Zarycki v. Royal Ins. Co.

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[Cite as Zarycki v. Royal Ins. Co., 2002-Ohio-3908.] COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 80898 ALEX ZARYCKI Plaintiff-Appellant vs. ROYAL INSURANCE COMPANY Defendant-Appellee DATE OF ANNOUNCEMENT OF DECISION: : : : : : : : : : : JOURNAL ENTRY AND OPINION AUGUST 1, 2002 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-435346 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RYAN H. FISHER 75 Public Square Suite 914 Cleveland, Ohio 44113 For Defendant-Appellant: JOHN G. FARNAN WESTON, HURD, FALLON, PAISLEY & HOWLEY 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, P.J.: {¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 11.1. {¶2} court Alex Zarycki appeals from a decision of the common pleas granting summary judgment in favor of his employer s insurance carrier, Royal Insurance Company (Royal), in connection with injuries he sustained in a motor vehicle accident. On appeal, he assigns the following as error for our review: {¶3} The trial court erred, as a matter of law, by holding that plaintiff was not entitled to uninsured motorist coverage pursuant to the policies that had been issued by defendant through his employer. {¶4} Having determined that Zarycki failed to appeal from a final appealable order, this appeal is hereby dismissed. {¶5} On October 30, 1999, Zarycki sustained injuries as a result of a motor vehicle accident when Tim Bennett s vehicle struck Zarycki s vehicle as Zarycki attempted to make a left-hand turn. Zarycki received $12,5000 from Bennett and released Bennett with Royal s approval. At the time of the accident, Zarycki was employed by Ground Round, Royal s insured. Zarycki filed a declaratory judgment action against Royal, claiming he was entitled to underinsured motorist coverage. declaratory judgment action. In turn, Royal also filed a Both parties moved for summary judgment; the court, without declaring the parties rights, granted summary judgment in favor of Royal and denied Zarycki s summary judgment motion. {¶6} However, this court lacks jurisdiction to review the assigned error because Zarycki failed to appeal from a final appealable order. For the following reasons, this appeal is dismissed. {¶7} In Kubicki v. City of North Royalton,1 this court stated: {¶8} It is well established that a trial court fails to fulfill its function in a declaratory judgment action by granting summary judgment without expressly declaring the parties respective rights and obligations. (Citations omitted). {¶9} In Nickschinski v. Sentry Ins. Co,2 this court stated: {¶10} An action which seeks the declaration of rights and obligations is not the type of action ideally suited to disposition by summary judgment. Therefore, *** as a general rule, a court fails to fulfill its function in a declaratory judgment action when it disposes of the issues by journalizing an entry merely sustaining or overruling a motion for summary judgment without setting forth any construction of the document or law under consideration. *** 3 {¶11} In this case, the trial court s order granting Royal s 1 (Sept. 10, 1998), Cuyahoga App. No. 73454, (Sept. 10, 1998). 2 (1993), 88 Ohio App.3d 185,189. 3 Id., citing Waldeck v. North College Hill (1985), 24 Ohio App.3d 189, quoting Kramer v. West American Ins. Co. (Oct. 6, 1982), Hamilton App. Nos. C-810829 and 810891. See, also, Haberly v. Nationwide Mutual Fire Insurance Co. (2001), 142 Ohio App.3d 312; Hall v. Strzelecki, Cuyahoga App. No. 80097, 2002-Ohio-2258. motion for summary judgment does not expressly declare the rights and duties of the parties. Therefore, we have concluded the instant case lacks a final appealable order. Pursuant to Civ.R. 54(B) and R.C. 2505.02, this court is deprived of jurisdiction over this matter and the appeal is dismissed. Dismissed. This appeal is dismissed. It is ordered that appellee recover from appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. ANNE L. KILBANE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court s announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1).

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