[Cite as Roddy v. Williamson, 2016-Ohio-8437.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Carl Roddy,                                      :

                Plaintiff-Appellant,             :
                                                                  No. 16AP-195
v.                                               :           (C.P.C. No. 13CV-326)

Angel Williamson et al.,                         :      (ACCELERATED CALENDAR)

                Defendants-Appellees.            :




                                          D E C I S I O N

                                  Rendered on December 27, 2016


                On brief: Plymale & Dingus, L.L.C., and Ronald E.
                Plymale, for appellant. Argued: Ronald E. Plymale.

                On brief: Law Office of David R. Kostreva, II, and David R.
                Kostreva, II, for appellee Safe Auto Insurance Company.
                Argued: David R. Kostreva, II.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

        {¶ 1} Plaintiff-appellant, Carl Roddy, appeals from a judgment of the Franklin
County Court of Common Pleas granting a motion for judgment on the pleadings filed by
defendant-appellee Safe Auto Insurance Company ("Safe Auto"). Because we conclude
the trial court erred by finding there were no genuine issues of material fact and Safe Auto
was entitled to judgment as a matter of law, we reverse.
I. Facts and Procedural History
        {¶ 2} Roddy was involved in an automobile collision with defendant Angel
Williamson in October 2012. On January 9, 2013, Roddy filed a complaint against
Williamson, alleging that she failed to yield the right-of-way, causing the collision. The
complaint also included claims against Roddy's insurance company, Safe Auto, seeking
No. 16AP-195                                                                             2


payment under the uninsured motorist and collision coverage in his automobile insurance
policy. Although the complaint asserted that a copy of Roddy's insurance policy was
attached, it was not contained in the trial court record. Safe Auto filed an answer to the
complaint, which also contained a cross-claim against Williamson and a counterclaim
against Roddy. On April 4, 2013, counsel for Williamson filed a suggestion of bankruptcy,
asserting that Williamson had filed a petition for bankruptcy in the United States
Bankruptcy Court for the Southern District of Ohio, and that, as a result, Roddy's claims
were stayed by operation of federal law.
       {¶ 3} On February 17, 2014, Roddy filed a notice of partial dismissal without
prejudice under Civ.R. 41(A), dismissing his claims against Williamson, and a motion to
reinstate the case to the court's active docket. Safe Auto filed a motion in opposition
arguing that resolution and exhaustion of the limits of Williamson's insurance coverage, if
any, or personal assets were a prerequisite to uninsured or underinsured motorist
("UM/UIM") coverage under Roddy's insurance policy. The trial court denied the motion
to restore the case to the active docket. Subsequently, on August 21, 2015, Roddy filed a
second motion to reinstate the case to the court's active docket. Safe Auto again filed a
motion in opposition reiterating its argument that resolution and exhaustion of the limits
of Williamson's insurance coverage, if any, or personal assets were a prerequisite to
UM/UIM coverage under Roddy's insurance policy. Safe Auto also argued that because
more than one year had passed since the voluntary dismissal and Roddy had not refiled
his claims against Williamson, he was barred from filing those claims. Safe Auto further
argued that Roddy's UM/UIM claims were barred for failure to pursue his claims against
Williamson. The trial court granted the motion to restore the case to the active docket
and ordered the bankruptcy stay lifted. The court noted that the question of whether the
case could be maintained without Williamson as a party was an issue to be addressed by
Safe Auto through a motion for judgment on the pleadings or a motion for summary
judgment.
       {¶ 4} Safe Auto then filed a motion for judgment on the pleadings and motion to
dismiss, asserting that Williamson was insured at the time of the accident and that
exhaustion of her insurance limits was a condition precedent to UM/UIM coverage under
Roddy's insurance policy. Safe Auto further argued that because more than one year had
No. 16AP-195                                                                              3


passed since the voluntary dismissal of Williamson, Roddy could not refile his claims
against her. Safe Auto claimed it was entitled to judgment as a matter of law because
Roddy could not satisfy the condition precedent.         Roddy filed a memorandum in
opposition, arguing that there was a question of fact as to whether Williamson was
insured and that Safe Auto had not suffered prejudice as a result of Williamson being
dismissed from the case. The trial court granted Safe Auto's motion for judgment on the
pleadings concluding that Roddy failed to state a claim upon which relief could be granted
against Safe Auto.
II. Assignment of Error
       {¶ 5} Appellant appeals and assigns the following single assignment of error for
our review:
               The Trial Court Erred in Granting Appellees' Motion for
               Judgment on the Pleadings.

