State3/14/2005
JUDGMENT: Judgment affirmed.
{ } Defendant-appellants, Steven B. Plumb and Joseph E. DaPore, appeal the judgment of the Court of Common Pleas of Allen County ordering that the Ohio Bureau of Workers' Compensation (hereinafter, "BWC") is entitled to judgment in the amount of $17,552.71.
{ } This case originated in January of 1999 when Steven B. Plumb ("Plumb"), while working for an unidentified employer, suffered serious bodily injury when he was struck by a semi-truck owned by Orbit Transportation, Inc. ("Orbit"). Subsequent to sustaining these injuries, Plumb sought and received benefits and compensation from the BWC. In addition, Plumb also filed a personal injury law suit against the alleged tortfeasor, Orbit. In turn, the BWC joined Plumb's suit as a party plaintiff and made a claim of subrogation based upon R.C. 4123.931, discussed infra, for payments it made toward Plumb's medical bills.
{ } Following the BWC filing its claim for subrogation, it is conceded by all parties that, Plumb, on June 22, 2001, by and through his attorney, Joseph E. DaPore ("DaPore"), mailed a settlement offer to James E. Swaim ("Swaim"), the BWC's representative and legal counsel in the matter herein. In the June 22, 2001 correspondence, Plumb specifically offered to pay the BWC $17,552.21 "as payment in full" in consideration for the BWC dismissing its subrogation claim. The settlement offer and correspondence also contained a check made out to the "Administrator of the BWC" in the amount of $17,552.71 and an "entry of dismissal with prejudice," which was signed by DaPore prior to being mailed to Swaim. It has further been stipulated by the parties that Swaim received the settlement offer on June 25, 2001.
{ } The June 22, 2001 settlement offer expressly instructed Swaim that " f this payment is acceptable please sign the enclosed entry [of dismissal] and forward it to Atty. Stephen A. Bailey." Emphasis added. As discussed in greater detail infra, Swaim purportedly accepted Plumb's offer on the same day it was received.
{ } However, before Swaim's alleged acceptance came to fruition, DaPore, on July 28, 2001, sent a letter to Swaim informing Swaim that the settlement offer was revoked and that payment on the $17, 552.21 check had been stopped. DaPore's attempted revocation of the settlement offer was based upon the Supreme Court of Ohio's decision in Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, 2001-Ohio-109 announced on June 27, 2001, in which the Court held that the BWC's right of subrogation under R.C. 4123.931 was unconstitutional.
{ } In response to DaPore's attempted revocation, Swaim, on behalf of the BWC, on September 19, 2001, filed a civil complaint against both Plumb and DaPore (hereinafter, referred to collectively as "appellants"), alleging that they had breached the settlement agreement which, as asserted by Swaim, had become a binding contract on June 25, 2001.
{ } Following several continuances, appellants, on December 11, 2002, moved for summary judgment seeking dismissal of the BWC's complaint for breach of contract. On April 2, 2003, the trial court ruled that because the entry of dismissal was not actually filed until June 28, 2001, one day after the Court's decision in Holeton, there was no consideration to support a contract and, therefore, granted summary judgment in favor of appellants and dismissed the BWC's complaint. The BWC, thereafter, appealed the April 2, 2003 judgment of the trial court to this court in State of Ohio Bureau of Workers' Compensation v. Plumb et al., 3d Dist. No. 1-03-27, 2003-Ohio-5290 (hereinafter referred to as "Plumb I").
{ } In Plumb I, we held that settlement co
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