Selective Ins. Co. of Am. v. Bronco Excavating, Inc.

[Cite as Selective Ins. Co. of Am. v. Bronco Excavating, Inc., 2022-Ohio-3805.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SELECTIVE INSURANCE CO. OF : APPEAL NO. C-220163
AMERICA, TRIAL NO. 21CV-18047
:
Plaintiff-Appellant,
:
vs. O P I N I O N.
:
BRONCO EXCAVATING, INC.,
Defendant-Appellee. :
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 26. 2022
Kreiner & Peters Co., LPA, and Daniel Kiefer, for Plaintiff-Appellant,
Bonezzi Switzer Polito & Hupp Co., LPA, Patricia J. Trombetta and Thomas J.
Glassman, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} In this subrogation action, plaintiff-appellant Selective Insurance Co. of
America (“Selective Insurance”) appeals the decision of the trial court granting a Civ.R.
60(B) motion filed by defendant-appellee Bronco Excavating Inc. (“Bronco”). Because
Bronco failed to set forth any evidence of excusable neglect, we reverse the judgment
of the trial court.
Background
{¶2} On September 21, 2021, Selective Insurance filed a subrogation action
on behalf of its insured against Bronco arising from an incident in which one of
Bronco’s employees allegedly backed a dump truck into the insured’s parked vehicle.
Selective Insurance allegedly paid its insured $4,633.45 for the property damage, and
the insured paid $500 as an out-of-pocket deductible.
{¶3} On October 26, 2021, Selective Insurance filed a motion for a default
judgment, which the trial court granted on November 1, 2021. On November 4, 2021,
Bronco filed a motion to set aside the default judgment in accordance with Civ.R.
60(B). Bronco alleged that it had sent notice of the lawsuit to its insurance carrier via
email; however, the insurance carrier never received notice of the lawsuit.
{¶4} In March 2022, the trial court held a hearing on Bronco’s motion to set
aside the default judgment. Bronco did not present any evidence, and Bronco’s
attorney represented to the court that she did not have the email that her client had
sent to the insurance company notifying it of the lawsuit. Bronco’s attorney argued
that Selective Insurance’s insured had parked in a no-parking zone at the time of the
accident, and that the matter should have been arbitrated under an agreement
between Selective Insurance and Bronco’s insurer.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The trial court granted Bronco’s Civ.R. 60(B) motion, finding that
service of the motion for a default judgment had not been received by defendant until
after the default judgment had been entered, and that Bronco had a potential
meritorious defense.
{¶6} Selective Insurance appeals, raising three assignments of error.
Civ.R. 60(B) and Excusable Neglect
{¶7} In its first assignment of error, Selective Insurance argues that the trial
court abused its discretion in granting Bronco’s Civ.R. 60(B) motion without making
a finding of excusable neglect and where no evidence in the record supports excusable
neglect. To prevail under Civ.R. 60(B), a movant must establish: (1) a meritorious
defense or claim in the action; (2) entitlement to relief under one of the grounds set
forth in Civ.R. 60(B)(1) through (5); and (3) the movant’s motion was made within a
reasonable time, or within one year if the grounds for relief are Civ.R. 60(B)(1), (2), or
(3). GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d
113 (1976), paragraph two of the syllabus. An appellate court reviews a decision
granting or denying relief under Civ.R. 60(B) for an abuse of discretion. Griffey v.
Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). In general, an abuse of discretion
occurs where a trial court’s decision is “unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶8} Selective Insurance challenges the second prong of the GTE test—
whether Bronco was entitled to relief under Civ.R. 60(B)(1), which provides: “On
motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order or proceeding for * * * mistake,
inadvertence, surprise or excusable neglect[.]”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Bronco argued in the trial court that it had forwarded a copy of the
complaint to its insurance carrier via email, but the insurance carrier never received
it. However, Bronco failed to provide any evidence or details to support its assertion
regarding the email. According to Selective Insurance, Bronco’s conduct is not
excusable neglect, and Selective Insurance relies on two cases from this court: Scheper
v. McKinnon, 177 Ohio App.3d 820, 2008-Ohio-3964, 896 N.E.2d 208 (1st Dist.), and
Mueller v. Hammann, 1st Dist. Hamilton Nos. C-120799 and C-130231, 2013-Ohio-
5098.
{¶10} In Scheper, this court held that a trial court did not abuse its discretion
in denying a defendant’s Civ.R. 60(B) motion where the defendant-insured forwarded
a complaint to its insurance company, but neither the defendant nor the insurer took
any further action until almost five months after the judgment had been entered for
the plaintiffs. Similarly, in Mueller, this court held that the trial court did not abuse
its discretion in denying a Civ.R. 60(B) motion filed by a defendant who had allegedly
retained an attorney, but neither the defendant nor the attorney took any further
action to respond or defend.
{¶11} Bronco argues that this court should uphold the trial court’s decision to
set aside the default judgment, and Bronco relies on Colley v. Bazell, 64 Ohio St.2d
243, 416 N.E.2d 605 (1985). In Colley, the defendant-attorney promptly mailed a copy
of a malpractice complaint to his insurance agent by certified mail; however, the
paperwork became delayed in the mail and did not arrive until the same day that the
trial court granted the plaintiffs’ default-judgment motion. The trial court denied the
defendant-attorney’s motion to set aside the default judgment and reasoned that the
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant should have followed through with his insurance company to make sure
that it would respond to the lawsuit on his behalf.
{¶12} The Ohio Supreme Court reversed the trial court’s decision in Colley.
The court reasoned that whether neglect is excusable necessitates an inquiry into all
of the facts and circumstances, including “whether the defendant promptly notified
his carrier of the litigation[;] * * * the lapse of time between the last day for the filing
of a timely answer and the granting of the default judgment[;] * * * the amount of the
judgment granted[; and] * * * the experience and understanding of the defendant with
respect to litigation matters.” Colley at 248-249. The Colley court reasoned that the
trial court focused on defendant’s status as an attorney, but the trial court ignored the
defendant’s prompt notice to the insurance carrier, the substantial amount of the
judgment, and the short passage of time between the failure to file an answer and the
default judgment.
{¶13} In this case, the trial court focused on the short amount of time between
the default judgment and Bronco’s motion to set it aside. The trial court reasoned that
the default-judgment motion was not served on Bronco until after the trial court
entered the default judgment; however, Bronco was not entitled to service of the
default-judgment motion. See Civ.R. 5(A); Stearns v. Devecka, 5th Dist. Tuscarawas
No. 2001AP11 0102, 2002-Ohio-3839, ¶ 24; Gupta v. Edgecombe, 10th Dist. Franklin
No. 03AP-807, 2004-Ohio-3227, ¶ 21.
{¶14} In its motion to set aside the default judgment, Bronco alleged that it
had forwarded the complaint to its insurance company. At the hearing on Bronco’s
motion, Bronco failed to provide any evidence of the alleged email, any details
regarding the email, such as who sent the email and on what date, and any details as
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OHIO FIRST DISTRICT COURT OF APPEALS
to Bronco’s internal procedure for handling summons and complaints. See Custom
Pro Logistics, LLC v. Penn Logistics LLC, 1st Dist. Hamilton No. C-210422, 2022-
Ohio-1774, ¶ 17 (“Negligent or insufficient internal procedures in an organization may
not constitute excusable neglect.”). Therefore, no evidence supports Bronco’s
assertion that its failure to respond to Selective Insurance’s complaint was the result
of excusable neglect.
{¶15} In Bronco’s motion for relief from judgment and at oral argument,
Bronco argued that it was entitled to relief under Civ.R. 60(B)(5). Civ.R. 60(B)(5) only
applies when a more specific provision in Civ.R. 60(B)(1) through (4) does not apply,
and where the grounds for granting relief are “substantial.” Caruso-Ciresi, Inc. v.
Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983). Bronco’s arguments under
Civ.R. 60(B)(5) appear to be the same arguments Bronco made with respect to
excusable neglect under Civ.R. 60(B)(1). Therefore, Civ.R. 60(B)(5) does not apply.
{¶16} Where a movant fails to satisfy one of the requirements under Civ.R.
60(B), relief from judgment is not proper. Strack v. Pelton, 70 Ohio St.3d 172, 174,
637 N.E.2d 914 (1994). In the absence of any evidence in the record to support
Bronco’s entitlement to relief under Civ.R. 60(B)(1), excusable neglect, the trial court
abused its discretion in granting Bronco’s motion for relief from judgment. See
Electrosonics Div. of Airadio Corp. v. Natl. Frame Co., Inc., 10th Dist. Franklin No.
76AP-882, 1977 Ohio App. LEXIS 9269, *8 (Mar. 8, 1977) (“[T]he trial court abused
its discretion in granting the motion for relief from judgment in the absence of a factual
determination of the alleged grounds for relief from judgment.”).
{¶17} We sustain Selective Insurance’s first assignment of error. The
remaining assignments of error filed by Selective Insurance are moot.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶18} We reverse the judgment of the trial court granting Bronco relief from
judgment under Civ.R. 60(B), and we remand the matter to the trial court to reinstate
the default judgment.
Judgment reversed and cause remanded.
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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