[Cite as Hartford Fire Ins. Co. v. DeBra-Kuempel Inc., 2024-Ohio-5830.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
THE HARTFORD FIRE INSURANCE : APPEAL NO. C-240100 COMPANY, AS SUBROGEE OF BLUE TRIAL NO. A-2203885 ASH FUNDING COMPANY, LLC, :
Plaintiff-Appellant, : OPINION vs. :
DEBRA-KUEMPEL, INC., :
Defendant-Appellee/Third- : Party Plaintiff, : vs. : IMEG CONSULTANTS CORP., f.k.a PEDCO E&A SERVICES, INC., :
Third-Party Defendant- Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part and Appeal Dismissed in Part
Date of Judgment Entry on Appeal: December 13, 2024
Rendigs, Fry, Kiely & Dennis LLP, Jonathan P. Saxton, James J. Englert, Whelan Ransel, LLC, and C. Zachary Ransel, for Plaintiff-Appellant,
Reminger Co., LPA, and Michael J. Caligaris, for Defendant-Appellee/Third-Party Plaintiff,
McNeal Schick Archibald & Biro Co., LPA, and Brian T. Winchester, for Third-Party Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} After a heating coil malfunctioned in Blue Ash Funding Company,
LLC’s, newly-renovated office building (“the Property”), causing extensive damage,
Blue Ash made a claim with its insurer, plaintiff-appellant The Hartford Fire
Insurance Company. Hartford paid Blue Ash’s claim.
{¶2} Attempting to recoup those funds, Hartford filed a subrogation claim
against defendant-appellee/third-party-plaintiff DeBra-Kuempel, Inc., asserting that
the company had negligently engineered, designed, and/or installed the heating coil.
DeBra-Kuempel then sued third-party defendant-appellee IMEG Consultants Corp.,
f.k.a. PEDCO E&A Services, Inc., (“PEDCO”) seeking indemnification and
contribution. The trial court granted summary judgment in DeBra-Kuempel’s and
PEDCO’s favor. Hartford appeals.
{¶3} We hold that a contract provision in which Blue Ash and the renovation
project’s architect waived all rights to damages against the project’s subcontractors
bars Hartford’s claim against DeBra-Kuempel. And we further hold that Hartford
lacks standing to appeal the trial court’s summary judgment in PEDCO’s favor.
I. Facts and Procedure
A. Facts
{¶4} A malfunctioning HVAC unit caused extensive water damage to the
Property. Although factual disputes existed, because the trial court granted summary
judgment on a legal issue—the interpretation of the contracts’ subrogation-waiver
provisions—many facts underlying this case are not relevant.
2 OHIO FIRST DISTRICT COURT OF APPEALS
i. The parties’ contracts contained waiver provisions
{¶5} In 2018, Symphony Development Partners, LLC, Blue Ash’s
predecessor-in-interest, retained BHDP Architecture to renovate the Property. BHDP
and Symphony signed two separate documents comprising the agreement between
them (collectively “the Contract”): an AIA Document B101-2017, “Standard Form of
Agreement Between Owner and Architect Agreement” (“B101”) and an AIA Document
A201-2017, “General Conditions of the Contract for Construction” (“A201”).
Symphony assigned its rights under the Contract to Blue Ash in April 2020. The
Contract contained three subrogation-waiver provisions.
{¶6} Section 8.1.2 of the B101 (“Section 8.1.2”) provides:
To the extent damages are covered by property insurance, the
Owner and Architect waive all rights against each other and against the
contractors, consultants, agents, and employees of the other for
damages, except such rights as they may have to the proceeds of such
insurance as set forth in AIA Document A201-2017, General Conditions
of the Contract for Construction.
