COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72038 IMOGENE BRASWELL, ET AL. ) ) Plaintiffs-Appellants ) JOURNAL ENTRY ) -vs- ) AND ) JOHNNIE MAE DUNCAN, ET AL. ) OPINION ) Defendants-Appellees ) Date of Announcement of Decision NOVEMBER 26, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. 278051 Judgment Affirmed Date of Journalization Appearances: For Plaintiffs-Appellants: For Defendants-Appellees State Farm Mutual Automobile MICHAEL L. WOLPERT, ESQ. Insurance Co. and Todd Crawford: Jerome Silver & Associates 3421 Prospect Avenue ROBERT J. OLENDER, ESQ. Cleveland, Ohio 44115 KIRK W. ROESSLER, ESQ. Strachan, Green, Miller & Olender 1940 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 JAMES M. PORTER, J.: 2 Plaintiffs-appellants Imogene Braswell and Julia Brown appeal from the dismissal of their complaint against the defendants- appellees State Farm Mutual Automobile Insurance Company (State Farm) and its insured, Todd Crawford, arising out of an automobile collision. Plaintiffs claim the dismissal was improper under motion to dismiss or summary judgment standards, the court erred in converting the motion to dismiss into summary judgment and in not enforcing discovery in the case. We find no error and affirm the judgment below. This case arose out of a three car collision that occurred on October 29, 1992 at East 36th Street and Carnegie Avenue in Cleveland. Cars driven by co-defendants Crawford and Johnnie Mae Duncan collided with each other on Carnegie and ricocheted into plaintiffs' vehicle causing their injuries. State Farm provided liability insurance on Crawford's vehicle. On July 20, 1993, plaintiffs filed a complaint in Common Pleas Case No. 255509 seeking damages against Crawford and Duncan. Plaintiffs obtained service of process at that time upon Crawford at 5746 Edgehill in Parma, Ohio. On May 2, 1994, the day that Case No. 255509 was set for trial, plaintiffs voluntarily dismissed their actions against Crawford and Duncan under Civ.R. 41(A). On October 4, 1994, within two years of the accident, plaintiffs refiled their complaint in Common Pleas Case No. 278051, again naming only Crawford and Duncan as defendants. At plaintiffs' direction, the clerk of courts attempted service upon 3 Crawford at his former Parma address. The post office returned the summons and complaint to the clerk noting that Crawford had moved. Indeed, sometime during January 1993, Crawford moved from the Parma address to 8185 Stratford Drive, Apartment 610, North Royalton, Ohio, where he resided until June 1993, when he moved to a newly-built house located at 4377 Vandemark Road, Litchfield, Ohio. Crawford has lived continuously at the Litchfield address since June 1993. Each time Crawford moved, he deposited with the post office the appropriate change of address forms identifying his new address. Plaintiffs never attempted service of the refiled original complaint in Case No. 278051 upon Crawford at either the North Royalton or Litchfield addresses. Consequently, plaintiffs never obtained service of process upon Crawford with respect to the refiled original complaint in Case No. 278051. On January 11, 1996, more than three years after the date of the accident, plaintiffs filed an amended complaint with leave adding State Farm, Crawford's insurer, as a defendant. The amended complaint identified the Litchfield address as Crawford's residence. Plaintiffs successfully served the amended complaint upon Crawford at the Litchfield address on their first attempt. However, that service did not occur until January 29, 1996, more than 16 months after plaintiffs refiled their original complaint in Case No. 278051 and more than three years after the date when the accident occurred. 4 On February 26, 1996, Crawford filed a motion to dismiss on the ground that plaintiffs failed to state a claim upon which relief could be granted, in that the two year statute of limitations on bodily injury (R.C. 2305.10) barred plaintiffs' claims. Crawford argued that because plaintiffs failed to obtain service of process upon him within one year of filing their complaint, plaintiffs' refiled action was not timely commenced. Since they obtained service of process upon Crawford more than three years after the accident the two year statute of limitations barred their claims. In their motion in opposition, plaintiffs alleged that there was good cause for their failure to obtain timely service of process upon Crawford, specifically, that Crawford attempted intentionally to avoid service. While Crawford acknowledged changing his residence, he denied doing so secretively or doing anything else purposefully to thwart plaintiffs from obtaining service of process upon him. Shortly after Crawford filed his motion to dismiss, State Farm filed its motion to dismiss for failure to state a claim on the grounds that plaintiff did not set forth which federal or state statute it allegedly violated and that an injured party cannot maintain a direct action for damages against the alleged tortfeasor's insurer. State Farm contends that suit is only authorized after the injured person first obtains a judgment against the tortfeasor and the tortfeasor's insurer does not satisfy that judgment. (R.C. 3929.05-06). 