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Indiana Insurance Co. v. Federal Insurance Co.4/12/2005
95), 104 Ohio App.3d 315, which held as follows:
{ } "When, in a declaratory judgment action to determine whether property damage was covered or was excluded under either a pollution exclusion or a petroleum exclusion, the court of appeals affirmed summary judgment for the insureds on the pollution-exclusion issue, and this insurer did not appeal this issue to the supreme court, judgment on this issue became final. Id. at 320. When nothing was remanded to the trial court on the pollution exclusion, no justiciable controversy remained on this issue; the trial court was obliged to accept the pollution-exclusion issue as finally decided, notwithstanding an intervening decision of the supreme court on the same subject. Id. On remand, the trial court thus erred in entertaining new motions for summary judgment on the pollution exclusion. Id.
{ } We conclude the above-cited cases are distinguishable. Unlike the Sheaffer case, in the case sub judice, upon remand from the court of appeals, the trial court did not enter judgment, pursuant to our mandate, on the issue of prejudgment interest and apportionment of damages. Rather, Federal filed a notice of appeal with the Ohio Supreme Court. We also find the Phung decision factually distinguishable because it involved a final judgment and therefore, res judicata applied to bar relitigation of the wrongful-discharge claim.
{ } Finally, the Morton case is also distinguishable from our case because, in Morton, nothing was remanded to the trial court about the pollution-exclusion. Therefore, when no appeal was taken to the Ohio Supreme Court, the court of appeals' decision became final. "In the absence of a remand, the fact that a subsequent decision of the supreme court is handed down on the same subject is immaterial to issues which have been finally resolved." Morton, supra, at 321.
{ } We would also note that recently, in Hopkins v. Dyer, supra, the Ohio Supreme Court declined to apply the doctrine of res judicata concluding the doctrine of the law of the case applied, not res judicata, because there was no final judgment as to insurance coverage in that the trial court still had to decide various defenses. Hopkins at 22. Thus, the fact that issues remain pending, whether they be coverage issues or issues regarding prejudgment interest or apportionment of damages, the existence of pending issues on remand precludes the application of the doctrine of res judicata.
{ } Appellees also argue our remand on the issues of prejudgment interest and apportionment of damages only required the trial court to perform a ministerial act. Thus, appellees conclude the trial court was not permitted to reconsider the coverage issue in light of Galatis. We disagree with this argument. As explained by the Ohio Supreme Court in Cleveland Elec. Illuminating Co. v. Pub. Utilities Comm. of Ohio (1976), 46 Ohio St.2d 105, 110, a "remand" is:
{ } "* * * o send back to the original tribunal for further proceedings, generally upon orders or directions from the higher court. When a court acts to remand a cause, it is not itself finally determining the outcome of the cause, nor is it executing a judgment in favor of one of the parties. The judgment is given legal effect when it is executed by the lower tribunal, and the judgment as rendered is that of the tribunal to which the cause had been remanded. [Citation omitted.]"
{ } Further, in Frate v. Al-Sol, Inc. (Nov. 24, 1999), Cuyahoga App. No. 76526, the Eighth District Court of Appeals stated the importance of a trial court's entry of judgment upon remand from the trial court. The court explained " he filing of a mandate is not a final appealable order of the common
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