[Cite as Yoder v. Blake, 2012-Ohio-861.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

KIMBERLY YODER, ET AL.                                 C.A. No.      10CA0110-M

        Appellants

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DAVID A. BLAKE, ET AL.                                 COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellees                                      CASE No.   07 CIV 1960

                                 DECISION AND JOURNAL ENTRY

Dated: March 5, 2012



        BELFANCE, Presiding Judge.

        {¶1}     Plaintiff-Appellant Kimberly Yoder, fka Kimberly Kaufman, individually, and as

mother of Dylan Kaufman and Derek Kaufman, and Third-Party Defendant-Appellant Dustin

Kaufman (collectively “Appellants”) appeal rulings of the Medina County Court of Common

Pleas. For the reasons set forth below, we affirm in part and reverse in part.

                                                  I.

        {¶2}     On February 17, 2007, a vehicle driven by Dustin Kaufman collided with a

tractor/trailer driven by Defendant David Blake during the course of his employment with

Defendant D. Blake Trucking, LLC. (“D. Blake Trucking”). Ms. Yoder, Dylan and Derek

Kaufman, Larry Kaufman (Ms. Yoder’s husband), and Alice (Ms. Yoder’s mother) and Donald

Schneider (Alice Schneider’s husband) were passengers in the vehicle driven by Dustin

Kaufman. As a result of the accident, both Alice Schneider and Larry Kaufman were killed. The

other individuals in the vehicle suffered substantial injuries.
                                                  2


       {¶3}    In November 2007, Kelli Thomas, as Administratrix of the Estate of Alice

Schneider, Ms. Yoder, individually, as mother of Derek and Dylan Kaufman, and as

Administratrix of the Estate of Larry Kaufman, and Donald Schneider filed an eleven-count

complaint against Mr. Blake, D. Blake Trucking, Westfield National Insurance (“Westfield”),

Nationwide Mutual Insurance, doing business as Nationwide Health Plans (“Nationwide”), and

Holmes County Farm Bureau, Inc. With respect to Nationwide, the Plaintiffs asserted that

Nationwide might claim contractual rights of subrogation and/or reimbursement to damages or

insurance benefits received from Mr. Blake, D. Blake Trucking, and/or Westfield. The Plaintiffs

asserted that Nationwide was not entitled to any rights of subrogation and/or reimbursement and

they sought a declaration stating the same.

       {¶4}    On December 28, 2007, Plaintiffs filed a notice of voluntary dismissal of

Defendant Holmes County Farm Bureau, Inc. Nationwide failed to file an answer, and Plaintiffs

moved for default judgment against it. The trial court granted the Plaintiffs’ motion and declared

that Nationwide “is not entitled to any right of subrogation or any right of reimbursement in any

insurance benefits or damages recovered from the other defendants in this case.” The trial court

did not include a Civ.R. 54(B) certification in its entry.

       {¶5}    When Mr. Blake and D. Blake Trucking answered, they additionally asserted a

third party claim against Dustin Kaufman. Subsequently, inter alia, Dustin Kaufman asserted a

cross-claim against Nationwide. Additional cross-claims and counterclaims were filed between

the parties which are not relevant for the resolution of this appeal.

       {¶6}    On April 29, 2008, Nationwide filed a motion to vacate the default judgment, in

part, pursuant to Civ.R. 60(B). On November 21, 2008, Nationwide’s motion to vacate was

granted. The trial court did not include Civ.R. 54(B) certification in its entry. Nationwide
                                                3


subsequently submitted an answer and cross-claims in response to the complaint. In its cross-

claims, Nationwide asserted it was entitled to subrogation.

