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Hershiser v. BOS Corp.8/22/1990
SHAW, Presiding Judge.
Plaintiff-appellant, Kim A. Hershiser, appeals from a judgment entered in the Court of Common Pleas of Crawford County dismissing his complaint pursuant to Civ.R. 41(A)(1) as an adjudication on the merits after plaintiff dismissed on two prior occasions.
On March 10, 1987, plaintiff filed a complaint in the Court of Common Pleas of Crawford County alleging personal injuries against defendant-appellee BOS, Inc., d.b.a. Mad Bull Lounge. On July 23, 1987, plaintiff filed a declaratory judgment action against BOS, Inc. and its insurer, defendant-appellee Buckeye Union Insurance Company ("Buckeye"), seeking determination of the issue of liability insurance coverage as it related to plaintiff's personal injury action.
Thereafter, on February 24, 1988, plaintiff, pursuant to Civ.R. 41 (A)(1)(b), voluntarily dismissed by stipulation, executed by all counsel, his personal injury action without prejudice. On October 20, 1988, plaintiff voluntarily dismissed his declaratory judgment action by notice of dismissal pursuant to Civ. R. 41 (A) (1)(a).
On February 6, 1989, plaintiff reinstated his personal injury action against BOS, Inc. together with his declaratory judgment action against BOS, Inc. and Buckeye. Both defendants then filed motions to dismiss asserting that the previous two dismissals brought the plaintiff within the "two dismissal" rule pursuant to Civ.R. 41(A)(1)(b) as "* * * action based on or including the same claim." The motions to dismiss were based in large part upon the fact that plaintiff had incorporated by reference the personal injury claim in the allegations of his complaint for declaratory judgment. The trial court found the motions well taken and dismissed both of the plaintiff's new complaints. Plaintiff now appeals and asserts two assignments of error.
Plaintiff's first assignment of error is:
"The trial court erred in dismissing plaintiff's complaint for personal injuries and declaratory judgment inasmuch as plaintiff's complaints embrace two separate and distinct actions and claims."
Plaintiff contends that it was prejudicial error to dismiss his February 6, 1989 actions pursuant to Civ.R. 41(A)(1) as one complaint sought recovery for personal injuries against BOS, Inc. and the other sought a declaratorsjudgment against BOS, Inc. and Buckeye. Civ.R. 41(A)(1) provides, in part, as follows:
"* * * n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim."
It is our view that these complaints constitute two separate, distinct claims against differing defendants. Although plaintiff clearly relies on the same factual foundation in these two complaints, in the personal injury complaint against BOS, Inc. the issue is clearly the existence and extent of the latter's liability for personal injuries. On the other hand, in the declaratory judgment action against BOS, Inc. and Buckeye the issues are clearly limited to the rights and duties of the parties under an insurance contract.
Appellees argue that by incorporating his person
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