[Cite as Brown v. Gallagher, 2013-Ohio-2323.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

JOHN G. BROWN, : 

 : 

 Plaintiff-Appellant, : Case No. 12CA3332 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

JASON GALLAGHER, : ENTRY

 : 

 Defendant-Appellee. : Released: 05/31/13 

_____________________________________________________________ 

APPEARANCES:

James T. Boulger, Chillicothe, Ohio, for Appellant John G. Brown. 

Thomas M. Spetnagel, Chillicothe, Ohio, for Appellee Jason Gallagher. 

_____________________________________________________________ 

 

McFarland, P.J. 

{¶1} John G. Brown (Plaintiff-Appellant herein) appeals the decision 

of the Chillicothe Municipal Court dismissing his complaint which sought a 

contractual right of indemnification from Appellee. Having reviewed the 

record, we find the trial court’s judgment was not in error. Accordingly, we 

overrule Appellant’s assignment of error and affirm the judgment of the trial 

court. 
Ross App. No. 12CA3332 2

FACTS 

{¶2} We recount the facts as previously set forth in the first 

consideration of this matter, Brown v. Gallagher, 179 Ohio App.3d 577, 

2008-Ohio-6270. In 2002, Appellant’s vehicle collided into Appellee in 

Union Township, Ross County. At the time, Appellee was employed as a 

deputy sheriff with the Ross County Sheriff’s Department. As a result of 

injuries he sustained in the incident, Appellee brought a civil suit against 

Appellant. Before the case came on for trial, the parties entered into a 

settlement agreement. As part of that agreement and in consideration of 

$87,500.00, Appellee executed a document entitled “Release of All Claims,” 

in which he agreed to indemnify Appellant for “any and all claims, liability, 

and expense, including attorney fees, for any claim or demand of any party, 

and any claim or demand of any third party” resulting from the auto 

collision. The dispute in this case centers around the indemnification 

agreement. 

{¶3} Subsequent to the civil settlement, Appellant pleaded guilty to a 

charge of vehicular assault in the criminal case stemming from the same 

auto collision. Appellant was sentenced to 17 months in prison, though he 

was granted judicial release after serving only two. As part of Appellant’s 

sentence, he was further ordered to pay $7,923.44 in restitution to the Ross 
Ross App. No. 12CA3332 3

County Sheriff’s Department for leave payments the department had made 

to Appellee during his convalescence. 1

{¶4} As a result of being ordered to pay restitution in the criminal 

case, Appellant filed a complaint against Appellee in the Chillicothe 

Municipal Court for $7,923.44, based on the indemnification clause of the 

civil settlement agreement. Appellee then filed a motion to dismiss the 

complaint for failure to state a claim for which relief can be granted pursuant 

to Civ. R. 12(B). Appellant failed to respond to the motion. The trial court 

subsequently granted Appellee’s Civ.R.12(B) motion and dismissed the 

complaint. 

{¶5} Appellant filed a timely appeal of the trial court’s decision. This 

court agreed with Appellant’s argument that the trial court erred in granting 

Appellee’s Civ.R. 12(B) motion for failure to state a claim for which relief 

can be granted and sustained Appellant’s assignment of error. Our decision 

further noted there is no clear public policy in Ohio preventing the 

enforcement of the indemnification clause at issue. The case was remanded 

for further proceedings. 

 

1

 As noted in Brown v. Gallagher I: “[Due] to a change in the law, the kind of restitution order that gave 

rise to[ that appeal, and this one as well,] is no longer likely to occur. The statutory authority allowing a 

trial court to include an order of restitution during sentencing is found in R.C. 292918(A)(1). At the time 

of Appellant’s vehicular assault, R.C. 2929.18(A)(1) specifically provided that courts could order the 

offender to reimburse third parties for amounts paid to the victim. However, on June 1, 2004, the statute 

was amended and the references to third-party restitution were largely eliminated.” 
Ross App. No. 12CA3332 4

{¶6} On January 14, 2011, Appellant re-filed his complaint for 

indemnification.2 Appellee filed a timely answer. Eventually the parties 

filed a stipulation of facts for the trial court’s review in rendering a final 

adjudication on the merits. The parties supplemented their factual stipulation 

with exhibits containing the various court entries in order to make them part 

of the evidentiary record. On June 11, 2012, the trial court issued its 

decision dismissing the case. The trial court found Appellant had failed to 

establish entitlement to recover from Appellee based on: (1) his failure to 

provide Appellee notice of the claim for restitution, and (2) Appellant’s 

failure to provide Appellee an opportunity to defend against the claim for 

restitution. As a result, the current timely appeal ensued. 

ASSIGNMENT OF ERROR 

I. THE TRIAL COURT ERRED IN DENYING TO MR. BROWN HIS 

CONTRACTUAL RIGHT TO INDEMNIFICATION PROVIDED IN 

THE AGREEMENT WHICH SETTLED MR. GALLAGHER’S 

TORT CLAIMS AGAINST HIM. 

 

A. STANDARD OF REVIEW 

{¶7} Review of a trial court’s application of the law to stipulated 

facts is de novo. Clark v. Butler, 4th Dist. No. 12CA3315, 2012-Ohio-5618, 

at ¶ 9; see Wertz ex rel. Boyer v. Indiana Ins., 9th Dist. No. 21571, 2003-

 

2

 For reasons not entirely clear, Appellant voluntarily dismissed his complaint after the appellate court’s 

remand. 
Ross App. No. 12CA3332 5

Ohio-5905, at ¶ 4; Wayne Mut. Ins. Co. v. Parks, 9th Dist. No. 20945, 2002-

Ohio-3990, at ¶ 13; Cincinnati Ins. Co. v. Slutz, 5th Dist. No. CA-7109, 

1987 WL 18538 (Oct. 13, 1987). In other words, we afford no deference to 

the trial court and conduct our own independent review. Clark, supra, citing 

State v. Browning, 190 Ohio App.3d 400, 2010-Ohio-5417, 942 N.E.2d 394, 

at ¶ 13 (4th Dist.); State v. Poole, 185 Ohio App.3d 38, 2009-Ohio-5634, 

923 N.E.2d 167, at ¶ 18 (11th Dist.); White v. Emmons, 4th Dist. No. 

11CA3438, 2012-Ohio-2024, at ¶ 9. Upon review of the case sub judice, we 

reach the same conclusion as did the trial court. 

ASSIGNMENT OF ERROR I 

{¶8} Appellant seeks enforcement of the indemnification clause 

contained in the Release of All Claims Appellee signed in settlement of the 

bodily injury suit underlying this action. Appellant contends the issues arise 

only from the four corners of the release and indemnity clause. Appellant 

further contends Globe Indemn. Co. v. Schmitt, 142 Ohio St. 595, 53 N.E. 2d 

790 (1944), is inapplicable to these facts. In Appellant’s “Conclusion” to his 

brief, he asserts: “The trial court erred in applying the Globe requirements 

for voluntary settlements to the restitution order.” In doing so, Appellant 

mischaracterized the trial court’s application of the general indemnification 

principles cited in Globe. We find the trial court did not err in its application 
Ross App. No. 12CA3332 6

of the Globe requirements to the release and indemnification clause on 

which Appellant bases his claim. We begin our analysis with a review of the 

general principles of indemnification contained in Globe and other Ohio 

cases. 

B. LEGAL ANALYSIS 

{¶9} “Indemnity shifts the entire loss from one who has been 

compelled to make payment to the plaintiff to another who is deemed 

responsible for reimbursing the full amount. The right to indemnity exists 

when the relationship between the parties requires one to bear the loss for 

the other. This right may arise from common law, contract, or in some 

cases, statutes. When a judgment is obtained against the indemnitee, and 

indemnitor who has been given proper notice and an opportunity to defend 

the action falls in that class of non-parties who are bound by the outcome.” 

Portsmouth Insurance Agency v. Medical Mutual of Ohio , 188 Ohio App.3d 

111, 2009-Ohio-941, 943 N.E.2d 940, ¶ 16; Blair v. Mann, 4th Dist. No. 

98CA35, 1999 WL 228265 (Apr. 8, 1999). 

{¶10} Indemnity agreements must be interpreted in the same manner 

as other contracts. Portsmouth Insurance Agency, at ¶ 18. See also Worth v. 

