Summary
In Edwards v. Passarelli Bros., the Supreme Court held: "Where an advance payment is made to a possible tort-claimant upon condition that such payment is to be credited to the amount of any final settlement or judgment in favor of such tort-claimant, such sum shall be credited to any final judgment in a hearing upon a motion for an order for satisfaction of judgment."
Summary of this case from Fields v. MaysOpinion
No. 39941
Decided November 30, 1966.
Judgments — Entry of order of satisfaction — Motion for — Advance payment to possible tort-claimant conditional — Credited to final judgment.
1. A party who is entitled to an entry of an order of satisfaction of a judgment previously rendered against him may obtain an order for such entry on motion and proof of payment.
2. Where an advance payment is made to a possible tort-claimant upon condition that such payment is to be credited to the amount of any final settlement or judgment in favor of such tort-claimant, such sum shall be credited to any final judgment in a hearing upon a motion for an order for satisfaction of judgment.
APPEAL from the Court of Appeals for Mahoning County.
This cause arose out of an automobile accident occurring in Youngstown, Ohio, on October 13, 1962, wherein the vehicle of Passarelli Bros. Automotive Service, Inc., hereinafter referred to as defendant, struck the vehicle of Allard L. Edwards, hereinafter referred to as plaintiff, from the rear. Plaintiff suffered bodily injury and property damage. Thereafter, on November 27, 1962, and on January 17, 1963, sums totaling $1,574.25 were paid either directly to plaintiff or to South Side Hospital, Youngstown, Ohio, in payment of plaintiff's hospital bill. On each of the above occasions, payment was made by defendant's insurer on behalf of defendant pursuant to a written agreement (receipt) signed by plaintiff and acknowledged by two witnesses. A copy of the printed form used as the agreement follows:
"RECEIPT FOR ADVANCE PAYMENT
"(This is not a release)
"This is to acknowledge receipt of $ . . . . . paid on behalf of . . . . . to be credited to the total amount of any final settlement or judgment in my/our favor for alleged damages resulting from an accident on . . . . ., 19 . . . . at . . . . . I/We authorize that the above sum be distributed as follows: . . . . .
Date. . . . . . . . . . . . . . . . . . . . . . Claimant
. . . . . . . . . . . . . . . . . . . . . . . . Witness Spouse
. . . . . . . . . . . . . Witness "
The parties were later unable to agree on a settlement, and the case went to trial, which, on November 6, 1964, resulted in a verdict and judgment for plaintiff in the sum of $10,000.
On December 5, 1964, after the judgment of November 6 had become final, defendant paid into the office of the Clerk of the Court of Common Pleas the sum of $8,493.09 representing the amount of the judgment in full with interest and costs less the advance payments aggregating $1,574.25. On the same date, defendant filed a motion for the entry of an order of satisfaction of judgment.
The motion was heard by the court on December 10, 1964. At that time it was stipulated by all parties that all the information concerning the advance payments was known by all the parties and their attorneys before the time of the trial. Copies of the original drafts issued to plaintiff and the hospital and the receipts thereto were received in evidence.
Plaintiff was not present at this hearing. At the request of his counsel further hearing was continued to December 14, 1964. Plaintiff was again absent on December 14. A motion by plaintiff's counsel to dismiss defendant's motion for satisfaction of judgment was overruled.
Thereupon, the court, on March 5, 1965, entered its order of satisfaction of judgment.
That judgment was unanimously affirmed by the Court of Appeals.
The cause is before this court on an appeal as of right and pursuant to the allowance of a motion to certify the record.
Mr. Leo Waldman, for appellant.
Messrs. Pfau, Pfau Comstock, Messrs. Arter, Hadden, Wykoff Van Duzer, Mr. William E. Pfau, Jr., Mr. Thomas V. Koykka and Mr. William A. Kyler, for appellee.
The instant case presents a problem that is novel to Ohio and, perhaps, as counsel for defendant suggests, to the entire country. In essence, plaintiff is attempting to recover $11,574.25 from a $10,000 judgment.
Here, plaintiff has received $1,574.25 from defendant's insurer and has signed a receipt therefor. The receipt is clear and unambiguous. It states that a certain sum has been paid on behalf of a named person for alleged damages resulting from a certain accident and that such sum is to be credited to any final settlement or judgment won by the receiver of such certain sum. These terms are self-explanatory. Should there be no final settlement or judgment, nothing remains to be done, and the receiver of such sum has benefited by that amount. However, should a final settlement occur between the parties, or should the issue proceed through the courts to final judgment, then a sum equal to the advance payment is to be credited to such final settlement or judgment.
On its face, nothing herein seems difficult. Plaintiff, however, now seeks to benefit from the advance payments he has received, ignore the receipt he has signed and benefit again from the judgment rendered in his favor.
At the outset, we note that the very terms of the "Receipt for Advance Payment" create no right in defendant or his insurer until the existence of "any final settlement or judgment." That being so, defendant or his insurer has no existing right until the occurrence of such an event, and the provisions of the counterclaim statute, Section 2309.16, Revised Code, prohibit defendant from asserting any such right not already in existence at the time of the trial of this cause. In short, defendant could not assert a right to credit for advance payments at the trial of this cause because prior to final judgment therein no such right existed. Thus, plaintiff's argument that the principle of res judicata controls defendant's attempt to obtain credit for advance payments has no application to the case at hand. Further, we note both that insertion of such extraneous insurance matters would interfere with the trial and rules of evidence and that the terms of the agreement demonstrate that credit is to be applied to the judgment and not deducted from the verdict to arrive at the judgment. In view of this, defendant's only recourse is to assert his right to credit for advance payments after final judgment is rendered.
The question remains whether the proper procedure is to ask by a postjudgment motion for a credit toward satisfaction of the judgment. We hold that it is. See Chambers v. Pinson, 6 Ohio App.2d 66. It is the standard procedure in Ohio for the party who is entitled to an entry of satisfaction of a judgment rendered against him to obtain an order for such entry on motion and proof of payment. We see no distinction between this procedure and the case at hand.
In conclusion, we hold that where an advance payment is made to a possible tort-claimant upon condition that such payment is to be credited to the amount of any final settlement or judgment in favor of such tort-claimant, such sum may be credited to any such final settlement or judgment; and, if judgment is rendered, the proper procedure is to ask by postjudgment motion for a credit toward satisfaction of the judgment.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.