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Covington9/10/2002
(REGULAR CALENDAR)
DECISION
. J. Clifton Vestal, M.D., appellant, is a physician who was insured by P.I.E. Insurance Company ("P.I.E."). A complaint for rehabilitation of P.I.E. was filed December 10, 1997, in the Franklin County Court of Common Pleas, and in March 1998, the trial court entered an order of liquidation and appointment of a liquidator. On February 17, 1999, the trial court established September 23, 1999, as the final date to submit proofs of claims and granted the motion of the liquidator for an order approving the liquidator's determination that the liquidator would not exercise his discretion, for any reason, to accept any late-filed proofs of claim. The order establishing a final bar date was a final order subject to appeal, and notice was sent to P.I.E. insureds, but no appeal was taken.
. On April 22, 1999, appellant was sued for negligence and wrongful death, along with nine other named defendants. While appellant acknowledges receipt of the various notices concerning the liquidation, including the final bar date for filing proofs of claims, appellant did not file a timely proof of claim. On September 15, 2000, appellant filed a motion for relief, pursuant to Civ.R. 6(B)(2) and 60(B), from the September 23, 1999 claims filing bar date based upon mistake, inadvertence, excusable neglect and other equitable theories. The liquidator filed a memorandum in opposition. The trial court denied appellant's motion for relief from judgment. Appellant filed a notice of appeal and raises the following assignments of error:
. "1. The trial court erred as a matter of law and abused its discretion in applying an erroneous legal standard to the appellant's motion for relief from the claims filing bar date.
. "2. The trial court erred and abused its discretion in failing to hold an evidentiary hearing on the motion for relief.
. "3. The trial court abused its discretion in arbitrarily denying appellant's motion for relief solely on the basis of a desire to expedite the liquidation proceeding and by approval of the liquidator's refusal to exercise discretion as to late filed claims."
. By the first assignment of error, appellant contends that the trial court erred by applying an erroneous legal standard to appellant's motion for relief from judgment of the claims filing bar date.
. From 1994 through June 1997, appellant was insured by P.I.E., which was placed into rehabilitation in March 1998. Appellant admitted in his motion that he received the notices concerning the liquidation, including the notice that established September 23, 1999, as the final claims bar date. When appellant was sued in April 1999, for events that occurred during his insurance coverage with P.I.E., he forwarded the complaint and insurance information, including the notice of the final claims bar date to his attorney, Phil Mitchell at the law firm of Epstein, Becker & Green, P.C., in New York City. Mitchell was unable to represent appellant and located other counsel in June 1999, the law firm of Wilbraham, Lawler & Buba, P.C., in Pennsylvania, to represent appellant. It was not until March 2000 that appellant received notification that a claim had not been filed in the P.I.E. liquidation proceeding on his behalf. The Wilbraham firm told appellant that it represented him only in the malpractice action; however, appellant believed that Mitchell had sent the entire defense matter, including the P.I.E. insurance claim, to the Wilbraham firm. Appellant believes that a miscommunication between the attorneys was the cause of his claim not being filed and, because of this mistake and excusable neglect, that he is entitled to r
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