       {¶7}    Nationwide filed a motion for summary judgment to enforce its subrogation and

reimbursement provision against the Kaufmans’ recovery.            Nationwide sought summary

judgment based upon a policy attached to its motion. Plaintiffs and Dustin Kaufman also filed a

motion for summary judgment against Nationwide based upon the subrogation issue. Plaintiffs

and Dustin Kaufman sought summary judgment based upon an entirely different subrogation

provision attached to Nationwide’s answer and cross-claim. In March 2009, the parties entered

into a stipulation and agreed judgment entry which was filed in May 2009 and discussed a

settlement that was reached concerning a number of claims. The entry provided that Nationwide

alleged it had a subrogation right in the amount of $70,794.64, which was agreed would be

placed in an IOLTA account pending resolution of the issue. In light of the settlement, a

judgment entry of partial dismissal was filed. In addition, Plaintiffs and Dustin Kaufman filed a

motion to strike Nationwide’s exhibits accompanying the affidavit it submitted in support of its

motion for summary judgment. Plaintiffs and Dustin Kaufman appeared to assert that the

subrogation provision and policy accompanying the affidavit could not be considered and instead

the subrogation provision accompanying Nationwide’s cross-claim was the proper provision to

be considered. Further, Plaintiffs and Dustin Kaufman argued that the medical billing exhibits

were improper summary judgment evidence.         Thereafter, the trial court granted Nationwide’s

motion for summary judgment, denied the Plaintiffs’ motion and concluded that Nationwide “is

subrogated to the extent of the medical expenses paid to the Kaufmans by Nationwide.” The

entry did not include a Civ.R. 54(B) certification. While the trial court did not specifically rule
                                                 4


on Plaintiffs’ motion to strike, the subrogation provision considered by the trial court was not the

one objected to by the Plaintiffs.

       {¶8}    The Plaintiffs and Dustin Kaufman filed a notice of appeal. This Court dismissed

the attempted appeal concluding claims remained pending in the trial court. The trial court then

issued an entry stating that “all claims between all parties are dismissed, with prejudice, at the

cost of the Defendants [Mr. Blake] and D. Blake Trucking, LLC through August 31, 2009,

except for the sole remaining claim between Nationwide and the Kaufmans regarding the

entitlement to the $70,794.64 being held in the IOLTA account * * *.” In addition the trial court

again stated that summary judgment was granted to Nationwide, that Nationwide was

“subrogated to the extent of the medical expenses paid to the Kaufmans by Nationwide[,]” and

that the Plaintiffs’ motion was denied. The trial court included Civ.R. 54(B) certification.

Subsequent to oral argument, this Court remanded the matter to the trial court to clarify its entry.

Thereafter, the trial court issued an entry reciting much of the previous entry and additionally

stating that “judgment is hereby entered in favor of the Defendant Nationwide Mutual Insurance

Company dba Nationwide Health Plan in the amount of $70,794.64.”

       {¶9}    The Appellants have raised three assignments of error for our review.

                                                II.

                                     ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS-
       APPELLANTS, KIM KAUFMAN, INDIVIDUALLY, AS ADMINISTRATRIX
       OF THE ESTATE OF LARRY KAUFMAN AND AS NEXT FRIEND OF
       DYLAN KAUFMAN AND DEREK KAUFMAN, BY VACATING THE
       DEFAULT JUDGMENT AGAINST THE DEFENDANT-APPELLEE,
       NATIONWIDE MUTUAL INSURANCE COMPANY DBA NATIONWIDE
       HEALTH PLANS.
                                                5


       {¶10} In their first assignment of error, Appellants assert that the trial court erred in

vacating the default judgment against Nationwide.

       {¶11} After Nationwide failed to answer the complaint, on January 18, 2008, the

Plaintiffs filed a motion for default judgment. On March 25, 2008, the trial court entered default

judgment against Nationwide. The judgment granting default does not include Civ.R. 54(B)

language. Nationwide moved to vacate the default judgment on April 29, 2008. It appears from

the record that the trial court heard oral argument on the motion; however, transcripts of those

proceedings are not included in this record on appeal. On November 21, 2008, the trial court

issued an entry concluding that Nationwide’s “Motion to Vacate the default judgment granted

March 25, 2008 is GRANTED.” The trial court provided no further discussion of its decision

and did not include Civ.R. 54(B) language.