III. Discussion
       {¶ 6} Under Civ.R. 12(C), a party may move for judgment on the pleadings after
the pleadings have closed, but within such time as to not delay trial. "A motion for
judgment on the pleadings presents only questions of law and may only be granted when
no material issues of fact exist and the moving party is entitled to judgment as a matter of
law." Mousa v. Mount Carmel Health Sys., Inc., 10th Dist. No. 12AP-737, 2013-Ohio-
2661, ¶ 10. In construing a motion for judgment on the pleadings under Civ.R. 12(C), the
pleadings and any reasonable inferences to be drawn therefrom are to be liberally
construed in favor of the non-moving party.        Id.   "Appellate review of motions for
judgment on the pleadings is de novo." Id.
       {¶ 7} Safe Auto argued in support of its motion for judgment on the pleadings
that resolution and exhaustion of Williamson's insurance policy or personal assets was a
prerequisite to Roddy seeking UM/UIM coverage under his insurance policy. Safe Auto
further argued that because Roddy failed to refile against Williamson within one year of
the voluntary dismissal, his claims against her were barred and she could not be re-joined
as a party to the case. The trial court found these arguments to be persuasive and
concluded that Roddy's claims against Williamson and Safe Auto were barred. Therefore,
the court held that Roddy failed to state a claim upon which relief could be granted.
No. 16AP-195                                                                             4


       {¶ 8} Roddy argues on appeal that the trial court erred by granting judgment in
favor of Safe Auto because there was a question of fact with respect to whether
Williamson was insured. Judgment on the pleadings may only be granted when no
material issues of fact exist. Id. Roddy asserts that the question of whether Williamson
was insured could not be resolved without looking outside the pleadings and outside the
record. In the complaint, Roddy asserted on belief that Williamson was uninsured at the
time of the collision. Safe Auto denied this allegation in its answer, and later claimed in
its motion for judgment on the pleadings that Williamson was insured, citing an accident
report. However, this accident report was not attached to the motion nor made part of the
record. There were no other documents in the record conclusively establishing whether
Williamson was insured. As explained herein, this question was potentially material to
the issue of whether Safe Auto's right to subrogation was prejudiced by Roddy's failure to
timely refile his claims against Williamson. Accordingly, we conclude there was a genuine
issue of material fact as to whether Williamson was insured.
       {¶ 9} Roddy further asserts the trial court erred by concluding as a matter of law
that he failed to satisfy a condition precedent to UM/UIM coverage under his policy with
Safe Auto by failing to exhaust the limits of Williamson's insurance coverage or personal
assets. Roddy claims Safe Auto did not introduce the insurance policy or any other
evidence to establish that pursuing a claim against Williamson was a condition precedent
to UM/UIM coverage.
       {¶ 10} Safe Auto asserts it is undisputed that Roddy's insurance policy conformed
to the requirements of the Ohio Revised Code, and that the relevant statutory provisions
mandate the inclusion of terms and conditions in an insurance policy creating conditions
precedent to a UM/UIM claim. Safe Auto specifically cites R.C. 3937.18(D), which
provides that "[w]ith respect to the uninsured motorist coverage, underinsured motorist
coverage, or both uninsured and underinsured motorist coverages included in a policy of
insurance, an insured shall be required to prove all elements of the insured's claim that
are necessary to recover from the owner or operator of the uninsured or underinsured
motor vehicle." Safe Auto asserts that because Roddy failed to timely refile his claims
against Williamson, he cannot prove all elements of his claims against Williamson and,
therefore, is not entitled to UM/UIM coverage as a matter of law. However, other courts
No. 16AP-195                                                                               5


