         [Cite as Warmack v. Arnold, 2011-Ohio-4232.]

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



RICHARD L. WARMACK                              :       APPEAL NO. C-100718
                                                        TRIAL NO. 10CV-13581
  and                                           :

STATE AUTO INSURANCE COMPANY :                          D E C I S I O N.
OF OHIO,
                                                :
        Plaintiffs-Appellees,
                                                :
  vs.
                                                :
TIMOTHY ARNOLD,

        Defendant-Appellant.                    :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Final Judgment Entered

Date of Judgment Entry on Appeal: August 26, 2011


Zeehandelar Sabatino & Associates, LLC, and Steven J. Zeehandelar, for Plaintiffs-
Appellees,

Timothy Arnold, pro se.




Please note: This case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS




S YLVIA S IEVE H ENDON , Judge.

       {¶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 damages.           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. Arnold had been

operating a motor vehicle and had caused damage to Warmack’s parked vehicle.

Arnold had then gone to Warmack’s home and had admitted that he was responsible

for the damage. The two had exchanged their automobile-insurance information and

their telephone numbers.

       {¶4}     Following the trial, at which both Arnold and Warmack testified, 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.

       {¶5}     In a single assignment of error, Arnold argues that the trial court

erred by entering judgment for State Auto. Because Arnold essentially claims that

the judgment was contrary to the evidence, we must determine whether competent,




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                          OHIO FIRST DISTRICT COURT OF APPEALS



credible evidence supported the trial court’s judgment1 that State Auto was entitled

to recover from Arnold under the doctrine of subrogation.

        {¶6}     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.2 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.3

        {¶7}     In Aetna Cas. & Sur. Co. v. Hensgen,4 the defendant tortfeasor argued

that the 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. The Supreme Court of Ohio held that because the insurance

company had established the existence of a subrogation and assignment agreement

that was signed at the same time as the insurer’s payment to the insured, the

insurance company need not establish the existence of an insurance policy.5

        {¶8}     In this case, State Auto did not establish either the existence of an

insurance policy or of a subrogation or assignment agreement. Because State Auto

failed to submit evidence to support its claim that Warmack had assigned State Auto

his rights to recover from Arnold, we hold that the trial court erred by entering

judgment in favor of State Auto.

        {¶9}     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.


1 C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
2 Aetna Cas. & Sur. Co. v. Hensgen (1970), 22 Ohio St.2d 83, 90, 258 N.E.2d 237.
3 See Auto. Ins. Co. v. Pennsylvania RR Co. (1938), 133 Ohio St. 449, 14 N.E.2d 613.
4 Supra.
5 Id. at 89.




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                        OHIO FIRST DISTRICT COURT OF APPEALS




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

Please Note:
       The court has recorded its own entry on the date of the release of this decision.




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