[Cite as Progressive Direct Ins. Co. v. Glancy, 2014-Ohio-3739.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Progressive Direct Insurance Company,                 :

                 Plaintiff-Appellee,                  :
                                                                        No. 13AP-1097
v.                                                    :            (Ct.Cl. No. 2013-00561-PR)

Theodore Glancy, Jr. et al.,                          :            (REGULAR CALENDAR)

                 Defendants/Third-Party               :
                 Plaintiffs-Appellants,
                                                      :
Ohio Department of Transportation,
                                                      :
                 Third-Party
                 Defendant-Appellee.                  :

United Ohio Insurance Company,                        :

                 Plaintiff-Appellee,                  :
                                                                        No. 13AP-1098
v.                                                    :            (Ct.Cl. No. 2013-00607-PR)

Theodore Glancy, Jr. et al.,                          :            (REGULAR CALENDAR)

                 Defendants/Third-Party               :
                 Plaintiffs-Appellants,
                                                      :
Ohio Department of Transportation,
                                                      :
                 Third-Party
                 Defendant-Appellee.                  :




                                            D E C I S I O N

                                     Rendered on August 28, 2014


                 Stark & Knoll Co., LPA, Harry A. Tipping, Christopher A.
                 Tipping and Patrick G. O'Connor, for appellants Gilliano
                 Motor Transport, Inc. and Theodore Glancy, Jr.
Nos. 13AP-1097 and 13AP-1098                                                              2


              Michael DeWine, Attorney General, Peter E. DeMarco and
              Frank S. Carson, for appellee Ohio Department of
              Transportation.

                        APPEAL from the Court of Claims of Ohio

DORRIAN, J.
       {¶ 1} Defendants and third-party plaintiffs-appellants, Gilliano Motor Transport,
Inc. and Theodore Glancy, Jr. ("appellants"), appeal the December 11, 2013 judgment of
the Court of Claims of Ohio granting the motion to dismiss of third-party defendant-
appellee, Ohio Department of Transportation ("ODOT"). For the reasons that follow, we
reverse the judgment of the trial court.
I. Facts and Procedural History
       {¶ 2} This consolidated appeal arises out of two related cases: in case No. 13AP-
1097, Progressive Direct Insurance Company ("Progressive") filed a complaint on
September 5, 2013; and in case No. 13AP-1098, United Ohio Insurance Company
("United") filed a complaint on September 10, 2013. Progressive and United's complaints
alleged that, on September 12, 2011, a multiple-vehicle accident occurred in Walnut Creek
Township, Ohio when Theodore Glancy, Jr. ("Glancy"), an employee working within the
scope and course of his employment for Gilliano Motor Transport, Inc., negligently
operated a motor vehicle causing damage to motor vehicles operated by persons insured
by Progressive and United. Both complaints were filed against appellants in the Holmes
County Court of Common Pleas seeking judgments for amounts Progressive and United
paid to their insured for injuries suffered as a result of alleged negligence on the part of
appellants. None of the insured persons were parties to the complaints.
       {¶ 3} On September 17 and September 30, 2013, appellants filed answers to the
complaints of Progressive and United and filed third-party complaints against ODOT,
seeking contribution and indemnity for ODOT's alleged negligence, which was a direct
and proximate cause of the motor vehicle collision between Progressive and United's
insured and Glancy. On September 23 and October 9, 2013, appellants filed petitions for
removal of both cases to the Court of Claims of Ohio ("trial court").
Nos. 13AP-1097 and 13AP-1098                                                                  3