{¶7} Section 11.3.1 of the A201 (“Section 11.3.1”) provides:
The Owner and Contractor waive all rights against (1) each other
and any of their subcontractors, sub-subcontractors, agents, and
employees, each of the other; (2) the Architect and Architect’s
consultants; and (3) Separate Contractors, if any, and any of their
subcontractors, sub-subcontractors, agents, and employees, for
damages caused by fire, or other causes of loss, to the extent those losses
are covered by property insurance required by the Agreement or other
3 OHIO FIRST DISTRICT COURT OF APPEALS
property insurance applicable to the Project, except such rights as they
have to proceeds of such insurance. However, the scope of this waiver
shall be limited to damages to the Work itself, and this waiver shall not
apply to property insurance purchased by the Owner after completion
of the Work or final payment, whichever comes first.
{¶8} Finally, Section 11.3.2 of the A201 (“Section 11.3.2”) provides:
If during the Project construction period the Owner insures properties,
real or personal or both, at or adjacent to the site by property insurance
under policies separate from those insuring the Project, or if after final
payment property insurance is to be provided on the completed Project
through a policy or policies other than those insuring the Project during
the construction period, to the extent permissible by such policies, the
Owner waives all rights in accordance with the terms of Section 11.3.1
for damages caused by fire or other causes of loss covered by this
separate property insurance.
ii. DeBra-Kuempel and PEDCO completed work on the Project
{¶9} Renovations to the Property started in 2019. BDHP retained PEDCO as
the mechanical, electrical, and plumbing engineering consultant for the Project.
Symphony retained Danis Building Construction Company as the general contractor
for the Project. Danis, in turn, subcontracted with DeBra-Kuempel to perform HVAC
installation work at the Project.
iii. The HVAC system failed and Hartford paid Blue Ash’s claim
{¶10} In December 2020, shortly after construction was completed, an HVAC
unit failed, resulting in substantial water damage to the Property. The property
4 OHIO FIRST DISTRICT COURT OF APPEALS
manager stated that the leak caused flooding in “a new section that had just been
renovated.”
{¶11} After Blue Ash filed an insurance claim, Hartford paid Blue Ash, its
insured, $1,905,222.21 to cover the loss. In opposing summary judgment below,
Hartford asserted that the policy under which Hartford paid Blue Ash (“the Policy”)
was neither a “builder’s risk policy” nor a policy insuring the work on the Project or
the Project itself. Rather, Hartford argued, the Policy was separate from any policies
insuring the Project. The Policy covered the cost to return the Property to “pre-loss
condition,” but covered damages for “direct physical loss” only. There were no other
insurance policies in place that might have covered the loss.
{¶12} The policy permitted Blue Ash to waive its rights to collect damages
against another “prior to a covered loss or damage.” But it included an exception: “For
their interest in building repair or construction, you may not waive your rights to
recover damages from architects or engineers except as agreed to in writing by us.”
B. Procedural history
{¶13} Hartford, as subrogee of Blue Ash, sued DeBra-Kuempel, alleging a
single count of negligence. DeBra-Kuempel filed a third-party complaint against
PEDCO, seeking indemnification and contribution from PEDCO if DeBra-Kuempel
were found liable to Hartford.
{¶14} PEDCO moved for summary judgment on DeBra-Kuempel’s claims,
asserting that the Contract’s subrogation-waiver provisions barred the claims. DeBra-
Kuempel’s memorandum in opposition limitedly joined PEDCO’s argument regarding
the subrogation waivers. Hartford filed a memorandum in opposition to PEDCO’s
motion for summary judgment.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} DeBra-Kuempel moved for summary judgment, arguing that Hartford’s
negligence claim was barred by the same subrogation waivers and that the claims
failed on the merits. Hartford opposed the motion.
{¶16} Hartford moved for leave to file a second amended complaint, seeking
to add PEDCO as a direct defendant. PEDCO opposed the motion.
{¶17} After a hearing on the pending summary-judgment motions, the trial
court denied Hartford’s motion for leave to amend and granted summary judgment in
favor of DeBra-Kuempel and PEDCO. Hartford appeals the summary-judgment
decisions but does not appeal the trial court’s denial of its motion for leave to amend
its complaint.
