{¶ 2} In response to a jurisdictional order issued by this Court the respective parties have filed opposing memorandums on the appealability of the September 4, 2008 judgment entry. The question of appealability now comes on for determination.
{¶ 4} On July 16, 2008 appellants filed a Motion for Declaratory Judgment or Partial Summary Judgment Against the Ohio Bureau of Workers' Compensation, *2 seeking an order that the Bureau has no right to recover any subrogated amount from the employer. By such motion appellants argued that the Bureau has a right to recover subrogated amounts from third parties, but not the employer in an intentional tort action.
{¶ 5} On July 30, 2008 Safety Controls Technology Inc. was granted summary judgment. Thе order giving rise to this appeal was entered thereafter on September 4, 2008.
{¶ 7} "The payment of compensation or benefits pursuant to this chapter or Chapter 4121.4127., or 4131., of the Revised Code creates a right of recovery in favor of a statutory subrоgee against a third party, and the statutory subrogee is subrogated to the rights of a claimant against that third party. The net amount recovered is subject to a statutory subrogee's right of recovery."
{¶ 8} The remainder of the statute addresses a formula to determine the subrogation amounts or the procedures available to determine the subrogation interest, or to allow for alternative dispute resolution.
{¶ 9} This subrogation statute has been attacked repeatedly on a constitutional bаsis. In Holeton v. Crouse Cartage Co. (2001),
{¶ 10} The Ohio Supreme Cоurt subsequently held that the earlier version (1993) of the subrogation statute, which then became effective upon Holeton ruling *3
the then version (1995) unconstitutional, was itself ruled unconstitutional in Modzelewski v. Yellow Freight Sys. Inc.,
{¶ 11} Subsequent to Holeton, the General Assembly repealed the 1995 statutes and enacted new subrogation statutes in 2002 Sub S.B. No. 227, with an effective date of April 9, 2003. Like their predecessor, this statute was сhallenged on numerous constitutional bases. In McKinley v.Ohio Bureau of Workers' Compensation,
{¶ 12} Most recently, in an expansive opinion issued on February 21, 2008, the Ohio Supreme Court, on order from the United States District Court for the Northern District of Ohio, Western Division, answered certified questions regarding the constitutionаlity of R.C.
{¶ 13} In syllabus 1 to Groch v. Gen. Motors Corp.,
{¶ 14} "1. R.C.
{¶ 15} Relative to the jurisdictional question sua sponte raised herein, the cited cases are utilized not for their content, but for the procedural path taken to have such constitutional questions addressed in a court of law.
{¶ 16} In Groch and Holeton the Ohio Supreme Court was determining cоnstitutional questions certified by a federal district court. TheMcKinley case originated as an action specifically challenging the constitutionality of R.C.
{¶ 17} Furthermore, it has been held that a "motion" for declaratory judgment is not prescribed by the Civil Rules or R.C. Chapter
{¶ 18} As noted by appellee in its memorandum opposing jurisdiction the ordеr appealed "denied" the motion for declaratory judgment. In fact, there was no declaration of rights as contemplated by R.C.
{¶ 19} The order appealed in this case simply overrules a motion for declaratory judgment or partial summary judgment. It does not definitively state what the subrogation rights of the Bureau may be in this case. Moreover, the subrogation statute itself permits a claimant and stаtutory subrogee to agree to a settlement amount for each party if a settlement of the tort action occurs. R.C.
{¶ 20} Finally, this intentional tort action remains to be litigated. It is not a certainty that appellants will prevail and receive a damage award. While this Court is sympathetic to appellants' argument that it alone will bear the expense of litigation, with the possibility that any damages recovered may pass to the statutory subrogee, the legal arguments regarding constitutionality of the statute, whether the employer is a "third party" contemplated by the statute and the right of the Bureau to *5 subrogation to prevent a double recovery of damages are not ripe for review until a final judgment is issued in this case. There remain pending for detеrmination significant issues relating to damages and relief.
{¶ 21} The issues raised in this interlocutory appeal may be adequately addressed in an appeal following final determination of all the rights and obligations of all parties involved in the underlying litigation. Inclusion of Civ. R. 54(B) language does not convert an otherwise nonfinal order into onе which can be immediately appealed if it does not meet the definition of a final order under R.C.
{¶ 22} We find that the order appealed in this underlying intentional tort action is not a final appealable order as defined by R.C.
{¶ 23} Appeal sua sponte dismissed for lack of a final appealable order.
{¶ 24} Costs taxed against appellants.
*1DeGenaro, P.J., concurs. Donofrio, J., concurs. Vukovich, J., concurs.