Summary
In Rose at 7, 612 N.E.2d at 823, the court wrote as follows: "Any definition of `body politic' must include an element of governmental control."
Summary of this case from Lish v. Coolville Volunteer Fire DepartmentOpinion
No. 92-CV-372.
Decided November 9, 1992.
J. Gerard Swank, for plaintiff.
Thomas J. Mulvey, for defendant, Hartford Volunteer Fire Department.
David W. Wenger, for defendant, Tim L. Rose.
David I. Shroyer, for defendants, Harold and Darlene McDougal.
This action was instituted by the plaintiff insurance company to enforce its subrogation rights. On August 11, 1990, the defendant, Tim L. Rose, was a volunteer fireman. He was a member of the Hartford Volunteer Fire Department, Inc., which is also a defendant in this action. On that date, Tim L. Rose was responding to a fire alarm in a vehicle owned by his mother, Jean A. Rose. While responding to the emergency alarm, the defendant, Tim L. Rose, collided with a vehicle owned by Harold C. McDougal and operated by his wife, Darlene McDougal. Both Harold McDougal and Darlene McDougal are insured by the plaintiff and are also named as defendants to this action.
As a result of the collision, Mr. McDougal incurred damages to his vehicle in the amount of $3,000. The plaintiff, pursuant to the contract of insurance between itself and the McDougals, paid $2,750 for the damages to the vehicle. (Apparently, there was a $250 deductible.) The plaintiff also paid to Darlene McDougal $10,000 for medical expenses incurred.
In a separate action, Darlene McDougal and Harold McDougal filed a personal injury and property damage claim against Tim L. Rose, Jean A. Rose, and the Hartford Volunteer Fire Department. This case was ultimately settled for $40,000 and that case was dismissed with prejudice.
The McDougals signed a release releasing Jean Rose from any and all liability. By the terms of that release, Mr. and Mrs. McDougal agreed to "indemnify and save harmless Jean A. Rose * * * from any and all claims arising from the payment of or by others of medical, hospital, or other expenses * * * incurred [by the McDougals] as a result of or in connection with the aforementioned accident." Additionally, the McDougals signed a release releasing "Tim L. Rose, The Hartford Volunteer Fire Department, The Personal Service Insurance Company and State Farm Insurance Companies * * * from any and all actions * * * resulting or to result from the accident that occurred on or about the 11th day of August, 1990 at or near Croton, Ohio except that I do not hereby release any portion of my claim for which I have already been compensated by any other policy or policies of insurance or any other source and for which subrogation rights exist." These releases were signed by all parties with full knowledge that the plaintiff in this action, Cincinnati Insurance Company, was subrogated to the rights of the McDougals pursuant to the terms of the insurance policy.
The defendants, Darlene McDougal and Harold McDougal, have refused to reimburse the plaintiff for the amount of money which it paid in accordance with medical payments provisions of its insurance policy. As a result thereof, the plaintiff filed this action to recover from the defendants, Tim L. Rose and the Hartford Volunteer Fire Department, jointly and severally, the amount of $2,750 for the damages to the automobile owned by Harold McDougal. The plaintiffs also demand from Tim L. Rose, the Hartford Volunteer Fire Department, Darlene McDougal, and Harold McDougal, jointly and severally, $10,000, which represents the amount of money paid by the plaintiff in accordance with the medical payments provision of its insurance policy with Mr. and Mrs. McDougal.
On September 1, 1992, the defendant, the Hartford Volunteer Fire Department, filed a motion for summary judgment claiming that R.C. 2744.05(B) bars recovery because that statute prohibits subrogation claims against any political subdivision. The Hartford Volunteer Fire Department claims that it falls within the statutory definition of a "political subdivision." On September 21, 1992, a memorandum contra was filed by the plaintiff and on November 2, 1992 the Hartford Volunteer Fire Department filed a reply to the memorandum contra.
Additionally, on September 14, 1992, the defendant, Tim L. Rose, filed a motion for summary judgment asserting that since he was a member of the fire department and was engaged in fire-department activities at the time of the accident, he, too, is cloaked with the same immunity as that of the fire department, absent a showing of any of the exceptions listed in R.C. 2744.03(A)(6)(a) through (c). This defendant also claims that he has been released from any liability by virtue of the written release executed by the McDougals to Jean A. Rose, this defendant's mother. On September 21, 1992, the plaintiff filed a memorandum contra and Tim L. Rose filed a reply to the memorandum contra on October 28, 1992.
On October 22, 1992, Harold McDougal and Darlene McDougal filed a motion for summary judgment, maintaining they have not prevented the plaintiff from pursuing the subrogation claim and citing the release signed by the McDougals, which does not purport to release the Hartford Volunteer Fire Department or Tim L. Rose from the claim now being pursued by the plaintiff. No response has been filed to this motion for summary judgment.
Finally, on November 2, 1992, the plaintiff filed a supplemental response to the motions for summary judgment filed by both the Hartford Volunteer Fire Department and Tim L. Rose. In this supplemental memorandum, the plaintiff provided the court with a copy of the release signed by the defendants, Tim L. Rose and the Hartford Volunteer Fire Department. The plaintiff argues that the claim of Tim L. Rose that he has been released from any liability is dispelled by the language of the release itself.
I
The first issue to be addressed is whether the Jean A. Rose release releases Tim L. Rose from any liability in this action. The answer is no. The Jean A. Rose release does not release and obviously was not intended to release Tim L. Rose from any liability. Jean A. Rose was joined in the original personal injury action because it was alleged that she negligently entrusted her motor vehicle to her son, Tim L. Rose, on the date of the accident. The issue of negligent entrustment was strongly argued by both the McDougals and Jean A. Rose in the underlying action. A motion for summary judgment on that issue filed by Jean A. Rose was denied in that action.
The defendant, Tim L. Rose, argues that the language in the release which releases and discharges Jean A. Rose and her "agents, servants, successors, heirs, executors, administrators, insurers, assigns, and all other persons * * * who are or might be liable" is sufficient to release Tim L. Rose, the son of Jean A. Rose. This court does not agree. First, Tim L. Rose is not an heir of Jean A. Rose. Jean A. Rose was and is a living person and Tim L. Rose cannot therefore be an heir. Second, if the defendant, Jean A. Rose, wanted her release to operate as a release of her son also, why was he not named? And, more importantly, if Jean A. Rose and Tim L. Rose actually thought Tim L. Rose was being released by the Jean A. Rose release, why was another release executed specifically naming Tim L. Rose? It is obvious from the facts of this case and the language utilized that the parties did not intend to release Tim L. Rose when they executed the Jean A. Rose release.
Moreover, the defendants all were aware of the plaintiff's subrogation rights. Despite this knowledge and in complete disregard of those known rights, the defendants attempted to settle the underlying case without providing for this plaintiff's reimbursement. This exact issue was addressed in Hartford Acc. Indemn. Co. v. Elliott (1972), 32 Ohio App.2d 281, 61 O.O.2d 346, 290 N.E.2d 919, wherein the Hamilton County Court of Appeals held in the syllabus:
"A tortfeasor who settles the claim of a party injured by his act with full awareness of the fact that the claim has been subrogated is liable to the subrogee for the amount paid out by such subrogee."
This decision was later followed by the Hamilton County Municipal Court in Community Mut. Ins. Co. v. Taylor (1991), 61 Ohio Misc.2d 627, 581 N.E.2d 1186. In that case, the court asserted:
"`["]an unlimited release executed by an insured-subrogor for consideration not specifically including an amount designated as covering the insurer's subrogation interest does not bar a subsequent subrogation action by an insurer-subrogee against the tortfeasor, if the tortfeasor or his insurance carrier had knowledge of the insurer-subrogee's interest prior to release.["]'" Id. at 628, 581 N.E.2d at 1187.
The defendant, Tim L. Rose, does not deny that he had notice of the plaintiff's subrogation rights. Rather, he attempts to distinguish the general rule cited above. The defendant argues that since he believed that an immunity defense existed pursuant to R.C. 2744.01 et seq., the general rule allowing the insurer/subrogee to recover is inapplicable. The argument is not persuasive. If that were the case, every subrogation claim could be defeated by simply claiming that the settlement made with the insured/subrogor was made with the understanding that the tortfeasor believed that a defense existed. That is not the law in Ohio or elsewhere.
II
Both defendants, the Hartford Volunteer Fire Department and Tim L. Rose, claim that this subrogation action is barred by the provisions of R.C. 2744.05(B). The Hartford Volunteer Fire Department claims immunity as a result of a direct interpretation of the statute and Tim L. Rose claims immunity by virtue of being a member of the fire department. Because this court finds that the Hartford Volunteer Fire Department is not immune, the issue of whether Tim L. Rose as a member of the fire department is immune by virtue of that membership need not be addressed.
R.C. 2744.05(B) provides, in part:
"No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against a political subdivision with respect to such benefits."
It is clear that the critical term is "political subdivision." If the Hartford Volunteer Fire Department is a political subdivision, then, by operation of R.C. 2744.05(B), it is immune. If it is not a political subdivision, then it is not immune and can be found liable in tort for injuries caused by it.
A "political subdivision" is defined in R.C. 2744.01(F):
"`Political subdivision' or `subdivision' means a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state. `Political subdivision' includes, but is not limited to, a county hospital commission appointed under section 339.14 of the Revised Code, regional planning commission created pursuant to section 713.21 of the Revised Code, county planning commission created pursuant to section 713.22 of the Revised Code, joint planning council created pursuant to section 713.231 of the Revised Code, interstate regional planning commission created pursuant to section 713.30 of the Revised Code, port authority created pursuant to section 4582.02 or 4582.26 of the Revised Code or in existence on December 16, 1964, regional council established by political subdivisions pursuant to Chapter 167. of the Revised Code, emergency planning district and joint emergency planning district designated under section 3750.03 of the Revised Code, joint interstate emergency planning district established by an agreement entered into under that section, and a county solid waste management district and joint solid waste management district established under section 343.01 of the Revised Code."
The Hartford Volunteer Fire Department has submitted its articles of incorporation. The articles of incorporation indicate that the Hartford Volunteer Fire Department, Inc. is a not-for-profit private fire company. It is not operated under the auspices of any municipal corporation, township, or county, nor is it controlled by any of those political subdivisions. In fact, it appears that the fire company provides fire-fighting services in many townships and municipalities located in three separate counties.
R.C. 2744.01(F) defines a "political subdivision" as any "* * * other body corporate and politic responsible for governmental activities. * * *" There is no doubt that the Hartford Volunteer Fire Department is a corporate entity. According to the statute, however, it must also be a body politic. In that regard, its argument fails. It is true that it performs functions which are also provided by governmental units; however, that fact alone does not make the fire company a "body politic." If that were the case, private trash haulers and private not-for-profit schools would also be included. Any definition of "body politic" must include an element of governmental control. No governmental entity controls the operations and activities of the Hartford Volunteer Fire Department, and the general public cannot, directly or indirectly by vote or otherwise, control its operations, activities, and membership. It is rather obvious that the Hartford Volunteer Fire Department does not want such control. If it did it could organize as a township or joint-township firefighting agency under the applicable statutes.
There is no doubt that the members of the Hartford Volunteer Fire Department are all civic-minded and have the general good of their community foremost in their minds. If that were not the case, they would not volunteer to put their lives in jeopardy for those in their community. Their activities assist those in need and they are to be congratulated. But this court cannot grant immunity because of their good deeds. Only the legislature can do that.
The defendants argue that State ex rel. Granville Volunteer Fire Dept., Inc. v. Indus. Comm. (1992), 64 Ohio St.3d 518, 597 N.E.2d 127, is controlling. In that case, the Ohio Supreme Court held that private volunteer fire fighters are considered township employees for workers' compensation purposes. The defendants submit that fire fighters should also be considered township employees when making a determination concerning immunity as provided by R.C. 2744.01 et seq. A reading of that decision leads this court to conclude no analogy can be drawn between that case and the one sub judice. This court agrees with the language in 1980 Ohio Atty.Gen.Ops. No. 80-075, which suggests that language in a statute making members of a volunteer fire company township employees for the purpose of workers' compensation insurance should not be expanded or enlarged. The holding in Granville is limited to the facts of that case and to the area of workers' compensation. It has no application to this case.
This court finds that the Hartford Volunteer Fire Department, Inc. is not a political subdivision and, as a result, it is not immune from this subrogation action. Because the Hartford Volunteer Fire Department is not afforded immunity, Tim L. Rose is also not immune.
The motions for summary judgment filed herein by the defendants, the Hartford Volunteer Fire Department and Tim L. Rose, are overruled and the same are hereby denied.
III
There has been no opposition to the motion for summary judgment filed by Harold McDougal and Darlene McDougal. The McDougals did not release the Hartford Volunteer Fire Department, Inc. or Tim L. Rose from plaintiff's claim of subrogation. Specifically, the release signed by Harold and Darlene McDougal states, "except that I do not hereby release any portion of my claim for which I have already been compensated by any other policy or policies of insurance or any other source and for which subrogation rights exist." Harold McDougal and Darlene McDougal have not interfered with the plaintiff's right of subrogation and therefore the claims against those defendants should be dismissed.
The motion for summary judgment filed by Harold McDougal and Darlene McDougal is granted.
So ordered.