[Cite as Warmack v. Arnold, 195 Ohio App.3d 760, 2011-Ohio-5463.]




                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO



WARMACK ET AL.,                                :         APPEAL NO. C-100718
                                                         TRIAL NO. 10CV-13581
        Appellees,                             :

v.                                             :                   OPINION ON
                                                                RECONSIDERATION.
ARNOLD,                                        :
        Appellant.                             :




Civil Appeal From: Hamilton County Municipal Court



Judgment Appealed From Is: Reversed and Final Judgment Entered



Date of Judgment Entry on Appeal: October 26, 2011




       Zeehandelar Sabatino & Associates, L.L.C., and Steven J. Zeehandelar, for
appellees.

        Timothy Arnold, pro se.
       Per Curiam.

       {¶ 1}   Defendant-appellant, Timothy Arnold, appeals the judgment of the

Hamilton County Municipal Court in favor of plaintiff-appellee, State Auto Insurance

Company of Ohio (“State Auto”), on its claim for subrogation. The judgment was

entered following a bench trial.

       {¶ 2} In its complaint against Arnold, State Auto asserted that it had
provided collision-insurance coverage to plaintiff-appellee Richard L. Warmack.

State Auto alleged that pursuant to that insurance policy, it had been “required to

and did pay to and/or on behalf of its Insured the sum of $4,075.00 under the

Collision coverage provision and is thereby subrogated in that amount, less a net

salvage recovery of $772.77.”

       {¶ 3} At trial, the parties stipulated to the following facts. On March 12,
2009, Arnold was operating a motor vehicle and caused damage to Warmack’s

parked vehicle. Arnold then went to Warmack’s home and admitted that he was

responsible for the damage.        The two exchanged their automobile-insurance

information and their telephone numbers.

       {¶ 4} Warmack testified that Arnold had returned to his home with a check
for $250.   According to Warmack, he told Arnold that he could not accept it.

Warmack also testified that his car had been insured by State Auto and that he had

presented a claim for the damages that had been caused by Arnold. State Auto had

declared the car a total loss and had issued Warmack a check for $4,075, the value of

his car.

       {¶ 5} Counsel for State Auto asked Warmack the following question: “To
the extent payments were made by State Auto, did you give them a right to pursue

the party whom they felt was responsible for the accident? That is, did you give State

Auto a right of subrogation, a right to settle those payments?” Warmack replied that

he had.


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       {¶ 6} In addition, State Auto placed into evidence Warmack’s certificate of
title, photographs of damage, a market-value report for the car, a salvage receipt, and

a copy of a draft issued by Tom Duffy Insurance to Warmack for $4,075. The draft

contained the language “This check represents payment of your claim for the

coverage indicated” and “Loss Date 03-12-2009.” Warmack testified that the draft

had been issued to him by State Auto.

       {¶ 7}   Arnold testified that he had presented a check for $250 to Warmack,

but that Warmack had wanted cash rather than a check. According to Arnold, he

paid Warmack $250 cash. In addition, Arnold submitted into evidence a document

signed by Warmack after the collision that listed Warmack’s name and address and

contained the following language: “To Whom it May Concern: I, Richard Warmack,

hereby attest that Tim Arnold is not responsible financially, legally, or criminally for

the damage done to my Cadillac on 03/12/2009. I do fully accept his $250 offer to

completely fix all damages; even if estimates may exceed this amount. I will not seek

further insured remedies, reconciliation or any compensation whatsoever.           I do

solemnly relieve Tim Arnold of any debt, responsibility or liability that he may carry.

Respectfully resolved, * * * Richard Warmack.”

       {¶ 8} Following the trial, the trial court awarded State Auto $3,302.23, the
difference between the amount it had paid to Warmack for the vehicle’s loss and the

amount it had recovered for the salvage of the vehicle.

       {¶ 9} Arnold appealed, arguing that the trial court erred in granting
judgment for State Auto. As noted by State Auto in its appellate brief, Arnold was

“essentially claiming that the judgment against him was against the manifest weight

of the evidence.”

       {¶ 10} “Judgments supported by some competent, credible evidence going to
all the essential elements of the case will not be reversed by a reviewing court as

being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr.


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Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. This standard “tends to

merge the concepts of weight and sufficiency.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, at ¶ 26. See also Schwetschenau v. Whitfield,

177 Ohio App.3d 155, 2008-Ohio-3164, 894 N.E.2d 96, at ¶ 5; State v. Gebbie, 1st

Dist. No. C-060505, 2007-Ohio-3089, at ¶ 9. In our review, we considered the

sufficiency of the evidence presented by State Auto with respect to its subrogation

rights.

          {¶ 11} On August 26, 2011, we reversed the trial court’s judgment, holding
that State Auto had failed to submit evidence to support its claim that Warmack had

assigned State Auto his rights to recover from Arnold. We relied on Aetna Cas. &

Sur. Co. v. Hensgen (1970), 22 Ohio St.2d 83, 258 N.E.2d 237, wherein the Supreme

Court of Ohio rejected the defendant tortfeasor’s argument that an insurance

company could not maintain a tort action against him without establishing the

existence of an insurance policy and the payment of a premium by the alleged

insured. Hensgen held that because the insurance company had established the

existence of a subrogation and assignment agreement that had been signed at the

same time as the insurer’s payment to the insured, the insurance company was not

required to establish the existence of an insurance policy. Id. at 90.

