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Smith v. Lima Memorial Hospital5/27/1999
CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court
JUDGMENT: Judgment affirmed
This is an appeal from a judgment entry of the Common Pleas Court of Allen County dated March 21, 1997, denying the motion of Appellant Lima Memorial Hospital ("LMH") for relief from judgment pursuant to Civ. R. 60(B), and from the jury verdict journalized September 30, 1998, awarding $75,000 to Appellee Elsie Smith for medical expenses, pain and suffering and wages lost as a result of a fall while she was a patient at the hospital.
The hospital asserts the following two assignments of error:
"The trial court abused its discretion in denying LMH's Civ R. 60(B) motion for relief from judgment on the grounds that the affidavits submitted in support of this motion were insufficient to establish excusable neglect."
"The trial court erred in denying LMH's motion for directed verdict as to Smith's claim of loss of profits."
The hospital, for its first assignment of error, seeks a finding that the trial court abused its discretion in failing to grant relief from the January 31, 1997 default judgment granted against the hospital alleging that the hospital excusably failed to file a timely answer to the complaint due to the neglect of an employee. The employee failed to process the appellee's complaint in accordance with counsel's prescribed procedure and protocol.
An abuse of discretion is more than an error of law or judgment. It implies that the court's attitude is unreasonable, arbitrary or unconscionable. Masters v. Masters (1994), 69 Ohio St.3d 83, 85.
Civ R. 60(B) provides that a court may relieve a party from judgment for excusable neglect on a motion timely filed. To prevail on such a motion, the movant must show, in addition to one of the grounds stated in the rule, that there is a meritorious defense or claim to present if the relief is granted. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146.
The trial court found that the motion was timely filed and that the hospital had a possible valid defense to present but also found that the neglect was not excusable and showed a disregard for the judicial system. Upon reviewing the affidavits submitted in conjunction with the motion for relief from judgment, we agree with the trial court.
The affidavit of Chris Cosaro, assistant to Kevin Webb, Vice President of Risk Management for the hospital, points out that she was instructed to forward the complaint immediately to the hospital's liability carrier with a copy to hospital counsel Michael J. Malone. She received the appellee's complaint on December 26, 1996, but through oversight, placed it in a file and failed to forward it as instructed. On February 7, 1997, she realized her error when she received a copy of the judgment entry of default and she notified counsel immediately of the situation.
The affidavit of counsel Malone indicates that as early as June 1996, it was brought to his attention that assistant Cosaro was not forwarding complaints in a timely fashion. In spite of this early warning, Webb and Malone continued the same procedure. They saw fit to make special personal efforts on separate occasions in December 1996, and January 1997, to inspire Cosaro to follow the procedure and protocol. Malone also followed up with a letter to Cosaro in January 1997 - all to no apparent avail.
The affidavits of Malone and Webb both state that as a result of this neglect, the hospital "has taken immediate steps" to insure that, in the future, the hospital forwards all complaints to the insurer and counsel.
As the trial court points
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