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Henry v. Consol. Stores Internatl. Corp.8/26/1993
DESHLER, Judge.
Defendant-appellant, Consolidated Stores International Corporation ("Consolidated"), appeals from two judgments of the Franklin County Court of CommosPleas dismissing its cross-claims for indemnity and/or contribution against defendant-appellee, Setterlin Construction ("Setterlin") and defendant-appellee, The Painting Company.
Plaintiffs in this action, Gerald R. Henry and Patricia Henry, are not parties to this appeal. The Henrys brought a personal injury action against Consolidated on October 15, 1990, alleging that Gerald Henry had contracted ocular histoplasmosis caused by exposure to pigeon droppings and dead birds while he was employed by a subcontractor installing sprinkler systems in a building owned by Consolidated. On January 4, 1991, Consolidated filed a third-party complaint for contribution or indemnification against Setterlin, the general contractor on the project.
Plaintiffs voluntarily dismissed their action without prejudice on April 2, 1991, and subsequently refiled a complaint against Consolidated on June 24, 1991. Plaintiffs filed a motion for leave to amend on July 20, 1991, intending to add Setterlin and The Painting Company, a subcontractor on the project, as defendants. The amended complaint, however, was not filed until April 17, 1992. Consolidated then filed cross-claims for contribution or indemnity against both Setterlin and The Painting Company on July 16, 1992.
Both Setterlin and The Painting Company filed motions for summary judgment, asserting that plaintiffs had failed to file the amended complaint naming Setterlin and The Painting Company within the period required by the statute of limitations for tort actions. The trial court granted the motions with regard to plaintiffs' claims against Setterlin and The Painting Company, and also found that Consolidated's cross-claims were barred because the successful plea by appellees of the defense of the statute of limitations to prevent liability to plaintiffs also precluded liability to Consolidated for indemnity or contribution. The trial court filed two separate judgment entries, dismissing all claims against Setterlin and The Painting Company, respectively. The order concerning The Painting Company noted that, pursuant to Civ.R. 54(B), there was no just cause for delay; the order concerning Setterlin did not contain such language.
Consolidated has timely appealed and brings the following assignment of error:
"The trial court erred in granting summary judgment against appellant on its cross-claims for indemnity and contribution."
In support of this assignment of error, Consolidated argues that the trial court incorrectly concluded that appellees' successful interposing of the statute of limitations to bar plaintiffs' claims against appellees also served to bar Consolidated's cross-claims for contribution and indemnification. Appellees respond that a defendant shielded from liability to a plaintiff due to the statute of limitations is similarly shielded from liability for contribution or indemnification to a joint osconcurrent tortfeasor. Appellee Setterlin also argues that the case is not properly before this court with regard to Setterlin, because the judgment entry dismissing plaintiffs' and Consolidated's claims against Setterlin does not meet the requirements of Civ.R. 54(B) and, therefore, is not a final appealable order.
Addressing, first, Setterlin's contention that it is not subject to a final appealable order and therefore not properly before this court, we find that this assertion is correct. Civ.R. 54(B) provides:
"When more than one claim for relief is presented i
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