[Cite as Fleming v. Whitaker,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

GEORGE FLEMING JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12-CA-19 WILL WHITAKER, et al.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Mount Vernon Municipal Court, Case No. 12-SMI-00082

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 10, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

GEORGE FLEMING BRIAN C. REED PRO SE REESE, PYLE, DRAKE & MEYER Post Office Box 961 36 North Second Street, P. O. Box 919 Mount Vernon, Ohio 43050 Newark, Ohio 43058-0919 Knox County, Case No. 12-CA-19 2

Wise, P. J.

{¶1} Appellant George Fleming appeals the decision of the Mount Vernon

Municipal Court, Knox County, which dismissed, under Civ.R. 12(B)(6), his small claims

complaint against Appellees State Farm Mutual Automobile Insurance Company (“State

Farm”) and Will Whitaker. The relevant facts leading to this appeal are as follows.1

{¶2} Appellant was purportedly involved in an automobile accident on or about

June 20, 2007 with an insured of Appellee State Farm. Appellant’s claim against State

Farm has apparently still not been resolved to his satisfaction.

{¶3} On July 20, 2012, appellant filed a small claims action in the Mount

Vernon Municipal Court, Knox County, against Appellee State Farm and Appellee Will

Whitaker, a claim representative for State Farm. Appellant therein alleged: “Defendant

refuses to pay valid insurance claim.” Appellant further asked for judgment in the

amount of $3,000.00 plus interest.

{¶4} On August 7, 2012, appellees filed a motion to dismiss appellant’s action,

claiming, inter alia, that appellant had failed to state a cognizable claim for relief.

{¶5} On August 14, 2012, appellant filed a “notice of opposition to defendants’

motion to dismiss.” Appellees filed a reply thereto on August 10, 2012.

{¶6} On August 14, 2012, the trial court issued a judgment entry granting

appellees’ motion to dismiss on the grounds that appellant was not permitted to file a

direct action against State Farm or its representative and, in the alternative, that the

statute of limitations had passed.

1 Appellant’s brief does not include a statement of the facts, and his short statement of the case provides very limited procedural details. See App.R. 16(A). Knox County, Case No. 12 CA 19 3

{¶7} On September 12, 2012, appellant filed a notice of appeal. He herein

raises the following sole Assignment of Error:

{¶8} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT DISMISSED

THIS CASE WITHOUT HEARING APPELLANT’S EVIDENCE.”

I.

{¶9} In his sole Assignment of Error, appellant contends the trial court erred in

granting appellees’ motion to dismiss. We disagree.

{¶10} In the judgment entry under appeal in the case sub judice, the trial court

referenced the “direct action” rule. This rule provides that in Ohio “[a]n injured person

may sue a tortfeasor's liability insurer, but only after obtaining judgment against the

insured.” Marks v. Allstate Ins. Co.,

,

, 2003-Ohio-

4043, ¶ 17, quoting Chitlik v. Allstate Ins. Co. (1973),

,

,

, paragraph two of the syllabus.

{¶11} The holding in

was based in part on R.C. 3929.06, which

presently reads in pertinent part as follows:

{¶12} “(A)(1) If a court in a civil action enters a final judgment that awards

damages to a plaintiff for injury, death, or loss to the person or property of the plaintiff or

another person for whom the plaintiff is a legal representative and if, at the time that the

cause of action accrued against the judgment debtor, the judgment debtor was insured

against liability for that injury, death, or loss, the plaintiff or the plaintiff's successor in

interest is entitled as judgment creditor to have an amount up to the remaining limit of

liability coverage provided in the judgment debtor's policy of liability insurance applied to

the satisfaction of the final judgment. Knox County, Case No. 12 CA 19 4

{¶13} “(2) If, within thirty days after the entry of the final judgment referred to in

division (A)(1) of this section, the insurer that issued the policy of liability insurance has

not paid the judgment creditor an amount equal to the remaining limit of liability

coverage provided in that policy, the judgment creditor may file in the court that entered

the final judgment a supplemental complaint against the insurer seeking the entry of a

judgment ordering the insurer to pay the judgment creditor the requisite amount. Subject

to division (C) of this section, the civil action based on the supplemental complaint shall

proceed against the insurer in the same manner as the original civil action against the

judgment debtor.

