In the Supreme Court of Ohio

Transcription

1 ] Ns In the Supreme Court of Ohio a 11 SAFECO INSURANCE COMPANY OF AMERICA, P. Plaintiff-Appellant, FEDERAL INSURANCE COMPANY, et ag, Defendants-Appellees. CLAIMED APPEAL OF RIGHT AND DISCRETIONARY APPEAL FROM THE FIRST APPELLATE DISTRICT, HAMILTON COUNTY, APP..N9 C MOTION BY APPELLEES F`EDERAL INSURANCE COMPANY AND PACIFIC INDEMNITY COMPANY TO STRIKE APPELLANT'S "NOTICE OF PENDING APPLICATION FOR RECONSIDERATION OF MOTION TO CERTIFY CONFLICT" FILED UNDER SEAL PURSUANT TO PENDING MOTION TO SEAL Jay C. Rice ( ) (Counsel ofrecord) Richard C.O. Rezie ( ) GALLAGHER SHARP Bulkley Building, Sixth Floor 1501 Euclid Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) jrice@gallaghersharp.com rrezie@gallaghersharp.com Counsel for Appellees Federal Insurance Company and Pacific Indemnity Company P. Christian Nordstrom ( ) Scott G. Oxley ( ) JENKS, PYPER & OXLEY Co., L.P.A. 901 Courthouse Plaza 10 N. Ludlow Street Dayton, Ohio Telephone: (937) 22 Facsimile: (937) 2 soxley@jpolawyers penordstrom@jpol F3001 FF om 44 Counselfor Appellant Safeco Insurance Company ofamerica QD UL^'RK(1FCUUR EB^,^COU ^^^HIO T

2 MOTION TO STRIKE "NOTICE OF PENDING APPLICATION FOR RECONSIDERATION OF MOTION TO CERTIFY CONFLICT" Now come Appellees, Federal hisurance Company and Pacific Indemnity Company ("Chubb"), by and through counsel, and respectfully request that this Honorable Court strike Safeco Insurance Company of America's ("Safeco") "Notice of Pending Application for Reconsideration of Motion to Certify Conflict" from the record. The First Appellate District filed its Opinion and Judgment Entry on December 28, Both the Opinion and the Judgment Entry specifically state: "conflict [sua sponte] certified." The Court of Appeals certified conflicts on two issues. On January 7, 2008, Safeco filed a motion to certify a different (single) conflict. Chubb opposed because it believed Safeco to be improperly attempting to raise a new issue by way of an certified conflict which had not been raised or briefed on appeal. On January 24, 2008, the Court of Appeals denied Safeco's motion to certify stating that: "In its judgment entry and opinion [of December 28, 2007], the Court sua sponte certified a conflict to the Ohio Supreme Court." (Emphasis added.) Safeco attempted to file its notice of the Court of Appeals' certification (dated December 28, 2007) with this Court on January 31, 2008 but that filing was rejected as untimely. In fact, Safeco admits that the "Clerk refused to accept" Safeco's notice of certified conflict "on the basis that the Notice was required to be filed January 28, 2008." (Notice of Pending Application for Reconsideration of Motion to Certify Conflict at 3-4.) Safeco then, on February 1, 2008, filed a motion for reconsideration of the denial of Safeco's motion to certify a conflict. Safeco asked the Court of Appeals to re-certify a conflict on the exact same two issues certified on December 28, Safeco stated no legitimate bases for reconsideration. See, e.g., State v. Owens (1997), 112 Ohio App. 3d 334, 336'; Matthews v. `"An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court."

3 Matthews (1981), 5 Ohio App.3d 140, 140z; Charvatv. Ryan, FranklinApp. No. 05AP-1331, Ohio-4592, 3; ErieIns. B'xchange v. ColonyDev. Corp. (2000),136 Ohio App.3d 419, 421; Oberlin Manor v. Lorain County Bd. of Revision (1994), 69 Ohio St. 3d 1, 2 (citing to the Matthews test). Rather, Safeco asked the Court of Appeals to issue a second order certifying the same issues to enable Safeco to get around the 30 day jurisdictional requirement set forth in S.Ct. Practice Rule IV, Section 1. Chubb has opposed for that reason. Safeco has now filed a "Notice of Pending Application for Reconsideration of Motion to Certify Conflict" (hereinafter "Notice of Application for Reconsideration") with this Court. There is no provision for such a "notice" under the Practice Rules of this Court. Rather, the rules of this Court specifically state that: 1) "When a court of appeals issues an order certifying a conflict pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution, any interested party to the proceeding may institute and appeal by filing a notice of certified conflict in the Supreme Court"; and 2) "Failure to file the court of appeals order certifying a conflict within 30 days after the date of such order shall divest the Supreme Court of jurisdiction to consider the order certifving a conflict." (Emphasis added.) S.Ct. R. IV, Section 1. Safeco concedes that the First Appellate District certified the conflict on December 28, 2007' and that Safeco did not attempt to file a notice of certified conflict in this Court until January 31, (Notice ofapplication for Reconsideration at 3.) Thus, Safeco's notice was untimely and this Court is "divested" "of jurisdiction to consider the order Z"The test generally applied upon the filing of a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court [ 1] an obvious error in its decision or [2] raises an issue for consideration that was either [a] not considered at all or [b] not fully considered by the court when it should have been." 3 Safeco states that the First Appellate District's Order was "atypical." (Notice of Application for Reconsideration at 3.) Be that as it may, Chubb respectfully points this Court to the "Judgment Entry" and "Opinion" dated December 28, 2007 attached to Safeco's notice of appeal and memorandum in support ofjurisdiction. Both specifically state: "conflict certified." There can be no dispute as to the meaning of this language.