5 Plaintiffs' responses to defendants' motions were due April 15, 1996. Before that date, plaintiffs filed what they termed preliminary briefs in opposition. Plaintiffs also filed a motion for a continuance pursuant to Civ.R. 56(F) to respond to Crawford's motion to dismiss for the purpose of conducting discovery concerning Crawford's residence from and after 1992. On April 24, 1996, plaintiffs propounded written interrogatories and requests for production of documents upon both State Farm and Crawford, seeking information relating to the State Farm/Crawford policy and Crawford's residency after 1992. During a pretrial conference on April 30, 1996, the trial court suggested that Crawford submit to a deposition to allow plaintiffs to obtain the residency information. The court issued an order giving plaintiffs until May 7, 1996 to take Crawford's deposition which was taken on May 2, 1996, and until May 10, 1996 to file any supplemental motions. Crawford assumed the deposition obviated the need for responding to plaintiffs' discovery requests. Nor did State Farm respond to plaintiffs' discovery requests pending a decision on its motion to dismiss. On May 10, 1996, plaintiffs filed a second motion for a continuance to respond to Crawford's motion to dismiss to allow them time to seek change of address records from the post office. On June 6, 1996, the trial court ordered the post office to disclose to plaintiffs information concerning Crawford's change of 6 address requests since 1992, which corroborated Crawford's deposition testimony regarding his residency from and after 1992. On August 1, 1996, the trial court gave notice to the parties that it was converting both motions to dismiss to motions for summary judgment and that a ruling would be made on September 1, 1996. On September 4, 1996, the trial court granted summary judgment in Crawford's favor. On September 9, 1996, the trial court granted State Farm's motion to dismiss. On September 5, 1996, plaintiffs filed a motion for reconsideration. On September 6, 1996, the trial court ruled plaintiffs' motion for continuance moot by virtue of Crawford having submitted to a deposition and by virtue of the trial court having allowed plaintiffs until September 1, 1996 to submit all evidentiary materials. Plaintiffs' motion for reconsideration was denied on September 12, 1996. After granting plaintiffs' motion for default judgment against co-defendant Johnnie May Duncan, plaintiffs filed a timely appeal herein. We will address plaintiffs' assignments of error in the order presented. I. DISMISSAL WAS IMPROPER UNDER MOTION TO DISMISS OR SUMMARY JUDGMENT STANDARDS. Plaintiffs argue that their claims against State Farm, if true, would entitle plaintiffs to a money judgment against State Farm. Plaintiffs' also argue that Crawford's allegation that the statute of limitations on plaintiffs' claims had expired was not supported by the evidence. 7 The trial court properly granted State Farm's motion to dismiss. An insurance company's liability is derivative only. Lawreszuk v. Nationwide Insurance Company (1977), 59 Ohio App.2d 111, 114. An insurance company is liable only if its insured has been found liable. Id. Consequently, an injured party does not acquire an independent or direct cause of action for damages against an alleged tortfeasor's insurer simply by reason of the alleged tortfeasor's acts and omissions. Permitting an injured party to directly sue an alleged tortfeasor's insurer would undermine the policy of excluding evidentiary references to the existence of insurance. Evid.R. 411; Chitlik v. Allstate Ins. Co. (1973), 34 Ohio App.2d 193, 197-198. An injured party may file a supplemental action against an insurance company that fails or refuses to pay a judgment rendered against the company's insured, to the extent the judgment is a covered loss. However, that is only after the insured has been determined to be liable for the loss. R.C. 3929.05-06. As this Court succinctly stated, personal injury actions must first be brought by the injured party against the alleged tortfeasor. Chitlik, supra at 197. Plaintiffs suggested that they may have an independent claim against State Farm, not by virtue of Crawford's acts, but by virtue of State Farms's own failure to comply with unspecified state and federal