{¶14} “(B) Division (A)(2) of this section does not authorize the commencement

of a civil action against an insurer until a court enters the final judgment described in

division (A)(1) of this section in the distinct civil action for damages between the plaintiff

and an insured tortfeasor and until the expiration of the thirty-day period referred to in

division (A)(2) of this section.

{¶15} “ *** ”

{¶16} In the case sub judice, appellant has made no attempt, either in the trial

court or in his appellate brief, to document the existence of a “judgment against the

insured” that would supply the legal prerequisite for his direct action against Appellee

State Farm and its claim representative. Had appellant merely documented to the trial

court the existence of such a final judgment in his response to appellees’ motion to

dismiss (and had appellant provided a compelling response to appellees’ claim that the

statute of limitations had passed), the court could have moved on to other issues in the

case. In his reply brief, appellant nonetheless seems to argue that because R.C. Knox County, Case No. 12 CA 19 5

1925.04(B) permits the filing of a small claims action in “concise, nontechnical form,” he

should have been allowed to present his evidence and not been subjected to a court

dismissal via motion by appellees. However, just as in

this Court has long

recognized that R.C. 3929.06 “is clear that a direct action against the insurer of a

tortfeasor is permissible only upon the recovery by the injured party of a final judgment.”

Secrest Trucking, Inc. v. Szerzinski, Stark App.No. CA-7298,

(emphasis added). We are unpersuaded by appellant’s suggestion that R.C. 1925.04(B)

overrides the obligation of a plaintiff in appellant’s situation to comply with the direct

action rule under Ohio law.

{¶17} Appellant, in his reply brief, also directs us to Civ.R. 1(C)(4), which states

that the Civil Rules are inapplicable to small claims matters under Chapter 1925,

although only “to the extent that they would by their nature be clearly inapplicable.”

Appellant also directs us to R.C. 1925.16, which states in pertinent part: “Except as

inconsistent procedures are provided in this chapter or in rules of court adopted in

furtherance of the purposes of this chapter, all proceedings in the small claims division

of a municipal court are subject to the Rules of Civil Procedure ***.” He thus suggests,

in apparent reference to the trial court’s reliance on Civ.R. 12(B)(6), that the Civil Rules

and the Ohio Revised Code are in conflict. However, we agree with the conclusion of

the Second District Court of Appeals in Folck v. Khanzada, Clark App.No. 2012–CA–18,

, that the application of Civ.R. 12(B)(6) in small claims matters is not

inconsistent with R.C. Chapter 1925.

at f.n. 1. Knox County, Case No. 12 CA 19 6

{¶18} Accordingly, we find the trial court did not err in dismissing appellant’s

complaint against appellees on the basis that it violated the direct action rule.2

{¶19} Appellant's sole Assignment of Error is overruled.

{¶20} For the reasons stated in the foregoing opinion, the decision of the Mount

Vernon Municipal Court, Knox County, Ohio, is hereby affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

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JUDGES JWW/d 0915

2 Although appellees herein additionally respond that appellant’s complaint was also properly dismissed as being violative of the statute of limitations and the doctrine of res judicata, we find further analysis of those issues unnecessary. As an appellate court, we are hesitant to issue advisory or merely academic rulings. See, e.g., In re Merryman/Wilson Children, Stark App.Nos. 2004 CA 00056 and 2004 CA 00071, 2004– Ohio–3174, ¶ 59. Knox County, Case No. 12-CA-19 7

IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

GEORGE FLEMING : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : WILL WHITAKER, et al. : : Defendants-Appellees : Case No. 12-CA-19

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Mount Vernon Municipal Court of Knox County, Ohio, is affirmed.

Costs assessed to appellant.

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JUDGES