       {¶12} Nationwide raised several grounds for relief in its motion to vacate the default

judgment including lack of subject matter jurisdiction because of inappropriate venue, failure of

the trial court to interpret the contract involved in the declaratory judgment action, and for

excusable neglect under Civ.R. 60(B).

       {¶13} The parties focus on Civ.R. 60(B) and argue that the trial court granted relief

pursuant to it. Yet, there is nothing in the trial court’s entry to suggest its basis for granting

relief. Moreover, as there was no final judgment before the trial court to vacate due to the

absence of Civ.R. 54(B) language in the trial court’s entry granting the default, Nationwide’s

motion to vacate the default judgment was more properly considered as a motion for

reconsideration. See Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 78 (1985)

(concluding that “Because the judgment entry against [the defendant] did not adjudicate the

liabilities of all the parties and it did not contain the Civ.R. 54(B) words of ‘no just reason for
                                                 6


delay,’ it was subject to modification. [The defendant’s] motion for relief was improperly labeled

a Civ.R. 60(B) motion because it did not seek relief from a final judgment. The motion and the

trial court’s order vacating the judgment were instead authorized by Civ.R. 54(B).”); Akin v.

Akin, 9th Dist. Nos. 25524, 25543, 2011-Ohio-2765, ¶ 10; Caroll v. Dairy Farmers of Am., Inc.,

3rd Dist. No. 2-04-24, 2005-Ohio-671, ¶ 13; Beck-Durell Creative Dept., Inc. v. Imaging Power,

Inc., 10th Dist. No. 02AP-281, 2002-Ohio-5908, ¶ 7-9; Baker v. Schuler, 2nd Dist. No.

02CA0020, 2002-Ohio-5386, ¶ 16-24; Given the state of record and proceedings, it is not

unreasonable to conclude the trial court considered it as such.

       {¶14} Therefore, as Nationwide’s motion was in actuality seeking reconsideration of a

non-final entry, it did not have to satisfy the requirements necessary to establish entitlement to

relief pursuant to Civ.R. 60(B). “[A] trial court has plenary power in entertaining a motion for

reconsideration prior to entering a final judgment * * * .” (Internal quotations and citation

omitted.) Akin at ¶ 11. Thus, a “trial court’s determination of a motion for reconsideration will

not be disturbed on appeal absent an abuse of discretion.” Spano Bros. Constr. Co., Inc. v.

Adolph Johnson & Son Co., 9th Dist. No. 23405, 2007-Ohio-1427, ¶ 21. An abuse of discretion

“implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”        (Internal

quotations and citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶15} In the instant matter, Nationwide provided debatably reasonable arguments why

the trial court should vacate the default judgment. As a reviewing court applying the abuse of

discretion standard, we may not substitute our judgment for that of the trial court. Pons v. Ohio

State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Moreover, given the absence of the transcript of

the oral hearing on Nationwide’s motion to vacate, we are required to presume regularity in the

proceedings below. See Bowers v. Craven, 9th Dist. No. 24422, 2009-Ohio-2222, ¶ 12-14.
                                                 7


Accordingly, we cannot say the trial court abused its discretion in granting Nationwide’s motion

to vacate. Appellants’ first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS-
        APPELLANTS, KIM KAUFMAN, INDIVIDUALLY, AS ADMINISTRATRIX
        OF THE ESTATE OF LARRY KAUFMAN AND AS NEXT FRIEND OF
        DYLAN KAUFMAN, DEREK KAUFMAN AND THIRD-PARTY
        DEFENDANT, DUSTIN KAUFMAN, BY GRANTING SUMMARY
        JUDGMENT IN FAVOR OF THE DEFENDANT-APPELLEE, NATIONWIDE
        MUTUAL INSURANCE COMPANY DBA NATIONWIDE HEALTH PLANS.

