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Fone v. Ford Motor Co.5/28/1998
PER CURIAM
JUDGMENT: REVERSED AND REMANDED.
Delores Kramer, Terry Lee Fone, and Progressive Insurance Company appeal from a common pleas court order dismissing their consolidated product liability suits against the Ford Motor Company as a sanction for failing to comply with the court's discovery orders. Our review reveals that the trial court committed an abuse of discretion in dismissing these cases when other sanctions would have been more appropriate, and for that reason, we reverse the judgment of dismissal, reinstate these cases, and remand the matter for further proceedings.
The record here reveals that on January 20, 1994, Delores Kramer's 1994 Ford Ranger burned while parked outside her home in East Sparta, Ohio. In a separate incident on September 12, 1994, Terry Lee Fone's 1994 Ford Escort burned while parked outside his brother's house in East Liverpool, Ohio. Progressive Insurance Company insured both vehicles, and as a result of these losses, Progressive paid Kramer $9,418.65, and paid Fone $11,236.00; both Kramer and Fone subrogated their interests to Progressive in connection with settlement of their claims, and Progressive then filed these separate product liability suits against the Ford Motor Company alleging design and manufacturing defects and breach of express and implied warranties. The court consolidated these cases for purposes of discovery and trial.
In answering the complaints, Ford denied all claims and filed a set of interrogatories and requests for production of documents. Instead of answering the interrogatories on a question by question basis, or responding to the requests for production of documents on an individual basis, Progressive forwarded information in each case to Ford consisting of the complete file maintained by Progressive on each vehicle: subrogation forms, fire reports, damage reports prepared by Progressive adjusters, statements by Kramer and Fone setting forth all facts they knew about the fire, a report prepared by the expert witness for each case, and the expert's curriculum vitae.
After receiving this information, Ford filed a motion to compel and a motion for sanctions urging that Progressive failed to properly respond to its discovery requests, and the court granted the motion. Progressive then filed its response to the discovery requests, which provided specific answers to the questions asked, but referred to the documents it earlier produced.
Ford then filed a second motion for sanctions seeking dismissal of the complaint for Progressive's lack of compliance with the court's order compelling discovery. Progressive responded by filing revised interrogatory responses transposing the information from the documents into specific answers to the interrogatories. On March 11, 1997, the court stayed its ruling on the motion to dismiss but ordered Progressive to furnish a supplemental expert report on or before April 15, 1997. Progressive never filed such a report, and on July 21, 1997, the court sua sponte granted Ford's motion to dismiss the cases with prejudice as a sanction for Progressive's failure to furnish complete responses to the discovery requests and a supplemental expert report.
Progressive now appeals in each case and presents the following assignment of error for our review:
THE TRIAL COURT ERRED IN GRANTING THE RULE 37 (D) SANCTION OF DISMISSAL HERE, WHERE NO WILLFULNESS OR BAD FAITH CAN BE DEMONSTRATED, WHERE DEFENDANT FORD MOTOR COMPANY, THE PARTY MOVING FOR SANCTIONS IN THIS MATTER, FAILED TO DEMONSTRATE WHAT PREJUDICE IT SUFFERED FROM THE DISCOVERY DEFICIENCIES IT COMPLAINED OF, AND WHERE OTHER, MORE APPROPRIATE, LESS ONEROUS SANCTIONS W
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