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Harris v. Allstate Insurance Co.4/4/2005
{ } "I. THE TRIAL COURT ERRED BY CERTIFYING ITS ORDER OF JUNE 30, 2004 GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS FINAL AND APPEALABLE.
{ } "II. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS'/APPELLEES' DERIVATIVE CLAIMS ARE SEPARATELY SUBJECT TO THE 'PER PERSON' LIMIT OF THE POLICIES OF INSURANCE AT ISSUE.
{ } "III. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT/APPELLEE ALLSTATE INSURANCE COMPANY WAS NOT ENTITLED TO A SETOFF."
Standard of Review
{ } Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36.
{ } Civ.R. 56(C) states, in pertinent part:
{ } "Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law....A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
{ } Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, citing Dresher v. Burt (1996), 75 Ohio St.3d 280.
{ } It is based upon this standard we review appellant's assignments of error.
I.
{ } In its first assignment of error, Allstate contends the trial court erred in certifying the June 30, 2004 Judgment Entry as a final appealable order. Allstate explains the trial court never determined whether it was entitled to a set-off under the law, but rather found Allstate was not entitled to a set-off due to a lack of Civ. R. 56 evidence regarding how much each appellee received from the Westfield settlement; therefore, this issue was not resolved. We disagree.
{ } A court of appeals only has jurisdiction to review final appealable orders. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87. An order which leaves one or more parties or claims pending before the trial court may be final and appealable if it satisfies the requirements of R.C. ยง 2505.02(B)(2) and Civ.R. 54(B). Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 354.
{ } R.C. 2505.02(B)(2) provides:
{ } "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{ } "(2) An order that aff
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