auto-Owners did not plead any claim for relief

against the Adkinses or the tortfeasor that would allow the trial court to order Plaintiffs to pay

any amount to Auto-Owners.

       {¶ 22} It is undisputed that the Auto-Owners insurance policy that covered the driver

of the car in which Mary Adkins was a passenger contained a medical payments provision that


             2
                 Plaintiffs do not dispute the award to ODJFS.
                                                                                                11

provided medical payments coverage for bodily injury caused by an accident involving the

driver’s car regardless of fault. Presumably, the policy identified and contemplated medical

payments coverage for individuals such as Mary Adkins who are injured while passengers in

the driver’s car. Auto-Owners, as a result of paying benefits to Mary Adkins under the terms

of the insurance policy, arguably became subrogated to her rights against Defendant, the

tortfeasor, on a third-party beneficiary theory. Qualchoice, Inc. v. Brotherhood Ins. Co., 5th

Dist. Stark No. 06CA20, 2007-Ohio-226, ¶ 16. That right is not predicated on a contract

between Auto-Owners and Mary Adkins, but on the fact that Mary Adkins accepted benefits

from Auto-Owners.       Nevertheless, the existence of an inchoate third-party beneficiary

relationship between Mary Adkins and Auto-Owners does not automatically entitle

Auto-Owners to a share of the monies awarded by the jury to Mary Adkins.                   Rather,

Auto-Owners was required to file a complaint against Mary Adkins on a third party

beneficiary claim in order to create a basis on which the trial court could award Auto-Owners

any part of the award Mary Adkins obtained against the tortfeasor in the present action.

Auto-Owners failed to do that.

       {¶ 23} Further, the relationship between Mary Adkins and Auto-Owners is different

from the direct, contractual relationship between the insurer and insured in Holibaugh that

allowed the insurer to gain the benefit of its insured’s compliance with the statute of

limitations. The driver of the car in which Mary Adkins was a passenger is not a party to this

action. The driver of the vehicle, not Mary Adkins, was Auto-Owners’s insured. It is

undisputed that Auto-Owners did not file its complaint against the Estate of Place within the

two-year statute of limitations applicable to actions for bodily injury. In short, there is not the
                                                                                                12

same unity of interest between Auto-Owners and its insured, or Mary Adkins, that there was

between the insurer and insured involved in Holibaugh. The complaint and claim for relief

Auto-Owners filed against Place, the tortfeasor, is therefore barred by the applicable two-year

statute of limitations.

        {¶ 24} Based on our review of the record before us, we find that the trial court erred in

ordering that any part of the $6,513.00 of the jury’s award of medical expenses to Mary

Adkins should instead be paid to Auto-Owners. Consequently, the assignment of error is

overruled, in part, and sustained, in part. The judgment of the trial court will be affirmed to

the extent it ordered a setoff in the amount of $6,191.12, but it will be reversed to the extent it

awarded monies to Auto-Owners. The trial court’s judgment will be modified to award

$19,713.00 to Plaintiffs Mary and Timothy Adkins. The award to ODJFS will be affirmed.

DONOVAN, J., concurs.

HALL, J., concurring in part and dissenting in part:

        {¶ 25} The first issue addressed by Appellant in her assignment of error asserts that

the claims of the insurers, subrogated as a result of making medical payments on behalf of the

plaintiff, were filed beyond the two-year statute of limitation and should have been dismissed.

What appellant fails to recognize is that her complaint, which was timely filed, made a claim

against the defendant for the same medical expenses. When the court granted the defense

motion to join the real parties in interest, State Farm Insurance and Auto-Owners Insurance

both filed their complaints as involuntary plaintiffs. As real parties in interest, those parties

stepped into the shoes of the original plaintiff for recovery of the medical expenses they had

paid. Because the plaintiff’s original complaint was timely, the effective substitution of the
                                                                                                        13

two insurance companies to pursue the medical claims that they paid was timely and not

barred by the statute of limitation. Accordingly, I agree that the first issue in the assignment of

error should be overruled.

        {¶ 26} In order to explain my dissent regarding the second issue raised by Appellant,

additional facts are essential:

        {¶ 27} Mary Adkins was a passenger in her sister-in-law’s vehicle when she was

injured in a motor-vehicle accident caused by Vernon Place, who was insured by American

Family. Mary Adkins was separately insured by State Farm under a policy that had medical

payments coverage. In addition, her sister-in-law had insurance coverage with Auto-Owners,

which also had medical payments coverage applicable to occupants of the sister-in-law’s

vehicle.

        {¶ 28} Adkins answered interrogatories on June 1, 2007 that, among other things, had

asked her to state whether she had received any collateral benefits. (Question 16). She

answered: “My insurance company (State Farm) has paid $6,191.12 towards medical bills.