        {¶ 4} On October 22 and October 30, 2013, ODOT filed in the trial court motions
to dismiss the third-party complaints pursuant to Civ.R. 12(B)(6). After being fully briefed
by the parties, the trial court granted ODOT's motions to dismiss on December 11, 2013.
II. Assignment of Error
        {¶ 5} Appellants appeal assigning a single error for our review:
              The trial court erred in dismissing the Third-Party Complaints
              pursuant to Civ.R. 12(B)(6).
        {¶ 6} Appellants assert in their assignment of error that the trial court erred in
dismissing their complaint for failing to state a claim under Civ.R. 12(B)(6) since: (1) R.C.
2743.02(D) does not apply to a joint tortfeasor's third-party contribution claim against
the state; and (2) ODOT's liability to appellants is separate and distinct from its liability to
the claimants and their insurers. ODOT responds that it lacks common liability with
appellants since it cannot be liable to Progressive and United pursuant to R.C.
2743.02(D), and therefore dismissal was proper.
        {¶ 7} A motion to dismiss for failure to state a claim upon which relief can be
granted under Civ.R. 12(B)(6) is procedural and tests the sufficiency of the complaint.
Washington Mut. Bank v. Beatley, 10th Dist. No. 06AP-1189, 2008-Ohio-1679, ¶ 12. In
order for a trial court to grant a motion to dismiss for failure to state a claim upon which
relief can be granted, it must appear beyond doubt from the complaint that the plaintiff
can prove no set of facts entitling him or her to recovery. O'Brien v. Univ. Community
Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. "In contrast to the resolution of a
Civ.R. 12(B)(1) motion, a trial court may consider only the statements and facts contained
in the pleadings and may not consider or rely on evidence outside the complaint when
resolving a Civ.R. 12(B)(6) motion to dismiss." Washington Mut. Bank at ¶ 13. An
appellate court reviews de novo the dismissal of a complaint under Civ.R. 12(B)(6). Id. at
¶ 12.
        {¶ 8} Appellants filed their third-party complaint against ODOT pursuant to
Civ.R. 14, which provides in pertinent part: "At any time after commencement of the
action a defending party, as a third-party plaintiff, may cause a summons and complaint
to be served upon a person not a party to the action who is or may be liable to him for all
Nos. 13AP-1097 and 13AP-1098                                                               4


or part of the plaintiff's claim against him." R.C. 2307.25 defines the scope of the right of
contribution as follows:
              [I]f one or more persons are jointly and severally liable in tort
              for the same injury or loss to person or property or for the
              same wrongful death, there may be a right of contribution
              even though judgment has not been recovered against all or
              any of them. The right of contribution exists only in favor of a
              tortfeasor who has paid more than that tortfeasor's
              proportionate share of the common liability, and that
              tortfeasor's total recovery is limited to the amount paid by
              that tortfeasor in excess of that tortfeasor's proportionate
              share.

       {¶ 9} R.C. 2743.02(D) provides in pertinent part as follows: "Recoveries against
the state shall be reduced by the aggregate of insurance proceeds, disability award, or
other collateral recovery received by the claimant." In Community Ins. Co. v. Ohio Dept.
of Transp., 92 Ohio St.3d 376 (2001), the plaintiff, an insurance company, paid its
insured's hospital and medical expenses and then filed a complaint as the insured's
subrogee against the state for alleged negligence that resulted in the insured's injury. The
Supreme Court of Ohio, interpreting R.C. 2743.02(D), found that the insurer as subrogee
was not a "claimant" separate and apart from the subrogor, the insured, and thus the
insurer had no right of recovery greater than that of the insured. The Supreme Court held
that "an insurer who has been granted a right of subrogation by a person on whose behalf
the insurer has paid medical expenses incurred as the result of tortious conduct of the
state is subject to R.C. 2743.02(D)." Id. at 379. As a result, R.C. 2743.02(D) mandated
that the medical benefits the insured received from her insurer must be deducted from the
amount due to her insurer from the state because the insured "could not transfer to [her
insurer], by way of subrogation, a right to recover damages representing incurred medical
expenses that [the insured] herself did not possess pursuant to R.C. 2743.02(D)." Id. at
378.
       {¶ 10} In Heritage Ins. Co. v. Ohio Dept. of Transp., 104 Ohio St.3d 513, 2004-
Ohio-6766, the Supreme Court of Ohio was presented with the question of whether a joint
tortfeasor or the tortfeasor's insurance company could seek contribution and indemnity
from the state for damages paid by the tortfeasor or the tortfeasor's insurer to an injured
Nos. 13AP-1097 and 13AP-1098                                                                5


