Progressive Preferred Insurance v. Hammerlein Helton Insurance ( 2006 )

{¶ 1} Hammerlein Helton Insurance ("Hammerlein") appeals the trial court's entry of judgment in favor of Progressive Preferred Insurance Company ("Progressive"). We conclude that Hammerlein's assignments of error do not have merit, and we therefore affirm the judgment of the trial court.

{¶ 2} Progressive insured Richard Thomas, doing business as Mr. T's Pizza. The insurance policy was purchased through Hammerlein. On Friday, May 5, 2000, the coverage limit of the policy was $100,000. According to Hammerlein, Thomas called the Hammerlein office on Friday, May 5, at 5:30 p.m. and left a message on the answering machine requesting that the coverage limit be raised to $1 million. On Saturday, May 6, a car driven by Charles Fritsch collided with a motorcycle ridden by Ricky Lucas and Leah Garvin. At the time of the collision, Fritsch was working as a driver for Mr. T's Pizza and was insured under the Progressive policy. Lucas and Garvin were both injured in the collision.

{¶ 3} On the morning of Monday, May 8, Lucille Schwaller, a Hammerlein employee, retrieved Thomas's message requesting the increased coverage. Thomas also reported Fritsch's accident to Hammerlein on Monday morning. Schwaller reported the accident to Progressive that morning, and later that afternoon, she called in Thomas's request for increased coverage. Progressive processed Thomas's request and raised his coverage limit to $1 million.

{¶ 4} Progressive filed a declaratory-judgment action to determine the amount of coverage available under its policy with Thomas. In the course of the litigation, various insurance companies with potential liability were added as parties. In May 2002, the trial court granted summary judgment to Cincinnati Insurance, Guide One Insurance, Thomas, and Hammerlein. The court concluded that the coverage amount was $1 million. Progressive appealed, but its appeal was dismissed because the trial court's decision had not resolved all the counter-claims and cross-claims that were pending. While the remaining claims were pending, Progressive paid $40,035 to Lucas and $500,000 to Garvin in settlement of their claims against it.

{¶ 5} With Hammerlein's consent, Progressive filed a second amended complaint after the trial court granted summary judgment. The second amended complaint alleged that Hammerlein had breached the Progressive Producer's Agreement and Progressive's Ohio On-Line Guide. Progressive sought indemnification from Hammerlein for the amount over $100,000 that Progressive had paid under Thomas's policy. Hammerlein moved for summary judgment on the second amended complaint. Before the court decided the motion for summary judgment, the case was reassigned to a different judge. Hammerlein's motion for summary judgment was denied by the trial court. After a bench trial, the trial court concluded that Hammerlein had to reimburse Progressive for any amount that it had paid over $100,000.

{¶ 6} In its first assignment of error, Hammerlein asserts that the trial court erred in denying its second motion for summary judgment. Hammerlein argues that under the law-of-the-case doctrine, the second trial judge was bound by the first trial judge's conclusions that Hammerlein had not backdated the request for increased coverage and that there had been a meeting of the minds. We disagree.

{¶ 7} Because the trial court's May 2002 entry of summary judgment was not a final order, it was "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."¹ The law-of-the-case doctrine is a rule of practice as opposed to a binding rule of substantive law.² "A general view of the law of the case doctrine should not be taken to imply that a trial court can never, under any circumstances, reconsider its prior ruling."³ Because we conclude that the trial court was not bound by the earlier decision granting summary judgment to Hammerlein, we consider whether the second summary-judgment motion was improperly denied.

{¶ 8} Summary judgment is properly granted when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and with the evidence viewed most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party.⁴ We conclude that there was a genuine issue of material fact regarding whether Hammerlein had backdated Thomas's request. The first assignment of error is overruled.

{¶ 9} The trial court found that there had been no meeting of the minds between Thomas and Hammerlein regarding the request for increased coverage on Friday and that Hammerlein had backdated the request. In its remaining two assignments of error, Hammerlein asserts that the trial court erred in making these findings.

{¶ 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."⁵

{¶ 11} Kimberly Haycox, a Progressive employee, testified that it was not unusual for her to process a policy change on a Monday with an effective date on the prior Friday. According to Haycox, once the agent and the insured agreed on the policy change, the agent would bind the coverage, and Progressive would process the change. But the effective date could not be a date prior to the agreement between the agent and the insured. Progressive argued that because there was not a meeting of the minds between Hammerlein and Thomas on Friday, the effective date should have been Monday at the earliest.

{¶ 12} In order for there to have been an agreement between Hammerlein and Thomas sufficient to bind the coverage, there needed to be a meeting of the minds about the amount of the increase in coverage. The testimony at trial was that Thomas had left a message in which he stated a range of coverage before settling on the $1 million amount. In his message, Thomas also asked that Chris Helton, the owner of Hammerlein, "[c]all [him] back and let [him] know." Because there was no time/date function on the answering machine, it is not clear that Thomas had left his message on Friday. Schwaller included both "Fri" and "Sat" on the note regarding the call.

{¶ 13} There was testimony that Progressive had raised the coverage limit with an effective date of May 5 and that Progressive had accepted Thomas's premium payment based on the May 5 effective date. But that evidence did not affect the determination about whether there had been a meeting of the minds between Hammerlein and Thomas on May 5. At issue in the case was not whether Progressive had properly complied with its policy with Thomas, but whether Hammerlein had breached its agreement with Progressive, resulting in Progressive's being compelled to honor a contract with an effective date that was incorrect. After reviewing the record, we conclude that the trial court's conclusion that there had not been a meeting of the minds on Friday, May 5, was supported by competent and credible evidence.

{¶ 14} Because there was no meeting of the minds until at least Monday, May 8, the effective date for the coverage increase could not have been any earlier than that Monday. The trial court's finding that Hammerlein had backdated the request was not against the manifest weight of the evidence. The second and third assignments of error are without merit.

{¶ 15} Therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

HENDON, J., concurs.

DOAN, P.J., dissents.

¹ Civ.R. 54(B).

² Creaturo v. Duko, 7th Dist. No. 04 CO 1,2005-Ohio-1342, 2005 WL 678513.

³ Clymer v. Clymer (Sept. 26, 1995), 10th Dist. No. 95APF02-239, 1995 WL 571445.

⁴ State ex rel. Howard v. Ferreri (1994),70 Ohio St. 3d 587, 589, 639 N.E.2d 1189.

⁵ C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus.