IN THE SUPREME COURT OF OHIO

HASTINGS MUTUAL INSURANCE : CASE NO. 2008-0199COMPANY,

Appellant, On Appeal from the Mahoning CountyCourt of Appeals, Seventh Appellate

vs. . District

TRACY R. HALATEK, et al., Court of AppealsCase No. 2006-MA-102

Appellees.

MEMORANDUM IN RESPONSE TO JURISDICTIONOF APPELLEE JOHN R. GIANNINI

Adam L. Sperling (#0062943)ANZELLOTTI, SPERLING, PAZOL& SMALL CO., L.P.A.21 N. Wickliffe CircleYoungstown, Ohio 44515(330) 792-6033Fax No. (330) 793-3384Email: calidart@aol.com

COUNSEL FOR APPELLEE, JOHN R. GIANNINI

Thomas J. Wilson (#0009125) (COUNSEL OF RECORD)Bobbie L. Flynt (#0066909)COMSTOCK, SPRINGER &WILSON CO., L.P.A.100 Federal Plaza East, Suite 926Youngstown, Ohio 44503(330) 746-5643Fax No. (330) 746-4925Email: tjw@csandw.com

blf@csandw.com

FE.r, ?_ 5 aJ

CLERK OF CUURTSU!'RCME COU`^T OF OHIj

COUNSEL FOR APPELLANT, HASTINGS MUTUAL INSURANCE COMPANY

TABLE OF CONENTS

Page

EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A MATTER OFPUBLIC OR GREAT GENERAL INTEREST ................................................................1

STATEMENT OF THE CASE AND FACTS ...................................................3

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .................................6

Proposition of Law No. 1: Sworn deposition testimony, which is based uponpersonal knowledge, is at least as good as an affidavit and, as such, iscompetent summary judgment evidence ............................................6

CONCLUSION .................................................................................................. . .. . . . . ...11

PROOF OF SERVICE ....................................................................................................13

APPELLEE'S EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE AMATTER OF PUBLIC OR GREAT GENERAL INTEREST

This appeal arises from the Seventh District Court of Appeals' decision that Tracy

Halatek's deposition testimony is competent evidence for summary judgment purposes.

Ms. Halatek's deposition was obtained in an underlying personal injury action

(hereinafter "the underlying action") as opposed to the subject coverage litigation.

In the underlying action, Appellant Hastings Mutual Insurance Company denied

liability coverage to Ms. Halatek. Appellant then tendered a defense to Ms. Halatek

subject to a reseivation of rights. Ms. Halatek's deposition testimony was secured in the

underlying action. Her deposition testimony was based upon her personal knowledge and

was given under oath with counsel present on her behalf. Appellant Hastings was not a

party to underlying action and accordingly was not present at Ms. Halatek's deposition.

The Seventh District Court of Appeals determined Ms. Halatek's deposition

testimony from the underlying action was competent evidence, which could be

considered for summary judgment purposes in the instant coverage action. The court of

appeals concluded said testimony "should be considered just as good as an affidavit

which is permissible under Civ.R. 56(C)." (Court of Appeals Opinion, ¶25).

The court of appeals reached its well-reasoned decision after giving full

consideration to Appellant's arguments relative to Civ. R. 56(C) and Civ.R. 32(A).

Appellant now attempts to take a third "bite at the apple" before this Honorable Court

regarding an issue that has been fully considered and properly ruled upon at both the trial

court and appellate levels. Moreover, Appellant is attempting to place before this

Honorable Court an issue that does not involve a inatter of public or great general

interest.

Whetlier the issue presented is one of public or great general interest rests within

the discretion of this Court, Williamson v. Rubich (1960), 171 Ohio St. 253. Historically,

the issues accepted pursuant to this discretion have wide-ranging implications for the

citizens of Ohio. See for exansple, Steele v. Flamilton Cty. Community Mental Health Bd.

(2000), 90 Oliio St.3d 176 (addressing the administration of antipsychotic medication to

involuntarily connnitted mentally ill patient without the patient's consent); and Danis

Clarlcco Landfill Co. v. Clark County Solid Waste Management Dist. (1995), 73 Ohio

St.3d 59 (addressing the construction of statutes governing county competitive bid

requirements).