4 certifying [the] conflict." Section 4 of S.Ct. R. IV provides for "a notice with the Supreme Court that a motion to certify a conflict is pending in the court of appeals." There is no provision for a notice of a pending motion to reconsider the denial of a motion to certify a conflict. Accordingly, Safeco's "Notice of Pending Application for Reconsideration ofmotion to Certify Conflict" should be stricken from the record and this Court should not "stay consideration of the jurisdictional memoranda filed in the discretionary appeal."" S.Ct. R. IV, Section 4. There is good reason why this Court, by Practice Rule, has limited its jurisdiction over certified conflicts and makes no mention of a motion for reconsideration of a motion to certify a conflict. Even at the appellate level: "The court may not enlarge or reduce the time for filing anotice of appeal or a motion to certify pursuant to App.R. 25." App.R. 14(B). Safeco is now asking the Court of Appeals to re-certify the same issues certified on December 28, 2007 based on a motion for "reconsideration" (which is, in reality, an untimely motion for certification). This creative briefing, however, does not re-invest this Court with jurisdiction. If Safeco's arguments are accepted, then the time limits placed on certified questions in both the Rules of Appellate Procedure and Supreme Court Rules of Practice will be meaningless. A party could file an endless series of motions for "reconsideration" suggesting endless, different, certified questions. Counsel for Chubb is not unsympathetic to Safeco's plight. Bad facts, however, should not be allowed to make bad law. Under the Practice Rules of this Court, Safeco had thirty days to file a notice of certified conflict with this Court. For whatever reason, Safeco allowed that time period to expire. The time period for seeking certification of a conflict from the Court of Appeals has also expired. Safeco cannot obtain a second certification order of the same issues previously certified on " The Chubb appellees have not yet filed their memorandum in opposition to jurisdiction but will do so in due course per Rule.

5 December 28, 2007 to remedy its failure to timely file the original, jurisdictionally mandated, notice with this Court. The issue is one of jurisdiction, not discretion. Therefore, Safeco's Notice of Application for Reconsideration should be stricken from the record. Respectfully submitted, Jay Clinton Rice ( ) (Counsel of Record) Richard C.O. Rezie ( ) GALLAGHER SHARP 6th Floor, Bulkley Building 1501 Euclid Ave. Cleveland, Ohio Telephone: (216) Facsimile: (216) Counsel for Appellees Federal Insurance Company and Pacific Indemnity Company

6 CERTIFICATE OF SERVICE A copy of the foregoing Motion to Strike was mailed by regular U.S. mail, postage pre-paid, this 13th day of February, 2008, to: P. Christian Nordstrom, Esq. Scott G. Oxley, Esq. Jenks, Pyper & Oxley Co., L.P.A. 901 Courthouse Plaza SW 10 N. Ludlow Street Dayton, Ohio Attorneys for Plaintiff-Appellant Safeco Insurance Company of America Stanley M. Chesley, Esq. Paul M. DeMarco, Esq. Louise M. Roselle, Esq. Waite, Schneider, Bayless & Chesley Co., L.P.A Fourth & Vine Tower Cincinnati, Ohio and Michael R. Barrett, Esq. Barrett & Weber 500 Fourth & Walnut Centre 105 E. Fourth Street Cincinnati, Ohio Attorneys for Defendants Casey, Steven and Megan Hilmer Michael D. Eagen, Esq. Dinsmore & Shohl LLP 225 East Fifth St. Suite 1900 Cincinnati, Ohio and Stephen A. Bailey, Esq. Martin & Bailey 120 E. Fourth St., Suite 420 Cincinnati, OH and Robert A. Pitcairn, Esq. Cynthia L. Gibson, Esq. Laura A. Hinegardner, Esq. 255 East Fifth St., Suite 2400 Cincinnati, OH Attorneys for Defendants Lance and Diane White James E. Burke, Esq. James Mathews, Esq Provident Tower One East Fourth St. Cincinnati, OH Attorney for Defendant Benjamin White v v ^ JAY CLINTON RICE ( ) RICHARD C.O. REZIE ( ) Attorneys for Appellees Federal Insurance Company and Pacific Indemnity Company