Bob and Vicky [the sister-in-law] Adkins’ insurance company (Auto-Owners Insurance) has

paid $10,000.00.”3 The next question stated: “For each collateral benefit listed in your answer

to interrogatory 16, state which ones are subject to rights of recoupment through subrogation,

trust agreement, contract lien, or otherwise?” She answered: “State Farm and Auto-Owners




            3
               The interrogatories and answers were filed as exhibit A to the defendant’s Motion to Exclude
    Medical Expenses filed October 3, 2011.
                                                                                            14

Insurance.”Id. (Emphasis added). Months later, her deposition was taken on December 17,

2007. She again admitted that State Farm and Auto-Owners paid for her medical bills.4

       {¶ 29} On April 3, 2008, the defense filed a “Motion to Join Subrogated Parties,”

specifically State Farm and Auto-Owners insurance, asserting that they were the real parties in

interest for recovery of the medical bills that they paid. The plaintiff did not oppose this

motion. On April 29, 2008, the trial court sustained the motion. On June 3, 2008, State Farm

filed a complaint as an involuntary plaintiff for recovery of medical expenses it paid.

Auto-Owners filed its complaint as an involuntary plaintiff on August 11, 2008.

       {¶ 30} The case then languished due to a purported settlement that had been enforced

by the trial court. At that time, the court stated: “The Court most certainly understands that

there are four claimants in this case: (1) Mary Adkins, (2) Tim Adkins [her husband], (3) State

Farm, and (4) Auto-Owners.” (Entry filed August 27, 2008, Dkt. #31). The entry ordered

enforcement of the settlement, including repayment of the subrogated claims of State Farm

and Auto-Owners. The settlement order was appealed to this court, which reversed and

remanded for a hearing on whether the plaintiff had authorized a settlement. Rather than

submit to such a hearing, the plaintiff voluntarily dismissed the complaint under Civ. R.

41(A), on January 21, 2010, and promptly re-filed it in Delaware County Common Pleas

Court on February 1, 2010. Although the independent claims of State Farm and Auto-Owners

were not dismissed in Clark County, Auto-Owners intervened in Delaware County to protect

its interests. The plaintiff did not file anything in response to the intervening complaint.



            4
                Mary Adkins Deposition at 69-70.
                                                                                               15

Eventually, the Delaware County case was nearing trial. In a February 3, 2011 filing, counsel

for Auto-Owners explained: “Auto-Owner’s counsel has discussed the possibility of

stipulating to Auto-Owners subrogation claim at the trial of this matter. Both Plaintiff’s and

Defendant’s counsel have indicated they will endeavor to agree to some type of stipulation.

Auto-Owner’s counsel anticipates such stipulation will be agreed upon during the Final

Pretrial set for February 7, 2011.” However, in a judgment entry filed February 7, 2011, the

Delaware County Common Pleas Court transferred the case back to Clark County, finding that

“plaintiff is forum shopping after receiving an adverse ruling in Clark County.” (Judgment

Entry Granting Defendant’s Motion to Transfer Venue to Clark County at 2).

       {¶ 31} Once back in Clark County, the trial court held that the case had not been

settled, and the matter was reset for trial. Auto-Owners did not participate in the trial. State

Farm had already been reimbursed from American Family as a result of intercompany

arbitration. As indicated, the court already had determined that State Farm and Auto-Owners

were real parties in interest and that the plaintiff had admitted the two insurers had a claim for

reimbursement. It is readily apparent that there were no factual issues relating to the

subrogation claims, and the court permitted the presentation of medical bills, without the

introduction of insurance rights for reimbursement, as suggested by defense counsel in a

Reply Memorandum in Further Support of Motion to Exclude Evidence, filed October 18,

2011 (Dkt. #72), in order not to prejudice or diminish the plaintiff’s claims in the jury’s view.

The reimbursement claims then could be resolved on purely legal issues after the verdict. In

routine personal-injury trials subrogated insurers often will not participate at trial to avoid
                                                                                                      16

introduction of the specter of insurance, or insurance subrogation, with post-verdict resolution

of those claims. That is precisely what the trial court did here.

       {¶ 32} I note that it is the duty of the appellant to demonstrate the error asserted. The

plaintiff did not submit a transcript of any of the trial proceedings, or, if one exists, of the

hearing set for February 3, 2012 concerning post-verdict set offs. In that circumstance, we

should presume the regularity of the trial court’s proceedings. Natl. City Bank v. Beyer, 89

Ohio St.3d 152, 160, 2000-Ohio-126, 729 N.E.2d 711, 718 (presuming regularity of trial

court’s proceedings and judgment where a transcript either was not prepared or was not

included in the record).

       {¶ 33} The majority decision allows partial payment for Mary Adkins’ hospital bill,

for the fifth time. First, Auto-Owners’ payment to Mary Adkins of the remaining $4,179.00 of

its applicable $10,000.00 coverage was to reimburse her for the $6,191.12 hospital bill.

(Exhibit C to Motion to Exclude Medical Expenses filed October 3, 2011). Second, State

Farm paid the same bill (and claimed subrogation). Id. (Exhibit D). Third,                    the Ohio

Department of Job and Family Services paid the bill, although in a reduced amount. Id.

