Comben v. State Farm Mut. Auto. Ins. Co.

2021 Ohio 4012

• Court: Ohio Court of Appeals
• Decided: November 10, 2021
• Docket: 110276
• Status: Published

Opinion

[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