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Indiana Insurance Co. v. Federal Insurance Co.4/12/2005
me 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 necessity, the Ohio Supreme Court explained the doctrine was a rule of practice, not a binding rule of substantive law. Id. at para. 15. The Ohio Supreme Court held the decision in Galatis constituted extraordinary circumstances which created an exception to the law-of-the-case doctrine and this Court was obligated to apply Galatis. The Supreme Court specifically rejected the plaintiff's further assertion res judicata barred reopening the judgment, finding res judicata did not apply as there was no final judgment as to insurance coverage. Id. at para. 22.
{ } I find Hopkins distinguishable from the instant action. In Hopkins I, this Court found the plaintiff qualified as an insured under the Lumbermens polices, and remanded the cause to the trial court to consider various defenses to coverage. Id. Thus, the issue of the existence of coverage remained undetermined. In fact, the Supreme Court specifically found there had been no final judgment on the issue. In the original appeal in the instant action, this Court determined coverage existed. We remanded the matter for the trial court to apportion damages and determine prejudgment interest, neither of which impact nor negate the existence of coverage, but rather impact the extent of coverage. Pursuant to R.C. 2721.02(A), which reads, a "declaration has the effect of a final judgment or decree," our decision affirming the trial court's October 16, 2002 Judgment Entry rendered any issue as to the existence of coverage final. Our remand orders regarding the assessment of damages and prejudgment interest were independent of the determination of the existence of coverage. Because the issue of coverage was finally decided, I find res judicata bars the application of Galatis. Galatis does not apply retroactively in the case sub judice because, unlike Hopkins, the issue as to the existence of coverage was no longer pending at the time Galatis was decided.
{ } I would affirm the trial court's decision not to apply Galatis and overrule Federal's first assignment of error.
JUDGE WILLIAM B. HOFFMAN
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs to be split equally among Appellees.
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