COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73505 MAURICE S. NUNN : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THE LOCKFORMER COMPANY, et al. : : Defendant-Appellants : : DATE OF ANNOUNCEMENT NOVEMBER 19, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-302264. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: RICHARD C. ALKIRE, ESQ. Krembs & Alkire 750 Courthouse Square 310 Lakeside Avenue, West Cleveland, Ohio 44113-1021 For Defendant-Appellant JAMES F. SWEENEY, ESQ. The Lockformer Co.: Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue 7th Floor, Bulkley Building Cleveland, Ohio 44115 - i - For Appellee: DEAN C. NIEDING, ESQ. Nurenberg, Plevin, Heller & McCarthy Co., L.P.A. 1370 Ontario Street, 1st Floor Cleveland, Ohio 44113-1792 For Appellant The Cincinnati Ins. Co.: DOUGLAS P. WHIPPLE, ESQ. PATRICIA A. POOLE, ESQ. Baker & Hostetler LLP 3200 National City Center 1900 East Ninth Street Cleveland, Ohio 44114-3485 For Sheet Metal Manufacturing Co.: C. RICHARD MCDONALD, ESQ. Davis & Young Co., LPA 1700 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115 -2- SWEENEY, JAMES D. J.: Defendant-appellant The Cincinnati Insurance Company appeals from the trial court's decision denying its motion to intervene in a products liability and intentional tort action brought by plaintiff-appellee Maurice Nunn against Sheet Metal Manufacturing, The Lockformer Company and various other defendants. For the reasons set forth below, we affirm the decision of the trial court. In April of 1994, plaintiff-appellee Maurice Nunn suffered a severe injury to his left hand when it became caught in the rollers of a bending machine used during the manufacture of sheet metal heating ducts. On January 25, 1996, Nunn filed a complaint sounding in products liability and intentional tort against his former employer Sheet Metal, the machine's manufacturer The Lockformer Company, and several other companies involved in the marketing, supply, distribution, setup, maintenance, and repair of the machine (Souther Inc., Glavco Inc., Ultimate Technology Inc., Leonard Bluestone, Sheet Metal Sales, Inc., John Doe and/or John Doe, Inc., John Foe and/or John Foe, Inc., John Goe and/or John Goe, Inc., John Hoe and/or John Hoe, Inc., John Joe and/or John Joe, Inc.) Nunn later dismissed his claims against all of the defendants except Lockformer and Sheet Metal. On September 30, 1997, Sheet Metal's insurer, Cincinnati Insurance Company, filed a motion to consolidate Nunn's action with its pending declaratory judgment action against Sheet Metal (The Cincinnati Insurance Co. v. Sheet Metal Manufacturing Co. et al - Cuyahoga County Common Pleas Case No. 335984) in which Cincinnati -3- sought a declaration that it had no duty to defend or indemnify Sheet Metal with respect to Nunn's complaint. Cincinnati also filed a motion to intervene in the Nunn v. Lockformer case, arguing that its interest in the action was not adequately represented by the existing parties. Nunn opposed both motions, arguing that the motions were not timely filed. He also argued that granting the motions would inject unrelated contract and insurance issues into the case and necessitate much additional discovery. On October 14, 1997, the trial court denied both motions, adding that the motion to intervene was not timely filed as required by Civ.R. 24(A) and (B). The court noted that a discovery action against Sheet Metal was filed on July 21, 1994 in connection with Nunn's injury.1 This case was previously filed as Case No. 274197 on July 21, 1994. It was then refiled as the present case (i.e. 302264) on or about January 25, 1996. Cincinnati waited until 9/30/97 to file the written motion, over twenty months after it had actual knowledge of plaintiff's claims in case #302264, and over 3 years after it had notice and knowledge of plaintiff's accident. Cincinnati filed its notice of appeal from the trial court's decision on November 13, 1997. The trial court denied Cincinnati's motion to stay the Nunn v. Lockformer action pending its appeal. However, on November 26, 1997, this court granted a motion to stay the case pending appeal. The appellant sets forth two assignments of error. 