Appellant contends this Honorable Court should accept jurisdiction of this case

because it involves a matter of public or great general interest. In an attempt to persuade

this Court, Appellant erroneously characterizes the appellate court's decision as a result,

which "disregarded Ohio Civil Rules 32(A) and 56(C)" and "ignore[d] the mandates of

the Ohio Rules of Civil Procedure" thereby "overtbrow[ing]" the protections afforded by

those rules. (Memorandum In Support of Jurisdiction at 1). Appellant ominously

forecasts "the implications of this [appellate court] decision will be felt by all present and

future civil litigants", as it will foster public doubt in the judicial system, create an

unpredictable playing field, and hurl the civil litigation system into a state of "chaos".

(Memorandum In Support of Jurisdiction at 1, 2, 3).

Appellant's characterizations and predictions, while dramatic and dire, are

inaccurate and overstated. A complete review of the record reflects that prior to

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rendering its decision, the appellate court fully considered Civ.R. 56(C), Civ.R. 32(A),

the facts at issue, and pertinent Ohio case law. Thereafter, the appellate court determined

the deposition testiinony of Tracy Halatek was competent summary judgment evidence in

this matter. This appellate court's decision is wholly consistent with Ohio's Rules of

Civil Procedure. Contrary to Appellant's suggestions this decision does not threaten the

civil justice system, as we lrnow it, and does not warrant review by this Honorable Court.

At its sirnplest, the appellate court's decision to consider the deposition testimony

of Tracy Halatek is not a matter, which invokes legal principles of public or great general

interest. Because principles of public or great general interest clearly are not at stake, this

Honorable Court should not accept jurisdiction over this matter.

STATEMENT OF THE CASE AND FACTS

This coverage action arose as the result of a one-car automobile collision, which

occurred on January 1, 2003. The collision resulted in the death of the driver, Brian

Skinner. The passenger, Appellee Giannini, sustained very serious bodily injuries.

(Court of Appeals Opinion, ¶2).

When the collision occurred, Mr. Skinner was operating a vehicle, which his

sister, Tracy Halatek, had rented for his use. (Court of Appeals Opinion, ¶2). At the time

Tracy Halatek rented the vehicle for Mr. Skinner, she advised Enterprise Rent-A-Car the

vehicle would be covered through insurance issued to her company, Gutter King.

Gutter King was a named insured under a business auto policy issued by

Appellant Hastings. (Court of Appeals Opinion, ¶4). Gutter King was a home

improvement business that Robert C. Halatek, Jr. and Tracy Halatek had started in 1984

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following their marriage. (Court of Appeals Opinion, ¶38). Robert and Tracy Halatek

were the sole owners of Gutter King. (Court of Appeals Opinion, ¶38). Tracy Hatatek

maintained her ownership interest in Gutter King until the Halatek's divorce was

finalized. (Court of Appeals Opinion, ¶51). The Decree of Divorce was filed September

15, 2003 - more than eight months after the subject collision. (Court of Appeals

Opinion, ¶52).

On July 16, 2004, Appellee Giannini filed the underlying action, which is entitled

John R. Giannini v. Tracy R. Halatek, et al., Mahoning County Case Number 04 CV

2451. The defendants in the underlying action included Tracy Halatek, Stella Skinner,

Adniinistratrix of the Estate of Brian Skinner, Erie Insurance Company, and Progressive

Preferred Insurance Company. Appellant Hastings denied liability coverage, but

tendered a defense to Tracy Halatek in the underlying action subject to a reservation of

rights.

On March 29, 2005, Appellant Hastings filed a declaratory judgment action

against Tracy R. Halatek, John R. Giannini, Stella Skinner, as Administratrix of the

Estate of Brian Skinner, Erie Insurance Company, Progressive Preferred Insurance

Company, and Progressive Insurance Companies. Appellant Hastings alleged it had no

duty to defend or indenmify Tracy Halatek or Stella Skinner, Administratrix of The

Estate of Brian Skinner, relative to the claims for damages asserted by Appellee Giannini

in the underlying action.

On December 6, 2005, Appellant Hastings filed a motion for summary judgment.

Appellant Hastings relied solely upon its own pleadings (i.e. an Amended Complaint).

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No affidavits or any other supporting documentation accompanied Appellant Hasting's

motion for summary judgment.

Appellee Gainnini, Appellee Erie, and Appellee Progressive each filed responsive

memorandum as well as their own cross motions for summary judgment regarding

coverage. In their respective briefs, each Appellee cited to Tracy Halatek's deposition

testimony, which had been taken in the underlying action. At the time her deposition was

taken, Ms. Halatek was represented by counsel. Her attorney was present at her

deposition. Ms. Halatek's deposition testimony was taken under oath. Her testimony

was based upon her personal knowledge.