(Exhibit B).5 Fourth, American Family reimbursed State Farm for payment of the bill as a

result of intercompany arbitration. Id. (Exhibits E & F). Fifth, the majority allows Mary

Adkins to keep all insurance proceeds paid to her by Auto-Owners, including the part for

reimbursement of the hospital bill. The majority opinion reaches this result based on a belief

that Auto-Owners had to bring an action against Mary Adkins. I disagree.


            5
                 ODJFS evidently was reimbursed when it was later discovered that the plaintiff had other
    applicable insurance benefits.
                                                                                                         17

       {¶ 34} Auto-Owners was the real party in interest with regard to its payment of

medical bills causally related to the accident. As indicated in Auto-Owners’ brief:

“Auto-Owners was not present for this portion of the trial by agreement of counsel, and the

jury did not consider any insurance payments.” (Brief of Auto-Owners filed January 25, 2012,

at 2). Plaintiff’s reply brief does not challenge this assertion. The reply brief again raises the

statute-of-limitation issue, and, for the first time, claims Auto-Owners did not assert a claim

against Mary Adkins. But as a subrogated party and a real party in interest, Auto-Owners had

no reason to do so.

       {¶ 35} In ordering part of the jury award to be paid to Auto-Owners, the trial court

recognized that the insurance company was a subrogated party. (Dkt. #85 at 1). The majority

notes that Auto-Owners “arguably became subrogated” to Mary Adkins’ rights to the extent

that it paid her benefits. The majority correctly observes that such a subrogation right was not

contractual, as there is no evidence of a contract between Auto-Owners and Mary Adkins.6

Instead, Auto-Owners had a right to legal or equitable subrogation under which a “subrogee

steps into the shoes of the subrogor * * *.” Blue Cross and Blue Shield of Ohio v. Hrenko,

8th Dist. Cuyahoga No. 63907, 1993 WL 398508, *2 (Oct. 7, 1993). The subrogor in the

present case was Mary Adkins.

       {¶ 36} The trial court also recognized that Auto-Owners was a “real party in interest”

to the extent that it paid Mary Adkins benefits. For that reason, the trial court sustained an

unopposed motion by Defendant Estate of Place to join Auto-Owners as a party under Civ.R.


            6
                We do not know whether Adkins’ application for medical payments benefits involved a contract
    for reimbursement because no such documentation is of record.
                                                                                                18

19. (Dkt. #12). The phrase “real party in interest” means “‘one who has a real interest in the

subject matter of the litigation, and not merely an interest in the action itself, i.e., one who is

directly benefitted or injured by the outcome of the case.’” (Emphasis sic). Countrywide

Home Loans, Inc. v. Swayne, 2d Dist. Greene No. 2009 CA 65, 2010-Ohio-3903, ¶28, quoting

Shealy v. Campbell, 20 Ohio St.3d 23, 24, 485 N.E.2d 701 (1985). To the extent that

Auto-Owners qualified as a real party in interest, it essentially took the place of Mary Adkins,

having a direct interest in the lawsuit and being entitled to reimbursement from the tortfeasor

for the benefits it paid her.

        {¶ 37} I am unpersuaded that Auto-Owners, as a subrogated party and a real party in

interest, was required to file a claim against Mary Adkins, the person from whom it derived

its status and with whom its interests were aligned. As a subrogee, Auto-Owners stepped into

Mary Adkins’ shoes. As a real party in interest, Auto-Owners took the place of Mary Adkins

to the extent that it was entitled to reimbursement from the tortfeasor. If Auto-Owners had not

been joined as a party, I would agree that it would not be entitled to a portion of the jury

award. Its only recourse would be to file a separate action to obtain compensation from Mary

Adkins. But Auto-Owners was joined as an involuntary plaintiff. That being so, I see no

reason why it should be required to sue Mary Adkins to obtain reimbursement from the

tortfeasor’s estate, which also was a party. This is particularly true given Mary Adkins’ prior

admission that Auto-Owners had paid her medical bills and was entitled to subrogation.
                                                                                                                 19

       {¶ 38} Finally, it is difficult to reconcile the trial court’s order to reimburse $62.317 to

ODJFS, which was not a party. Although medical-reimbursement information was available

and exchanged, there is nothing in the record, or the court’s decision, to indicate how that

resolution was reached. On that issue alone, I would remand the matter to the trial court to

clarify how it arrived at its conclusion.

Copies mailed to:

T. Jeffrey Beausay, Esq.
Michael C. Mahoney, Esq.
Mark J. Sheriff, Esq.
Dale D. Cook, Esq.
Hon. Douglas M. Rastatter




             7
                The trial court does not specifically refer to this amount as what is due to ODJFS. But the plaintiff
    admits in her brief that $62 is the amount of the claimed reimbursement. And the reimbursement
    documentation (Exhibit B to Motion to Exclude Medical Expenses filed October 3, 2011), if the hospital bill
    refunded to ODJFS is deleted, reveals the medicaid claim is $62.31.