considering UM/UIM coverage have concluded that timeliness is not an element of an
underlying claim against an allegedly uninsured or underinsured motorist. See Fish v.
Ohio Cas. Ins. Co., 5th Dist. No. 2003CA00030, 2003-Ohio-4380, ¶ 25-26 ("The statute
of limitations is not an element of a negligence case. * * * The failure to preserve the
statute of limitations, in a negligence case, does not preclude a claim against the insurance
company because failure to do so falls under the issue of subrogation."); Karafa v. Toni,
8th Dist. No. 80664, 2003-Ohio-155, ¶ 19 ("The elements of an injured party's claims are
determined by common law: that is, a duty, a breach of that duty which is the proximate
cause of an injury, and damages.       The statute of limitations is a statutory creation
designed to limit the exercise of the right to pursue recovery for the damages resulting
from the tortfeasor's actions. It is not an element of that claim, but rather, a defense to
it."). The trial court does not appear to have considered whether the failure to timely
refile prevented Roddy from proving "all elements" of his claim against Williamson
pursuant to R.C. 3937.18(D).
       {¶ 11} Safe Auto also argues that by allowing the time to pursue his own claims
against Williamson to lapse, Roddy obviated Safe Auto's right to subrogation against
Williamson and thereby forfeited his UM/UIM coverage. R.C. 3937.18(J) provides for
subrogation by insurers, stating that "[i]n the event of payment to any person under the
uninsured motorist coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist coverages, and subject to the terms and conditions of that
coverage, the insurer making such payment is entitled, to the extent of the payment, to the
proceeds of any settlement or judgment resulting from the exercise of any rights of
recovery of that person against any person or organization legally responsible for the
bodily injury or death for which the payment is made, including any amount recoverable
from an insurer that is or becomes the subject of insolvency proceedings." See also Bogan
v. Progressive Cas. Ins. Co., 36 Ohio St. 3d 22, 29 (1988), overruled in part on other
grounds, Fulmer v. Insura Property & Cas. Co., 94 Ohio St. 3d 85 (2002), paragraph one
of the syllabus; Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St. 3d 186, 2002-Ohio-
7217, paragraph two of the syllabus (explaining that this statutory provision specifically
granted the right of subrogation to providers of UM/UIM coverage). Safe Auto asserts
that the Supreme Court of Ohio has held that UM/UIM coverage may be forfeited where
No. 16AP-195                                                                             6


an insured breached the terms and conditions of an insurance policy related to the
insurer's right of subrogation and the insurer was prejudiced, citing Ferrando.
       {¶ 12} In Ferrando, the court held that "when an insurer's denial of UIM coverage
is premised on the insured's breach of a consent-to-settle or other subrogation-related
provision in a policy of insurance, the insurer is relieved of the obligation to provide
coverage if it is prejudiced by the failure to protect its subrogation rights. An insured's
breach of such a provision is presumed prejudicial to the insurer absent evidence to the
contrary." Id. at ¶ 88. As this court explained in Triplett v. Nationwide Mut. Fire Ins.
Co., 10th Dist. No. 02AP-869, 2003-Ohio-4502, the Ferrando decision created a two-step
framework for determining whether an insured's alleged breach of a subrogation
provision in a UM/UIM policy precludes the insured from recovering benefits:
               A court must first determine whether the insured actually
               breached the subrogation provision. If the subrogation
               provision was not breached, the inquiry ends and UM/UIM
               coverage must be provided. If, however, the subrogation
               provision was breached, the court must determine whether
               the insurer was prejudiced as a result of the breach. Prejudice
               is presumed, unless the insured presents some evidence to
               rebut that presumption.

(Citations omitted.) Triplett at ¶ 15.
       {¶ 13} Implicit within the Ferrando analysis is that the court must examine any
allegedly breached provision that affects the insurer's subrogation rights. See Ferrando at
¶ 45 ("The primary reason that consent-to-settle clauses are included in UIM policies is to
protect the insurer's subrogation rights. Many UIM insurance policies contain other, or
additional, clauses that also have the primary purpose of furthering the insurer's
subrogation rights. Courts generally are consistent in applying the same approach in
evaluating the effects of breaches of any of the subrogation-related clauses."). In the
present case, Roddy's insurance policy was not part of the record; therefore, neither the
trial court nor this court could determine what, if any, subrogation-related provisions
existed in that policy and whether Roddy breached those provisions. As noted above,
there was also a question of fact with respect to whether Williamson was insured, which
could affect the extent to which Safe Auto was prejudiced by any failure to protect its
subrogation rights.
No. 16AP-195                                                                             7


       {¶ 14} Based on our review of the pleadings and the record that was before the
trial court, we conclude there was a genuine issue of material fact as to whether
Williamson was insured at the time of the collision that gave rise to Roddy's UM/UIM
claims. Moreover, Safe Auto failed to establish that it was entitled to judgment as a
matter of law because Roddy failed to satisfy a condition precedent to UM/UIM coverage
under his insurance policy or because he prejudiced Safe Auto's right to subrogation by
breaching a subrogation-related clause in that policy. Safe Auto's failure to establish the
same is in part due to the absence of an insurance policy between appellant and Safe Auto
in the record. Appellant's assignment of error is sustained.
IV. Conclusion
       {¶ 15} For the foregoing reasons, appellant's single assignment of error is
sustained, and we reverse the judgment of the Franklin County Court of Common Pleas
and remand this matter to that court for further proceedings in accordance with law and
consistent with this decision.
                                                                  Judgment reversed and
                                                                       cause remanded.
                           SADLER and BRUNNER, JJ., concur.