Bishop, Sr, Et Al v. Dresser Ind. Et Al

• Decision Date: 21 October 1999
• Docket Number: 3,99931
• Citation: 730 N.E.2d 1079
• Parties: OHIO COURT OF APPEALS THIRD APPELLATE DISTRICT MARION COUNTY OTIS H. BISHOP, SR., ET AL., APPELLEES v. DRESSER INDUSTRIES, INC., ET AL., APPELLANTS CASE NUMBER 9-99-31 CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court. JUDGMENT: Appeal dismissed. DATE OF JUDGMENT ENTRY: October 21, l999. ATTORNEYS: VORYS, SATER, SEYMOUR & PEASE Robert A. Minor, Attorney at Law, Reg. #0018371 Randall W. Mikes, Attorney at Law, Reg. #0046945 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 For Appellants, Dresser Industries, Inc. Indresco, Inc. and David H. Schaber. BRENT M. HARRAMAN, Attorney at Law, Reg. #0024233 399 East Church Street Marion, OH 43302 For Appellees, Otis H. Bishop Sr. and Norma Bishop. YOUNG & ALEXANDER CO., L.P.A. Steven O. Dean, Attorney at Law, Reg. #0009095 367 West Second Street Dayton, OH 45402 For Appellee, City of Marion. WALTERS, J. O P I N I O N Appellants, Dresser Industries, Inc. ("Dresser"), Indresco, Inc., and David Schaber ("Schaber") appeal a judgment of the Court of Common Pleas of Marion County denying their motion for summary judgment. For the reasons expressed in the following opinion, we dismiss this appeal for lack of jurisdiction. Appellee, Otis Bishop brought this personal injury action against Appellants after he was struck by an automobile owned by Dresser, and driven by Schaber. The accident occurred while Bishop was walking to work in a marked, non-intersectional crosswalk across David Street in Marion, Ohio. At the time of the accident, Dresser employed both Bishop and Schaber. The parties stipulated that Schaber was acting in the course and scope of his employment at the time of the accident. Notwithstanding the fact that Bishop was already receiving workers' compensation benefits due to the accident, Bishop contended that for the purposes of this litigation, he was not acting in the course and scope of his employment when he was injured. On
• Court: Ohio Court of Appeals

OHIO COURT OF APPEALS

THIRD APPELLATE DISTRICT

MARION COUNTY

OTIS H. BISHOP, SR., ET AL., APPELLEES v DRESSER INDUSTRIES, INC., ET AL., APPELLANTS

CASE NUMBER 9-99-31

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court.

JUDGMENT: Appeal dismissed.

DATE OF JUDGMENT ENTRY: October 21, l999.

ATTORNEYS:

VORYS, SATER, SEYMOUR & PEASE

Robert A. Minor, Attorney at Law, Reg. #0018371

Randall W. Mikes, Attorney at Law, Reg. #0046945

52 East Gay Street

P.O. Box 1008

Columbus, OH 43216-1008

For Appellants, Dresser Industries, Inc. Indresco, Inc. and David H. Schaber.

BRENT M. HARRAMAN, Attorney at Law, Reg. #0024233

399 East Church Street

Marion, OH 43302

For Appellees, Otis H. Bishop Sr. and Norma Bishop.

YOUNG & ALEXANDER CO., L.P.A.

Steven O. Dean, Attorney at Law, Reg. #0009095

367 West Second Street

Dayton, OH 45402

For Appellee, City of Marion.

WALTERS, J.

O P I N I O N

Appellants, Dresser Industries, Inc. ("Dresser"), Indresco, Inc., and David Schaber ("Schaber") appeal a judgment of the Court of Common Pleas of Marion County denying their motion for summary judgment. For the reasons expressed in the following opinion, we dismiss this appeal for lack of jurisdiction.

Appellee, Otis Bishop brought this personal injury action against Appellants after he was struck by an automobile owned by Dresser, and driven by Schaber. The accident occurred while Bishop was walking to work in a marked, non-intersectional crosswalk across David Street in Marion, Ohio.

At the time of the accident, Dresser employed both Bishop and Schaber. The parties stipulated that Schaber was acting in the course and scope of his employment at the time of the accident. Notwithstanding the fact that Bishop was already receiving workers' compensation benefits due to the accident, Bishop contended that for the purposes of this litigation, he was not acting in the course and scope of his employment when he was injured.

On October 16, 1995, Appellants moved for summary judgment arguing that Bishop's relief was limited to workers' compensation because he was in the course and scope of employment at the time of the accident. Appellants thus argued that the complying employer and fellow employee immunity statutes, R.C. 4123.74 and 4123.741, provided them immunity from any further liability to Appellees.

The trial court, in a Judgment Entry dated April 21, 1998, overruled Appellants' motion for summary judgment. The court held that although Bishop was acting in the course and scope of employment, there were issues of fact, remaining in dispute, regarding whether the dual capacity doctrine applies, which would nevertheless allow Bishop's personal injury claim. After providing the court with an additional stipulation of facts, Appellants subsequently moved the trial court for reconsideration of their motion on March 1, 1999.

In a judgment entry dated April 13, 1999, the trial court denied Appellants' motion for reconsideration and ruled as a matter of law that the dual capacity doctrine does apply in this case. The effect of the trial court's ruling is that Appellants have been deprived of their claim of statutory immunity under R.C. 4123.74 and 4123.741. Appellants now appeal the trial court's order of April 13, 1999.

After oral argument, this Court requested the parties to submit briefs on the issue of whether the trial court's order denying summary judgment was a final appealable order. The parties each responded, arguing that the trial court's order was a final order pursuant to R.C. 2505.02 (B)(1) and 2505.02(B)(4).

The jurisdiction of Ohio's Courts of Appeals as set forth in Article IV, Section 3(B)(2), of the Ohio Constitution, provides: "Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals * * *."

R.C. 2505.02 sets forth the statutory requirements for a final appealable order, stating:

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:

(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

* * *

(4) An order that grants or denies a provisional remedy and to which both of the following apply:

(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

* * *

Generally, an order denying a motion for summary judgment is not a final appealable order. State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23. Appellants argue in their jurisdictional brief, however, that the dismissal of the summary judgment on the immunity issue is a final order pursuant to R.C. 2505.02(B)(1) because it affects a substantial right by determining the action and preventing a judgment.

When the trial court denied Appellants' motion for summary judgment and ruled as a matter of law that the dual capacity doctrine applied, the case was set for trial with the outcome of the action remaining undetermined. The trial court's decision does not affect a substantial right because it does not determine the action or prevent a judgment in this matter.

Had the...