third-party.   Id. at ¶ 6.   The Supreme Court found that a joint tortfeasor and the
tortfeasor's insurer were not claimants under R.C. 2743.02(D), as interpreted by
Community, and held that "R.C. 2743.02(D) is not applicable to a joint tortfeasor seeking
contribution and indemnity from the state." Id. at ¶ 18.
        {¶ 11} ODOT contends that Community applies in this instance to preclude
Progressive and United from recovering from ODOT any amounts they paid to their
insured. Following from this premise, ODOT contends that it and appellants do not share
common liability since neither Progressive nor United, as subrogees of the claimants,
could bring a subrogation claim against ODOT to recover those amounts. As a result,
ODOT argues that R.C. 2743.02(D) as a matter of law bars appellants from bringing a
claim for contribution and indemnity against ODOT.
        {¶ 12} In Heritage, the Supreme Court of Ohio clarified that Community applies
only if the party seeking contribution and indemnity from the state is a "claimant" under
R.C. 2743.02(D). Id. at ¶ 12. In Community, the Supreme Court of Ohio "establishe[d]
that a party that raises a claim against the state is not necessarily a 'claimant' pursuant to
the statute." Heritage at ¶ 13. The Supreme Court found that the insurer, through its role
as subrogee of the injured subrogor, stood in the shoes of the claimant regardless of
whether or not the subrogor was a party to the action, and thus became subject to the
limitations of R.C. 2743.02. Here, ODOT is correct that Progressive and United, through
their role as subrogees of their insured, are considered claimants and subject to the
limitations on recoveries under R.C. 2743.02. However, as in Heritage, appellants, as
joint tortfeasors, seek contribution and indemnity from the state. Id. at ¶ 14. Therefore,
appellants are not claimants under R.C. 2743.02(D) as interpreted by Heritage and
Community and remain unaffected by the statutory limitations on recovery. Heritage at
¶ 18.
        {¶ 13} Here, unlike in Community, the issue is not whether the subrogee of the
insured is able to recover from the state damages paid to its insured. Rather, as in
Heritage, the issue is whether ODOT was negligent and, if so, whether appellants are
entitled to contribution and indemnity. Heritage at ¶ 14. See also Heritage Ins. Co. v.
Ohio Dept. of Transp., 10th Dist. No. 02AP-838, 2003-Ohio-3111, ¶ 17.
Nos. 13AP-1097 and 13AP-1098                                                                6


          {¶ 14} Further, as the Supreme Court of Ohio explained in Heritage, 104 Ohio
St.3d 513, at ¶ 17, prohibiting a joint tortfeasor from seeking contribution from the state
"would essentially make one tortfeasor's insurer liable for another joint tortfeasor's part of
a judgment," meaning that "[t]he state would thus be immune from liability to the extent
of the joint tortfeasor's insurance." Id. The Supreme Court concluded that, "[i]n no way
does R.C. 2743.02(D) require that result." Id. See also Selective Ins. Co. of Am. v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 11AP-597, 2012-Ohio-1314, ¶ 28 ("Community
Insurance does not stand for the blanket proposition that subrogation claims against the
state are not cognizable in the Court of Claims * * * [r]ather, Community Insurance holds
that R.C. 2743.02(D) limits the extent to which a subrogee may recover damages.").
          {¶ 15} ODOT contends that, even if appellants cannot seek contribution and
indemnity from the state in the present action, appellants still can avoid paying more than
their proportionate share of liability by proving an "empty chair" defense against ODOT in
the Court of Common Pleas. Regardless of the truth of ODOT's contention, it is irrelevant
to our determination since appellants chose to bring a complaint pursuant to Civ.R. 14
against ODOT as a third-party defendant, and nothing in R.C. 2943.02 prevents such a
filing.
          {¶ 16} Finally, ODOT contends that it cannot be liable for reimbursement of the
insured's deductibles both in the present action and in separate lawsuits brought by the
insured. ODOT concedes that it is liable for unreimbursed damages and that the payment
of a deductible is an unreimbursed loss to an injured claimant. However, whether or not
Progressive and United are seeking reimbursement for their insured's deductibles is not
relevant to whether or not R.C. 2743.02(D) applies to bar appellants from stating a claim
against ODOT, and we decline to consider the question further.
          {¶ 17} Because R.C. 2743.02(D) is not applicable to a joint tortfeasor seeking
contribution and indemnity from the state, the trial court erred by dismissing appellants'
third-party complaint against ODOT. Heritage, 104 Ohio St.3d 513, at ¶ 18. Accordingly,
we sustain appellant's assignment of error.
Nos. 13AP-1097 and 13AP-1098                                                        7


III. Disposition
      {¶ 18} Having sustained appellant's assignment of error, we reverse the judgment
of the Court of Claims of Ohio and remand this cause for further proceedings in
accordance with law and consistent with this decision.
                                                   Judgment reversed; cause remanded.
                           KLATT and CONNOR, JJ., concur.
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