[Cite as Koby v. McNamee, 2017-Ohio-1574.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Denisa K. Koby et al., : 

 Plaintiffs-Appellants, : 

v. : No. 16AP-368 

 (C.P.C. No. 13CV-12569) 

Christina M. McNamee, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on April 27, 2017 

 

On brief: James R. Kingsley, for appellant. Argued: 

James R. Kingsley. 

On brief: John C. Nemeth & Associates, and David A. Herd, 

for appellee. Argued: David A. Herd. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, P.J. 

{¶ 1} Denisa K. Koby and Gary Koby appeal from the dismissal of their lawsuit in 

the Franklin County Court of Common Pleas. For the reasons that follow, we affirm the 

judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND 

{¶ 2} According to the complaint, the Kobys were driving eastbound on State 

Route 665 in Franklin County, Ohio, when their vehicle was struck by a motor vehicle 

being driven by Christina McNamee. The collision occurred on October 6, 2008. 

{¶ 3} The Kobys filed a lawsuit against McNamee on May 5, 2010, and then 

voluntarily dismissed the lawsuit September 7, 2011, as permitted by Civ.R. 41(A). The 

time within which a person can refile a claim after a Civ.R. 41(A) dismissal is governed by 
No. 16AP-368 2 

R.C. 2305.19, the Ohio Savings Statute. Under R.C. 2305.19, the Kobys had one year in 

which to refile their case. 

{¶ 4} However, on May 29, 2012, before the Kobys had refiled or were required to 

refile, McNamee filed for Chapter 7 bankruptcy. An automatic stay under the United 

States Bankruptcy Code commenced at the time of McNamee's Chapter 7 bankruptcy 

filing and immediately stayed all proceedings against McNamee. 11 U.S.C. 362(a)(6). 

During the pendency of the bankruptcy action, the Kobys were not permitted to refile 

their case without being granted relief from the stay. The one-year period to refile under 

the savings statute ran while McNamee's case remained pending in the bankruptcy court. 

{¶ 5} On September 25, 2012, McNamee received a personal discharge in 

bankruptcy. The Kobys claimed that they were prohibited from refiling the action at that 

time because the bankruptcy estate remained open. Nine months later, on June 28, 2013, 

the Kobys moved the bankruptcy court for relief from the stay, and that motion was 

granted on November 13, 2013. The Kobys refiled on November 15, 2013. 

{¶ 6} McNamee moved for judgment on the pleadings, asserting that the refiled 

complaint was time-barred due to the termination of the automatic stay at the time of 

McNamee's discharge in bankruptcy. The trial court initially denied the motion, and 

McNamee moved for reconsideration as well as filing a second motion for judgment on 

the pleadings as well as a motion for summary judgment with copies of documents from 

the bankruptcy proceedings. 

{¶ 7} The trial court found that the Kobys were on the creditor notification list in 

the bankruptcy case and were notified regarding the discharge in bankruptcy. The trial 

court found that the Kobys presented no evidence that the discharge injunction did not 

apply, other than to argue that they were suing McNamee as a nominal party because they 

could not maintain a direct cause of action against McNamee's insurer until they received 

a judgment against McNamee. However, the trial court further found that the complaint 

did not indicate that McNamee was a nominal party or that the Kobys were not seeking a 

personal judgment against McNamee. Accordingly, the trial court found that the Kobys 

were barred by the discharge injunction from filing the matter against McNamee. 
No. 16AP-368 3 

{¶ 8} The trial court then granted the motion for reconsideration and concluded 

that judgment on the pleadings was appropriate, or in the alternative, that McNamee had 

established that she was entitled to summary judgment. This appeal followed. 

II. ASSIGNMENT OF ERROR

{¶ 9} The Kobys assign a single error for our consideration: 

THE TRIAL COURT COMMITTED PREJUDICIAL 

ERROR WHEN IT DISMISSED PLAINTIFFS' 

COMPLAINT: 

 (1) FOR FAILURE TO STATE A CLAIM AND 

(2) BY GRANTING DEFENDANT SUMMARY 

JUDGMENT. 

III. STANDARD OF REVIEW

{¶ 10} Civ.R. 12(C) states that "[a]fter the pleadings are closed but within such 

times as not to delay the trial, any party may move for judgment on the pleadings." 

Dismissal under Civ.R. 12(C) is appropriate when the court: "(1) construes the material 

allegations in the complaint, with all reasonable inferences to be drawn therefrom, in 

favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could 

prove no set of facts in support of his claim that would entitle him to relief." State ex rel. 

Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996), citing Lin v. Gatehouse 

Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992); see also, Peterson v. Teodosio, 34 

Ohio St.2d 161, 165-66 (1973). Therefore, Civ.R. 12(C) requires the court to determine 

that there are no material issues of fact and that the movant is entitled to judgment as a 

matter of law. Pontious at 570, citing Burnside v. Leimbach, 71 Ohio App.3d 399, 403 

(10th Dist.1991). A judgment on the pleadings dismissing an action is subject to a de novo 

standard of review in the court of appeals. Smith v. Ohio Dept. of Transp., 10th Dist. No. 

15AP-521, 2015-Ohio-5240, ¶ 6. 

{¶ 11} With respect to summary judgment, Civ.R. 56(C) provides that summary 

judgment is appropriate if: (1) no genuine issue of material fact remains to be litigated; (2) 

the moving party is entitled to judgment as a matter of law; and, (3) viewing the evidence 

in favor of the nonmoving party, reasonable minds can come to but one conclusion, that 

conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing 

Co., 54 Ohio St.2d 64, 66 (1978). Appellate review of summary judgment is de novo. 
No. 16AP-368 4 

Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, 

citing Byrd v. Arbors East Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio3935. 

IV. ANALYSIS 

 A. Effect of Discharge in Bankruptcy

{¶ 12} When a debtor receives a discharge in bankruptcy, she is relieved of 

personal liability for pre-petition debt, and the discharge enjoins any action to collect, 

recover, or offset a discharged obligation. McClung v. McClung, 10th Dist. No. 03AP-156, 

2004-Ohio-240, ¶ 12; 11 U.S.C. 524(a). Although McNamee's discharge in bankruptcy 

protects her from personal liability, counsel for the Kobys argues that it is permissible to 

proceed against a debtor as a nominal defendant if such an action is necessary to prove 

liability as a prerequisite to recovery from the liability insurer. We agree. 

{¶ 13} In the case of In re Morris, 430 B.R. 824 (Bnkr.W.D.Tenn.2010), the 

bankruptcy court discussed cases in which the courts have found that 11 U.S.C. 524, which 

governs the effect of the discharge in bankruptcy, allows a creditor to proceed against the 

debtor as a nominal defendant in order to pursue recovery from a third party such as a 

liability insurer. The court determined that "[a]llowing parties to proceed in this manner 

protects the debtor from any personal liability in accordance with the discharge injunction 

of § 524(a)(2) and imposes on an insurance company 'no exposure greater than what it 

had agreed to in the insurance contract with the debtor.' " Id. at 828, quoting In re 

Christian, 180 B.R. 548, 550 (Bankr.E.D.Mo. 1995); see also Wolfe v. Wright, 65 Ohio 

App.3d 36, 37 (8th Dist.1989) ("The protection provided to a debtor under Section 362 of 

the Bankruptcy Code does not extend as a third-party beneficiary right to the insurer."). 

By recognizing this limited exclusion from the discharge injunction, an aggrieved party 

may pursue a claim against a non-debtor third party, the debtor will still be protected 

from any personal liability that may result from the aggrieved party's actions, and the 

insurance company will still be potentially liable since the discharge did not erase the 

insurance company's liability. In re Christian at 550; In re Morris at 829. 

{¶ 14} Under Ohio law, a claimant is not permitted to sue a defendant's insurance 

company directly, but must sue the alleged tortfeasor first. R.C. 3929.06; McLynas v. 

Karr, 10th Dist. No. 03AP-1075, 2004-Ohio-3597, ¶ 28. 
No. 16AP-368 5 

{¶ 15} R.C. 3929.06(B) provides: 

Division (A)(2) of this section does not authorize the 

commencement of a civil action against an insurer until a 

court enters the final judgment described in division (A)(1) 

of this section in the distinct civil action for damages 

between the plaintiff and an insured tortfeasor and until the 

expiration of the thirty-day period referred to in division 

(A)(2) of this section. 

