Duhart v. LawsonDuhart v. Lawson
{¶ 1} This is an appeal from a judgment issued by the Lucas County Court of Common Pleas, in which the trial court denied cross-motions for summary judgment filed by appellee and cross-appellant, Verdale Duhart, and appellant and cross-appellee, U.S.A. Truck, Inc. (“USA”), and granted a declaratory judgment motion filed by appellee and cross-appellant.
{¶ 2} On appeal, USA sets forth the following assignments of error:
{¶ 8} “Assignment of Error # 1:
{¶ 4} “The trial court erred to the prejudice of appellee/cross-appellant USA Truck, Inc. when it denied appellee/cross-appellant USA Truck, Inc.’s motion for summary judgment in its February 19, 2009 judgment entry.
{¶ 5} “Under a negligence cаuse of action via vicarious liability, the trial court erred when [it] denied USA Truck’s motion for summary judgment when that court found, as a matter of law, that Mr. Lawson was not acting within the course and scope of his employment with USA Truсk.
{¶ 6} “The trial court erred when [it] denied USA Truck’s motion for summary judgment even though the trial court found, as a matter of law, that the strict liability principles from Wyckoff Trucking, Inc. v. Marsh Brothers (1991),58 Ohio St.3d 261 [,569 N.E.2d 1049 ], did not apply.”
{¶ 7} “Assignment of Error # 2:
{¶ 8} “The trial court’s February 19, 2009 judgment entry granting appellant/cross-appеllee Yerdale Duhart’s motion for declaratory judgment was an abuse of discretion.
{¶ 9} “The trial court’s granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion in that it abolishes the well-settled and time honоred defense that an employer is not liable for the acts of its employees who are not acting in the course and scope of their employment.
{¶ 10} “The trial court’s granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion in that it creates new law which was not contemplated by nor provided for by the legislature.
{¶ 11} “The trial court’s reliance on the West Virginia Supreme Court case of Jackson v. Donahue (1995),193 W.Va. 587 ,457 S.E.2d 524 , in support of its granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion.”
{¶ 12} In addition, Duhart sets forth the following cross-assignment of error:
*366 {¶ 13} “The trial court erred as a matter of law to the prejudice of plaintiff^appellant in holding that the employee/driver of a common carrier was not a ‘statutory employee’ pursuant to Federal Regulation which would make the issue of ‘course and scope of employmеnt’ irrelevant.”
{¶ 14} The record contains the following relevant, undisputed facts. From April 27, 2006, until May 15, 2006, Donald Lawson was employed by USA as an over-the-road truck driver. A truck owned by USA, and displaying United States Department of Transpоrtation (“USDOT”) number
{¶ 15} On Sunday, May 14, 2006, Lawson drove the truck to pick up a personal friend.
(¶ 16} On June 6, 2007, Duhart filed a complaint agаinst Lawson and USA, in which he set forth claims of negligence per se and statutory violations by Lawson, along with claims of vicarious liability, strict liability, statutory violations, and negligent entrustment on the part of USA. Duhart also sought punitive damages from USA. In addition, Duhart set forth claims of vicarious liability, strict liability, negligence, statutory violations, and punitive damages against defendant “John Doe,” whom Duhart identified as the “registered owner of the [ICC] number 213754 displayed on the tractor unit involved in this collision.” Answers were filed by USA on July 9, 2007, and by Lawson on August 6, 2007.
{¶ 17} On November 14, 2007, USA filed a motion for summary judgment in which it asserted that it was not liable for Duhart’s injuries. In support, USA argued that even though it was the owner of the truck driven by Lаwson, it is not strictly liable under current federal trucking regulations for injuries caused by Lawson when he was not working for USA. USA cited Wyckoff Trucking, Inc. v. Marsh Bros. (1991),
{¶ 18} On May 21, 2008, Duhart filed a cross-motion for summary judgment, in which he argued that USA is liable as a matter of law for his injuries. In support, Duhart argued that pursuant to Wyckoff, 58 Ohio St.3d 261,
{¶ 19} On the day his cross-motion for summary judgment was filed, Duhart filed a motion for declаratory judgment in which he asked the trial court to find that pursuant to federal motor-carrier-safety regulations (“FMCS regulations”), USA is responsible to pay damages resulting from the actions of its employees. In support, Duhаrt argued that FMCS regulations require USA, a self-insured carrier, to indemnify its drivers “for negligence arising out of the maintenance, operation and use of its vehicle, without regard to any limitations such as policy exclusionаry language, respondeat superior principles, or on whose behalf the trucker is operating.” On June 5, 2008, Lawson filed a “Joinder in Plaintiffs Motion for Declaratory Judgment.” On December 29, 2008, the parties filed a joint stipulаtion in which they agreed that the trial court’s decision on their cross-motions for summary judgment and Duhart’s motion for declaratory judgment would be final and appealable and that there would be “no just cause for delay concerning the appeal of these decisions.”
{¶ 20} On February 11, 2009, the trial court filed a judgment entry in which it found that Wyckoff,
{¶ 21} In spite of the above findings, the trial court further found that USA is a self-insured carrier, which is required to prоvide proof of financial responsibility pursuant to Section 387.309 of the Motor Carrier Act of 1980. Relying on Jackson v. Donahue (1995),
{¶ 22} Based on its above findings, the trial court denied both parties’ motions for summary judgment and granted Duhart’s motion for declaratory judgment. The trial court further stated that “[b]y stipulation of the parties, the Court finds there is no just causе for delay and the decision is PINAL and APPEALABLE.” (Capitalization sic.) Both parties filed timely notices of appeal.
{¶ 23} Rather than addressing the merits of either party’s appeal, we note that under Ohio law, an apрellate court has no jurisdiction to review an order that is not final and appealable. Darrow v. Zigan, 4th Dist. Nos. 07CA25 and 07AP25,
{¶ 24} It is well settled that “ ‘[t]he denial of a motion for summary judgment generally is considered an interlocutory order not subject to immediate appeal.’ ” Id. at ¶ 27, quoting Stevens v. Ackman (2001),
{¶ 25} On consideration of the foregoing, we find that in spite of the parties’ joint stipulation and the inclusion of Civ.R. 54(B) language in its opinion, the trial сourt’s denial of both parties’ motions for summary judgment is not a final and appealable order. USA’s first assignment of error and Duhart’s cross-assignment of error will not be addressed, as we must dismiss the parties’ appeals from the denial of their respective summary-judgment motions.
{¶ 26} As to the trial court’s granting of Duhart’s motion for declaratory judgment, Ohio courts have held that “a ‘motion’ for declaratory judgment is not prescribed by [either] the Civil Rules or R.C. Chаpter 2721.” Galouzis v. Americoat Painting Co.,
{¶ 27} Upon consideration of the foregoing, we find that the trial court did not have jurisdiction to decide Duhart’s “motion” for declaratory judgment. Accordingly, the decision granting the “motion” is void. USA’s second assignment of error is, therefore, well taken.
{¶ 28} The judgment of the Lucas County Court of Common Pleas is hereby reversed, and the case is remanded to the trial court for further proceedings consistent with this decision. Duhart is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
Notes
. The USDOT has sincе been replaced by the Interstate Commerce Commission ("ICC”). In the interest of clarity, tire number on USA’s truck will be referred to herein as an "ICC” number.
. Lawson admitted in deposition that he had consumed approximately 12 beers before driving the truck to pick up his friend.