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Marti v. Predmetsky6/22/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, Danny J. Marti, II, appeals the decision of the Medina County Court of Common Pleas which granted summary judgment in favor of appellee, Victoria Insurance Company. This Court reverses.
I.
{ } This appeal arose out of an incident that occurred in Cleveland, Ohio, on September 18, 1998. Tammy Predmetsky nka Smyrak was driving her father John Kanera's van when she struck appellee, Danny Marti, as he was standing on the curb waiting to cross the street. Kanera's insurance company, Victoria Fire & Casualty Insurance Company ("Victoria Insurance"), provided Predmetsky with liability coverage for the accident.
{ } Appellant initially filed his personal injury action in the Cuyahoga County Court of Common Pleas in July 1999. When service could not be perfected on appellant within six months, Victoria Insurance moved to dismiss appellant's suit. Victoria Insurance's motion to dismiss was granted.
{ } Appellant's counsel then located Predmetsky and re-filed his complaint in the Medina County Court of Common Pleas on June 22, 2000. Predmetsky was served by certified mail on July 3, 2000. Predmetsky made a copy of the summons and complaint and gave them to Kanera for forwarding to Victoria Insurance. Almost a year later, Kanera forwarded the summons and complaint to Ron Perkins Insurance Agency, the agency through which he purchased the policy from Victoria Insurance. Consequently, a default judgment was entered against Predmetsky on August 25, 2000. Predmetsky received notice of the default judgment on or about August 28, 2000. Predmetsky again made a copy of the judgment for Kanera and gave it to him. Predmetsky's father did not forward the judgment to Victoria Insurance. In October 2000, Predmetsky received notice of the damages hearing on the default. In January 2001, the trial court entered its final judgment entry, which entered default judgment in favor of appellee in the amount of $150,000, plus interest. On August 29, 2001, Kanera mailed the complaint and other papers to Victoria Insurance. In October 2001, Victoria Insurance filed a motion to vacate the default judgment on Predmetsky's behalf. The trial court denied the motion to vacate because it had not been filed within a reasonable time and because Predmetsky had failed to establish excusable neglect under Civ.R. 60(B). This Court affirmed the trial court's decision denying Predmetsky's motion to vacate. Marti v. Predmetsky, 9th Dist. No. 02CA0025-M, 2002-Ohio-6997.
{ } Appellant filed a supplemental complaint, adding Victoria as a defendant and demanding judgment against Victoria in the amount of $150,000, plus costs and interest from December 1, 2000. Appellee filed motions for summary judgment on January 13, 2003, and December 29, 2003. The trial court denied appellee's first two motions for summary judgment. Appellee then filed a third motion for summary judgment on March 4, 2004. The trial court granted appellee's third motion for summary judgment.
{ } Appellant timely appealed the trial court's award of summary judgment in favor of appellee, setting forth one assignment of error for review.
ASSIGNMENT OF ERROR
"THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE THIRD SUMMARY JUDGMENT MOTION OF DEFENDANT VICTORIA FIRE & CASUALTY INSURANCE COMPANY."
{ } In his sole assignment of error, appellant argues that the trial court erred in granting appellee's third motion for summary judgment. This Court agrees.
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