Comben v. State Farm Mut. Auto. Ins. Co. , 2021 Ohio 4012 ( 2021 )

[Cite as Comben v. State Farm Mut. Auto. Ins. Co., 2021-Ohio-4012.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ALLISON M. COMBEN, :
Plaintiff-Appellee, :
No. 110276
v. :
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO., ET AL., :
Defendants. :
[Appeal by The Boyd Group (U.S.) Inc.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: November 10, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-929241
Appearances:
Amourgis & Associates, L.L.C., and Benjamin P. Pfouts,
for appellee.
Kreiner & Peters, Co., L.P.A., Shaun D. Byroads, and
Daran Kiefer, for appellant.
FRANK D. CELEBREZZE, JR., P.J.:
Appellant The Boyd Group (U.S.) Inc. (“Boyd”) challenges the trial
court’s judgment denying its motion to intervene in the underlying personal injury
action. Boyd had sought intervention in order to protect and preserve its claimed
subrogation rights against the alleged tortfeasor and the insurance carrier for
uninsured/underinsured motorist coverage. After a careful review of the record and
law, we dismiss this appeal for lack of a final, appealable order.
I. Factual and Procedural History
In 2017, plaintiff-appellee Allison Comben (“Comben”) sustained
injuries in a motor vehicle accident allegedly caused by Jacob K. Kastl (“Kastl”). At
the time of the incident, Comben’s vehicle was insured by State Farm Mutual
Automobile Insurance Company (“State Farm”). Comben was further insured
under a health benefit plan that was offered through and sponsored by her
husband’s employer, Boyd. Boyd is the employer, fiduciary, and plan sponsor for
The Boyd Group Health Benefit Plan (“The Plan”). UMR, Inc. (“UMR”), a subsidiary
of UnitedHealthcare Company, provided administrative services for The Plan.
Following the subject collision, Comben was contacted by UMR, who
claimed that it had paid medical expenses that had been caused by the subject
collision totaling $11,628.08 from The Plan fund and that UMR (on behalf of Boyd)
was entitled to be reimbursed for those expenses pursuant to its contractual rights
of subrogation and reimbursement.
Shortly before the expiration of the statute of limitations, Comben
filed a complaint in the Cuyahoga County Court of Common Pleas, Cuyahoga C.P.
No. CV-19-923410, asserting claims against Kastl as tortfeasor and State Farm for
uninsured/underinsured motorist coverage. The complaint further alleged a claim
for declaratory judgment against Boyd, as the plan sponsor and a fiduciary of
beneficiaries/insureds of The Plan, requesting that the court interpret the contract
to determine Boyd’s claimed subrogation and reimbursement rights.
Boyd failed to file an answer or otherwise respond to the complaint,
and Comben filed a motion for default judgment. While Comben’s motion for
default judgment was pending, Boyd filed a motion to dismiss, asserting that
Comben’s declaratory judgment claim was preempted by 29 U.S.C. 1132(a)(3) of
ERISA and arguing that the trial court lacked jurisdiction over Comben’s declaratory
judgment claim because federal courts have exclusive jurisdiction over claims
brought pursuant to 29 U.S.C. 1132(a)(3).
Boyd did not assert any of its own claims at that time regarding its
alleged subrogation and reimbursement rights, nor did Boyd bring a separate action
against Comben, Kastl, or State Farm.
Before the trial court ruled on either motion, Comben filed a notice of
voluntary dismissal without prejudice against all parties pursuant to Civ.R.
41(A)(1)(a).
Comben subsequently refiled her action, which included the same
claims against Kastl and State Farm, but did not refile the declaratory judgment
claim against Boyd. Shortly after the suit was refiled, Boyd filed a motion to
intervene. Boyd’s intervening complaint sought to assert portions of two tort claims
against Kastl and State Farm that it claimed had been assigned/subrogated to it by
Comben through contract. Boyd’s intervening complaint did not contain any claims
for declaratory judgment or otherwise against Comben regarding its claimed
contractual subrogation and reimbursement rights.
The trial court denied Boyd’s motion to intervene, and Boyd filed the
instant appeal, asserting two assignments of error for our review:
1. The trial court erred by denying The Boyd Group (U.S.) Inc.’s motion
to intervene/join as a party plaintiff preventing protection and
preservation of subrogation rights against defendants.
2. The trial court erred by failing to allow a subrogor to join the action
as a necessary party needed for full and just adjudication.
A motion to dismiss appeal was filed by Comben. The motion was
referred to the panel addressing the merits of this appeal.
II. Law and Analysis
Preliminarily, we must address Comben’s motion to dismiss this
appeal. Comben argues that this court lacks jurisdiction over the instant appeal
because the trial court’s order fails to satisfy R.C. 2505.02(B)(1) and Civ.R. 54(B).
Under Section 3(B)(2), Article IV of the Ohio Constitution, courts of
appeals have jurisdiction only to “affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of appeals within the district.” As
a result, “‘[i]t is well-established that an order must be final before it can be reviewed
by an appellate court. If an order is not final, then an appellate court has no
jurisdiction.’” Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-
607, 861 N.E.2d 519, ¶ 14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio
St.3d 17, 20, 540 N.E.2d 266 (1989). “‘An order of a court is a final appealable order
only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are
met.”’ Gehm at ¶ 15, quoting State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-
Ohio-5315, 776 N.E.2d 101.
