 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hershiser v. BOS Corp.8/22/1990
al injury complaint into the second declaratory judgment action plaintiff, in effect, filed his personal injury complaint for the third time. However, we find this argument to be unpersuasive. Rather, upon examination of the pleadings, it is our conclusion that the personal injury claim was incorporated into the declaratory judgment complaint merely to provide the necessary factual foundation for a proper determination of the rights and duties of the respective parties under the insurance contract. Under these circumstances we do not believe the reference to the personal injury complaint in the declaratory judgment complaint is sufficient to invoke the "two dismissal" rule under Civ.R. 41(A)(1).
Therefore, the appellant's first assignment of error is well taken and sustained.
Appellant's second assignment of error is:
"The trial court erred in concluding that a written stipulation of dismissal is to be considered with the same impact to future filings by the plaintiff as plaintiff's unilateral notice of dismissal."
In light of our foregoing analysis in holding that the plaintiff has two separate distinct claims, it follows that each previous dismissal constituted, in itself, a separate action. Subsequently, the issue presented here is what effect a dismissal by stipulation has on the "two dismissal" rule of Civ.R. 41.
The applicable rule is stated in Graham v. Pavarini (1983), 9 Ohio App.3d 89, 94, 9 OBR 140, 145-146, 458 N.E.2d 421, 427-428:
"Civ.R. 41(A)(1)(a) acts to make dismissals with prejudice despite contrary language in the notice, only when they are effected by a plaintiff's written notice without any participation or order of the opposing party or the court."
Also, the United States Court of Appeals, Second Circuit, has had an opportunity to interpret Fed.R.Civ.P. 41, which is substantially identical to Ohio Civ.R. 41. In Polaron Prod., Inc. v. Lybrand Ross Bros. & Montgomery (1976), 534 F.2d 1012, 1017, 1018, the court stated:
"Consequently, we hold that the filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not activate the `two dismissal' bar against bringing an action based on or including the same claim."
These cases clearly stand for the premise that in contrast to the unilateral nature of a notice of dismissal, a dismissal by stipulation does not operate to invoke the two-dismissal rule of Civ.R. 41 as all counsel had an opportunity to participate in the action.
Here, the plaintiff dismissed his personal injury claim by stipulation, with all counsel participating, without prejudice on February 24, 1988, and dismissed his declaratory judgment claim on October 20, 1988 by notice. Under the authority cited above then, even if these actions were "based on or including the same claim," the "two dismissal" rule would not bar the plaintiff from reinstituting his personal injury claim on February 6, 1989.
Accordingly, appellant's second assignment of error is well taken and sustained.
Judgment reversed and cause remanded.
MILLER and EVANS, JJ., concur.
|