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National Union Fire Insurance Company of Pittsburgh3/12/1992
JUDGMENT: Reversed.
I.
Appellant, National Union Fire Insurance Company (National) appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted an action in declaratory judgment in favor of appellee, Shane and Shane Co., L.P.A. (Shane). For the reasons that follow, we reverse.
II.
Mr. Summer, who was an attorney with the law firm of Shane, represented Mr. Nici in a personal injury action. Mr. Nici filed a complaint in breach of contract and fraud on September 15, 1987 against Mr. Summer and Shane. The complaint alleged that Mr. Nici entered into a contract with the defendants which required him to pay 25 percent of all money collected on his behalf to the defendants. Mr. Nici alleged that at the conclusion of his personal injury case, the defendants deducted $8,000.00 in addition to the 25 percent agreed upon by the contract of the parties. He alleged that the defendants claimed that the additional deduction covered "other expenses".
Mr. Nici's complaint concluded that the defendants' action constituted fraud and a breach of contract and prayed for compensatory and punitive damages. Mr. Nici also prayed for attorney fees.
National is a malpractice insurance carrier for Shane. National was informed of the complaint by Shane. National appeared on Shane's behalf and in a separate action, filed for a declaratory judgment, arguing that its contract of coverage does not cover the type of action instituted by Mr. Nici, and therefore, it had no duty to defend the action.
III. Appellant's propositions of law are as follows:
"1. The trial court erred to National Union's prejudice in denying National Union's Motion for Declaratory (Summary) Judgment;
"2. The trial court erred to National Union's prejudice in finding that National Union provides coverage with respect to the case Anthony Nici v. Richard Summers, et al., Cuyahoga County Court of Common Pleas, Case No. 136191."
We begin by noting that the record of the within case is replete with confusion as to whether it is a final appealable order. We resolve this issue by holding that in spite of the confusion in the record, this case is a final appealable order and neither Civ. R. 54(B), nor Civ. R. 42 is applicable. Mr. Nici's law suit was filed on September 15, 1987 and was assigned Case No. 136191. On March 22, 1988, National sent a letter to Shane indicating that it would defend the action but reserved a right to decline its agreement to defend.
On October 25, 1988, National filed an action for declaratory judgment (Case No. 158881), complaining that its policy precludes it from defending Shane. On November 1, 1989, National filed a motion to transfer Case No. 158881 to Judge William Mahon who was assigned the original Case No. 136191. On November 28, the trial court denied National's motion to transfer (citing wrong dates) because "no motion to consolidate was filed in the lowest numbered case. See Local Rule 15 H."
There was no further mention of consolidation or transfer in the entire record. Therefore, from our review of the record, since there was no consolidation or counterclaim, the two actions remained separate, and the non-resolution of one does not preclude the other from being appealed.
Since appellant's two propositions of law are centered on whether the trial court erred in denying its motion for declaratory judgment, they will be treated together. Appellant argues that the trial court should have granted its motion for declaratory judgment because the language of the policy of malpractice insurance issued to appellees excluded the facts in Nici
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