II. Law and Analysis
1. First assignment of error: Summary judgment to DeBra-Kuempel
{¶18} Hartford’s first assignment of error challenges the trial court’s
determination that the Contract’s three subrogation waivers all applied to bar its
claims against DeBra-Kuempel. Hartford asserts (1) Section 8.1.2 does not apply to
DeBra-Kuempel; (2) even if Section 8.1.2 could be read to include DeBra-Kuempel, it
conflicts with Sections 11.3.1 and 11.3.2, and Sections 11.3.1 and 11.3.2 control; and (3)
Section 11.3.2 applies specifically to the facts of this case, it includes a carve out for
insurance policies prohibiting subrogation waivers, and the Policy contains a
prohibition against waivers as to engineers like DeBra-Kuempel, permitting Hartford
to maintain its action.
6 OHIO FIRST DISTRICT COURT OF APPEALS
A. Standard of review
{¶19} We review a trial court’s summary-judgment ruling de novo.
Environmental Solutions & Innovations, Inc. v. Edge Eng. & Science, LLC, 2023-
Ohio-2605, ¶ 6 (1st Dist.). Summary judgment must be granted where (1) there are no
genuine issues of material fact, (2) the movant is entitled to judgment as a matter of
law, and (3) when viewing the evidence most strongly in the nonmovant’s favor,
reasonable minds can only come to a conclusion that is adverse to the nonmovant.
Civ.R. 56(C); see M.H. v. City of Cuyahoga Falls, 2012-Ohio-5336, ¶ 12.
{¶20} The summary-judgment movant has the initial burden to inform the
court of the basis of the motion and must point to evidence in the record that shows
“the absence of a genuine issue of material fact on the essential element(s) of the
nonmoving party’s claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the
movant satisfies its initial burden, the burden shifts to the nonmovant “to set forth
specific facts showing that there is a genuine issue for trial.” Id.; see Civ.R. 56(E). If
the nonmovant fails to carry this burden, summary judgment should be granted.
Environmental Solutions at ¶ 7.
{¶21} A court may not weigh the evidence or choose between reasonable
inferences on summary judgment as the “purpose of summary judgment ‘is not to try
issues of fact, but rather to determine whether triable issues of fact exist.’” Id., quoting
Walker v. Hodge, 2008-Ohio-6828, ¶ 19 (1st Dist.).
B. Discussion
{¶22} The interpretation of a contract is a matter of law that an appellate court
reviews de novo. Saunders v. Mortensen, 2004-Ohio-24, ¶ 9.
{¶23} In interpreting a contract, our primary goal is to determine the parties’
7 OHIO FIRST DISTRICT COURT OF APPEALS
intent. Hamilton Ins. Servs. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999).
We presume that the parties’ intent is reflected in the terms of the contract. Saunders
at ¶ 9. Contract terms are given their plain and ordinary meaning. City of Sharonville
v. Am. Emps. Ins. Co., 2006-Ohio-2180, ¶ 6.
{¶24} We read contracts as a whole and whenever reasonable, we give effect
to each provision within a contract. Saunders at ¶ 16. We cannot “wholly disregard” a
provision of a contract as being inconsistent with another unless no other reasonable
construction is possible. Marusa v. Erie Ins. Co., 2013-Ohio-1957, ¶ 8.
{¶25} Subrogation in the insurance context is “[t]he principle under which an
insurer that has paid a loss under an insurance policy is entitled to all the rights and
remedies belonging to the insured against a third party with respect to any loss covered
by the policy.” Ohio Bur. of Workers’ Comp. v. McKinley, 2011-Ohio-4432, ¶ 25,
quoting Black’s Law Dictionary (9th Ed. 2009). The insurer’s rights are no greater
than its insured—the insurer “stands in the shoes” of its insured. Id., quoting
Nationwide Mut. Ins. Co. v. Zimmerman, 2004-Ohio-7115, ¶ 16 (5th Dist.).
