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Physicians Ins. Co. of Ohio v. Morehead6/1/1993
GWIN, Judge.
On September 5, 1991, plaintiff-appellant Physicians Insurance Company of Ohio ("PICO") filed a complaint for declaratory judgment regarding its rights and duties under a contract of insurance issued to defendants-appellees RaymonsA. Morehead, M.D., and Raymond A. Morehead, M.D., Inc. ("appellee"), and sought recovery of money damages allegedly suffered as a direct consequence of appellee's fraudulent application for medical malpractice insurance and breach of that insurance contract. Appellee filed a timely answer to PICO's complaint and raised a counterclaim. Appellee's answer failed to include the affirmative defense that PICO's fraud claim was barred by the applicable statute of limitations. However, by leave of court, appellee was permitted to amend the answer to include that defense.
Appellee subsequently moved for partial summary judgment on the issues that PICO's fraud action was barred by the statute of limitations and that the policy of insurance in issue did not provide by its terms for retroactive rescission and therefore that remedy was unavailable to PICO.
The court held that no genuine issue of material fact existed and that reasonable minds could only conclude that PICO should have discovered appellee's alleged fraud in 1986, the time appellee applied for same, and, therefore, PICO's cause of action for fraud, which was not raised until September 1991, was barred by the applicable statute of limitations. The trial court further determined that reasonable minds could only conclude that appellee's alleged misrepresentations and omissions were not warranties and would not render the insurance policy void ab initio.
PICO seeks our review and assigns as error:
"The trial court erred in granting defendant's motion for partial summary judgment based on the four (4) year statute of limitations for fraud. There were genuine issues of material fact as to when plaintiff should have discovered plaintiff's fraud." (Emphasis sic.)
"The trial court erred in the memorandum of decision in declaring that the defendant's misrepresentations within the application for insurance were mere representations and not warranties and therefore, the policy cannot be void."
"The trial court erred in granting defendants leave to amend their answer to raise the statute of limitations defense."
Through its first assignment of error, PICO maintains the trial court erred in determining that reasonable minds could only conclude that PICO shoulshave discovered appellee's alleged fraud at the time appellee applied for the insurance.
In determining whether to grant a summary judgment pursuant to Civ.R. 56, " he inferences to be drawn from the underlying facts contained in the affidavits and other exhibits must be viewed in the light most favorable to the party opposing the motion, and if when so viewed reasonable minds can come to different conclusions, the motion should be overruled." Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 315. Summary judgment proceedings present an appellate court the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 30 OBR 78, 78, 506 N.E.2d 212, 214.
R.C. 2305.09 provides that a cause of action for fraud shall be brought within four years after the cause thereof accrued. That section specifically provides that the accrual date does not commence until the fraud is discovered. The Ohio Supreme Court in interpreting R.C. 2305.
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