Boyd argues that the denial of its motion to intervene constitutes a
final, appealable order under R.C. 2505.02(B)(1). This subsection provides that an
order affecting a substantial right that determines an action and prevents a
judgment is a final order. In Gehm, the Supreme Court of Ohio noted that because
a motion to intervene is a right recognized by Civ.R. 24, intervention constitutes a
substantial right as defined in R.C. 2505.02(A)(1), unless the purpose for which
intervention was sought may be litigated in another action. Gehm at ¶ 29, 37;
Schaffer v. Jones, 1st Dist. Hamilton No. C-160684, 2017-Ohio-7730, ¶ 12.
Consequently, we begin with the assumption that, under Gehm, the
denial of a motion to intervene may have affected a substantial right of Boyd. We
must further determine whether the purpose for which intervention was sought may
be litigated in another action. If it may, a substantial right was not affected.
Boyd maintains that it is unable to file a separate action to recover its
costs because the statute of limitations has expired on its claims. The parties agree
that Boyd’s subrogation claims were derivative of Comben’s claims and, thus,
subject to the same two-year statute of limitations. Boyd argues that, while a
separate action would be time barred, it is still able to maintain its claim via
intervention in the underlying case because Ohio courts have held that intervention
by a subrogated carrier allows them to protect their rights by having their
intervening complaint relate back to the filing of the action by the injured/insured
party. Comben disputes that this proposition applies to a refiled action; however,
this issue is not before us.
The Supreme Court of Ohio has characterized the expiration of a
statute of limitations as “an affirmative defense that may deprive a plaintiff of a right
to recover * * * .” (Emphasis added.) Travis v. Thompson, 8th Dist. Cuyahoga No.
78384, 2001 Ohio App. LEXIS 2757, 8-9 (June 21, 2001), citing State ex rel. Jones
v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). Accordingly, while the
statute of limitations may deprive Boyd of its right to recover, we cannot say that
Boyd’s claims may not be litigated in another action simply because an affirmative
defense could bar its recovery.
Comben’s claims have been pending in some form since October 2019,
save for a short time between the voluntary dismissal and refiling. Boyd was even
named as a defendant in the first action. Boyd was therefore on notice of the claims
and could have raised its own subrogation claims at any time but did not. There is
nothing, including the court’s denial of intervention, precluding Boyd from asserting
its claims in a separate action. The fact that those claims may ultimately be
determined to be time barred has no bearing on whether the claims may be litigated
in another action.
Thus, because the purpose for which intervention was sought by Boyd
may be litigated in another action, Boyd has not demonstrated that its substantial
right was affected by the denial of the motion to intervene.
For the same reasoning, even if we were to find that Boyd’s substantial
right had been affected by the court’s ruling, Boyd has not shown that the
requirements of R.C. 2505.02(B)(1) have been met. This statute provides that an
order is a final, appealable order when it affects a substantial right in an action that
in effect determines the action and prevents a judgment.
Boyd argues that, because the statute of limitations had run, the trial
court’s order denying intervention prevented it from obtaining a judgment arising
from its rights of subrogation and reimbursement against Kastl and State Farm for
the medical bills paid.
“An order determines the action and prevents a judgment when it
‘dispose[s] of the merits of the cause or some separate and distinct branch thereof
and leave[s] nothing for the determination of the court[.]’” Crown Servs. v. Miami
Valley Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 17,
quoting VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc., 119 Ohio St.3d 354, 2008-
Ohio-3920, 894 N.E.2d 303, ¶ 8.
In determining whether a party was “prevented” from obtaining a
judgment, the proper question is whether the claim would be prevented by collateral
estoppel. See Daniel v. Ballitch, 5th Dist. Richland No. 2019 CA 0052, 2019-Ohio-
5181 (holding that because the purpose for which the intervention was sought could,
and actually was, being litigated in another action, there was no order that
determined the action and prevented a judgment); Jackson v. Proto Machine &
Mfg., Inc., 2015-Ohio-1205, 31 N.E.3d 160 (11th Dist.) (holding that an order was
not final and appealable because appellant would not be precluded from litigating
the issue in a separate declaratory judgment action); Luna v. Allstate Ins. Co., 10th
Dist. Franklin No. 07AP-430, 2007-Ohio-6597 (holding that the order did not meet
the requirements of R.C. 2505.02 because the issue was not litigated in the action in
the common pleas court and, therefore, the appellant had the opportunity, if
necessary, to litigate it in the future).
In the instant matter, collateral estoppel does not prevent Boyd from
obtaining a judgment. Boyd was not estopped by anything, including the court’s
denial of intervention, from raising its claims in a separate action. See Gehm, 112
Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, at ¶ 31 (“When a party has sought
and been denied intervention, collateral estoppel will not prohibit future litigation
of similar issues.”). It is Boyd’s delay in asserting its claims that may have prevented
it from obtaining a judgment in its favor.
We find that the denial of Boyd’s motion to intervene did not affect a
substantial right that determined the action or prevented Boyd from obtaining a
judgment and was therefore not a final, appealable order under R.C. 2505.02(B)(1).
III. Conclusion
Because Boyd’s claims could have been litigated in a separate action,
the requirements of R.C. 2505.02(B)(1) have not been met, and the trial court’s
denial of the motion to intervene was not a final, appealable order. We therefore
lack jurisdiction over the appeal.
Accordingly, the appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR