THE WILLIAM POWELL COMPANY, Plаintiff-Appellee, vs. ONEBEACON INSURANCE COMPANY, Defendant-Appellant, and FEDERAL INSURANCE COMPANY, Defendant-Intervenor.
APPEAL NO. C-130681
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 15, 2014
[Cite as William Powell Co. v. Onebeacon Ins. Co., 2014-Ohio-3528.]
TRIAL NO. A-1109350; Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Appeal Dismissed
Vorys, Sater, Seymour, and Pease LLP, Daniel J. Buckley, Robert C. Mitchell and Joseph M. Brunner, for Plaintiff-Appellee,
Davis & Young and Richard M. Garner, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant OneBeacon Insurance Company (“OneBeacon“) appeals the decision of the trial court granting partial summary judgment in favor of plaintiff-appellee The William Powell Company (“Powell“). We cannot reach the merits of OneBeacon‘s two assignments of error, because we have no jurisdiction to hear the appeal, and we must, therefore, dismiss it.
{¶2} Powell is a manufacturer of industrial valves some of which may have included one or more components made of asbestos. It has been involved in asbestos litigation all over the country for a number of years. Between 1960 and 1977, Powell carried liability insurance under a series of primary and excess policies issued by OneBeaсon‘s predecessor.
{¶3} Powell filed a complaint seeking a declaratory judgment of its rights under the policies. OneBeacon filed a counterclaim in which it also asked the court to declare the parties’ rights under the policies. Subsequently, Powell filed a motion for partial summary judgment in which it argued that (1) it had proved the existence and terms of several missing policies; (2) all the policies, both primary and excess, contained annualized limits of liability; (3) the stub periods (a period of coverage beyond a full year‘s coverage) in three of the policies contained full annual limits; (4) the asbestos exposures and resulting claims constituted multiple occurrences under the рolicies; and (5) Powell had a right to direct the allocation of indemnity and settlement payments to its policies.
{¶4} OneBeacon also filed a motion for summary judgment. Its overriding argument was that the asbestos claims against Powell werе caused by a single occurrence. It also argued that if the court found that there were multiple
{¶5} In its decision granting Powell‘s motion in part and denying OneBeacon‘s motion, the trial court speсifically stated that “[t]he dispute involves three questions: 1) whether the aggregate limitation of liability applies annually or for the term; 2) what constitutes an ‘occurrence‘; and 3) whether Plaintiff can direct the allocation of funds.” The сourt decided the first two issues in Powell‘s favor. As to the allocation issue, the court found that issues of fact existed that precluded summary judgment.
{¶6} In an “Order Granting and Denying Motions for Summary Judgment,” the court stated that OneBeacon‘s motion for summary judgmеnt was denied in all respects. It stated that Powell‘s motion for summary judgment “will be, and hereby is, granted in all respects except on the issue of allocation, which the court reserves for further proceedings[.]” The court then added that “there is no just reason for delay” under
{¶7} The Ohio Constitution limits an appellate court‘s jurisdiction to the review of final, appealable orders. Hooten v. Safe Auto Ins. Co., 1st Dist. Hamilton No. C-061065, 2007-Ohio-6090, ¶ 10. An order is final and appealable only if it meets the requirements of both
{¶8}
{¶9} A substantial right is “a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.”
{¶10} When a trial court enters a judgment in a declaratory-judgment action, the order must declаre all of the parties’ rights and obligations to constitute a final, appealable order. The trial court does not fulfill its function if it does not construe the documents at issue. Midwestern Indem. Co. v. Nierlich, 8th Dist. Cuyahoga No. 92526, 2009-Ohio-3472, ¶ 8; Owner Operators Indep. Drivers Risk Retention Group v. Stafford, 3d Dist. Marion No. 9-06-65, 2007-Ohio-3135, ¶ 10. A judgment entry that does not completely construe the documents is not a final, appealable order even though the entry contains
{¶11} In this case, the trial court did not grant summary judgment on the issue of allocation. The court relied оn Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, in which the Ohio
{¶12} The Supreme Court explained:
There are two accepted methods for allocating coverage. One approach, favored by Goodyear, permits the policyholder to seek coverage from any policy in effect during the time period of injury or damage. This “all sums” approach allows Goodyear to seek full coverage for its claims from аny single policy, up to that policy‘s coverage limits, out of the group of policies that has been triggered. In contrast, the insurers urge us to apply the pro rata allocation scheme implicitly adopted by the cоurt of appeals. Under the pro rata approach, each insurer pays only a portion of a claim based on the duration of the occurrence during its policy period in relation to the entire duration of the occurrence. It divides “a loss ‘horizontally’ among all triggered policy periods, with each insurance company paying only a share of the policyholder‘s total damages.
(Citation omitted.) Id. at ¶ 6.
{¶13} The Supreme Court stated that the starting рoint for determining the scope of coverage was the language of the insurance policies. Id. at ¶ 7. After examining the policies in question, the court held that “[w]hen a continuous occurrence of environmental pollution triggers claims under multiple primary insurance policies, the insured is entitled to secure coverage from a single policy of
{¶14} In ruling on the allocation issue, the trial court stated:
Under the authority of Goodyear, generally an “all sums” approach would apply. OneBeacon argues however, that Plaintiff cannot retroаctively apply this approach. It argues that Plaintiff has been operating under a “pro rata” approach and cannot now apply a different method. The Court finds that questions of fact exist precluding either pаrty from summary judgment at this point.
{¶15} The determination of the allocation of coverage is akin to a determination of damages. In Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, syllabus, the Ohio Supreme Court held that “[a]n order that declares that an insured is entitled to coveragе but does not address damages is not a final order as defined in
{¶16} The court pointed out that unlike a case that involves a duty to defend which does affect a substantial right, when a determination is made that an insured is entitled to coverage, the insurer is obligated to рay only if the insured is awarded damages. Id. at ¶ 26. The court further stated that “even where the issue of liability has been determined, but a factual adjudication of relief is unresolved, the finding of liability is not a final appealable order even if Rule 54(B) language was employed.” Id. at 31, quoting Noble, 44 Ohio St.3d at 96, 540 N.E.2d 1381.
{¶17} Similarly, in this case there is a determination of liability, but not a determination of how much will be paid out of each insurance policy. The results
{¶18} Consеquently, the court has not completely declared the rights of the parties under the insurance policies at issue. Further, the absence of an appeal would not foreclose relief in the future. Therefore, the trial сourt‘s judgment does not affect a substantial right made in a special proceeding. It is not a final, appealable order under
Appeal dismissed.
HENDON, P.J., concurs.
DEWINE, J., concurs separately.
DEWINE, J., concurring separately.
{¶19} Although I agree with the majority that the appeal must be dismissed for lack of a final, appealable order, I arrive there by a somewhat different path.
{¶20} As the majority points out, to be final and appealable an order must meet the requirements of
{¶22} The trial court‘s inclusion of
{¶23} There is no provision in
{¶24} An order that does not meet the requirements for finality under
{¶25} For these reasons, I concur with the decision to dismiss the case for lack of jurisdiction.
Please note:
The court has recorded its own entry on the date of the release of this opinion.