Opinion
No. 09-CA-0002.
DATE OF JUDGMENT ENTRY: November 30, 2009.
Appeal from the Licking County Court of Common Pleas, Case No. 06-CV-01635.
Dismissed.
Danny R. Allen, Danny Allen Well, Drilling, Inc., and Danny R. Allen and Teressa A. Allen, Trustees, C. Daniel Hayes, for Defendants-Appellants.
Gerald and Anne Kallaus, Kabat Mielziner Sobel, Jonathan F. Sobel, for Plaintiffs/Cross-Appellants.
Westfield Insurance Company, Shawn W. Maestle, Ronald A. Rispo, Weston Hurd, LLP, The Tower at Erieview, for Third-Party/Defendant-Appellee.
Before: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J.
OPINION
{¶ 1} Defendants-appellants Danny R. Allen, Dan Allen Well Drilling, Inc., and Danny R. Allen and Teressa A. Allen, Trustees of the Teressa Allen Trust ("the Allen defendants") together with Plaintiffs/Cross-appellants Gerald and Anne Kallaus ("Kallaus") appeal the December 9, 2008 Judgment Entry entered by the Licking County Court of Common Pleas, granting summary judgment in favor of third-party defendant-appellee Westfield Insurance Companies ("Westfield") and declaring Westfield was not obligated to indemnify or defend the Allen defendants.
STATEMENT OF THE FACTS
{¶ 2} On July 8, 2006, plaintiff Gerald Kallaus was operating his motorcycle on Columbia Road in Licking County, Ohio. As he approached a driveway to property owned by defendants Danny R. Allen and Teressa A. Allen, Trustees of the Teressa Allen Trust, defendant Danny R. Allen was backing up a truck owned by defendant Dan Allen Well Drilling, Inc. out of the driveway. Kallaus' motorcycle collided with Allen's truck as the truck entered the road from the driveway, resulting in serious personal injuries to Kallaus.
STATEMENT OF THE CASE
{¶ 3} On November 6, 2006, Kallaus filed their Complaint against the Allen defendants, seeking damages which resulted from the collision. The Allen defendants filed a third-party complaint against Westfield for indemnity and defense pursuant to a commercial general liability insurance policy issued to Dan Allen Well Drilling, Inc.
{¶ 4} Westfield filed an answer and counterclaim seeking declaratory judgment it was not obligated to indemnify or defend the Allen defendants. Cross-motions for summary judgment were filed on the counterclaim for declaratory judgment. Via Judgment Entry filed December 9, 2008, the trial court granted Westfield's motion for summary judgment. The Allen defendants filed their Notice of Appeal from that judgment as did Kallaus, which notice has been treated as a cross-appeal. On February 2, 2009, the trial court amended its December 9, 2008 Judgment Entry, asserting there was no just reason for delay.
{¶ 5} The Allen defendants and Kallaus prosecute this appeal, assigning as error:
{¶ 6} "I. THE TRIAL COURT ERRED IN GRANTING WESTFIELD'S MOTION FOR SUMMARY JUDGMENT AND IN DENYING THE CROSS-MOTIONS FOR SUMMARY JUDGMENT FILED BY PLAINTIFFS AND THE ALLEN DEFENDANTS."
{¶ 7} As a preliminary matter, we must first determine whether the order under review is a final appealable order. If an order is not final and appealable, then we have no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event that the parties to the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus; Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d 922.
{¶ 8} We decline to address the merits of Appellants' arguments at this time as we find the order being appealed is not a final appealable order, despite the trial court's certification under Civ. R. 54(B). We do so under the authority of the Ohio Supreme Court's decision in Walburn v. Dunlap, 2009-Ohio-1221.
{¶ 9} The Walburn court held, although an action seeking a declaration of the parties' rights and responsibilities as they pertained to UM coverage was a special proceeding under R.C. 2505.02, an order declaring an insured is entitled to coverage but not addressing damages does not affect a "substantial right"; therefore, is not a final appealable order despite the trial court's certification there was no just cause for delay. The Walburn court distinguished its decision in Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d. Gen. Acc. involved an action seeking declaration the defendant insurance companies had a duty to defend and indemnify in a companion tort case. The Ohio Supreme Court in Gen. Acc. found the trial court's decision was a final appealable order although there were other pending claims.
{¶ 10} The Walburn court found the duty to defend involves a substantial right to both the insured and the insurer. Because Walburn involved a declaration of coverage, but did not involve a duty to defend, the Supreme Court held a declaration an insured is entitled to coverage that does not address damages does not affect a substantial right as that term is defined in R.C. 2505.02(A)(1).
{¶ 11} At first blush, the case sub judice seems to fall directly within the realm of Gen. Acc. because Westfield sought a declaration regarding indemnity and its duty to defend. However what is unusual in this case is the fact Westfield also issued an automobile policy to Danny Allen, and Westfield has tendered a full defense to the Kallaus claims against him. Therefore, we find the duty to defend is not really at issue. Because damages have yet to be determined in this case, we find the case more closely fits the analysis in Walburn. Where the duty to defend is not involved, we find whether the declaration is one finding coverage or not finding coverage does not change the analysis where the damages are still unresolved.
We recognize the Dan Allen Well Drilling, Inc. is the insured under the CGL in question, but find it sufficiently aligned in interest with Danny R. Allen, individually, that defense of one results in defense of the other.
{¶ 12} Having concluded no final appealable order exists in this case, we dismiss this appeal for lack of jurisdiction.
Hoffman, J. Gwin, P.J. and Edwards, J. concur.
JUDGMENT ENTRY
For the reason stated in our accompanying Opinion, this appeal is dismissed. Costs to Appellants.