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State Farm Fire and Casualty Co. v. Laviena12/7/2005
present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." Id. at paragraph two of the syllabus.
{ } A trial court abuses its discretion if it grants relief to a movant who has not demonstrated all three GTE factors. Russo, 80 Ohio St.3d at 154.
{ } While the movant must satisfy all three requirements, the first prong is the focus of this appeal and will be discussed below. However, we will briefly address the second and third elements.
{ } Appellees satisfied the second GTE requirement. Appellees alleged they were entitled to relief from judgment under Civ.R. 60(B)(5), the catch-all provision, which provides for relief for "any other reason justifying relief from the judgment." The declaratory judgment entered in favor of appellant relieved it from a duty to defend or indemnify Laviena in appellees' claim against him. Appellees had an interest in the case. However, they were not joined as parties. Thus, they were not informed when appellant filed the motion for default judgment and, consequently, could not assert their rights. After learning of the default judgment, appellees were permitted to intervene and were then able to assert their rights. Appellees had no basis to protect their interest on the issue of Laviena's insurance coverage until they learned of the default judgment and were permitted to intervene. This constitutes a reason justifying relief from judgment pursuant to Civ.R. 60(B)(5).
{ } Turning to the third GTE requirement, appellees filed their motion for relief on October 25, 2001, ten days after the trial court granted appellant's motion for default judgment. Therefore, appellees satisfied the timeliness requirement because filing within ten days was certainly timely.
{ } Thus, this case turns on whether appellees satisfied the first GTE requirement.
{ } The movant in a Civ.R. 60(B) motion is not required to prove that it will prevail at trial after the court grants the motion for relief, but it must allege operative facts that, if believed, would constitute a meritorious claim or defense. Moore v. Emmanuel Family Training Center, Inc. (1985), 18 Ohio St.3d 64, 67, 479 N.E.2d 879. The movant, however, must allege operative facts with enough specificity to allow the trial court to determine whether the movant has met the test. Syphard v. Vrable (2001), 141 Ohio App.3d 460, 463, 751 N.E.2d 564.
{ } While examining appellees' Civ.R. 60(B) motion alone, it would seem that they failed to allege operative facts that would constitute a valid defense to appellant's claims. But our review does not end here.
{ } Simultaneously with their Civ.R. 60(B) motion, appellees filed a motion to intervene. In that motion, they referenced their complaint in the underlying tort action against Laviena. They also attached that complaint to the motion. The complaint specifically alleges that Laviena "negligently discharged a gun and negligently struck Plaintiff with a bullet." (Complaint ). These facts raise a defense to appellant's claim that Laviena's act was intentional and/or the results of his act were expected. Appellant's argument in support of why it should not be required to provide insurance coverage to Laviena under his policy was based on its allegation that Laviena's act was intentional and/or the results of his act were expected, which would void coverage.
{ } In their Civ.R. 60(B) motion, appellees specifically refer
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