A Second Chance at Subrogation Recovery

A recent decision in Davis v. Dungeons brought to light two points of law that are interesting and worth sharing. First, the Court held where one or more defendants are granted summary judgment and if a plaintiff subsequently files a Civil Rule 41(A)(1)(a) Voluntary Dismissal of all Defendants, the prior summary judgment order is null. Therefore, the plaintiffs were able to refile a Complaint under the Ohio Savings Statute 2305.19 against all original defendants. Refiling was possible because the summary judgment ruling did not become final and appealable at the time of the decision or at the time of the prior voluntary dismissal.

Refile against the defendant essentially receiving a second chance to pursue recovery

The defendant who was previously granted summary judgment then filed a Motion to Dismiss for failure to state a claim under Civil Rule 12(B)(6). The basis was the Court had previously entered summary judgment in their favor. That defendant had also filed a Motion to Transfer the pleadings, discovery, deposition transcripts and videos that had been filed in the previously dismissed early action to the re-filed action. That Motion to Transfer had not been granted when the Trial Court ruled on the defendant’s Motion to Dismiss, which it had converted to a Motion for Summary Judgment. Therefore, the evidence necessary to grant the defendant summary judgment was not before the Trial Court and the First Appellate District remanded the case to the Trial Court.

Voluntary dismissal and the Ohio savings statute affect subrogation

Dealing with Civil Rule 41(A)(1)(a) and 2305.19 can be tricky. You need counsel who understands these statutes to determine how it may affect your file. If you had a file where a defendant was granted summary judgment and the case is dismissed without prejudice, contact one of our subrogation attorneys for review. You may get a second chance at recovery.