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West American Insurance Group v. Springfield Poultry6/23/2005
JUDGMENT: Affirmed
{ } Appellant West American Insurance Group appeals the August 6, 2004, and September 27, 2004, decisions of the Licking County Court of Common Pleas granting summary judgment in favor of Appellees.
STATEMENT OF THE FACTS AND CASE
{ } Appellant, West American Insurance Group (West American), was the insurer of Heath Restaurant Corp. d.b.a. Indian Mound Smorgasbord (Indian Mound). In July and August, 2000, eggs were delivered to Indian Mound by Appellee Spring Poultry. Spring Poultry had purchased said eggs from Appellee Weaver Brothers which had purchased the eggs from Appellee Hemmelgarn & Sons, Inc., who had purchased the eggs from Appellee William R. Siefring, an individual sole proprietor doing business as S & R Eggs, which was under contract with Appellee Ft. Recovery Equity, Inc. to produce the eggs.
{ } The purchased eggs were used as an ingredient in ice cream prepared by Indian Mound, said ice cream recipe calling for eighteen eggs. None of the ingredients, including the eggs, were cooked prior to serving the ice cream. The ice cream was consumed by Indian Mound's guests, some of whom became ill as a result of salmonella bacteria allegedly being present in the eggs.
{ } An investigation was conducted by the Licking County Health Department (LCDH) following the outbreak. LCDH determined that the most likely source of the salmonella poisoning was raw eggs used in preparation of soft-serve ice cream. As part of its investigation, LCDH learned that Indian Mound personnel had not pasteurized the raw eggs in violation of R.C. §917.10.
{ } The Ohio Department of Agriculture (ODA) also investigated this matter. The first investigation was conducted by the ODA Division of Food Safety which included basic facts as to the production, handling and sale of the eggs. This investigation determined that Siefring produced the eggs at his facility, sold them to Ft. Recovery which sold them to Hemmelgarn which sold them to Weaver Brothers which sold them to Springfield Poultry which sold them to Indian Mound.
{ } The second investigation was done by ODA Division of Animal Health which inspected the Siefring laying barns and determined that salmonella bacteria was present in three of the six laying barns.
{ } As a result of the salmonella poisoning experienced by the Indian Mound patrons, West American paid 73 claims totaling $239,561.00.
{ } West American filed a Complaint in the Licking County Court of Common Pleas seeking contribution under R.C. §2307.31 from the producers and sellers of the eggs as joint tortfeasors.
{ } Motions for summary judgment were filed by Appellees Springfield Poultry, Weaver Brothers, Ft. Recovery Equity and Siefring. Appellee Hemmelgarn did not file a motion for summary judgment.
{ } Appellant West American filed motions in opposition to the various motions for summary judgment but failed to specifically oppose the motion for summary judgment of Appellee Siefring.
{ } Directing the trial court's attention to the lack of opposition to its motion, Appellee Siefring forwarded a proposed "default" summary judgment entry to the trial court requesting same be signed and filed. The trial court filed said Entry on August 3, 2004.
{ } Appellant filed a motion to set aside this default summary judgment but same has not been ruled upon.
{ } On September 23, 2004, the trial court granted the motions for summary judgment of Appellees Springfield Poultry, Weaver Brothers, Ft. Recovery and Siefring.
{ } It is from these decisions Appellant now appeals, assigning the
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