Thus, if the insured's claim was timely filed within the applicable limitations period, so is the subrogation claim of the intervening insurer. See Yeater v. Bob Betson Ent., 7th Dist. No. 04-BE-46, 2005-Ohio-6943, ¶ 20; Kash v. Buckeye Air Compressor (Feb. 11, 1994), 2d Dist. No. 14123; Marion v. Baker (1987), 42 Ohio App.3d 151; Holibaugh v. Cox (1958), 167 Ohio. St. 340.
By order filed February 12, 2007, the trial court granted the motion, and the intervening complaint was filed same date. {¶ 21} As our brethren from the Tenth District noted in Marion v. Baker (1987), 42 Ohio App.3d 151, if a party could qualify under Civ.R. 19(A) or (B), then the intervening subrogor can be joined. Civ.R. 19(A) and (B) state the following:
However, a motion to intervene relates back to the insured's institution of the action against the tortfeasor even if the motion was filed after the statute of limitations expired. Marion v. Baker (1987), 42 Ohio App.3d 151, 153, 537 N.E.2d 232. Appellees filed their suit on May 25, 2001, within the statute of limitations. Appellant is attempting to protect a contractual right, the UIM policy.
In a case where a party could have been joined as a person needed for just adjudication, pursuant to Civ.R. 19, a motion to intervene under Civ.R. 24 is said to "relate back" to the time of filing of the initial suit, so is rendered timely. Marion v. Baker (1987), 42 Ohio App.3d 151. {¶ 23} We decline to engage in an analysis of whether the 24 claims raised by PDD against HER and the Roudas were viable at the time of HER's initial complaint, as such, an analysis depends upon factual questions regarding whether PDD knew or, in the exercise of reasonable diligence, should have known of any wrongdoing by HER within the appropriate time periods contained in the various statutes of limitations.
Likover v. Cleveland (1978), 60 Ohio App.2d 154, 157; Cincinnati Ins. Co. v. Twedell (1998), 100 Ohio Misc.2d 25, 28-29.Holibaugh v. Cox (1958), 167 Ohio St. 340; Marion v. Baker (1987), 42 Ohio App.3d 151, 153-155. {¶ 17} Applying this rationale to the case at bar, Christian and C S Trucking's claims, including property damage and loss of profits, arise out of the same transaction or occurrence asserted in the original claim and, therefore, relate back to the commencement of the action.
In Range v. National R.R. Passenger Corp., the United States District Court for the Western District of New York declined to dismiss an intervening insurer's claim, saying that "intervention by an insurance carrier to protect its subrogation rights is, in effect, a substitution of the real party in interest which relates back to the time of filing of the original complaint so as to prevent a statute of limitations bar." Range v. National R.R. Passenger Corp., 176 F.R.D. 85, 88 (W.D.N.Y. 1997); see also Marion v. Baker, 537 N.E.2d 232 (Ohio Ct. App. 10 Dist. 1987) (stating that an insurer's intervention was permitted after two year limitation period had run). ¶ 21.
Likewise, the fact that appellant may have settled with Globe for less than the policy limits does not preclude appellant from suing appellees. See Marion v. Baker (1987), 42 Ohio App.3d 151, where the Tenth Appellate District allowed a similar case to proceed, but required the trial court to allow the insurer to intervene in the cause of action against the uninsured motorist. There exist various practical reasons why a plaintiff may settle with an insurance company for less than their total amount of damages before suing the uninsured motorist.
On September 24, 1998, Twedell filed a motion to dismiss Arnold's counterclaim. Arnold's motion to intervene was filed after the expiration of the statute of limitations. Pursuant to Civ.R. 24 and Marion v. Baker (1987), 42 Ohio App.3d 151, 537 N.E.2d 232. Arnold is requesting permission to intervene as a third-party defendant so that it may join Zimmerman's property damage claim in the form of a counterclaim against Twedell for property damage to its vehicle. In its motion, Arnold alleged that Zimmerman was driving its truck at the time of the accident.