Contractual subrogation-waiver provisions are enforceable and controlled by the same
rules as any other contract. See Blue Cross & Blue Shield Mut. v. Hrenko, 72 Ohio St.3d
120, 122 (1995); Acuity v. Interstate Constr., 2008-Ohio-1022, ¶ 13 (11th Dist.).
i. Section 11.3.1 applies to the Policy and bars Hartford’s claims
{¶26} Before the trial court and on appeal, DeBra-Kuempel asserted that all
three subrogation waivers applied to bar Hartford’s claims against it. The trial court
agreed. We conclude, like the majority of courts to consider similar provisions, that
based on the plain meaning of the Contract, Section 11.3.1 applies to, and bars,
Hartford’s claims against DeBra-Kuempel.
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Hartford acknowledged that Section 11.3.1’s reference to “(1) [the Owner
and Contractor] and any of their subcontractors, sub-subcontractors . . . each of the
other; . . . and (3) Separate Contractors, if any, and any of their subcontractors, [and]
sub-subcontractors” includes DeBra-Kuempel. Section 11.3.1 waives the Owner’s and
Contractor’s rights to recover damages against subcontractors “to the extent those
losses are covered by property insurance required by the Agreement or other property
insurance applicable to the Project, except such rights as they have to proceeds of such
insurance.” Section 11.3.1 qualifies its scope, limiting it to “damages to the Work itself,
and this waiver shall not apply to property insurance purchased by the Owner after
completion of the Work or final payment, whichever comes first.”
{¶28} The Contract defines “Work” as “the construction and services required
by the Contract Documents, whether completed or partially completed, and includes
all other labor, materials, equipment, and services provided or to be provided by the
Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole
or a part of the Project.” The Contract further defines the “Project” as “the total
construction of which the Work performed under the Contract Documents may be the
whole or a part and which may include construction by the Owner and by Separate
Contractors.”
1) Section 11.3.1’s Scope
{¶29} The parties used an AIA contract common in the construction industry.
Substantially similar language appears in many cases. A court split exists regarding
the scope of the waiver contained in Section 11.3.1. See Westfield Ins. Group v. Affinia
Dev., LLC, 2012-Ohio-5348, ¶ 35-41 (5th Dist.) (discussing the two approaches). But
the version of Section 11.3.1 in cases discussing this court split does not appear to
9 OHIO FIRST DISTRICT COURT OF APPEALS
include the qualification present in this case that “the scope of this waiver shall be
limited to damages to the Work itself.”
[The minority approach] makes a distinction between Work (as that
word is defined in the contract) and non-Work property and limits the
scope of the waiver to damages to the Work; and the [majority
approach] draws no distinction between Work and non-Work, but
instead, limits the scope of the waiver to the proceeds of the insurance
provided under the contract between the owner and contractor.
Trinity Universal Ins. Co. v. Bill Cox Constr., 75 S.W.3d 6, 11 (Tex.App. 2001).
{¶30} Most courts to interpret provisions similar to Section 11.3.1 have held
that these provisions waive claims arising from damage to both “Work” and “non-
Work” property, provided those damages are covered by insurance “required by the
Agreement” or “applicable to the Work.”1 Affinia at ¶ 35-42 (collecting cases and
adopting the “majority view”). Under the majority approach, the waiver applies “so
long as a policy of insurance ‘applicable to the Work’ pays for the damage.” Lloyd's
Underwriters v. Craig & Rush, Inc., 26 Cal.App.4th 1194, 1198 (1994).
{¶31} Under the minority approach, courts consider whether the damages
occurred to “Work” property or “non-Work” property, and bar claims only if they arise
from damage to “Work” property. See AIG Prop. Cas. Co. v. SF Constr. Servs., Inc.,
198 N.Y.S.3d 52, 53 (App.Div. 1st Dept.) (“Th[e], plaintiff, as the subrogee, may
recover for damages to only those portions of the property that were not within the
areas of SFCS’s work.”); see Fid. & Guar. Ins. Co. v. Craig-Wilkinson, Inc., 948 F.Supp.
