No. CA88-06-048.

57 Ohio App. 3d 116 (1988)


Court of Appeals of Ohio, Warren County.

Decided December 30, 1988.

Attorney(s) appearing for the Case

Scott H. Ray, Jr., for appellants.

Lindhorst & Dreidame and William M. Cussen, for appellee Dairyland Insurance Co.

Per Curiam.

This cause came on to be heard upon an appeal from the Warren County Court of Common Pleas.

This action arose as the result of an automobile accident on December 19, 1982, involving plaintiff-appellant, Joshua Fisher, and Thomas A. Lewis. Appellant filed suit on March 5, 1984, alleging negligence on the part of Lewis and negligent entrustment on the part of Sonia McCollister, the owner of the automobile that Lewis was driving. The complaint also included a claim for loss of consortium by appellant's wife, Betty Fisher.

Appellant and his wife settled their claims against Lewis for $40,000 and executed a release in his behalf. On August 25, 1986, the trial court entered a default judgment on the remaining claims against McCollister, but reserved ruling on the damages issue pending a hearing. On December 1, 1986, McCollister filed a notice of federal action indicating that she filed a voluntary petition in bankruptcy on October 24, 1986 and had listed the August 25 judgment in her schedule of debts. On January 6, 1987, the trial court awarded appellant $40,000 on his claim against McCollister, but found no evidence of damages on his wife's loss of consortium claim.

When the judgment against McCollister went unsatisfied, appellant filed a supplemental petition pursuant to R.C. 3929.06 against defendant-appellee, Dairyland Insurance Company, which had issued a financial responsibility bond to McCollister. On January 9, 1988, appellee moved for summary judgment on the supplemental petition on the grounds that the financial responsibility bond did not apply to judgments based on negligent entrustment, that the judgment had been discharged in bankruptcy, and that McCollister had previously released a joint tortfeasor for the full amount of the judgment. The trial court ruled that appellee was not liable under the bond and granted the motion for summary judgment. Appellant then brought the instant appeal, arguing in a single assignment of error that the trial court erred in granting summary judgment in favor of appellee.

In its motion for summary judgment, appellee argued that the financial responsibility bond did not insure McCollister against a judgment based on a theory of negligent entrustment. In support of this argument, appellee attached a bond form which included language limiting coverage to judgments resulting from the principal's personal operation of a motor vehicle. Attached to this form was the affidavit of Cheryl Austin, who attested "to the best of her knowledge, information, and belief" that the form was identical to the bond issued to McCollister. The trial court accepted these evidentiary materials and granted summary judgment on the basis of the personal operation clause in the bond form.

We find the award of summary judgment on the basis of Austin's affidavit and the bond form to be erroneous. Civ. R. 56(E) requires that affidavits in support of summary judgment be made on personal knowledge, setting forth facts that would be admissible in evidence, and showing affirmatively that the affiant is competent to testify to the matters stated therein. Austin's affidavit fails to meet these requirements. First, the affidavit, though made "to the best of her knowledge, information, and belief," does not set forth facts that would be admissible in evidence. The bond form which was attached is merely a blank form. It is not dated and it contains no information relating its terms to McCollister. Such a form clearly would not be admissible in evidence absent an allegation that the original was lost, destroyed, or otherwise unobtainable. Evid. R. 1002, 1004. Second, the affidavit does not affirmatively show that Austin is competent to testify to the matter stated therein. It does not identify Austin or her relationship to any of the parties or the basis of her knowledge of the facts to which she attests. Accordingly, the affidavit and bond form could not serve as the basis of an award of summary judgment. Appellant's sole assignment of error is sustained.

In order to prevent a reversal, appellee argues that it could not be held liable on the judgment against McCollister because that judgment was discharged in bankruptcy. This argument is without merit. Section 524(e), Title 11, U.S. Code provides that "[e]xcept as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt." Thus, an insurance company can be held liable under its contract for a judgment against its insured notwithstanding the discharge in bankruptcy of the insured. Kutza v. Parker (1962), 115 Ohio App. 313, 20 O.O. 2d 408, 185 N.E.2d 53; Nationwide General Ins. Co. v. Brown (1965), 4 Ohio App.2d 419, 31 O.O. 2d 358, 208 N.E.2d 767.

Appellee also argues that the release of Lewis for the full amount of the judgment against McCollister reduces the amount due from McCollister to zero pursuant to R.C. 2307.32(F)(1), which provides:

"(F) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or loss to person or property or the same wrongful death, the following apply:

"(1) The release or covenant does not discharge any of the other tortfeasors from liability for the injury, loss or wrongful death unless its terms otherwise provide, but it reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater[.]"

If appellant was the only claimant against Lewis and McCollister, we would agree that the $40,000 received in consideration for the release of Lewis should be credited toward the judgment against McCollister. See Shrout v. Black Clawson Co. (S.D. Ohio 1988), 689 F.Supp. 774, 782. However, the release in question purports to release the claims of both appellant and his wife against Lewis. There is no indication as to how the $40,000 was to be apportioned between appellant's negligent entrustment claim and his wife's loss of consortium claim. Thus, a question of material fact exists as to how much, if any, of the $40,000 should be credited toward the judgment against McCollister. Under such circumstances, summary judgment was clearly inappropriate.

The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, reversed and this cause is remanded for further proceedings according to law and not inconsistent with this decision.

Judgment reversed and cause remanded.



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