1 The discovery action was dismissed without prejudice on December 28, 1994. -4- I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION TO INTERVENE. Cincinnati argues the trial court abused its discretion in denying Cincinnati's motion to intervene. Civ.R. 24(A) provides: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. A trial court's decision on a motion to intervene will not be disturbed absent an abuse of discretion. State ex rel. First New Shiloh Baptist Church v. Meagher (1998), 82 Ohio St.3d 501, 503; Kourounis v. Raleigh (1993), 89 Ohio App.3d 315, 318; S. Ohio Coal v. Kidney (1995), 100 Ohio App.3d 661, 666-667, appeal not allowed (1995), 72 Ohio St.3d 1530; Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 352. The timeliness of a motion to intervene must be evaluated with reference to both the statute of limitations and the stage of the trial proceedings. West American Ins. Co. v. Dutt (1990), 70 Ohio App.3d 422, 425; Widder & Widder v. Kutnick (1996), 113 Ohio App.3d 616, 624. A person may not be brought in as a party plaintiff or defendant where the cause of action as to that party is barred by statute of limitations. Widder at 625. At the time the motion to intervene was filed, the statute of limitations -5- would not bar Cincinnati from asserting its indemnification claims against Sheet Metal. Relevant factors in deciding the timeliness of a motion to intervene include the delay that intervention will have on the disposition of the pending case, the point to which the action has progressed, the length of time the applicant knew or should have known about the pending suit, and the reason for the delay in attempting to intervene. See ICSC Partners, L.P. v. Kenwood Plaza L.P. (1996), 116 Ohio App.3d 278, 282, rehearing/reconsideration denied (1997), 78 Ohio St.3d 1456; State ex rel Gary Road Fill, Inc. v. Wray (1996), 109 Ohio App.3d 812, 816. When the motion was filed, the existing parties had completed discovery (as of May 15, 1997), filed their dispositive motions (as of July 15, 1997), and filed replies to the dispositive motions (as of August 15, 1997). The motion to intervene was filed just two days before a scheduled settlement conference that was set for October 2, 1997, and just two months before the set trial date of December 1, 1997. If the motion to intervene was granted, the trial court would have had to allow additional discovery, which would inevitably have delayed the trial date. Furthermore, a discovery action was filed by Nunn against Sheet Metal in July 1994. In his brief opposing the motion to intervene, Nunn attached a memo dated August 9, 1994 on Sheet Metal's letterhead reading, inter alia, notify Cinci. Nunn argued that the note evidenced an intent by Sheet Metal to notify Cincinnati of Nunn's injury claim. This argument is buttressed by -6- the language of Section IV (Commercial General Liability Conditions; Duties in the Event of Occurrence, Claim or Suit) of Sheet Metal's policy of insurance with Cincinnati which provides: If a claim is made or suit is brought against any insured, you must: (1) immediately record the specifics of the claim or suit and the date received, and (2) notify us as soon as practicable. You must see to it that we receive written notice of the claim or suit as soon as practicable. In its motion to intervene and in its brief before this court, Cincinnati gave no reason for its delay in seeking intervention. Furthermore, Cincinnati did not dispute Nunn's claim that it received knowledge of Nunn's claims as early as 1994. Under the circumstances, we conclude the trial court did not abuse its discretion in denying Cincinnati's motion to intervene. Accordingly, we overrule Cincinnati's first assignment of error. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION TO CONSOLIDATE. Cincinnati argues the trial court abused its discretion in denying Cincinnati's motion for consolidation. Civ.R. 42(A) provides: When actions involving a common question of law or fact are pending before a court, that court after a hearing may order a joint hearing or trial of any or all the matters in issue in the actions; it may order some or all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. The decision about whether to consolidate cases is within the discretion of the common pleas court. Jamestown Village Condo v. -7- MMRI(1994), 96 Ohio App.3d 678, 687, appeal not allowed (1995), 71 Ohio St.3d 1444; McDonnold v. McDonnold (1994), 98 Ohio App.3d 822, 827. The court must determine if there is sufficient commonality of issues and parties to warrant consolidation. Jamestown Village at 687. In order to prevail on its motion to consolidate, Cincinnati had to demonstrate that its declaratory judgment action had common questions of law or fact with Nunn's action. Cincinnati argues that the element of commonality was met because the actions stemmed from the same incident and because both actions involved the establishmentof liability for injuries sustained in the incident. Cincinnati cites to Troyer