1 It appears that most past AIA contracts used the phrase “applicable to the Work” rather than
“applicable to the Project.” The Contract in this case used “Project.” Because “Project” subsumes “Work,” this difference would at most broaden the waiver in Section 11.3.1. 10 OHIO FIRST DISTRICT COURT OF APPEALS
608, 614 (S.D.Miss. 1995) (“By its terms, the waiver clause does not apply to the claim
arising from damage to non-Work property.”); S.S.D.W. Co. v. Brisk Waterproofing
Co., 76 N.Y.2d 228, 231 (1990) (same).
{¶32} By agreeing to Section 11.3.1’s language limiting “the scope of this waiver
. . . to damages to the Work itself,” Symphony (as predecessor-in-interest to Blue Ash)
contractually incorporated the minority view. So, under Section 11.3.1, Hartford,
standing in the shoes of Blue Ash, waived claims against the Contractor and its
subcontractors and sub-subcontractors, as well as any Separate Contractors and its
subcontractors and sub-subcontractors, relating to damages to the Work itself “to the
extent those losses are covered by property insurance required by the Agreement or
other property insurance applicable to the Project.”
2) Section 11.3.1 includes the Policy
{¶33} Hartford argues that the Policy is not included in Section 11.3.1. It
asserts that Section 11.3.1’s application is limited to builder’s risk policies.
{¶34} Some courts have interpreted Section 11.3.1’s reference to “property
insurance required by the Agreement” to mean a builder’s risk policy, see Ace Am. Ins.
Co. v. Am. Med. Plumbing, Inc., 458 N.J.Super. 535, 542 (2019) (“The first is property
insurance an owner obtains ‘pursuant to’ section 11.3, which includes the builder’s risk
insurance [required by the agreement]”). But most courts either have rejected this
interpretation or have read “insurance applicable to the [Project]” to be broader than
just builder’s risk policies. See Intergovernmental Risk Mgt. ex rel. Village of Bartlett
v. O’Donnell, Wicklund, Pigozzi & Peterson Architects, 295 Ill.App.3d 784, 797 (1998)
(collecting cases). We have found no instances in which a court interpreted Section
11.3.1 as being limited to insurance purchased specifically for the Project or Work.
11 OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} In Intergovernmental Risk, id. at 797, after fire at a construction site,
an insurance company sued an architect on behalf of its subrogee-owner. The owner
and architect had entered into an AIA contract with language identical to Section 8.1.2
and similar to Section 11.3.1 that omitted the scope of the waiver. Id. at 787-788. After
the architect moved to dismiss based on the subrogation waivers, the insurer argued
that Section 11.3.1’s waiver did not apply because the policy under which it paid its
insured’s claims was not a builder’s risk policy and therefore not a policy “applicable
to the work.” The Illinois court rejected this argument, noting that the insurance
company’s interpretation of the waiver would render the phrase “or other property
insurance applicable to the Work” redundant. Id. at 797. The Illinois court noted that
“courts in other jurisdictions have interpreted similar provisions in owner/contractor
agreements to find that all-risk policies, obtained prior to execution of the
construction contracts, were ‘other property insurance applicable to the Work’ subject
to waiver of subrogation provisions in the agreements.” Id., citing Lloyd’s
Underwriters, 26 Cal.App.4th at 1196. The court rejected any further distinction
between “all-risk” and “general liability” policies, reasoning that the issue was not how
the policies were labeled, but “whether those policies cover the risks and losses
delineated in the construction agreements between the [owner] and the architect and
contractor.” Id. at 798.
{¶36} Other courts have similarly concluded that language like that contained
in Section 11.3.1 applies to policies other than builder’s-risk policies. See Haemonetics
Corp. v. Brophy & Phillips Co., 23 Mass.App.Ct. 254, 257 (1986) (preexisting
insurance policy was a policy on the “work” despite the fact that the policy was more
extensive than what was required under AIA contract); see also Chadwick v. CSI, Ltd.,
12 OHIO FIRST DISTRICT COURT OF APPEALS
137 N.H. 515, 524 (1993) (owner’s raising limits on preexisting property-insurance
policy to insure the project was property insurance “insuring the Work.”); Walker
Eng., Inc. v. Bracebridge Corp., 102 S.W.3d 837, 840 (Tex.App. 2003) (collecting
cases and concluding that language similar to 11.3.2 precluded a property owner’s
lawsuit against a subcontractor).
