COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60968 AFFIRMATIVE INSURANCE CO. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL DENT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : AUGUST 20, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 188062 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For appellee: For appellant: TODD J. ANDERSON, ESQ. ALAN I. GOODMAN, ESQ. Suite 840 620 Terminal Tower Hanna Building Cleveland, OH 44113 1422 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, J. Defendants-appellants, Gladys and Michael Dent, appeal the trial court's judgment overruling their motion for relief from judgment and motion to vacate a default judgment entered in favor of plaintiff-appellee, the Affirmative Insurance Company, in the amount of $12,500. For the following reasons, we affirm the decision of the trial court. On April 15, 1988, Ida Martin was injured when she was struck by an automobile driven by Michael Dent. At the time of the accident, Martin was insured by Affirmative. Pursuant to an uninsured motorist coverage provision, Affirmative paid its insured the sum of $12,500. Thereafter, Affirmative became subrogated to the rights of its insured to the extent of its $12,500 payment by way of an executed Release And Trust Agreement. In February of 1989, Ida Martin and her husband Aaron filed suit against the Dents in connection with the personal injuries sustained by Ida when she was struck by the appellants' automobile. On April 11, 1990, Affirmative filed a separate suit against the appellants to recover the $12,500 it paid to its insured, Ida Martin. On March 22, 1989, the appellants filed an answer in the action brought by the Martins. Although the appellants acknowledge they received Affirmative's complaint, they failed to file an answer or enter an appearance. - 3 - On June 19, 1990, Affirmative filed a motion for default judgment. A copy of the motion for default was sent via certified mail to the appellants. Thereafter, on June 27, 1990, a certified letter was sent to the appellants informing them that a default hearing was scheduled on July 27, 1990 at 9:40 a.m. The appellants failed to appear at the hearing, and on July 27, 1990, the trial court granted Affirmative's motion for default judgment. On September 26, 1990, the appellants filed a motion for relief from judgment which was denied by the trial court. The instant appeal followed, raising two assignments of error. The appellants' first assignment of error provides: THE LOWER COURT ERRED IN FAILING TO GRANT THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. The appellants' first assignment of error essentially argues that the trial court abused its discretion by denying their motion for relief from judgment to vacate a default judgment. This argument is without merit. The standard for prevailing upon a Civ. R. 60(B) motion for relief from judgment is set forth in Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17. Therein, the Ohio Supreme Court stated: To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 - 4 - Ohio St. 2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348, 351, 6 OBR 403, 406, 453 N.E.2d 648, 651. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffin v. Rajan (1987), 33 Ohio St. 3d 75, 77, 514 N.E.2d 1122, 1123. (Emphasis added.) Id., at 20. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Review of the appellants' motion for relief from judgment reveals it was based upon the grounds set forth in Civ. R. 60(B)(1), which provide: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; *** In their motion for relief from judgment the appellants sought to establish inadvertence or excusable neglect by stating they did not contact their lawyer after receiving the complaint because they assumed this case and the case previously filed by the Martins were one and the same. Therefore, they did not - 5 - respond to the summons and complaint or the notice of the scheduled default hearing. In determining whether neglect is excusable under Civ. R. 60(B)(1), all the surrounding facts and circumstances must be taken into consideration. Colley v. Bazall (1980), 64 Ohio St. 2d 243, 249. After conducting such a review, we find that the appellants' failure to file an answer or make an appearance did not constitute inadvertence or excusable neglect justifying relief under Civ. R. 60(B)(1). The appellants acknowledge that they were served with Affirmative's summons and complaint. Further, the record reveals that a copy of Affirmative's motion for default judgment and a letter informing the appellants that a default hearing would be held were sent via certified mail to the appellants. Despite these circumstances, the appellants did not feel it was necessary to contact their lawyer or take other appropriate action. As this court has previously held, a failure to understand the consequences of a complaint may not constitute excusable neglect under Civ. R. 60(B)(1). Ansec v. Marciano (Dec. 1, 1983), Cuyahoga App. No. 46836, unreported. We thus conclude the appellants failed to demonstrate they were entitled to relief under Civ. R. 60(B)(1). Accordingly, the trial court did not abuse its discretion by denying the appellants' motion for relief from judgment. Appellants' first assignment of error is overruled. - 6 - Appellants' second assignment of error provides: THE LOWER COURT DID NOT HAVE AUTHORITY TO HEAR THIS CASE AND THEREFORE THE JUDGMENT ENTERED WAS VOID. Appellants' second assignment of error maintains that the trial court was without jurisdiction to hear the instant case and thus the judgment rendered was void. Specifically, it is alleged that the filing of the Martin complaint precluded the subsequent filing of Affirmative's subrogation complaint. Appellants' argument lacks merit. It has been held that for the limited purpose of prosecution, a single cause of action may be divided to the extent that an insurer, subrogated to a part of a claim assigned by an insured, may prosecute its claim in a separate action against the tortfeasor. Nationwide Ins. Co. v. Steigerwalt (1970), 21 Ohio St. 2d 87; Hoosier Casualty Co. v. Davis (1961), 172 Ohio St. 5. See, also, Wiswell v. Shelby Mut. Ins. Co. (1986), 33 Ohio App. 3d 297, 300. In the instant case, Affirmative was subrogated to a claim assigned by its insured to the extent of its $12,500 payment to its insured. We thus conclude they were entitled to bring a separate action against the tortfeasor, and appellants' argument that the trial court was without jurisdiction is misplaced. Accordingly, appellants' second assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J. BLACKMON, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .