R & H Trucking, Inc. v. Occidental Fire & Cas. Co. of North Carolina

• Decision Date: 09 July 1981
• Citation: 2 Ohio App.3d 269,441 N.E.2d 816,2 OBR 298
• Court: Ohio Court of Appeals
• Parties: , 2 O.B.R. 298 R & H TRUCKING, INC., Appellant, v. OCCIDENTAL FIRE & CAS. CO. OF NORTH CAROLINA, Appellee.

Page 269

2 Ohio App.3d 269

441 N.E.2d 816, 2 O.B.R. 298

R & H TRUCKING, INC., Appellant, v.OCCIDENTAL FIRE & CAS. CO. OF NORTH CAROLINA, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 9, 1981.

Syllabus by the Court

1.Where only one claim for relief has been presented in a complaint, and the trial court decides one of the legal issues involved in the case, but does not finally adjudicate the claim for relief, the court's decision does not become a final judgment subject to appeal simply by reason of the inclusion of Civ.R. 54(B), "no just reason for delay" language, in the court's order.

2.Punitive damages are recoverable for a tort committed in connection with, but independently of, a breach of contract, the allowance of the punitive damages being for the tort, and not for the breach of the contract.However, the breach must be attended by some intentional wrong or gross neglect which amounts to an independent tort, and must be accompanied by the attendant aggravating circumstances of wanton, reckless, malicious or oppressive conduct that ordinarily gives rise to punitive damages.

Charles E. Taylor, Columbus, for plaintiff-appellant.

Graham, Duto & Nemeth, Hubert C. Dutro, Jr., and Gary Hammond, Columbus, for defendant-appellee.

NORRIS, Judge.

This matter is before us on plaintiff-appellant's appeal from a January 30, 1981 judgment entry of the Court of Common Pleas of Franklin County, finding that there is no basis for an award of consequential damages to plaintiff arising out of events set out in plaintiff's complaint, and that plaintiff will be limited at trial to recovery of "actual property damage."The entry includes a determination that "there is no just cause for delay."

Plaintiff's complaint alleges that the parties entered into an insurance contract whereby defendant-appellee agreed to insure plaintiff's truck tractor and trailer equipment against accidental loss due to collision or upset; that on January 20, 1977, plaintiff sustained a loss which is covered by the insurance contract; but that defendant, "knowing that plaintiff's loss falls within the coverage of the aforesaid contract has wilfully and maliciously refused to perform its obligations under said contract" by failing to pay plaintiff's claim.Plaintiff sought recovery for damage to its trucking equipment, "consequential damages" for loss of use of the equipment, damages because plaintiff was forced to cease business when the claim was not paid, punitive damages, and attorney's fees.

According to memoranda in the court file, the question of liability centered around the parties' interpretations of a clause in the insurance policy concerning coverage in the event the truck "upset."Plaintiff contended that coverage was clear and defendant's refusal to pay plaintiff's claim was wilful and malicious.Defendant, on the other hand, argued that its interpretation of the clause and its refusal to pay the claim were reasonable and based upon careful investigation.

On August 20, 1980, the trial judge, acting under the provisions of Civ.R. 42(B), determined the issue of liability in plaintiff's favor and then went on to find that there were "no bad faith negotiations on behalf of the defendant and the damages issue shall be confined to compensatory and consequential damages * * *."As trial approached, the trial judge filed the January 30, 1981 entry.

Plaintiff raises six assignments of error:

1."The trial court's determination of the issue of bad faith when the court had been submitted on bifurcation the sole issue of coverage under the policy constituted a finding of fact which is against the manifest weight of the evidence.[Sic.]

2."The conclusion of law that plaintiff was entitled to only compensatory damages when the court found 'upset' coverage where the court had been submitted on bifurcation the sole issue of coverage under the policy constituted an erroneous conclusion of law as a matter of law.[Sic.]

3."The factual allegation of an insurance company's wilful and wanton failure to negotiate a property damage claim when its own adjusting files conclusively demonstrate such action in denying the claim has absolutely no factual or legal justification states a cause of action for compensatory, consequential, and punitive damages for the separate tort of wilful and wanton breach.

4."The trial court erred in implicitly finding and concluding that there is no cause of action in Ohio for the tort of wilful and wanton breach of the duty to negotiate under insurance contracts.

5."The trial court erred in failing to submit to a jury the issues of compensatory, consequential, and punitive damages arising out of defendant's tort of wilful and wanton breach.

6."Argundo [sic ], even if plaintiff did not establish a right to punitive damages it was entitled to all consequential damages flowing from the breach."

The threshold question before us is whether plaintiff may appeal from the trial court's January 30, 1981 order.

Plaintiff contends that the January 30, 1981 judgment entry is a final appealable order because the trial judge included an express determination that there is no just reason for delay, as provided for in Civ.R. 54(B):

"When more than one claim for relief is presented in an action, * * * the court may enter final judgment as to one or more but fewer than all of the claims * * * only upon an express determination that there is no just reason for delay.In the absence of such determination, any order * * * which adjudicates fewer than all the claims * * * shall not terminate the action as to any of the claims * * * and the order * * * is subject to revision at any time before the entry of judgment adjudicating all the claims * * *."

Plaintiff's complaint presents only one claim for relief--a wilful and malicious breach of contract, and then prays for several different kinds of...