v. Nationwide Mut. Ins. Co. (Jan. 24, 1991), Cuyahoga App. Nos. 57935, 57933, unreported, in which the trial court granted an insurance company's motion to consolidate a declaratory judgment action with a tort action involving the company's insured. Troyerdoes not require that consolidation be granted in every case involving an insuror's declaratory judgment action and a tort action involving one of its insureds. Troyer provides us with no guidance as to the relevant issue raised by this assignment of error -- whether the trial court abused its discretion in denying the motion to consolidate. In order to show that the trial court abused its discretion, Cincinnati had to show that the trial court acted unreasonably, arbitrarily, or unconscionably. See Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47. In other words, Cincinnati had to show that the trial court's action was -8- unsupported by any sound reasoning process. Faber v. Queen City Terminals, Inc. (1994), 93 Ohio App.3d 197, 202 (citing AAAA Enterprises, Inc. v. River Place Community Urban Redev. Corp. (1990), 50 Ohio St.3d 157, 161. We conclude the trial court's decision was reasonable under the circumstances. The declaratory judgment action did not involve the same issue of fact as the tort claim. The issue in the tort action was determining who or what proximately caused Nunn's injuries. The declaratory judgment action sought to interpret the contract of insurance between Cincinnati and Sheet Metal. Cincinnati argues that consolidation would save the legal and administrative costs of conducting separate proceedings. However, its argument ignores the fact that, if Sheet Metal is not held liable for Nunn's injuries, then no duty of indemnification arises. By refusing to consolidate the cases, the trial court could reasonably be said to have avoided the expenditure of a great deal of time and money litigating an issue which may ultimately prove to be irrelevant. Having found no abuse of discretion, we overrule Cincinnati's second assignment of error. Judgment affirmed. herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ROCCO, J., CONCURS; O'DONNELL, P.J., DISSENTS, WITH DISSENTING OPINION ATTACHED. JAMES D. SWEENEY 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. 27. 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). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73505 MAURICE S. NUNN : D.B.A. EMPIRICAL SOUND : : DISSENTING Plaintiff-Appellee : : OPINION v. : : THE LOCKFORMER COMPANY, ET AL. : : Defendants-Appellants : DATE: NOVEMBER 19, 1998 JUDGE TERRENCE O'DONNELL DISSENTING: The majority opinion sets forth the correct standard of review for an appeal involving denial of a motion to intervene- whether the trial court has abused its discretion. Here, the trial court denied Cincinnati Insurance Company's motion to intervene, alleging the motion had not been timely filed. However, the majority fails to reflect the motion had been filed shortly before the trial court denied Sheet Metal's Motion for Summary Judgment--two months prior to the scheduled trial date. Furthermore, Cincinnati Insurance company did not request either to continue the trial or to extend the time for discovery. Hence, the delay factors cited in the majority opinion are not reasons to deny the motion as being untimely. Conjecture by the majority that, the trial court would have had to allow additional discovery, which would inevitably have delayed the trial date is not supported by the record. Even if true, however, this is not a basis to deny a motion to intervene because overriding interests of judicial economy suggest that the decision to deny intervention here is short-sighted. It constituted, in my opinion, an abuse of discretion. In my view, the court also abused its discretion by denying the motion to consolidate the declaratory judgment case with the underlying tort case. While the majority here has focused on the element of commonality of issues, it ignores the problem created by today's decision: the potential of inconsistent judgments in the two cases where in the declaratory judgment action, a decision could result in Cincinnati Insurance Company being held obligated to provide a defense, but would have no duty to do so if it prevailed on the merits of the tort claim. I believe the better practice for a good trial judge is to assume control over all issues, tangential and otherwise, in the matters presented to it, to be in the best possible position to administer justice to all parties affected by its rulings and decisions. For these reasons, I believe the court abused its .