                                 ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS-
        APPELLANTS, KIM KAUFMAN, INDIVIDUALLY, AS ADMINISTRATRIX
        OF THE ESTATE OF LARRY KAUFMAN AND AS NEXT FRIEND OF
        DYLAN KAUFMAN, DEREK KAUFMAN AND THE THIRD-PARTY
        DEFENDANT DUSTIN KAUFMAN, BY NOT GRANTING SUMMARY
        JUDGMENT IN FAVOR OF THE PLAINTIFFS-APPELLANTS, KIM
        KAUFMAN, INDIVIDUALLY, AS ADMINISTRATRIX OF THE ESTATE OF
        LARRY KAUFMAN AND AS NEXT FRIEND OF DYLAN KAUFMAN,
        DEREK KAUFMAN AND THE THIRD-PARTY DEFENDANT, DUSTIN
        KAUFMAN.

        {¶16} Appellants assert in their second and third assignments of error that the trial court

erred by granting summary judgment to Nationwide and by not granting summary judgment to

them.

        {¶17} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7,

12 (6th Dist.1983).
                                                  8


       {¶18} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

       No genuine issue as to any material fact remains to be litigated; (2) the moving
       party is entitled to judgment as a matter of law; and (3) it appears from the
       evidence that reasonable minds can come to but one conclusion, and viewing such
       evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant “bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case.” (Emphasis sic.)

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the non-

moving party “‘must set forth specific facts showing that there is a genuine issue for trial.’” Id. at

293, quoting Civ.R. 56(E).

       {¶19} We begin by noting that Appellants spend a great deal of time asserting that the

insurance policy and the subrogation provision included therein which accompanied

Nationwide’s motion for summary judgment could not be properly considered. However, we are

unsure why Appellants devote so much time to these assertions,1 since it is obvious that the trial

court explicitly only considered the subrogation provision the Appellants seem to believe to be

the correct one. As it does not appear the trial court considered the allegedly improper summary

judgment evidence, we fail to discern how Appellants have been prejudiced, and therefore

disregard this argument.

       {¶20} This Court finds this matter to be very procedurally problematic.                  When

Nationwide filed its cross-claim it stated that it “is entitled to be reimbursed in full from any

recovery which Plaintiff[s] should make in this matter. See [c]opy of plan subrogation provision

attached as Exhibit 1.” Attached to the cross-claim as Exhibit 1 is a single-page, undated

       1
          We note that essentially Appellants’ brief is a replica of Plaintiffs’ motion to strike filed
in the trial court.
                                                9


document entitled “SECTION 16[,] SUBROGATION[.]”                 Notably, several words in the

subrogation provision begin with capital letters, (i.e. “Our[,]” “You[,]” “Benefit[,]” “Condition”)

implying that they have a particular meaning. No definitions were included with the provision.

Further, there is nothing in the exhibit to tie the provision to Nationwide, the Holmes County

Farm Bureau (whom Nationwide asserts it is a claims administrator and insurer for), or the

Kaufmans.

       {¶21} At a later stage in the proceedings, Nationwide filed its motion for summary

judgment and did not attach the subrogation provision that was in its cross-claim. Instead it

sought summary judgment based upon an entirely different subrogation provision. Nationwide

submitted the provision and the policy that goes with that provision via an affidavit incorporating

the documents. Additionally, the affidavit averred that the attached policy was the policy in

effect at the time of the accident. Appellants, on the other hand, moved for summary judgment

based upon the subrogation provision attached to the cross-claim. Additionally, Appellants

moved to strike the documents attached to the affidavit accompanying Nationwide’s motion for

summary judgment. Appellants argued that the policy Nationwide submitted with its motion for

summary judgment was expired at the time of the accident based upon the anniversary date listed

in the policy.   Appellants did not submit additional evidentiary materials to support their

proposition or submit what they contended was the applicable policy.

