 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
St. Paul Fire and Marine Insurance Co. v. Cholak3/10/2003
JUDGMENT: Affirmed.
. This matter comes for consideration upon the record in the trial court, the parties' briefs, and the oral argument before this court. Plaintiffs-Appellants, St. Paul Fire and Marine Insurance Co. and Dr. James Volk, appeal the judgment of the Belmont County Court of Common Pleas denying their motion to vacate summary judgment granted in favor of Defendant-Appellee, George Cholak, M.D. The issues we must decide are whether it was excusable neglect for St. Paul to attach a letter from an expert instead of a properly executed affidavit to its motion for summary judgment and whether St. Paul has provided a meritorious defense to the motion for summary judgment. Although it is questionable whether it was excusable neglect for St. Paul to attach the wrong document to the motion for summary judgment, we cannot say it was an abuse of discretion for the trial court to decide it was not. We further conclude the trial court properly denied the motion to vacate as St. Paul failed to demonstrate the existence of a meritorious defense. Accordingly, the decision of the trial court is affirmed.
. The underlying lawsuit originated with a previous suit filed in 1998 by Andrew Kazmirski against his optometrist, Dr. Volk, alleging professional negligence. The complaint was based upon Dr. Volk's failure to diagnose a cancerous tumor growing on Kazmirski's optic nerve during the course of an examination in March of 1996. According to Kazmirski, the tumor went untreated until he had effectively lost his sight in both eyes. In October of 1999, St. Paul, Dr. Volk's medical malpractice carrier, entered into a settlement agreement with Kazmirski on behalf of Dr. Volk for $600,000.
. On March 23, 2001, St. Paul filed suit against Dr. Cholak, the family physician who had treated Kazmirski both before and after Dr. Volk's examination. St. Paul claimed Kazmirski brought his eye complaints to the attention of Dr. Cholak during these visits. However, Dr. Cholak failed to refer Kazmirski to a neurological ophthamologist until it was too late. Because the applicable statute of limitations had run, barring any malpractice claim Kazmirski could have brought against Dr. Cholak, St. Paul is likewise barred from seeking contribution from Dr. Cholak. Thus, St. Paul filed a complaint for indemnification from Dr. Cholak for $600,000.
. In response, Dr. Cholak moved for summary judgment, asserting St. Paul's claim for indemnity is instead a claim for contribution that was not timely asserted, and further, the claim of indemnity must fail as no "special relationship" existed between the parties. St. Paul opposed the motion for summary judgment, claiming a special relationship existed because both doctors were treating the same patient and because "it was [St. Paul] who ended up having to pay [$600,000] as a result of the negligence of Dr. Cholak." In support of this argument, St. Paul attached a letter drafted by an expert, Dr. Theodore Herwig, which indicated Dr. Cholak had been negligent in failing to timely diagnose Kazmirski's cancerous tumor.
. In making its ruling, the trial court indicated it could not consider the unsworn letter or arguments based upon the letter since it was not one of the materials specifically provided for in Civ.R. 56. The trial court then announced it would grant summary judgment in favor of Dr. Cholak. Before the judgment entry was filed, St. Paul filed a motion for leave to file an affidavit of their expert and for reconsideration of the earlier ruling. The trial court did not rule on either motion but instead journalized its entry granting summary judgment.
. Two weeks later, St. Paul filed a motion for relief from
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|