          {¶ 12} Specifically, Hensgen held that “[w]here an insurer proves that it paid
the full amount to the owner of property for damage thereto by fire and received

from the owner at that time a writing signed by such owner stating that such owner

‘subrogates’ such insurer ‘to all the rights, claims and interests which’ such owner

‘may have against any person or corporation liable for the loss,’ such insurer may

maintain an action to recover from one who negligently caused such loss, without

establishing the existence of any policy of insurance or the payment of any premium

thereon.” Id. at paragraph five of the syllabus.




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       {¶ 13} In this case, State Auto did not place into evidence either its insurance
policy with Warmack or a writing signed by Warmack upon State Auto’s payment to

him for the damage to his car that indicated his agreement to subrogate State Auto to

his rights against Arnold for the loss. Accordingly, we held that State Auto had not

established that Warmack had assigned to it his rights to recover from Arnold.

       {¶ 14} In response, State Auto filed a motion to reconsider, bringing to our
attention Travelers Indemn. Co. v. Brooks (1977), 60 Ohio App.2d 37, 395 N.E.2d

494, and Grange Mut. Cas. Co. v. King (Nov. 30, 1982), 10th Dist. No. 82AP-569,

cases involving the application of the doctrine of equitable subrogation, an issue not

argued in the initial appeal.

       {¶ 15} An insurer’s right to be subrogated to the right of its insured arises
either from the right of conventional subrogation, that is subrogation by agreement

of the parties, or equitable subrogation by operation of law.            Conventional

subrogation is based on the contractual obligations of the parties. Blue Cross & Blue

Shield Mut. of Ohio v. Hrenko (1995), 72 Ohio St.3d 120, 121, 647 N.E.2d 1358. On

the other hand, equitable subrogation applies when one person is subrogated to

certain rights of another so that the person is substituted in the place of the other

and succeeds to the rights of the other. Ohio Dept. of Taxation v. Jones (1980), 61

Ohio St.2d 99, 100-101, 399 N.E.2d 1215. The doctrine of equitable subrogation is

largely concerned with “ ‘the prevention of frauds and relief against mistakes.’ ”

Jones at 102, quoting Canton Morris Plan Bank v. Most (1932), 44 Ohio App. 180,

184, 184 N.E. 765.

       {¶ 16} Brooks was decided by the Sixth Appellate District. In that case, the
insurer established that it had issued an automobile insurance policy to its insured

and that the policy had contained a provision that the insurer would be subrogated to

all claims, demands, and causes of action arising under it to the extent of the

payment made. When the insured’s car was damaged by a third-party tortfeasor, the


                                              5
insurer paid its insured under the terms of the policy. The trial court awarded

judgment in favor of the insurer in its action against the tortfeasor. Brooks, 60 Ohio

App.2d at 37, 395 N.E.2d 494.

       {¶ 17} Brooks rejected the tortfeasor’s claim that the trial court had erred by
awarding damages to the insurer, as subrogee. The court noted that the insurer had

been subrogated pursuant to the subrogation clause in the policy once the insurer

had made payment to its insured under the policy. Id. at 38. The court stated:

“Even without any subrogation clause, Travelers had an equitable right of

subrogation once the payment was made. See 30 Ohio Jurisprudence 2d 811, 812,

Insurance, Section 886, which in part provides: ‘[t]he right of an insurer to be

subrogated to the rights of the insured may be either the right of conventional

subrogation—that is, subrogation by agreement between the insurer and the

insured—or the right of equitable subrogation, by operation of law, upon the

payment of the loss. Although many policies now provide for subrogation, and thus

determine the right of the insurer in this respect, the equitable right of subrogation is

the legal effect of payment, and inures to the insurer without any formal assignment

or any express stipulation to that effect in the policy. It has accordingly been said

that the insurer’s right of subrogation does not depend on any agreement, but arises

out of the relation of the parties. It follows that an insurance company need not

prove the existence of a subrogation agreement in an action brought by the insurer

and the insured against a defendant wrongdoer for damages suffered by the insurer

and insured, and recovery may be had despite the lack of such proof, since the

wrongdoer is not prejudiced thereby.’ ” Id. at 38-39, 395 N.E.2d 494.

       {¶ 18} In Grange, the Tenth Appellate District held that Grange did not have
to introduce into evidence an insurance policy, an assignment, or a subrogation

agreement to demonstrate its right to recover from a tortfeasor who had damaged its

insured’s car. Grange, 10th Dist. No. 82 AP-569, at 4. The court held that sufficient


                                               6
evidence of subrogation had been presented through the testimony of its insured that

he was insured by Grange, which had paid him for the repair of his car, and through

the testimony of a Grange representative as to the existence of the policy and the

amount of the repair bill. Id. at 3-4.