{¶37} We similarly read the language in Section 11.3.1 to apply to the Policy
because the Policy, though more extensive than a builder’s-risk policy, is the Policy
that Blue Ash acquired to cover the risks and losses delineated in the Contract.
Hartford’s claims adjuster in this case stated in his deposition that no other insurance
policies were in place that may have provided primary coverage for the loss. The
adjuster further confirmed that the Policy did cover Blue Ash’s water-damage loss,
which was evident by the fact that Hartford paid the claim. The Policy covered “direct
physical loss” that resulted from the failed HVAC unit. Given the absence of any other
policy in the record, we conclude that the Policy was an insurance policy “required by
the agreement.”
{¶38} Interpreting Section 11.3.1 to bar Hartford’s claims under the Policy also
effectuates the purpose of subrogation waivers in construction contracts. Such waivers
shift the risk of loss to insurance to avoid construction delays and the risk of litigation.
Accord Walker Eng., Inc., 102 S.W.3d at 841 (“[T]he purpose of [subrogation-waiver]
provisions is to eliminate the need for lawsuits by protecting all contracting parties
from property loss under the owner’s property insurance.”). The damages that
occurred to the Property resulted from one or more of the (sub)contractors alleged
negligence during the design and construction of the Project. This is the precise
13 OHIO FIRST DISTRICT COURT OF APPEALS
scenario subrogation waivers are intended to cover. Allowing an owner or its insurance
company to bypass contractual waiver provisions would defeat the parties’ intent.
{¶39} We hold that Section 11.3.1 applies to the Policy and bars Hartford’s
claim against DeBra-Kuempel.
3) Section 11.3.2 does not apply to the Policy
{¶40} Hartford asserts that Section 11.3.2, and not Section 11.3.1, applies to
the Policy. Hartford claims that, because the Policy is not a builder’s risk policy, it is a
policy “separate from those insuring the Project.”
{¶41} Section 11.3.2 waives the Owner’s right to collect damages for losses to
property covered by “policies separate from those insuring the Project”—to the extent
permissible by the policy. Several courts interpreting this provision have limited its
application to damage to nonproject property. See Westfield Ins. Group, 2012-Ohio-
5348, at ¶ 43 (5th Dist.) (Discussing Section 11.3.2’s language and reasoning that “even
though the damage occurred to non-Work property, the owner waived subrogation
rights because the damages were insured. This provision shows that the contracting
parties were not opposed to waiving damages to non-Work property.”); see also
Lexington Ins. Co. v. Entrex Community Serv., 275 Neb. 702, 717-718 (2008) (“We
understand this provision to mean that if the owner acquires a separate property
insurance policy to cover non-Project property—a policy that did not cover the Project
or Work property—and the non-Project property is damaged, the owner waives
subrogation rights for the insurer as to those damages.”); Empress Casino Joliet Corp.
v. W.E. O’Neil Constr. Co., 2016 Ill.App.(1st) 151166, ¶ 97 (2016) (same).
{¶42} Hartford cites Empress Casino to argue that Section 11.3.2, rather than
Section 11.3.1, applies to the Policy and contends that the Policy’s carve-out language
14 OHIO FIRST DISTRICT COURT OF APPEALS
allows it to maintain its suit. But even if that case were on point—the court’s only
discussion of the provision similar to Section 11.3.2 was dicta and, unlike here, the
owner had multiple policies covering the property—the Policy was not “separate from
those insuring the Project.” Indeed, Hartford acknowledged that no other insurance
policy covered Blue Ash’s claim. And Hartford paid Blue Ash’s claim and did not assert
that the damages were not to the Work.
{¶43} We overrule Hartford’s first assignment of error.
2. Second assignment of error: Summary judgment to PEDCO
{¶44} In its second assignment of error, Hartford asserts that the trial court
erred in granting PEDCO summary judgment on DeBra-Kuempel’s third-party
complaint against PEDCO. Hartford lacks standing to appeal this ruling.
