2006 Ohio 7034 | Ohio Ct. App. | 2006
{¶ 2} From 1952 to 1979, Cecil Sizemore worked as a truck driver and forklift operator at the Nicolet Industry Plant in Hamilton, Ohio. Sizemore was exposed to asbestos during the period in which he worked at the plant. Sizemore died on May 14, 2001.
{¶ 3} On May 13, 2003, appellee, Sizemore's daughter, acting as the administratrix of the Estate of Cecil Sizemore (hereinafter "decedent"), filed a complaint against a number of companies (hereinafter "appellants"3) that have been engaged in the mining, processing or manufacturing, or sale and distribution of asbestos or asbestos-containing products or machinery. Appellee alleged that decedent had been exposed to asbestos or asbestos-containing products or machinery in his occupation, and that appellants were jointly and severally liable for decedent's "asbestos-related lung injury, disease, illness and disability and other related physical conditions."
{¶ 4} On September 2, 2004, Amended Substitute House Bill 292 (hereinafter "H.B. 292") went into effect. The key provisions of H.B. 292 are codified in R.C.
{¶ 5} Appellee advanced two claims in her action against appellants: (1) that decedent had contracted asbestosis4 as a result of his exposure to asbestos in his workplace; and (2) that appellants were also liable under a theory of wrongful death.
{¶ 6} In March 2006, appellee filed a motion with several exhibits attached, seeking to establish the prima facie showing required under H.B. 292. Appellants responded with a memorandum in opposition, asserting that appellee's proffered evidence failed to establish a sufficient prima facie showing to allow her case to proceed, and requesting that appellee's case be administratively dismissed pursuant to R.C.
{¶ 7} On April 24, 2005, the trial court held a hearing on the parties' various arguments regarding appellee's asbestos-related claims. Appellee conceded at the hearing that based on decedent's death certificate, which had been filed in the case, "there is no evidence * * *, at the moment, that [decedent's] death was caused as a result of an [asbestos-related] disease." Appellee requested the trial court to administratively dismiss both her asbestosis and wrongful death claims until she had an opportunity to gather additional evidence in support of them. Appellee also asked the trial court to find that the retroactive application of H.B. 292 to her case would be unconstitutional, as the trial court had found in previous cases. See Wilson v. ACS, Inc. (Mar. 7, 2006), Butler Cty. C.P. No. CV2001-12-3029.
{¶ 8} On June 1, 2006, the trial court issued an "Amended Order of Administrative Dismissal" with respect to appellee's asbestos claim. Initially, the trial court found that pursuant to R.C.
{¶ 9} However, the trial court concluded that the prima facie evidence presented by appellee failed "to meet the criteria for maintaining an asbestos-related bodily injury claim that existed prior to September 2, 2004." Consequently, the trial court administratively dismissed appellee's case without prejudice pursuant to R.C.
{¶ 10} Appellants now appeal from the trial court's June 1, 2006 order, raising the following assignment of error:
{¶ 11} "THE TRIAL COURT ERRED IN ITS INTERPRETATION THAT R.C.
{¶ 12} Appellants argue that the trial court erred in determining that it could not apply certain provisions of H.B. 292, including R.C.
{¶ 13} Initially, appellee contends that the order from which appellants are appealing is not a final appealable order. We disagree with this contention.
{¶ 14} R.C.
{¶ 15} "(A) As used in this section:
{¶ 16} "* * *
{¶ 17} "(3) `Provisional remedy' means a proceeding ancillary to an action, including, but not limited to * * * a prima facie showing pursuant to section
{¶ 18} "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶ 19} "* * *
{¶ 20} "(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶ 21} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
{¶ 22} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action."
{¶ 23} In this case, the proceedings in the trial court constituted a "provisional remedy" under R.C.
{¶ 24} The order appealed from is also one that "determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy." R.C.
{¶ 25} Finally, in light of all of the facts and circumstances of these proceedings, appellants "would not be afforded a meaningful or effective remedy" by having to wait to file an appeal "following final judgment as to all proceedings, issues, claims, and parties in the action." R.C.
{¶ 26} As to the issues raised in appellants' assignment of error, we first note that in Wilson, this court held that R.C.
{¶ 27} In light of our decision in Wilson, the trial court erred when it found, pursuant to R.C.
{¶ 28} The trial court's decision to administratively dismiss appellee's case pursuant to R.C.
{¶ 29} If appellee seeks to reinstate her case pursuant to R.C.
{¶ 30} Appellants' assignment of error is sustained.
{¶ 31} The trial court's June 1, 2006 order is affirmed in part and reversed in part, and this cause is remanded to the trial court with instructions to issue a new order consistent with this opinion and in accordance with the law of this state.
POWELL, P.J., and YOUNG, J., concur.