{¶ 16} Therefore, in order to pursue recovery from McNamee's liability insurer, the 

Kobys were required to sue McNamee first. McNamee's discharge in bankruptcy shields 

her from personal liability, but the action is still necessary in order for the Kobys to 

pursue their tort claim against McNamee's insurance carrier. According to McNamee's 

pre-trial statement, she has an insurance policy with liability limits of $100,000. (May 5, 

2015 Pre-Trial Statement at 7.) 

{¶ 17} A review of the Kobys' complaint, however, reveals that there is no 

statement, indication, or suggestion that McNamee was being pursued as a nominal 

defendant or that the lawsuit was being brought as an action against property of the 

bankruptcy estate. The complaint did not allege that the claim was a prerequisite to 

making a claim against liability insurance. There is no mention of any insurance 

company. The complaint does not state that the Kobys were seeking to recover the 

insurance proceeds from McNamee's automobile liability insurance policy. There was no 

other defendant in the re-filed complaint against whom a judgment could have been 

sought besides McNamee. It did not state that judgment was not being sought against 

McNamee personally. The complaint does not name McNamee as a nominal defendant, 

and it does not allege that judgment is being sought as a prerequisite to make a claim 

against liability insurance. 

{¶ 18} However, it remains the law in Ohio that a plaintiff cannot commence a civil 

action against an insurer until a court enters the final judgment in a civil action between 

the plaintiff and the tortfeasor. Therefore, the Kobys were entitled to pursue their civil 

action against McNamee but only as a prerequisite to obtaining recovery from McNamee's 

liability insurer. 
No. 16AP-368 6 

B. Timeliness of the Re-filed Complaint 

{¶ 19} The next issue that must be determined is whether the re-filed complaint 

was timely. 

{¶ 20} The Kobys contend that their refiled lawsuit is not against McNamee, the 

debtor, but is against her liability insurance, which they believe to be property of the 

bankruptcy estate. The Kobys appear to be arguing that the automatic stay as to this 

purported asset of the estate remained in place even after McNamee received her 

discharge in bankruptcy. They claim that in the case of an act against property of the 

estate, the stay continues until the property is no longer property of the estate. See 11 

U.S.C. 362(c)(1) ("Except as provided in subsections (d), (e), (f), and (h) of this section--

(1) the stay of an act against property of the estate under subsection (a) of this section 

continues until such property is no longer property of the estate.") 

{¶ 21} Even if this is true, the Kobys have failed to explain why they needed to wait 

until the stay was lifted as to this asset before they could proceed with their lawsuit 

against McNamee after McNamee received her discharge in bankruptcy on September 25, 

2012. The re-filed complaint was directed against McNamee personally, not her 

insurance company, in order to establish her liability for the automobile accident, and the 

Kobys acknowledge that it is necessary to establish liability against the tortfeasor before 

one can proceed against the tortfeasor's insurer. 

{¶ 22} Therefore, despite the assertion by the Kobys that the bankruptcy estate 

remained open after the discharge, McNamee argues that fact is of no import because the 

date of her discharge in bankruptcy is the event which triggered the 30-day grace period 

in which the Kobys could refile their complaint. 

{¶ 23} McNamee directs us to another section of the Bankruptcy Code that governs 

the termination of the stay in Chapter 7 proceedings. 11 U.S.C. 362(c)(2)(C) provides that 

in Chapter 7 cases, the automatic stay under 11 U.S.C. 362 terminates automatically at the 

earliest of when (1) the case is closed, (2) the case is dismissed, or (3) the discharge is 

granted. Gruber v. Gruber, 6th Dist. No. OT-10-003, 2010-Ohio-4326, ¶ 2; May v. May,

4th Dist. No. 11CA910, 2012-Ohio-2348, ¶ 30. 
No. 16AP-368 7 

{¶ 24} Since the savings statute had expired before that date, 11 U.S.C. 108(c) 

provides a 30-day grace period after the conclusion of the automatic stay to re-file their 

complaint. Basie v. Mt. Sinai Med. Ctr., 8th Dist. No. 89852, 2007-Ohio-6060, ¶ 15, 22. 

The Kobys did not comply with the grace period and did not file for another year. 

{¶ 25} McNamee received a discharge in bankruptcy on September 25, 2012, and 

the automatic stay ended by law. The Kobys filed their complaint against McNamee 

personally, and they waited more than one year after she had received her discharge in 

bankruptcy to do so. This case is not some kind of in rem action against an asset of the 

bankruptcy estate, but rather is a direct action against the debtor to establish liability for 

the automobile accident. Therefore, the debtor’s discharge in bankruptcy is the event that 

started the clock running again on the plaintiffs’ action against McNamee to establish 

liability. 

{¶ 26} Accordingly, the trial court did not err in dismissing the complaint. 

V. CONCLUSION

{¶ 27} The assignment of error is overruled and the judgment of the Franklin 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

BROWN and LUPER SCHUSTER, JJ., concur.