statutory requirements. In construing a complaint upon a motion to dismiss, a court must presume that the complaint's factual allegations are true and make all reasonable inferences in 8 favor of the non-moving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. A plaintiff is not required to prove her case at the pleading stage. However, a plaintiff must allege sufficient facts which, if proven, would provide a proper foundation upon which to premise such liability. Id. at 192-193. Plaintiffs' [u]nsupported conclusions that State Farm violated unidentified federal and state statutory obligations are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion. Id. at 193; Thompson v. Central Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538; Krause v. Case Western Reserve University (Dec. 19, 1996), Cuyahoga App. No. 71712, unreported at 9. Our review of the amended complaint leaves no room for disagreement with the dismissal of the action against State Farm. Plaintiff also contends that the trial court erred in granting summary judgment in Crawford's favor because they claim the undisputed facts of this case indicate that plaintiffs had good cause for failing to serve Crawford within a timely manner. Plaintiffs do not identify the facts upon which they rely. The deposition testimony of Crawford established that Crawford reported each change of address to the post office and this was corroborated by the postal records. Although Crawford has lived continuously at the Litchfield address since June 1993, plaintiffs never attempted to serve him there until January 1996, when they were successful. Plaintiffs rely upon the following two issues of fact: (1) that Crawford's mother held title to the real property located at 9 the Litchfield address; and (2) that Crawford's name did not appear in the Ameritech telephone directory for North Royalton, Ohio issued in August 1993. (Aplts' Brf. at 3). These contentions are irrelevant. The fact that Crawford's mother held title to the property located at the Litchfield address is meaningless on the issue of whether Crawford lived there. Crawford's address was on file with the post office and the Ohio Bureau of Motor Vehicles. There was no evidence that plaintiffs searched the Medina County real estate records to locate Crawford. That Crawford's mother held title could not possibly have affected the question of service. That Crawford's name did not appear in the 1993-1994 Ameritech telephone directory for North Royalton, Ohio is equally immaterial. Crawford testified that he moved from North Royalton in June 1993 and therefore he would not appear in the Ameritech telephone directory issued in August 1993. The undisputed evidence established that Crawford never attempted to abscond or hide from the trial court's jurisdiction. The remaining issue is whether plaintiffs' delay in serving Crawford bars them from pursuing their claims against him. Civ.R. 3(A) provides that [a] civil action is commenced by the filing of a complaint with the court, if service is obtained within one year from such filing. This rule determines when an action commences for statute of limitations purposes, but only so long as service of process is timely. Allis-Chalmers Credit Corp. v. Herbolt (1984), 17 Ohio App.3d 230, 235. Where service is obtained more than one 10 year after the filing of the complaint, then the case is deemed commenced on the date service is obtained. St. Thomas Hospital v. Beal (1981), 2 Ohio App.3d 132; Saunders v. Choi (1984), 12 Ohio St.3d 247, 250; Allis-Chalmers Credit Corp., supra at 235-236. ( If service is not obtained within one year after the filing of the complaint against a defendant, the action `commences,' for purposes of applying the statute of limitations, on the date service is obtained or the party submits to the court's jurisdiction. ). Furthermore, the plaintiffs' argument that it failed to complete service upon the defendant due to his purposefully absconding or concealing himself is not a defense to failure to obtain service pursuant to Civ.R. 3(A). Such a defense only applies to the tolling of the statute of limitations for the underlying actions set forth in R.C. 2305.15. See Saunders v. Choi, supra at syllabus; Jones v. Casey (Aug. 11, 1994), Cuyahoga App. No. 65624, unreported at 3. Nor does Goolsby v. Anderson Concrete (1991), 61 Ohio St.3d 549, first cited by appellants' counsel at oral argument, offer any support for plaintiffs' failure to obtain service within a year of recommencing the action. Goolsbydealt with the filing and service of an original complaint not a refiled complaint as presented in the instant case. The statute of limitations period with respect to an action for bodily injury or injury to personal property is two years after