Kallaus v. AllenKallaus v. Allen
O P I N I O N
APPEARANCES:
For Defendants-Appellants Danny R. Allen, Danny Allen Well Drilling, Inc., and Danny R. Allen and Teressa A. Allen, Trustees
C. DANIEL HAYES 195 E. Broad Street, P.O. Box 958 Pataskala, Ohio 43062
For Plaintiffs/Cross-Appellants Gerald and Anne Kallaus Kabat Mielziner & Sobel
JONATHAN F. SOBEL 25550 Chagrin Blvd. - Suite 403 Beachwood, Ohio 44122
For Third-Party/Defendant-Appellee Westfield Insurance Company
SHAWN W. MAESTLE RONALD A. RISPO Weston Hurd, LLP The Tower at Erieview 1301 E. 9th Street, Suite 1900 Cleveland, Ohio 44114
{¶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.
{¶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
{¶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
{¶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
{¶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
{¶12} Having concluded no final appealable order exists in this case, we dismiss this appeal for lack of jurisdiction.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
For the reason stated in our accompanying Opinion, this appeal is dismissed.
Costs to Appellants.
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS