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Hatcher v. Oliver10/29/2005
hat the concurrent pendency of the property damage and personal injury actions represented a splitting of plaintiff's single cause of action. See Russell v. Drake (1956), 164 Ohio St. 520, 132 N.E.2d 467. Also, defendant thereby in effect consented to the splitting of plaintiff's single cause of action against defendant into a cause of action in the Municipal Court for recovery of damages to plaintiff's property and a cause of action in the Common Pleas Court for recovery on account of plaintiff's personal injuries.
{ } *
{ } "In our opinion, where one's person and property are both injured by the negligence of another and where the former, as plaintiff, brings an action against the latter, as defendant, to recover for damages to his property only, and where, before the trial of such action, plaintiff brings a subsequent action against such defendant to recover for damages only to his person, and where the defendant does not object to either action on the ground that there is another action pending between the same parties for the same cause until after judgment is rendered for the plaintiff against the defendant in the property damage action, the defendant will be considered as having impliedly consented to the splitting of plaintiff's single cause of action, and such defendant cannot thereafter plead the judgment in the property damage action as a bar to the personal injury action." (Emphasis added.)
{ } While we recognize Shaw differs both factually and procedurally from the case sub judice, we find the holding in Shaw relevant to this case. Shaw created an exception to the single cause of action rule based upon effectively implied consent. We find Shaw recognized a representative can inferentially consent to the splitting of a single cause of action through his or her actions or declarations.
{ } We analogize our holding to the exception created by the Ohio Supreme Court in cases dealing with contractual limitations on actions where an insurance representative by their acts or declarations impliedly waives the defense. In Hounshell v. American States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d 311, syllabus, the Supreme Court of Ohio held, with regard to the issue of waiver:
{ } "An insurance company may be held to have waived a limitation of action clause in a fire insurance policy by acts or declarations which evidence a recognition of liability, or acts or declarations which hold out a reasonable hope of adjustment and which acts or declarations occasion the delay by the insured in filing an action on the insurance contract until after the period of limitation has expired."
{ } While we recognize Hounshell speaks to actions waiving contractual limitations on actions set forth in an insurance contract, we find the waiver rationale sufficiently analogous to conclude the actions of the agent herein demonstrated waiver of its right to have both appellants' personal injury claim and property damage claim presented in a single cause of action.
{ } The affidavit of James Hatcher, cited supra., evidences Nationwide's representative effectually implied her consent to splitting the single cause of action. By her acts and declarations, Sheri Doty represented, through her acts and declarations, her consent to separating the personal injury and property damage claims. As did the Ohio Supreme Court in Shaw, we believe Ms. Doty's statements as an authorized representative for appellee are certainly sufficient to demonstrate implied, if not direct, consent to appellants' splitting of their cause of action.
{ } Therefore, viewing the evidence in a light most favorable to the non-moving plaintiff, genuine issues of mate
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