Aetna Cas.& Sur. Co., 32 Ohio St. 3d 238, 240, 513 N.E. 2d253 (1987). 

The nature of an indemnity relationship is determined by the intent of the 
Ross App. No. 12CA3332 7

parties as expressed by the language used. Portsmouth Insurance Agency, ¶ 

18. See also Cleveland Window Glass & Door Co. v. National Surety Co,

118 Ohio St. 414, 161 N.E. 280 (1928). All words used must be taken in 

their ordinary and popular sense, Glaspell v. Ohio Edison Co., 29 Ohio St. 

3d 44, 47, 505 N.E. 2d 264, 267, and “[w]hen a * * * [writing] is worded in 

clear and precise terms; when its meaning is evident, and tends to no absurd 

conclusion, there can be no reason for refusing to admit the meaning which 

* * *[it] naturally presents.” Portsmouth Insurance Agency at ¶ 18 citing 

Lawler v. Burt, 7 Ohio St. 340, 350 (1857); Id at 240-241, 513 N.E.2d 253. 

{¶11} “When an indemnitor expressly agrees to indemnify an 

indemnitee except in certain specified instances, and it is determined that the 

exceptions do not pertain, the indemnitor is obligated to indemnify the 

indemnitee under the terms of the agreement.” Portsmouth Insurance 

Agency at ¶ 18 citing Allen v. Standard Oil Co., 2 Ohio St. 3d 122, 443 N.E. 

2d 497 (1982), paragraph one of the syllabus. Id. at 241, 513 N.E.2d 253. 

{¶12} In the case at bar, Appellant’s right to indemnity arises from 

the following language contained in the Release of All Claims: 

It is further understood and agreed that the undersigned will 

indemnify and hold harmless the above-named persons or 

parties and their insurers, successors, and assigns from any and 

all claims, liability , and expense, including attorneys’ fees, for 

any claim or demand of any party, and any claim or demand of 

any third party, including those claiming consortium of any 
Ross App. No. 12CA3332 8

type or those claiming subrogation rights arising out of 

payments made to the undersigned individually, in a 

representative capacity, or on behalf of the undersigned as a 

result of the occurrence set forth herein. It is further understood 

that Plaintiff agrees to satisfy any and all liens, including but 

not limited to the Ohio Bureau of Worker’s Compensation, 

arising from the claim on behalf of the plaintiff out of the 

settlement proceeds. It is further understood and agreed that the 

monies paid by Nationwide Mutual Insurance Company on 

behalf of John G. Brown’s settlement of Plaintiff’s claims, 

pursuant to this agreement, represent all sums due and owing to 

Plaintiff, including interest from the date of the agreement to 

the settlement to the date indicated below. 

{¶13} The language contained in the terms of the release and 

indemnification clause at issue here clearly set forth a right to pursue a claim 

for indemnification. However, under the general principles of 

indemnification, there are other considerations which Appellant asked the 

trial court, and now this court, to ignore. The Supreme Court of Ohio has 

stated that when an indemnitee settles a claim, instead of litigating it, the 

indemnitee is entitled to indemnification if the indemnitee shows (1) that the 

indemnitee has given proper and timely notice to the party from whom 

indemnity is sought, (2) that the indemnitee was legally liable to respond to 

the settled claim, and (3) that the settlement was fair and reasonable. 

Portsmouth Insurance Agency at ¶ 19, citing Globe Indemn. Co. v. Schmitt, 

142 Ohio St. 595, 53 N.E.2d 790 (1944). “Thus, in a settlement context 

under Ohio law, the party seeking indemnification must prove both that the 
Ross App. No. 12CA3332 9

right to indemnification applies to the claim and that such a remedy is 

appropriate in light of the factual requirements of Globe, supra.” 

Portsmouth Insurance Agency at ¶ 19; Blair, supra. We find that Appellant 

ostensibly had a right to enforce the indemnification provision of the release 

signed by Appellee, however, this is not an appropriate remedy in that 

Appellant did not abide by the factual requirements of Globe, i.e., (1) 

providing Appellee notice of the restitution hearing; (2) setting forth facts 

showing Appellee’s legal liability to respond; and, (3) adducing facts that 

the indemnification amount was fair and reasonable. The trial court herein 

noted the stipulated facts failed to establish Appellee was given notice of the 

restitution hearing regarding payment to the sheriff’s department. 

