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Caliman v. Mize6/14/1989
Per Curiam.
This appeal arises from the trial court's granting of defendant-appellee Equifax Services, Inc.'s motion for summary judgment and overruling its Civ.R. 11 motion for sanctions. On August 22, 1986, plaintiff-appellant A. Noel Caliman, as administrator of the estate of Amma Anim Mize, brought this wrongful-death action alleging negligent investigation and reporting by defendant Equifax. However, the suit mistakenly named Accutex Services, Inc. as the defendant rather than Equifax. Determining this was incorrect, plaintiff filed an amended complaint on September 8, 1986, naming Equifax Services, Inc. as the proper party defendant. Equifax was served with summons on September 10, 1986. On November 6, 1987, Equifax moved for summary judgment and Civ.R. 11 sanctions. The trial court granted Equifax's motion for summary judgment and overruled its motion for Civ.R. 11 sanctions. The entry contained a Civ.R. 54(B) certification of no just reason for delay.
Plaintiff, in his single assignment of error, contends the trial court imprudently granted defendant Equifax's motion for summary judgment, and he raises three issues in support of this contention. In the first issue, plaintiff contends that wrongful-death actions are controlled by the two-year statute oslimitations and that time runs from the date of death. His second assertion is that when a defendant is incorrectly named, Civ.R. 15(C) applies. Third, he argues that Equifax's negligence was the proximate cause of Amma Anim Mize's death. We cannot agree for the reasons that follow.
In 1981, defendant Equifax was hired by National Life and Accident Company, now American General Life and Accident Insurance Company, to conduct a background investigation of John Dean Mize as a potential agent of the insurance company. Equifax's report failed to indicate Mize had been convicted of aggravated burglary, which was a matter of public record. Mize was hired by the insurance company as an agent. As a result, he came in contact with Amma Anim. Mize sold insurance to her and her family and later married her.
On November 17, 1983, John Mize as an insurance agent obtained a $100,000 life insurance policy on his wife Amma, with himself as the named beneficiary. In April 1984, additional insurance was obtained by John Mize on the life of his wife, and he was again the named beneficiary. On August 25, 1984, John Mize caused the death of his wife and subsequently was convicted of her murder.
Plaintiff contends that summary judgment was incorrectly granted because there exists a question of fact. Under Civ.R. 56(C), summary judgment shall be granted by the trial court when no genuine issue as to any material fact remains to be litigated, when the moving party is entitled to judgment as a matter of law, and when reasonable minds can come to but one conclusion, and that conclusion is adverse to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
Plaintiff alleges negligence on behalf of Equifax in its 1981 investigation and reporting on John Mize as to his character, and in its failure to report a criminal record, which would have disqualified Mize as a life insurance agent. Plaintiff also alleges that because of Equifax's negligence, Mize was hired by an insurance company and began selling life insurance, enabling him to come in contact with Amma Mize. He then obtained insurance on her life at a substantially reduced rate, which ultimately resulted in her murder for the life insurance. Plaintiff argues that such negligence of Equifax was the direct and proximate cause of Amma's pain and suffering, ul
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