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Hatcher v. Oliver10/29/2005
JUDGMENT: Reversed and Remanded
{ } Appellants Denise and James Hatcher appeal the December 21, 2004 Judgment Entry of the Muskingum County Court of Common Pleas granting summary judgment in favor of appellee Adam Oliver.
STATEMENT OF THE FACTS AND CASE
{ } This matter arises out of a December 25, 2000, automobile accident. Appellants sustained both bodily injury and property damages as a result of the accident. Appellants filed suit in the Small Claims Court of Muskingum County claiming "insurance for Oliver wouldn't pay the fair value of car and cut off rental when attorney was mentioned." Appellants sought $3,000 for their property damage.
{ } Appellants maintain, prior to the small claims hearing, they had several conversations with Sheri Doty, a claims representative for Nationwide Insurance, Oliver's insurance carrier. Appellants assert Doty represented on numerous occasions the bodily injury and property damage claims were separate claims, and settlement of one would not effect the other. Appellants maintain they informed Nationwide Denise Hatcher's treatment was ongoing and discussion of her settlement would be premature.
{ } On March 16, 2001, the trial court conducted a hearing on appellants' claim. Via Judgment Entry on March 22, 2001, the trial court awarded appellants' damages in the amount of $2,500 for their property damage claim. Appellee satisfied the judgment, which was memorialized with a Notice of Satisfaction of Judgment on October 26, 2001, and the case was dismissed. Appellants did not execute a release.
{ } On January 31, 2002, appellants initiated this action in the Muskingum County Court of Common Pleas, seeking damages resulting from Denise Hatcher's bodily injury and other damages incurred as a result of the accident.
{ } On April 14, 2003, appellees moved the trial court for summary judgment. Via Judgment Entry on December 21, 2004, the trial court entered summary judgment in favor of appellee.
{ } It is from the December 21, 2004 Judgment Entry appellants now appeal, assigning as error:
{ } "I. THE SPLITTING OF CAUSES OF ACTION ARISING OUT OF A MOTOR VEHICLE ACCIDENT IS PERMISSIBLE WHEN ACQUIESCED IN BY AN ADVERSE PARTY."
{ } Appellants argue they relied upon representations made by appellee, through his authorized agents; therefore, the trial court erred in granting appellee's motion for summary judgment. Specifically, appellants assert the splitting of their bodily injury and property damage causes of action arising out of the motor vehicle accident did not bar the subsequent action because appellee acquiesced, waiving any objection thereto.
{ } Appellants submit the affidavit of James Hatcher, which avers:
{ } "I asked her if there was any reason that we could not settle the bodily injury claims of myself and the children and still dispute the property damage offer. Ms. Doty made it clear to me on more than one occasion that these were "two separate deals." She told me that we could pursue our dispute of the property damage claim separately from the bodily injury claims. I emphasized to her that my wife, Denise, who was also injured, was still receiving treatment and that we were not ready to settle her bodily injury claim. She told me that the action that we were going to take concerning the damage to the car would have no effect on Denise's claims or any of the other bodily injury claims."
{ } Appellants cite the Ohio Supreme Court decision in Shaw v. Chell (1964), 176 Ohio St. 375, holding:
{ } "By failing to so amend his answer, defendant certainly waived his right to object t
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