{¶14} Appellant urges reliance on Motorist Insurance 

Companies v. Shields, 4th Dist. No. 00CA26, 2001-Ohio-2387, 2001 

WL 243285 (Jan. 29, 2001). Shields was involved in an automobile 

accident. At the time of the accident, she was insured by Grange 

Mutual Casualty Company. Grange paid Shields $5,000.00 under its 

med pay coverage. Shields’ policy with Grange also provided a right 

of subrogation. Shields subsequently received $105,000.00 after 

settling with the tortfeasor’s insurance company, Motorist. As part of 

the settlement with Motorist, Shields executed a release and indemnity 
Ross App. No. 12CA3332 10

agreement. After Motorist settled with Shields, Shields refused to 

reimburse Grange. Grange looked to Motorist for reimbursement and 

Motorist reimbursed the $5,000.00 Grange paid pursuant to the med 

pay coverage. Motorist eventually filed a complaint against Shields in 

which Motorist alleged that pursuant to the release and indemnity 

agreement, Shields were obligated to indemnify Motorist in the 

amount of $5,000.00 plus attorney fees. Eventually, the case was 

resolved by summary judgment in which the trial court found that “by 

virtue of the terms of [appellants] policy with Grange Insurance and 

the terms of [appellants’] release and indemnity agreement with 

[Motorist] and others, [appellants] are liable to [Motorist] in the sum 

of $5.000.00.” Appellants filed an appeal, arguing, among various 

other assignments of error, that the release and indemnity agreement 

in the matter explicitly provided for indemnification of attorney fees 

did not override appellants’ right to have the issue submitted to a jury. 

After reviewing the language of the indemnity agreement, this Court 

held the attorney fee provision to be enforceable and the trial court’s 

determination that empaneling a jury to determine Motorist’s 

entitlement to attorney fees was unnecessary, to be a proper 

determination. In its discussion of the issue, this Court noted basic 
Ross App. No. 12CA3332 11

principles regarding review of contract language and determination of 

attorney fees. That was as far as this Court delved into discussion of 

the basic principles of indemnity law. The requirements of notice 

and opportunity to defend were not at issue in Shields. 

{¶15} The particular fact pattern we are confronted with is 

somewhat unique. We have not discovered another case wherein the 

Plaintiff/Appellant pursues a claim of indemnity from the “victim” of 

a negligent act after obtaining the benefit of judicial release upon 

voluntary agreement to make restitution in a criminal proceeding, 

which restitution amount now constitutes the claim for 

indemnification. Based on the criminal “twist” of this fact pattern, 

Appellant has argued that Globe is inapplicable to the restitution order 

and further, that he has not discovered another case in 68 years since 

Globe which applies the notice requirements. We have found one 

other Ohio case where the notice requirement of the indemnification 

rules was discussed. 

{¶16} In Grace v. Howell, 2nd Dist. No. 20283, 2004-Ohio4120, Plaintiff-Appellee Grace sued Howell for personal injuries 

arising from an automobile accident. The court referred the case to 

arbitration. The arbitration panel awarded Grace $55,000.00 on her 
Ross App. No. 12CA3332 12

claim. Local rule provided a time for appeal of the report and award 

and in the case, one was never filed. The trial court subsequently 

granted judgment on the award in favor of Grace. However, before 

the court granted judgment on the award, the parties agreed to settle 

Grace’s claims. 

{¶17} The court eventually filed an agreed order of dismissal 

with prejudice, signed by the parties’ attorneys. The terms of the 

settlement agreement were not set forth in the dismissal. Six months 

later, Howell filed a motion to enforce the settlement agreement. She 

attached to her motion a copy of the written settlement agreement. 

