Opinion
No. 76599.
Decided November 13, 2000.
Civil appeal from the Court of Common Pleas Case No. CV-360488.
For Plaintiffs-Appellants: CARL NASH, ESQ., 683 Parkside Blvd., Cleveland, Ohio 44143.
For Defendant-Appellee: BEVERLY A. SANDACZ, ESQ., REMINGER REMINGER, 113 St. Clair Building, Cleveland, Ohio 44114.
JOURNAL ENTRY AND OPINION
Plaintiffs Maurial and James Taylor appeal from the order of the trial court which granted summary judgment to Meridia Huron Hospital (Meridia) in plaintiffs' action alleging negligence. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.
On July 29, 1998, plaintiffs filed this action against Meridia and alleged that on August 16, 1996, defendant undertook to conduct a CT examination of plaintiff Maurial Taylor and negligently positioned her, causing her to fall. Meridia denied liability and within a section of its answer designated Affirmative Defenses stated, This defendant reserves the right to assert that Plaintiffs' claim is barred by the applicable statute of limitations.
Plaintiff James Taylor asserted a loss of consortium.
Thereafter, Meridia filed a motion for summary judgment in which it asserted that plaintiffs were asserting a medical claim pursuant to R.C. 2305.11(D)(3) and that the claim was not filed within the one year limitations period set forth pursuant to R.C. 2305.11(B)(1) for filing such claims. In opposition, plaintiffs argued, inter alia, that Meridia waived the statute of limitation defense because it had reserve[d] the right to assert this defense but had not actually done so. On May 24, 1999, the trial court granted Meridia's motion for summary judgment and determined that the matter was not timely filed. Plaintiffs now appeal and assign two errors for our review.
Plaintiffs' first assignment of error states:
THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT WAIVED ITS STATUTE OF LIMITATIONS DEFENSE BY FAILING TO ASSERT IT AFFIRMATIVELY BY MOTION PRIOR TO FILING ITS ANSWER HEREIN OR IN ITS ANSWER.
Within this assignment of error, plaintiffs contend that Meridia waived the statute of limitations in this instance.
The Ohio Supreme Court has held that the affirmative defenses listed in Civ.R. 8 must be presented before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading pursuant to Civ.R. 8(C), or within an amended pleading pursuant to Civ.R. 15. Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 57; Carmen v. Link (1997), 119 Ohio App.3d 244, 250. The failure to utilize any of these methods results in a waiver of the affirmative defense. Id., citing Spence v. Liberty Twp. Trustees (1996), 109 Ohio App.3d 357, 366.
A party seeking to assert an affirmative defense pursuant to Civ.R. 8(C) is instructed by the language of the rule that the listed affirmative defenses must be set forth affirmatively[.] Courts construing this language have determined that a party must set forth the listed affirmative defenses with specificity or else they are waived. Arthur Young Co. v. Kelly (1993), 88 Ohio App.3d 343, 348. Furthermore, it is well-settled that these affirmative defenses cannot be asserted for the first time within a motion for summary judgment. Carmen v. Link (1997), 119 Ohio App.3d 244, 250. Moreover, it is well-settled that reserving a right is not the same as actually exercising that right. Cf. Lourdes College of Sylvania, Ohio v. Bishop (1997), 94 Ohio Misc.2d 51.
In this instance, Meridia's reservation of the right to assert the statute of limitations did not constitute the actual assertion of the statute of limitations as an affirmative defense. Further, at no time did Meridia submit an amended answer which included this affirmative defense. Rather, Meridia raised this defense in the proper manner for the first time within its motion for summary judgment. Under these circumstances, the defense of the statute of limitations was waived.
The first assignment of error is well-taken.
Plaintiffs' second assignment of error states:
THE COURT ERRED IN RULING THAT APPELLANT'S CLAIM IS A MEDICAL CLAIM SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS.
Plaintiffs next contend that this matter is not a medical claim and is therefore not governed by the one year limitations period set forth in R.C. 2305.11(B)(1).
Because we have determined that Meridia has waived the statute of limitations defense in this instance, this assignment of error is moot and we will not consider it herein. App.R. 12(A)(1)(c).
The judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this opinion.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellants recover of said appellees their costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
O'DONNELL, J., CONCURS.
BLACKMON, J., DISSENTS
_________________________________ ANN DYKE, ADMINISTRATIVE JUDGE
I respectfully dissent. The majority's opinion holds as a matter of law that Civ.R. 8(C) must be exactly complied with in all instances and if not, it is waived. I, on the other hand, believe that under some circumstances substantial compliance with Civ.R. 8(C) is sufficient.
Here, Meridia's answer pleading under the heading Affirmative Defenses stated the defendant reserves the right to assert that plaintiffs' claim is time barred by the appropriate statute of limitation. Because plaintiff fell from a radiology table during a diagnostic X-ray, Meridia did not readily ascertain the statute of limitations date. After deposing plaintiff, Meridia concluded plaintiff's claim was medical and time barred by the one-year statute of limitations. Instead of filing an amended answer, Meridia moved for summary judgment asserting the statute of limitations.
Plaintiff herein argues the reservation of rights is not the same as actually asserting the defense. I agree. However, the more fundamental question is whether under the circumstances of this case a reservation of rights is substantial compliance with Civ.R. 8(C).
An affirmative defense is a new matter, which assuming is true, constitutes a defense to a claim. Davis v. Cincinnati, Inc. (1991), 81 Ohio App.3d 116, 610 N.E.2d 496. An affirmative defense affects recovery, not the plaintiff's claim. Consequently, the failure to assert it is an issue of waiver and the fundamental question should center on the prejudice suffered by the non-compliance. Here, no prejudice exists. Appellant's lawyer, during oral argument, acknowledged that he read appellee's answer and knew of the planned statute of limitations' defense.
Consequently, this case evolves on the question of exact compliance versus substantial compliance. Substantial compliance has been historically used by the courts over the years when interpreting both criminal and civil rules. See State v. Caplinger (1995), 105 Ohio App.3d 567, 572, 664 N.E.2d 959, 962; State v. Fleischer (Aug. 10, 1993), Licking App. No. CA-3613, unreported; State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476; Firwood Inv. Co. v. Statt (Mar. 5, 1999), Montgomery App. No. 17206, unreported. The substantial compliance doctrine is a most effective way to achieve justice, and complete the court's business. After all, justice mandates that pleadings are liberally construed. Civ.R. 8(F), Carmen v. Link (1997), 119 Ohio App.3d 244, 249, 695 N.E.2d 28, 31; Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437, 443, 597 N.E.2d 1110, 1113-1114.
Additionally, this case is not synonymous with those cases where the affirmative defense is raised for the first time by a dispositive summary judgment motion. See Mossa v. W. Credit Union, Inc. (1992), 84 Ohio App.3d 177, 180, 616 N.E.2d 571, 573-574; Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 3-4, 465 N.E.2d 377, 378-380.
The requirement that a defendant raise any applicable affirmative defenses in his answer is designed to ensure that the plaintiff has sufficient notice of the defendant's defenses to prepare a proper response. Here, the defendant's answer included a reservation of the right to assert a statute of limitations defense and thereby notified the plaintiff that the defendant was considering raising that defense. The plaintiff has suffered no prejudice in this case.