Somers v. Ryan

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[Cite as Somers v. Ryan, 2003-Ohio-5337.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO KEVIN M. SOMERS, ET AL. : Plaintiffs-Appellees and : LIBERTY MUTUAL INS. CO. Intervening Plaintiff-Appellee vs. C.A. CASE NO. 19806 : : : T.C. CASE NO. 01CV6169 JOHN H. RYAN, ET AL.: Defendants-Appellees and FEDERAL INSURANCE COMPANY: Defendant-Appellant (Civil Appeal from Common Pleas Court) . . . . . . . . . O P I N I O N Rendered on the 3rd day of October, 2003. . . . . . . . . . Matthew J. Smith, Carmen C. Sarge, 1014 Vine Street, Suite 2350, Cincinnati, Ohio 45202-1119 Attorneys for Plaintiffs-Appellees Cullan J. Uhlinger, Atty. Reg. No. 0001808; Sarah E. Lovequist, Atty. Reg. No. 0073780, 55 Public Square #800, Cleveland, Ohio 44113 Attorneys for Intervening Plaintiff-Appellee Liberty Mutual Insurance Company Paul J. Winterhalter, 2700 Kettering Tower, Dayton, Ohio 45423-2700 Attorney for Defendant-Appellee, John H. Ryan Kevin C. Connell, One Dayton Centre, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 Attorney for Defendant-Appellee Erie Insurance Company Timothy J. Fitzgerald, Atty. Reg. No. 0042734; Robert H. Eddy, Atty. Reg. No. 0030739; Richard C.O. Rezie, Atty. Reg. No. 0071321, 1501 Euclid Avenue, 7th Floor Bulkley Bldg., Cleveland, Ohio 44115 Attorneys for Defendant-Appellant Federal Insurance Company . . . . . . . . . GRADY, J. {¶1} Federal Insurance Company ( Federal ) appeals from a summary judgment for Liberty Mutual Insurance Company ( Liberty Mutual ) which held that coverage offered by a policy of liability insurance issued by Liberty Mutual is pro rata with coverage offered under a policy of liability insurance issued by Federal. {¶2} Federal moved for summary judgment on the issue of pro rata coverage on January 10, 2003. Liberty Mutual moved for summary judgment on the same issue on January 13, 2003. The trial court granted Liberty Mutual s motion on the date it was filed. {¶3} Federal appeal. erred presents two assignments of error on In the first, Federal argues that the trial court in coverage. its determination of the issue of pro rata In its second assignment, Federal argues that the trial court erred when it granted Liberty Mutual s motion for summary judgment on the date the motion was filed, without affording Federal fourteen days in which to respond. We shall Accordingly, sustain we need the not second assignment determine the of first. error. App.R. 12(A)(1)(c). {¶4} Civ.R. 56(C) provides that a motion for summary judgment shall be served at least fourteen days before the time fixed for hearing, and that prior to the date of hearing the affidavits. opposing party may serve and file opposing However, the rule does not require that a hearing be held. Anania v. Daubenspeck Chiropractic (1998), 129 Ohio App.3d 516. If no hearing is held, and barring a more generous local rule, Civ.R. 56 gives a defender 14 days to prepare a response to the summary judgment motion. Hooten v. Safe Auto Insurance Co., 100 Ohio St.3d 8, 2003Ohio-4829, at paragraph 20. {¶5} Mont. Loc.R. 2.05 II. B.2 provides that parties opposing any motion shall file and serve memorandum in opposition within (14) days from the date on which the motion was served. Therefore, under the terms of the trial court s own rule, Federal had fourteen days from the date on which it was January 13, served a copy of Liberty Mutual s motion of 2003 within which to file a memorandum in opposition to the motion. A court may not act contrary to a procedure in its own local rules of court adopted pursuant to Article IV, Section 5(B) of the Ohio Constitution, when the procedure is not inconsistent with a rule promulgated by the Supreme Court. {¶6} Liberty Mutual argues that Federal was not prejudiced by the trial court s premature determination of Liberty Mutual s motion. Federal had presented arguments contra Liberty Mutual s on the same issue in support of the motion for summary judgment that Federal filed on January 10, 2003, three days before the trial court on July 13, 2003 granted Liberty Mutual s motion on the date it was filed. {¶7} This argument has some appeal. Civ.R. 56(C) affords an adverse party fourteen days within which to file opposing affidavits. Both motions presented the same issue of law, which would be decided from the terms on the face of the two policies. affidavits might be illuminate the issue. It is unclear what additional filed or how they might better However, when a local rule affords a party time within which to file a memorandum contra, an opposing party must be afforded fourteen days within which to do that. Hooten. Further, Mont. Loc.R. II. B.2 expressly confers on the opposing party fourteen days within which to file a memorandum in opposition, which is in form an arguendum, not a mere affidavit. Federal was entitled to file such a memorandum for the court s consideration. The trial court erred when it decided Liberty Mutual s motion when it did, which denied Federal that opportunity. {¶8} Federal s second of error is sustained. The judgment from which this appeal was taken will be reversed and the case remanded to the proceedings. FAIN, P.J. and YOUNG, J., concur. Copies mailed to: Matthew J. Smith, Esq. Carmen C. Sarge, Esq. Cullan J. Uhlinger, Esq. Sarah E. Lovequist, Esq. Paul J. Winterhalter, Esq. Kevin C. Connell, Esq. Timothy J. Fitzgerald, Esq. trial court for further Robert H. Eddy, Esq. Richard C.O. Rezie, Esq. Hon. Mary E. Donovan

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