Taylor v. Meridia Huron Hospital of Cleveland Clinic Health System

Ann Dyke, Administrative Judge. 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. 1 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.” 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 limitations 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.” *157 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, 69 O.O.2d 350, 351, 320 N.E.2d 668, 670; Carmen v. Link (1997), 119 Ohio App.3d 244, 250, 695 N.E.2d 28, 31-32. 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, 672 N.E.2d 213, 219. 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, 623 N.E.2d 1303, 1306. 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, 695 N.E.2d 28, 31-32. 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, 703 N.E.2d 362. 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 that 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). *158 The judgment of the trial court is reversed and the' matter is remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. O’Donnell, J., concurs. Blackmon, J., dissents. Footnotes [1] Plaintiff James Taylor asserted a loss of consortium.