Hines v. Univ. of Akron ( 2013 )

[Cite as Hines v. Univ. of Akron, 2013-Ohio-4853.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
VINCE HINES
Plaintiff
v.
UNIVERSITY OF AKRON
Defendant
Case No. 2011-11009
Judge Patrick M. McGrath
Magistrate Robert Van Schoyck
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
{¶ 1} On April 12, 2013, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). With leave of court, plaintiff filed a response on May 6, 2013. On May
8, 2013, defendant filed a motion for leave to file a reply, which is GRANTED instanter.
On May 16, 2013, plaintiff filed a motion for leave to file an opposing affidavit; however,
inasmuch as Civ.R. 56(C) provides that opposing affidavits may be filed at any time
prior to the day of hearing, which in this case had been set for May 20, 2013, leave of
court was not necessary and the motion is thus DENIED as moot. On May 20, 2013,
plaintiff filed a motion for leave to file a supplemental response, which is GRANTED
instanter.
{¶ 2} Civ.R. 56(C) states, in part, as follows:
{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
Case No. 2011-11009 -2- ENTRY
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
{¶ 4} Plaintiff brings this action for negligence arising out of an automobile
accident that occurred in the city of Columbus on March 19, 2008. Plaintiff alleges that
he sustained injuries when a vehicle driven by Wassel AlBodour collided with the
vehicle in which he was a passenger. Plaintiff alleges, and defendant admits, that
AlBodour was an employee of defendant and was acting within the course and scope of
his employment at the time of the accident.
{¶ 5} In its motion for summary judgment, defendant asserts that plaintiff’s claim
is barred by the applicable statute of limitations, R.C. 2743.16(A).
{¶ 6} R.C. 2743.16(A) states:
{¶ 7} “Subject to division (B) of this section, civil actions against the state
permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no
later than two years after the date of accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties.”
{¶ 8} Plaintiff commenced this action on September 12, 2011, more than two
years after the accident. Plaintiff asserts, however, that the action is rendered timely by
operation of the saving statute, R.C. 2305.19.
{¶ 9} R.C. 2305.19(A) states, in part:
{¶ 10} “In any action that is commenced or attempted to be commenced, if in due
time * * * the plaintiff fails otherwise than upon the merits, the plaintiff * * * may
commence a new action within one year after the date of the * * * failure otherwise than
Case No. 2011-11009 -3- ENTRY
upon the merits or within the period of the original applicable statute of limitations,
whichever occurs later.”
{¶ 11} “R.C. 2305.19 will ‘save’ a re-filed action that would otherwise be barred by
a statute of limitations when the requirements of the rule have been satisfied, and ‘when
the original suit and the new action are substantially the same.’” Carl L. Brown, Inc. v.
Lincoln Natl. Life Ins., 10th Dist. No. 02AP-225, 2003-Ohio-2577, ¶ 41, quoting
Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523, 525 (1982); see also
Heilprin v. Ohio State Univ. Hosps., 31 Ohio App.3d 35 (10th Dist.1986). “The actions
are not substantially the same, however, when the parties in the original action and
those in the new action are different.” Children’s Hosp. at 525.
{¶ 12} It is undisputed that on March 17, 2010, plaintiff commenced an action
arising from the accident in the Franklin County Common Pleas Court, naming as
defendants the driver of the vehicle in which he was a passenger, the owner of that
vehicle, AlBodour, AlBodour’s personal insurer, and “John/Jane Doe Insurance
Company.” On August 19, 2010, an assistant attorney general, appearing on
AlBodour’s behalf, filed a motion to dismiss under Civ.R. 12(B)(1), arguing that the
common pleas court lacked jurisdiction to the extent that AlBodour was acting within the
scope of his employment with defendant at the time of the accident and had not been
determined by the court of claims to be personally liable pursuant to R.C. 2743.02(F)
and 9.86. Before any ruling was made on that motion, plaintiff voluntarily dismissed the
action without prejudice on September 14, 2010, pursuant to Civ.R. 41(A)(1)(a).
{¶ 13} When plaintiff commenced the present action in this court on September
12, 2011, the University of Akron, which had not been a party to the original action, was
named as a party defendant. (The complaint also named AlBodour, the driver of the
vehicle in which he was a passenger, and the owner of that vehicle as defendants, but
these individuals were dismissed in a pre-screening entry on the basis that, pursuant to
R.C. 2743.02(E), the only defendant in original actions in the court of claims is the
state.)
Case No. 2011-11009 -4- ENTRY
{¶ 14} Upon review, the only reasonable conclusion to be drawn is that because
the University of Akron was not a party to the original action in the common pleas court,
the action before this court is not “substantially similar” for purposes of R.C. 2305.19(A).
Therefore, R.C. 2305.19(A) does not operate to save plaintiff’s claim, which was filed
outside the applicable statute of limitations. Although plaintiff argues that the limitations
period should have been tolled inasmuch as he did not know of AlBodour’s status as a
state employee until the filing of the August 19, 2010 motion to dismiss, there is no
evidence that such information had been concealed from plaintiff or was otherwise
undiscoverable. “[A] plaintiff need not have discovered all the relevant facts necessary
to file a claim in order to trigger the statute of limitations.” Luft v. Perry Cty. Lumber &
Supply Co., 10th Dist. No. 02AP-559, 2003-Ohio-2305, ¶ 58.
{¶ 15} Accordingly, the court concludes that there are no genuine issues of
material fact and that defendant is entitled to judgment as a matter of law. Therefore,
defendant’s motion for summary judgment is GRANTED and judgment is rendered in
favor of defendant. All previously scheduled events are VACATED. Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.
_____________________________________
PATRICK M. MCGRATH
Judge
cc:
David J. Betras Velda K. Hofacker
6630 Seville Drive #1 Assistant Attorney General
Canfield, Ohio 44406 150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
001
Filed June 7, 2013
Case No. 2011-11009 -5- ENTRY
To S.C. Reporter October 31, 2013