In addition to Ms. Halatek's deposition testimony, Appellee Giannini filed other

supporting docunients as part of the record. These documents included a certified copy

of the Halatek's Decree of Divorce and a certified copy of a pleading from the Halatek's

divorce proceedings.' The Decree of Divorce reflects a division of property.in which

Robert Halatek received Gutter King, amongst other items, and Tracy Halatek received

the marital residence, amongst other items. This division of property occurred months

after the subject collision. The certified domestic pleading, which was filed only two

weeks before the subject collision, identifies Tracy Halatek and Robert Halatek as joint

owners of Gutter King.

In its response/reply brief, Appellant Hastings claimed Ms. Halatek's deposition

testimony was not competent summary judgment evidence because her deposition had

been taken in the underlying action. Other than attempting to exclude the Halatek

1 The above-referenced Decree of Divorce and other certified pleading are attached toAppellee Giannini's original motion for summary judgment as Exhibit B and Exhibit Crespectively.

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testimony, Appellant Hastings offered no evidence by way of deposition, affidavit,

stipulation, admission, transcript, etc. to either support its motion for summary judgment

or to oppose Appellees' respective motions for summary judgment. Appellant simply

rested on the mere allegations or denials of its pleadings.

In a June 8, 2006 Judgment Entry, the trial court denied Appellant's motion for

summary judgment and granted the motions for summary judgment filed by Appellee

Giannini, Appellee Erie, and Appellee Progressive.

Appellant Hastings appealed to the Seventh District Court of Appeals. In an

opinion and Journal Entry filed December 11, 2007, the Seventh District Court of

Appeals affirmed the trial court's Judgment.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Appellee Giannini's Proposition of Law No. 1: Sworn deposition

testimony, which is based upon personal knowledge, is at least as good as

an affidavit and, as such, is competent summary judgment evidence.

Appellant Hastings alleges the appellate court erred in ruling the deposition

testimony of Tracy Halatek was competent summary judgment evidence. Appellant is

wrong. Both the trial court and the appellate court appropriately considered Tracy

Halatek's deposition testimony, which was taken in the underlying action, but filed as

part of the record in the subject declaratory judgment action.

An argument comparable to Appellant's was considered and rejected by the

Second District Court of Appeals in Napier v. Brown (1985), 24 Ohio App.3d 12. In

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Napier, the appellant filed a wrongful death action against Ross Brown in the court of

common pleas. Following Brown's deposition, appellant filed an amended complaint

adding Charles Wilmot d/b/a Madison Inn as a defendant. Subsequent to adding Wilmot

as a defendant, appellant settled his claim against Brown, who was dismissed from the

case with prejudice. After several more depositions, including a second deposition of

former defendant Brown, defendant Wilmot filed a motion for summary judgment. The

motion relied, in part, upon the second deposition of Brown. In the motion for summary

judgment, defendant Wilmot contended that Brown's first deposition, which preceded his

inclusion as a party to the litigation, was inadniissible hearsay.

The trial court granted Wilmot's motion for summary judgment holding that

because Wilmot did not become a party to the action until after Brown's first deposition,

he did not have a chance to cross-examine Brown on these prior statements and,

therefore, the earlier deposition testimony could not be considered.

Reversing the trial court, the appellate court stated as follows:

We hold on these facts, a deposition may be considered on a motion forsummary judgment for the purpose of determining whether a genuineissue of material fact exists, regardless of the likelihood that the depositionmay be inadmissible evidence against the party at trial.

Civ.R. 56(C) expressly permits depositions to be considered on a motionfor summary judgment. Although generally deposition testimony must beadmissible (see Civ.R. 32 and the Rules of Evidence), a number of courtsand comnientators have rejected the notion that these rules govern the useof deposition testimony at a hearing or proceeding at which evidence inaffidavit form is admissible.... Further, these authorities specifically standfor the proposition that depositions taken prior to the joinder of a partymay be considered in the nature of affidavits in support of or in oppositionto a motion for summary judgment as long as the testimony at issue isadmissible in affidavit form. Under this view, a deposition is at least asgood as an affidavit and should be employed whenever an affidavit wouldbe permissible, even though the conditions required by Civ.R. 32 for useof depositions at trial may not be satisfied.... Further, these authorities

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place heavy emphasis on the fact that on a motion for summary judgment,the statements are not offered in the form of prior deposition testimony butin the form of testimony of a presently available witness. Accordingly, weadopt this reasoning and hold that in this case, a deposition taken prior tothe joinder of a party, containing sworn statements of the deponent basedupon personal knowledge, may be considered as an affidavit in oppositionto a motion for summary judgment as long as the deponent is presentlyavailable to testify at trial.