       {¶ 19} As Grange stated, “While the policy or agreement may constitute the
best evidence, oral testimony as to its existence entered without objection is

sufficient to prove the existence of the subrogation right. More importantly, where,

as here, both the injured party and the insurance company claiming subrogation are

parties to the action, there can be no prejudice to the defendant caused by the failure

to introduce the insurance policy itself. The matter of subrogation is between [the

insured and his insurer], with defendant [tortfeasor] having an interest therein only

in the event of the possibility of [a] double recovery.” Id. at 4.

       {¶ 20} At the trial in this case, Arnold did not object to Warmack’s testimony
that he had presented a claim to his insurer, State Auto, for the damage to his car,

that State Auto had paid him the value of his car, and that he had given State Auto a

right of subrogation. While this testimony was not sufficient evidence for purposes

of conventional subrogation, it was sufficient evidence for purposes of equitable

subrogation. State Auto, having paid the damages suffered by Warmack, had an

equitable right of subrogation, and was not required to present a formal subrogation

agreement or Warmack’s insurance policy into evidence. See State Farm Mut. Auto.

Ins. Co. v. Scott (Dec. 20, 1993), 12th Dist. No. CA93-05-013; Allstate Ins. Co. v.

LaCivita (Aug. 9, 1996), 11th Dist. No. 94-P-0118. Accordingly, we grant State Auto’s

motion for reconsideration, vacate our August 26, 2011, decision, and substitute this

opinion for the vacated decision.

       {¶ 21} Nevertheless, our resolution of the issue of subrogation does not
change the outcome of the appeal.




                                                7
       {¶ 22} State Auto argues that Arnold had failed to prove his affirmative
defense of waiver because he did not establish that Warmack had intended to waive

his right to recover damages.

       {¶ 23} Waiver is a voluntary relinquishment of a known right. White Co . v.
Canton Transp. Co. (1936), 131 Ohio St. 190, 2 N.E.2d 501, paragraph one of the

syllabus. The party asserting the defense of waiver bears the burden to prove it by a

preponderance of the evidence, by showing “a clear, unequivocal, and decisive act of

the party against whom the waiver is asserted, showing such a purpose or acts

amounting to an estoppel on his part.” Id. at paragraph four of the syllabus; Kool,

Mann, Coffey & Co. v. Castellini Co. (Aug. 2, 1995), 1st Dist. No. C-930951.

       {¶ 24} In this case, Warmack executed an express written waiver when he
settled his claim against Arnold. A settlement agreement is a contract designed to

terminate a claim by preventing or ending litigation. Continental W. Condominium

Unit Owners Assn. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502, 660

N.E.2d 431; In re All Kelley & Ferraro Asbestos Cases, 104 Ohio St.3d 605, 2004-

Ohio-7104, 821 N.E.2d 159, ¶ 28.       Moreover, the law highly favors settlement

agreements. Ferguson at 502.

       {¶ 25} The interpretation of a written contract is a question of law, which we
review de novo. See Ruehl v. Air/Pro, Inc., 1st Dist. Nos. C-040339 and C-040350,

2005-Ohio-1184; Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73

Ohio St.3d 107, 108, 652 N.E.2d 684.         In construing the terms of a written

agreement, the primary objective is to give effect to the intent of the parties, which

can be found in the language that they chose to employ. In re All Kelley at ¶ 29;

Harry S. Peterson Co., Inc. v. Detzel Constr. (Mar. 13, 1998), 1st Dist. No. C-961125.

Where a contract’s terms are clear and unambiguous, a court need not go beyond the

plain language of the agreement to determine the rights and obligations of the

parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51,


                                              8
53, 544 N.E.2d 920; see also Detzel, 1st Dist. No. C-961125. In this case, the plain

language of the settlement agreement clearly and unambiguously evinced Warmack’s

intention to release Arnold from further liability for the damage to Warmack’s car.

       {¶ 26} Subrogation is the right of an insurer to be put in the position of its
insured in order to pursue recovery from a third party legally responsible to the

insured for a loss paid by the insurer. Hensgen, 22 Ohio St.2d at 90. Because an

insurer is subrogated to or an assignee of only the rights of its insured or assignor,

the rights of an insurer are no greater than those of its insured. See Auto. Ins. Co. v.

Pennsylvania RR Co. (1938), 133 Ohio St. 449, 14 N.E.2d 613. Consequently, a
release granted by an insured is an effective defense against later actions by an

insurance company seeking to enforce its subrogation rights.            See Bogan v.

Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22, 30, 521 N.E.2d 447, overruled on

other grounds by Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-

Ohio-7217, 781 N.E.2d 927. In this case, Warmack’s grant of a full release to Arnold

effectively extinguished State Auto’s subrogation right to recover from Arnold any

money paid to Warmack. See id. Accordingly, we hold that the trial court erred by

entering judgment in favor of State Auto.

       {¶ 27} Based on the foregoing, we sustain the sole assignment of error and
enter judgment in favor of Arnold on State Auto’s subrogation claim.



                                                                    Judgment reversed

                                                           and final judgment entered.



       SUNDERMANN, P.J., and HENDON and CUNNINGHAM, JJ., concur.




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