the cause of action arose. R.C. 2305.10. Consequently, the limitations period with respect to plaintiffs' action against 11 Crawford expired on October 29, 1994. Since plaintiffs failed to obtain service of process upon Crawford within the one year period following the filing of plaintiffs' refiled complaint, their action against Crawford commenced on January 29, 1996, the date when plaintiffs obtained service upon Crawford at the Litchfield address. Consequently, plaintiffs commenced their action against Crawford more than three years after their cause of action arose. The trial court correctly determined that plaintiffs' action against Crawford was time barred. Assignment of Error I is overruled. II. CONVERSIONS OF MOTIONS TO DISMISS INTO MOTIONS FOR SUMMARY JUDGMENT WAS IMPROVIDENT. Plaintiffs' second assignment of error faults the trial court for converting Crawford's motion to dismiss into a motion for summary judgment. Civ.R. 12(B) provides, in pertinent part, as follows: When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. Crawford's motion to dismiss presented one matter outside of the pleadings in this case - whether plaintiffs could show good cause why they failed to obtain service of process upon Crawford within one year after filing their complaint. The trial court 12 granted generous continuances to allow plaintiffs to obtain postal records and depose Crawford. This evidence was unavailing in establishing good cause for the failure of timely service as previously noted. The trial court did not abuse its discretion in treating Crawford's motion as a motion for summary judgment, but acted in accordance with the Rules. Assignment of Error II is overruled. 13 III. IT WAS ERROR NOT TO ENFORCE FORMAL DISCOVERY IN THE CASE AT BAR. We find no merit to this assignment of error. From a factual standpoint, the trial court granted plaintiffs' Civ.R. 56(F) continuance for the specific purpose of conducting discovery concerning Crawford's whereabouts from and after 1992. Thus, the trial court provided plaintiffs with ample opportunity to conduct discovery concerning the issues material to Crawford's motion. Notwithstanding that fact, plaintiffs failed to submit any evidence tending to show that they could state a claim against Crawford upon which relief could be granted. From a legal standpoint, the trial court acted within its discretion and in accordance with the Civil Rules. A trial court has broad discretion in controlling the discovery process. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57. Consequently, the provisions of Civ.R. 56(F) are discretionary, not mandatory. Clark County Solid Waste Management Dist. v. Danis Clarkco Landfill Co. (1996), 109 Ohio App.39 19, 38; Carlton v. Davisson (1995), 104 Ohio App.3d 636, 648. An appellate court cannot overturn a trial court's ruling on discovery matters absent an abuse of discretion. Id.; Baynard, dba BBF Business Systems v. Oakwood Village (Oct. 16, 1997), Cuyahoga App. No. 71711, unreported at 12. Even when an abuse of discretion results, a judgment preventing further discovery will not be reversed unless the ruling causes substantial prejudice. Shaver v. Standard Oil Co. (1995), 68 Ohio App.3d 783, 800. Plaintiffs' failure to 14 discover sufficient evidence during the time allowed did not result in legal prejudice. The fact that plaintiffs did not obtain discovery from State Farm does not, in any way, effect the appropriateness of the trial court's ruling on State Farm's motion to dismiss. While the scope of discovery is broad, a trial court has the power to limit discovery to prevent fishing expeditions for incriminating evidence. Georgeoff v. O'Brien (1995), 105 Ohio App.3d 373, 379. Plaintiffs' amended complaint failed to allege any facts giving rise to a colorable claim against State Farm. The trial court properly precluded plaintiffs from conducting discovery in an attempt to manufacture a claim against State Farm. Plaintiffs also argue that the trial court erred by not sua sponte ordering State Farm to answer certain discovery propounded by plaintiffs. It is a fundamental rule of procedure that the party seeking discovery bears the obligation of seeking an order to compel responses. Civ.R. 37. The court is not automatically involved. The party seeking discovery must take affirmative action in the form of a motion to compel in order to invoke the court's intervention. Delguidice v. Randall Park Mall (June 4, 1992), Cuyahoga App. No. 60625, unreported at 4. That was not done. Assignment of Error III is overruled. Judgment affirmed. 15 It is ordered that appellees 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 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. BLACKMON, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .