Ambrose v. Dept. of Transp.

[Cite as Ambrose v. Dept. of Transp., 2010-Ohio-2020.]
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
JOHN AMBROSE
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-05331-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF DISMISSAL
{¶ 1} On June 2, 2009, plaintiff, John Ambrose, filed a complaint against
defendant, Department of Transportation. Plaintiff alleges his vehicle was damaged on
or about May 1, through 14, 2009, while traveling on State Route 21 through a
construction zone maintained by defendant’s contractor, Shelly & Sands. Plaintiff states
he entered into a partial settlement with Shelly & Sands insurance carrier, Cincinnati
Insurance Companies, and received $676.70 for windshield replacement and repair of
chips to the paint of his vehicle. Plaintiff now seeks additional damages in the amount
of $303.52 for repair of damage to his radiator.
{¶ 2} Plaintiff alleges that the radiator damage occurred at the same time as the
other damage sustained by his vehicle.
{¶ 3} Defendant filed a motion to dismiss. In support of the motion to dismiss,
defendant stated in pertinent part:
{¶ 4} “Their agent, Steve Harbert, met with plaintiff on May 28, 2009, which is
two weeks from the date of incident, and he inspected plaintiff’s vehicle. There was a
Case No. 09-05331-AD -2- ENTRY
compromise settlement agreed upon and Cincinnati Insurance Companies paid plaintiff
$676.70 to repair the windshield and the small chips on the hood. This was not a partial
settlement. (See Exhibit A)
{¶ 5} “Plaintiff stated to Mr. Harbert on May 28, 2009, that there were no leaks
from the radiator or air conditioning and the car was operating normally. The
Department of Transportation agrees with the insurance agent of Cincinnati Insurance
Companies that this claim has already been addressed and the agreed settlement of
$676.70 is final.”
{¶ 6} Defendant also submitted a letter from Steve Harbert, Field Claims
Superintendent, Cincinnati Insurance Companies. This letter reveals that Mr. Harbert
discussed the damage to the radiator with plaintiff. Specifically, with regard to the
radiator, Mr. Harbert stated:
{¶ 7} “Mr. Ambrose’s radiator did have some small stones embedded in it. I did
not observe anything unusually severe. Pursuant to Mr. Ambrose’s statement that the
car was working normally, there is no functional damage to the radiator. Upon receipt of
your letter, I confirmed my opinion with a local body shop that the fins of the condenser
can be combed out. The shop advises that this should take about a half an hour to
perform this task, at a cost of approximately $35.00.”
{¶ 8} Plaintiff did not respond to defendant’s motion to dismiss.
{¶ 9} Upon review, the settlement reached with Cincinnati Insurance
Companies concerned all the damage sustained by defendant’s vehicle, including but
not limited to, the radiator.
{¶ 10} R.C. 2743.02(D) in pertinent part states:
{¶ 11} “Recoveries against the state shall be reduced by the aggregate of
insurance proceeds, disability award, or other collateral recovery received by the
claimant.”
{¶ 12} Upon review, the court finds the money received by plaintiff is a recovery
Case No. 09-05331-AD -3- ENTRY
from a collateral source and a full recovery for all damage suffered by his vehicle during
the period May 1, through May 14, 2009. According, defendant’s motion is GRANTED
and plaintiff’s case is DISMISSED. The court shall absorb the court costs of this case in
excess of the filing fee.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
John Ambrose Jolene M. Molitoris, Director
3322 Cherrywood Department of Transportation
Norton, Ohio 44203 1980 West Broad Street
Columbus, Ohio 43223
DRB/laa
Filed 1/20/10
Sent to S.C. reporter 5/7/10