Napier, 24 App.3d at 14-15.

Similarly, in Gerken v. Mir (Nov. 30, 1995), Mercer App. No. 10-95-7,

unreported, the Third District Court of Appeals rejected a theory identical to that offered

by Appellant Hastings. In Gerlcen, a medical malpractice action was filed against the

appellee and a second physician. The appellee was voluntarily dismissed. Subsequently,

a deposition was taken of a medical expert on behalf of the remaining defendant. The

expert rendered opinions regarding the negligence of the previously dismissed appellee.

An amended complaint then reinstated the appellee as a party defendant. After being

renamed as a party defendant, the appellee filed a motion for summary judgment and a

motion in limine requesting that the expert deposition not be considered for summary

judgment purposes because the deposition had been taken when the appellee was not a

party to the action. The appellee in Gerken contended he had no notice of the taking of

the deposition and was absent from the deposition for cross-examination oumoses (i.e.

absolutely identical arguments to those offered by Appellant Hastings).

The trial court concluded the deposition failed to meet the requirements of Civ.R.

32 and excluded the testimony. Upon reversing the trial court, the appellate court stated,

"While Civ.R. 32(A) provides that at trial a deposition may only be used against a party

who was present or represented at the taking of the deposition or who has reasonable

notice thereof, the Napier court found that such an analysis was infirm in respect to

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determining whether sunimary judgment should be granted". Id. at p. 2. Holding that the

deposition was appropriate summary judgment evidence, the court concluded, "... such a

deposition is at least as good as an affidavit which is allowed by Civ.R. 56". Id.

Other decisions have also followed the rationale of Napier. In Willey v. Owens-

Corning Fiberglass Corp. (Mar. 2, 1994), Monroe App. Nos. 703, 704, 705, 706, 707,

708, unreported, the Seventh District Court of Appeals considered (for summary

judgment purposes) testimony, which had been provided under oath as part of a West

Virginia lawsuit. The court stated, "we hold that transcribed deposition testimony given

under oath in a separate legal proceeding is an item that can be considered by a trial court

in ruling on a motion for summary judgment." Id. at p. 3. Similarly, in Teichman v.

Tripodo (Sept. 6, 1990), Cuyahoga App. 57419, unreported, the Eighth District Court of

Appeals stated, "[fJor sake of argument, we will note that sworn deposition testimony

from a prior case is properly considered as an affidavit when used in support of a motion

for summary judgment" Id. at p. 2 citinQ Napier v. Brown (1985), 24 Ohio App.3d 12.

Finally, in Newland v. Amin (1991), 75 Ohio App. 3d 616, 619, the Third District Court

of Appeals cited favorably to Napier's rationale concerning the use of deposition

testiniony.

In response to the clear authority outlined above, Appellant has cited to a footnote

in Dillon v. Medical Center Hospital (1993), 98 Ohio App.3d 510. However, Dillon does

not in any way contradict the aforementioned authorities regarding the proposition before

this Honorable Court. Rather, in Dillon, the court simply noted that a party against whom

a deposition from prior litigation was used could have objected to the use of the same due

to opposing counsel's failure to file the deposition as part of the transcript of evidence in

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the subsequent litigation. However, the parties "did not object to the fact that no one

filed the depositions in [the subsequent] case" and any resulting error was deemed

waived. Thus, regarding the use of depositions from prior litigation, Dillon only

addressed the need to file those depositions as part of the transcript in the subsequent

litigation. The deposition of Tracy Halatek has clearly been filed as part of the record in

this declaratory judgnient action. As such, Dillon is not applicable.

In a final desperate attempt to exclude Halatek's deposition testimony, Appellant

Hastings boldly alleges it has been "blind sided with a deposition at which it had no

opportunity to cross-examine the witness on issues relevant to its declaratory judgment

action". (Memorandum In Support of Jurisdiction, p. 7).

