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Indiana Insurance Co. v. Farmers Insurance Co. of Columbus4/12/2005
t 2-3.
{ } Because the June 25, 2004 judgment entry was an interlocutory order, Federal's Notice of Appeal taken therefrom did not divest the trial court of jurisdiction. Accordingly, we find the trial court did not err in entering the July 20, 2004 judgment entry.
{ } Cincinnati's Fifth Assignment of Error is overruled.
{ } For the foregoing reasons, the judgment of the Court of Common Pleas, Tuscarawas County, Ohio, is hereby affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
By: Wise, J., Farmer, J., concurs.
Hoffman, P. J., dissents.
Hoffman, J., concurring in part and dissenting in part
{ } I concur in the majority's analysis and disposition of Cincinnati's fifth assignment of error. I respectfully dissent from the majority's analysis and disposition of Cincinnati's third assignment of error. My reasons follow.
{ } Recently, in Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, the Ohio Supreme Court addressed the issue of whether Galatis is an intervening decision which creates an exception to the applicability of the law-of-the-case doctrine. In Hopkins, the plaintiff filed a suit against the tortfeasor and various insurance companies, asserting claims for underinsured motorist coverage pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. Id. at para. 8. Lumbermens Mutual Casualty Co., which insured the fast food restaurant at which the plaintiff worked as a part-time employee and which was not named in the plaintiff's suit, filed a separate declaratory judgment action with respect to coverage issues. Id. The cases were consolidated. Id. Lumbermens filed a motion for summary judgment, which the trial court granted, finding the plaintiff was not entitled to UM/UIM coverage because she was not an insured under the Lumbermens policies. Id. at para. 9.
{ } The plaintiff appealed to this Court, which reversed the judgment of the trial court. Id. at para. 10. This Court concluded Lumbermens had been obligated to offer UM/UIM coverage, but failed to do so; therefore, coverage arose by operation of law under former R.C. 3937.18. Id. This Court also held the plaintiff was an insured pursuant to Scott-Pontzer for purposes of UM/UIM coverage under both Lumbermens policies. Id. We remanded the matter to the trial court to decide issues of stacking, pro rata coverage, exposure, and other potential affirmative defenses. Id. at para. 11.
{ } Upon remand, the trial court concluded, as a matter of law, the plaintiff was an insured under the Lumbermens policies, and both policies provided coverage by operation of law pursuant to Scott-Pontzer. Id. at para. 12. The trial court relied upon the conclusion of this Court as constituting the law of the case. Id. The trial court concluded, because UIM coverage arose by operation of law, the terms, conditions, or exclusions in the Lumbermens liability coverage did not apply. Id. The trial court allowed a set-off of the $15,000 recovered from the tortfeasor's insurer.
{ } The matter was again appealed to this Court. We affirmed the decision of the trial court. Id. at para. 13. Lumbermens moved for reconsideration based upon Galatis, which the Supreme Court decided 12 days prior to our affirmance of the second appeal. Id. We denied reconsideration, finding the law of the case doctrine precluded the application of Galatis. Id. Lumbermens appealed to the Ohio Supreme Court, which accepted the discretionary appeal. Id. at para. 14.
{ } Although recognizing the law of the case as a longstanding doctrine in Ohio jurisprudence and acknowledging its
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