{¶45} Generally, a party lacks standing to bring an appeal to protect the rights
of a third party. Axline v. Kevin R. Conners, LLC, 2015-Ohio-4679, ¶ 43 (10th Dist.).
This is because only a party aggrieved by an order may bring an appeal. Id., citing Ohio
Contract Carriers Assn. v. Pub. Util. Comm., 140 Ohio St. 160, 161 (1942). A party is
aggrieved by an order and has standing to appeal the order if a party has a “present
interest in the subject matter of the litigation which has been prejudiced by the
judgment of the lower court.” Willoughby Hills v. C. C. Bar’s Sahara, Inc., 64 Ohio
St.3d 24, 26 (1992).
{¶46} Initially, Hartford contends that, because PEDCO did not argue that
Hartford lacked standing to challenge its motion for summary judgment below,
PEDCO has waived this issue. It is true that PEDCO did not assert below that Hartford
lacked standing to oppose its summary-judgment motion. But PEDCO now challenges
Hartford’s standing to bring an appeal. PEDCO could not have argued below that
15 OHIO FIRST DISTRICT COURT OF APPEALS
Hartford lacked standing to bring this appeal. And the standing to appeal an order is
distinct from a parties’ standing to assert a cause of action—the failure to raise
standing as a defense may be waived. See Fannie Mae v. Walton, 2015-Ohio-2855, ¶
16 (8th Dist.).
{¶47} While PEDCO could have asserted that Hartford lacked standing to
oppose summary judgment below, that issue is distinct from Hartford’s standing to
appeal the order and was therefore not waived. Moreover, an appellate court may sua
sponte raise a party’s standing to appeal. See City of Cleveland v. 3006 Montclair Ave.,
LLC, 2024-Ohio-1274, ¶ 17 (8th Dist.).
{¶48} We hold that Hartford lacks standing to appeal the PEDCO judgment.
First, Hartford lacks an interest in the dispute between DeBra-Kuempel and PEDCO.
DeBra-Kuempel’s third-party complaint seeks indemnification and contribution from
PEDCO if DeBra-Kuempel were found liable on Hartford’s underlying claim. DeBra-
Kuempel’s potential recovery from PEDCO would have no immediate effect on
Hartford’s claims against DeBra-Kuempel. Further, Hartford has no claims against
PEDCO. While Hartford sought leave to file a second amended complaint to add
PEDCO as a direct defendant, the trial court denied that motion and Hartford did not
appeal that ruling.
{¶49} Second, Hartford has not demonstrated that it was prejudiced by the
judgment in favor of PEDCO. Ultimately, Hartford challenges this order because the
trial court relied on the same subrogation waivers to enter judgment on both
Hartford’s and DeBra-Kuempel’s claims. But had we reversed the trial court’s
summary judgment in DeBra-Kuempel’s favor, that would not require us to reverse
the judgment in PEDCO’s favor. See Pilkington N. Am., Inc. v. Toledo Edison Co.,
16 OHIO FIRST DISTRICT COURT OF APPEALS
2015-Ohio-4797, ¶ 34 (“[W]here one party appeals a judgment, a reversal as to that
party generally will not justify a reversal as to nonappealing parties.”).
{¶50} Hartford lacks standing to appeal the trial court’s order granting
summary judgment in PEDCO’s favor and we dismiss the portion of Hartford’s appeal
related to the PEDCO judgment. See Eaton Natl. Bank & Trust Co. v. LNG Resources,
LLC, 2009-Ohio-1186, ¶ 6 (10th Dist.) (appeal dismissed where appellant lacked
standing); Chase Bank United States v. Jacobs, 2012-Ohio-64, ¶ 9 (10th Dist.) (same).
III. Conclusion
{¶51} For the foregoing reasons, we overrule Hartford’s first assignment of
error, dismiss the portion of its appeal related to the PEDCO judgment, and affirm the
trial court’s judgment.
Judgment accordingly.
ZAYAS and BERGERON, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.