Appellee Giannini takes exception to the notion that Appellant Hastings has been

"blind sided" in this matter. Appellant Hastings filed the instant declaratory judgment

action in March 2005. Yet, over the passage of time, the record is entirely devoid of any

evidence to suggest Appellant Hastings issued any written discovery, requested any

depositions, obtained any evidence contemplated by Civ. R. 56(C), or sought any

additional time contemplated by Civ. R. 56(F). The record is equally devoid of any

evidence to suggest Tracy Halatek has been unavailable to testify. The opportunity to

take Ms. Halateks' deposition and/or discover contravening evidence, assuming any such

evidence exists; was certainly available, but Appellant Hastings simply chose not to do

so.

Tracy Halatek's deposition in the underlying action was taken pursuant to proper

notice. She was represented by counsel. She testified under oath. She was cross-

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examined by multiple parties and provided sworn statements based upon her personal

knowledge.

Appellant Hastings's assertion that the deposition of Tracy Halatek is not

competent sunnnary judgment evidence is contrary to Ohio's Rules of Civil Procedure

and Ohio case law. Pursuant to the rationale of Napier, Ms. Halatek's deposition is no

worse than the sworn testimony of an affidavit, which neither allows for cross-

examination nor requires notice prior to its creation. The trial court and appellate court

properly considered the deposition testimony of Tracy Halatek.

Finally, the significance of Tracy Halatek's deposition testimony is that it

supports the fact that she owned Gutter King at the time of the subject collision.

However, in the unlikely event this Honorable Court exercises discretionary jurisdiction

over this appeal and in the unlikely event this Honorable Court deems Tracy Halatek's

deposition testimony is not competent summary judgment evidence, Appellee Giannini

asserts there is other competent, uncontroverted evidence in the record (e.g. See above-

referenced Decree of Divorce and certified domestic pleading) that proves Ms. Halatek's

ownership of Gutter King. Therefore, the proposition of law raised by Appellant

Hastings is moot, as even in the absence of Ms. Halatek's deposition testimony, there is

other unchallenged evidence, which necessitates the same result reached by the trial court

and the appellate court in this matter.

CONCLUSION

For the foregoing reasons, Appellee Giannini respectfully requests that this

Honorable Court refuse to accept jurisdiction in this case as it does not involve a matter

of public or great general interest. However, in the event this Honorable Court accepts

11

jurisdiction, Appellee Giannini requests that this Honorable Court conclude the

deposition testimony of Tracy Halatek was properly considered for summary judgment

purposes by the trial court and the appellate court.

Finally, in the unlikely event jurisdiction is accepted and the Court determines the

deposition testimony of Tracy Halatek is not competent summary judgment evidence,

Appelle Giannini respectfully requests that this Honorable Court deem the matter moot,

as there is other uncontroverted evidence in the record that necessitates the result reached

at the appellate level.

Respectfully submitted,

dam L. S` erling (#0062943)ANZEL TTI, SPERLING, PAZOL& SMA L-L O., L.P.A.21 N. Wick^ffe CircleYoungstown, OhioTel: 330-792-6033Fax: 330-793-3384Email: asperling@aspands.com

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CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum In Response was mailed, via regular U.S.

Mail, this 25"' day of February 2008 to the following:

Thomas J. Wilson, Esq.Bobbie L. Flynt, Esq.Comstock, Springer & Wilson Co. LPA100 Federal Plaza East, Suite 926Youngstown, Ohio 44503Attorneys for Appellant Hastings

Larry D. Wilkes, Esq.The Commerce Building, Suite 100201 East Commerce StreetYoungstown, Ohio 44503Attorney for Appellee Skinner

Maureen A. Walsh, Esq.3660 Stutz Drive, Suite 100Canfield, Ohio 44406Attorney for Appellee Progressive

Andrew M. Wargo, Esq.2000 Illulninating Building55 Public SquareCleveland, Ohio 44113Attorney for Appellee Clerac, Inc.& Appellee Enterprise

Christopher A. Tipping, Esq.3475 Ridgewood RoadAkron, Ohio 44333

John P. Susany, Esq.Carrie M. Roush, Esq.Scott J. Robinson, Esq.1512 Ohio Edison Building76 S. Main StreetAkron, Ohio 44308Attorney for Appellee Erie

Tracy R. Halatek (pro se)4355 S. Duck Creek RoadP.O. Box 602North Jackson, Ohio 44451Appellee

.r`

Adam Ler^ng (#0062943)Attorne for ppellee Giannini

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