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Braswell v. Duncan11/26/1997
Judgment Affirmed
Plaintiffs-appellants Imogene Braswell and Julia Brown appeal from the dismissal of their complaint against the defendants- appellees State Farm Mutual Automobile Insurance Company (State Farm) and its insured, Todd Crawford, arising out of an automobile collision. Plaintiffs claim the dismissal was improper under motion to dismiss or summary judgment standards, the court erred in converting the motion to dismiss into summary judgment and in not enforcing discovery in the case. We find no error and affirm the judgment below.
This case arose out of a three car collision that occurred on October 29, 1992 at East 36th Street and Carnegie Avenue in Cleveland. Cars driven by co-defendants Crawford and Johnnie Mae Duncan collided with each other on Carnegie and ricocheted into plaintiffs' vehicle causing their injuries. State Farm provided liability insurance on Crawford's vehicle.
On July 20, 1993, plaintiffs filed a complaint in Common Pleas Case No. 255509 seeking damages against Crawford and Duncan. Plaintiffs obtained service of process at that time upon Crawford at 5746 Edgehill in Parma, Ohio. On May 2, 1994, the day that Case No. 255509 was set for trial, plaintiffs voluntarily dismissed their actions against Crawford and Duncan under Civ.R. 41(A).
On October 4, 1994, within two years of the accident, plaintiffs refiled their complaint in Common Pleas Case No. 278051, again naming only Crawford and Duncan as defendants. At plaintiffs' direction, the clerk of courts attempted service upon Crawford at his former Parma address. The post office returned the summons and complaint to the clerk noting that Crawford had moved.
Indeed, sometime during January 1993, Crawford moved from the Parma address to 8185 Stratford Drive, Apartment 610, North Royalton, Ohio, where he resided until June 1993, when he moved to a newly-built house located at 4377 Vandemark Road, Litchfield, Ohio. Crawford has lived continuously at the Litchfield address since June 1993. Each time Crawford moved, he deposited with the post office the appropriate change of address forms identifying his new address.
Plaintiffs never attempted service of the refiled original complaint in Case No. 278051 upon Crawford at either the North Royalton or Litchfield addresses. Consequently, plaintiffs never obtained service of process upon Crawford with respect to the refiled original complaint in Case No. 278051.
On January 11, 1996, more than three years after the date of the accident, plaintiffs filed an amended complaint with leave adding State Farm, Crawford's insurer, as a defendant. The amended complaint identified the Litchfield address as Crawford's residence. Plaintiffs successfully served the amended complaint upon Crawford at the Litchfield address on their first attempt. However, that service did not occur until January 29, 1996, more than 16 months after plaintiffs refiled their original complaint in Case No. 278051 and more than three years after the date when the accident occurred.
On February 26, 1996, Crawford filed a motion to dismiss on the ground that plaintiffs failed to state a claim upon which relief could be granted, in that the two year statute of limitations on bodily injury (R.C. 2305.10) barred plaintiffs' claims. Crawford argued that because plaintiffs failed to obtain service of process upon him within one year of filing their complaint, plaintiffs' refiled action was not timely commenced.
Since they obtained service of process upon Crawford more than three years after the accident the two year statute of limitations barred their claims.
In their motion in opposition, plai
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