Haberley v. Nationwide Mutual Fire Insurance

755 N.E.2d 455 | Ohio Ct. App. | 2001

JOURNAL ENTRY AND OPINION This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

Jane Haberley appeals from a decision of the Common Pleas Court granting summary judgment in favor of her insurance carrier, Nationwide Mutual Fire Insurance Company, in connection with the death of her son, Russell Haberley. On appeal, Mrs. Haberley claims the court erred in granting Nationwide's motion for summary judgment and argues entitlement to uninsured motorist coverage for the fatal injuries suffered by Russell by operation of law or subject to the Ohio Supreme Court's holding in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246. Having determined that Ms. Haberly failed to appeal from a final appealable order, this appeal is hereby dismissed.

The parties do not dispute that on April 24, 1998, the Haberley's son, Russell, sustained fatal injuries to his head and chest as a front seat passenger in a Ford Explorer operated by uninsured motorist, Lena Beck, who lost control of her vehicle at the intersection of Andrews Avenue and the railroad tracks in Lakewood, Ohio. Donald and Jane Haberley filed a claim against their homeowners insurer, Nationwide, for uninsured motorist coverage.

Nationwide filed a complaint for declaratory judgment and thereafter, filed a motion for summary judgment, which the Haberleys opposed. On September 1, 2000, the court granted judgment in favor of Nationwide. The Haberleys appeal from this decision and raise one assignment of error, which states:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, AS APPELLANTS ARE ENTITLED TO UNDERINSURED MOTORIST COVERAGE IN THE POLICY ISSUED TO THEM BY APPELLEE NATIONWIDE.

The Haberleys urge the court erroneously granted judgment in favor of Nationwide and maintain their homeowner's policy also serves as an automobile liability policy, which entitles them to uninsured motorist coverage. Further, they contend the statutory amendments made to R.C.3937.18, which became effective September 3, 1997, are not applicable in this case, thus compelling the court to follow Selander v. Erie Ins. Group (1999), 85 Ohio St.3d 541 and Goettenmoeller v. Meridian Ins. Co. (June 25, 1996), Franklin App. No. 95APE11-1553, unreported. Nationwide maintains the court properly granted judgment in its favor because the Haberley's policy is solely a homeowners policy. Therefore, Nationwide was not obligated to offer the Haberleys uninsured motorist coverage as governed by the 1997 statutory amendments to R.C. 3937.18. However, this court lacks jurisdiction to review the assigned error because Ms. Haberley failed to appeal from a final appealable order. For the following reasons, this appeal is dismissed.

In Kubicki v. City of North Royalton (Sept. 10, 1998) Cuyahoga App. No. 73454, unreported, this court stated:

It is well established that a trial court fails to fulfill its function in a declaratory judgment action by granting summary judgment without expressly declaring the parties' respective rights and obligations. See Waldeck v. North College Hill(1985), 24 Ohio App.3d 189, 190, * * *; Progressive Cas. Ins. Co. v. State Farm Mut. Ins. Co., 1994 Ohio App. LEXIS 806 (Mar. 3, 1994), Cuyahoga App. No. 65539, unreported.

In Nickschinski v. Sentry Ins. Co. (1993), 88 Ohio App.3d 185, 189, * * *, this court stated:

An action which seeks the declaration of rights and obligations is not the type of action ideally suited to disposition by summary judgment. Therefore, "`* * * as a general rule, a court fails to fulfill its function in a declaratory judgment action when it disposes of the issues by journalizing an entry merely sustaining or overruling a motion for summary judgment without setting forth any construction of the document or law under consideration. * * *'"

Id., citing Waldeck, supra, 24 Ohio App.3d at 190, quoting Kramer v. West American Ins. Co., 1982 Ohio App. LEXIS 13009 (Oct. 6, 1982), Hamilton App. Nos. C-810829 and 810891, unreported.

In the instant case, the trial court's order granting Nationwide's motion for summary judgment does not expressly declare the rights and duties of the parties. Thus, we have concluded the instant case lacks a final appealable order. Therefore, pursuant to Civ.R. 54(B) and R.C.2505.02, this court is deprived of jurisdiction in this matter. Accordingly, this appeal is dismissed.

Appeal dismissed.

It is ordered that appellee recover of appellant its costs herein taxed.

It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

_____________________ JAMES J. SWEENEY, J.