       {¶22} The trial court did not explicitly rule on Appellants’ motion to strike; therefore,

under normal circumstances, this Court would presume the trial court overruled the motion. See

Lorain v. Hodges, 9th Dist. No. 06CA008920, 2007-Ohio-456, ¶ 11. However, it is unclear

whether the trial court found merit to Appellants’ motion, as in its entry granting summary
                                                10


judgment in favor of Nationwide, the trial court only considered the subrogation provision

attached to the cross-claim, to which there was no objection.

       {¶23} Thereafter, the trial court granted summary judgment to Nationwide based upon

the subrogation provision that had been attached to Nationwide’s cross-claim. Notwithstanding

the fact that Nationwide did not even assert it was entitled to relief in its summary judgment

motion based upon the provision attached to its cross-claim, the trial court granted Nationwide

relief upon a basis not asserted by Nationwide in its summary judgment motion. See Smith v.

Ray Esser & Sons, Inc., 9th Dist. No. 10CA009798, 2011-Ohio-1529, ¶ 14 (stating that “it is

reversible error to award summary judgment on grounds not specified in the motion for summary

judgment[]”). (Internal quotations and citations omitted.) In addition, relief was granted (as well

as denied to Appellants) based upon an unauthenticated single-page document. Notably, neither

side cited to evidentiary materials which even suggest that the subrogation provision attached to

the cross-claim was, or was not, part of the policy that covered the Kaufmans during the time of

the accident.

       {¶24} It is clear that both sides believe that Nationwide’s entitlement, or lack thereof, to

subrogation depends first on a determination of whether its contractual relationship with the

Kaufmans under an insurance policy prevents application of equitable subrogation principles.

See Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482, 2006-Ohio-6551, ¶

23 (noting an insurance policy is a contract between the insurer and the insured). Said more

simply, the parties ask us to determine whether conventional or contractual subrogation bars

application of equitable subrogation principles. See generally N. Buckeye Edn. Council Group

Health Benefits Plan v. Lawson, 103 Ohio St.3d 188, 2004-Ohio-4886, ¶ 10.                Although

Appellants claimed the trial court erred in denying their motion for summary judgment, they
                                                 11


have not pointed to evidentiary materials indicating that the subrogation provision interpreted by

the trial court is part of a policy between Nationwide and the Kaufmans or that that provision

was part of the policy in effect at the time of the accident. Nor have they pointed to evidentiary

materials, such as the complete policy, which would give a court the tools necessary to interpret

the subrogation provision. Further, as the trial court did not consider the subrogation provision

that Nationwide asserted entitled it to summary judgment, we decline to do so in the first

instance. Allstate Ins. Co. v. Smeltzer, 9th Dist. No. 25136, 2011-Ohio-2632, ¶ 15. Moreover,

there is no cross-assignment of error before us asserting that the trial court considered the wrong

policy and subrogation provision. Accordingly, we fail to see how either side met its summary

judgment burden and demonstrated entitlement to a declaration that Nationwide was or was not

subrogated.

       {¶25} In light of the foregoing, we affirm the trial court’s denial of summary judgment

to Appellants and reverse the trial court’s grant of summary judgment to Nationwide. Therefore,

we sustain Appellants’ second assignment of error and overrule their first assignment of error,

albeit upon a different basis than that asserted by the Appellants.

                                                III.

       {¶26} This Court overrules Appellants’ first and third assignments of error and sustains

their second assignment of error. The judgment of the Medina County Court of Common Pleas

is affirmed in part and reversed in part. This matter is remanded for proceedings consistent with

this opinion.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.
                                                12




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT


MOORE, J.
CONCURS

CARR, J.
CONCURS IN JUDGMENT ONLY

APPEARANCES:

TIMOTHY H. HANNA, Attorney at Law, for Appellants.

DARAN P. KIEFER, Attorney at Law, for Appellees.
