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Pallay v. Nationwide Insurance Co.10/31/2005
be reduced by any amount available for payment under all applicable bodily injury liability policies covering persons liable to the insured; and that Littrell did not apply to the facts of this case, as alleged by Appellee in his complaint.
{ } Instead of directly responding to this motion, on March 25, 2003, Appellee filed a "Memorandum in Opposition to Summary Judgment". Appellee requested that the court convert the Civ.R. 12(B)(6) motion into a motion for summary judgment, and also that Appellee's own motion be treated as a motion for summary judgment. The motion purports to adopt the "statement of facts" in Nationwide's motion to dismiss, but Nationwide only assumed arguendo that the facts alleged in Appellee's complaint were true in order to show that Appellee could not prevail on those facts for purposes of its Civ.R. 12(B)(6) motion. Appellee provided no independent evidence in support of its motion, and his only argument was that Littrell should be applied to allow him to be reimbursed for the amount of his statutory Medicare lien.
{ } On March 27, 2003, Nationwide filed a "Reply Brief in Support of Motion to Dismiss." The brief also opposed Appellee's motion for summary judgment. No new arguments were presented.
{ } On November 13, 2003, the trial court overruled Nationwide's Motion to Dismiss.
{ } On November 13, 2003, in a separate judgment entry, the trial court overruled Appellee's motion for summary judgment.
{ } On November 24, 2003, Nationwide filed a brief in opposition to Appellee's motion for summary judgment, apparently not realizing that the court had already ruled on the motion.
{ } On February 3, 2004, Appellee filed a motion for reconsideration of the court's decision not to grant Appellee summary judgment. Appellee simply cited Littrell again and concluded that judgment should be rendered in his favor.
{ } On February 4, 2004, Nationwide also filed a motion for reconsideration. Nationwide argued that the case could be settled on the matters of law raised in Nationwide's prior filings.
{ } On March 2, 2004, the trial court granted the motions for reconsideration. The court then ruled that Littrell governed the outcome of the case, and granted summary judgment to Appellee in the amount of $52,894.87.
{ } Nationwide filed a timely appeal on March 15, 2004.
ASSIGNMENT OF ERROR
{ } "The Trial Court Erred When It Overruled Nationwide's Motion to Dismiss And Granted Pallay's Motion for Summary Judgment."
{ } Nationwide's arguments are primarily aimed at reversing the trial court's decision to overrule its Civ.R. 12(B)(6) motion to dismiss. If the trial court is reversed on that basis, in effect the trial court's decision to grant summary judgment to Appellee will also be reversed.
{ } When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court's standard of review is de novo. Perrysburg v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, at . The court will look only to the complaint or, in a proper case, the copy of a written instrument upon which a claim is predicated, to determine whether the allegations are legally sufficient to state a claim. Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179, 185-186, 69 O.O.2d 178, 318 N.E.2d 557. A Civ.R. 12(B)(6) motion should be granted, "only where the allegations in the complaint show the court to a certainty that the plaintiff can prove no set of facts upon which he might recover," or where the, "writing presents an insuperable bar to relief." Id. at 185-186. In construing th
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