The agreement stated that in exchange for payment of $65,000.00 

from Howell and her insurer, Grange, receipt of which was 

acknowledged, Grace agreed to indemnify and hold Howell and/or 

Grange harmless on any claims arising from the accident, including 

any “subrogation claims by any other party.” Howell’s motion 

argued that subsequent to the court’s dismissal order, Grange had paid 

Grace’s own insurer, State Farm, over $9,000.00 on a subrogated 

claim for medical expenses, and that Grace refused to indemnify 

Grange. Howell’s motion asked the court to require Grace to perform 

on her promise to indemnify. 
Ross App. No. 12CA3332 13

{¶18} The trial court denied Howell’s motion, reasoning that 

the amount paid by Grange was an amount that had been determined 

in an inter-company arbitration proceeding between State Farm and 

Grace, to which Grace was not a party. As such, Grace was not bound 

by her indemnification promise to pay Grange. The 2nd District 

appellate court agreed the amount of indemnification Grange sought 

was not enforceable against Grace because she lacked notice and an 

opportunity to defend in the inter-company arbitration proceeding 

between Grange and State Farm. The appellate court wrote at ¶ 17: 

“Generally, in an action to recover from an indemnitor on 

account of a demand upon which there has been a judgment 

against the indemnitee, the indemnitor is bound by such 

judgment if he or she had due notice of the suit in which it was 

rendered and had an opportunity to defend; such a judgment is 

conclusive evidence against the indemnitor as to the amount of 

damages sustained.” 18 Ohio Jurisprudence 3d., Contribution, 

Indemnity, and Subrogation, Section 45, pp. 279-280. 

{¶19} The appellate court also noted Grace was not 

relieved of the duty to indemnify Grange, but that Grace was not 

bound by the arbitration panel’s finding of the value of the subrogated 

claim and thus a new proceeding must be commenced by Grange to 

determine and enforce its right of indemnification. 

{¶20} Appellant urges the concepts of notice and opportunity 

to defend are illusory issues in this context. Appellant contends 
Ross App. No. 12CA3332 14

Appellee’s entire argument rests on the single premise that the order 

of restitution entered in the criminal case as part of the sentence is the 

functional equivalent of a voluntary settlement for purposes of the 

Globe requirements. We are not persuaded the trial court’s decision 

leads to this broad generalization. Nor are we convinced that applying 

the Globe requirements in this context is peculiar, as per Appellant’s 

notion that giving Appellee notice of the restitution hearing would 

have been futile and unnecessary. In, albeit, another civil case, the 

Supreme Court of Ohio has stated: 

“In Miller v. Rhoades, 20 Ohio St. 494, [1870 WL 59 (1870)], 

an action upon a bond given by a creditor to indemnify an 

officer for the sale of property held by him upon execution, but 

claimed by another- a judgment having been recovered against 

the officer, it was held that ‘the creditor having due notice of 

the action, and an opportunity to defendant against it, the 

judgment is conclusive evidence against the obligor of the 

amount of damages sustained.’ We have become familiar with 

the application of this doctrine to one who is liable over to 

another on a warranty of title to land, it being accepted as the 

established law that the warrantee may charge the warrantor 

with the consequences of an action to evict by giving him 

timely notice of the suit, with an offer of opportunity to defend. 

It is an extension of the doctrine that all who are parties to a 

judicial record are bound by the judgment, and it rests 

upon the same foundation- the necessity that there be an 

end of litigation... The reason for the doctrine does not 

suggest that there should be any limit to its application 

because of the nature of the obligation over of the person 

notified. Upon examination of numerous decisions in other 

states and in the federal courts, it appears that the doctrine 

is of general application, without regard to the nature of the 
Ross App. No. 12CA3332 15

liability over of the person notified, whether it arises out of 

contract or by operation of law.” (Emphasis added.). First 

Nat. Bank of Mt. Vernon, Ohio, v. First Nat. Bank of Lincoln, 

Ill., 68 Ohio St. 43, 67 N.E. 91 (1903). 

{¶21} Appellant sought indemnification pursuant to the four 

corners of the release he obtained, and he must abide by the usual 

rules in pursuing this claim, regardless of the nature of the obligation, 

i.e., here, the restitution order. He did not do so. As such, we agree 

with the decision of the trial court and overrule Appellant’s 

assignment of error. 

 JUDGMENT AFFIRMED. 
Ross App. No. 12CA3332 16

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and costs herein 

be assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Chillicothe Municipal Court to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: ____________________ 

 Matthew W. McFarland 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.