COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77597 RICHARD P. HAAPALA, et al. : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION NATIONWIDE PROPERTY & : CASUALTY INSURANCE CO. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 9, 2000 CHARACTER OF PROCEEDING : Civil appeal from Cuyahoga : County Common Pleas Court : Case No. CV-380,075 JUDGMENT : VACATED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: LARRY S. KLEIN CHRISTOPHER J. CARNEY Attorneys at Law Klein & Carney Co., L.P.A. 230 Leader Building 526 Superior Avenue, N.E. Cleveland, OH 44114 (Continued) -2- APPEARANCES: (Continued) For defendant-appellant TIMOTHY D. JOHNSON Nationwide Property & GREGORY E. O'BRIEN Casualty Ins. Co.: Attorneys at Law Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower 50 Public Square Cleveland, OH 44113 For defendant-appellee JAMES EVANS Ohio Bureau of Workers' Attorney at Law Compensation: Assistant Attorney General Revenue Recovery 101 East Town Street, 2d Floor Columbus, OH 43215 -3- KENNETH A. ROCCO, J.: This case is before the court on appeal from a decision of the common pleas court to grant partial summary judgment in favor of plaintiffs-appellees on their claim for a declaratory judgment and to deny defendant-appellant's cross-motion for summary judgment. The court purported to grant plaintiffs-appellees' request for a declaration that they were entitled to underinsured motorist coverage under a business liability policy and umbrella policy that defendant-appellant Nationwide Property & Casualty Insurance Co. ( Nationwide ) issued to NuMed Home Health Care, Inc. Nationwide now appeals, claiming: I. THE TRIAL COURT ERRED IN CONCLUDING THAT OHIO, RATHER THAN FLORIDA, LAW CONTROLLED THE PARTIES' RIGHTS UNDER EITHER OF THE INSURANCE POLICIES ISSUED TO NUMED. II. THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFS ARE ENTITLED TO U[NDER] I[NSURED] M[OTORIST] COVERAGE AS A MATTER OF LAW UNDER THE BUSINESS OWNER'S POLICY ISSUED TO NUMED. III. THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFS ARE ENTITLED TO UIM COVERAGE AS A MATTER OF LAW UNDER THE COMMERCIAL UMBRELLA POLICY ISSUED TO NUMED. We find the trial court failed to declare the parties' rights, status, and legal relations, as required by R.C. 2721.02 and 2721.03. It is therefore impossible to review the merits of its decision to grant a declaratory judgment in favor of plaintiffs- appellees. Accordingly, we vacate the trial court's decision and -4- remand for further proceedings, including an explicit declaration of the parties' rights. PROCEDURAL HISTORY In a complaint filed March 16, 1999, plaintiff-appellee Donna Haapala, through her guardian, claimed she was injured when the vehicle she was driving collided head-on with a vehicle negligently operated by Barrett Lowery, an allegedly underinsured motorist. At the time of the collision, Haapala was acting in the course of her employment with Whole Person Home Health Care of Ohio, Inc., a subsidiary of NuMed Home Health Care, Inc. The complaint alleged that NuMed carried two policies of insurance with defendant-appellant Nationwide, a business owner's policy and a commercial umbrella liability policy. Haapala claimed both these policies provided underinsured motorist coverage for her damages. Haapala also alleged that the Ohio Bureau of Workers' Compensation claimed a statutory right of subrogation in her recovery in this action. She disputed the validity and the amount of its subrogation interest. In addition to Haapala's own claims, Haapala's husband and two children each claimed loss of consortium as a result of Haapala's injuries. Her husband alleged that he incurred medical expenses on her behalf. Apparently, these plaintiffs asserted their damages were also covered by the Nationwide policies. At the conclusion of the complaint, plaintiffs prayed for a declaration that they [were] entitled to underinsured motorist -5- coverage pursuant to the terms of both of the Nationwide policies, as well as compensatory damages on all their claims. Plaintiffs further requested a declaration that the subrogation claim made by the Ohio Bureau of Workers' Compensation was invalid and unenforce- able. Nationwide's answer denied that these two policies provided underinsured motorist coverage to plaintiffs. Nationwide asserted Florida law should apply but argued that neither Ohio nor Florida statutes required it to provide underinsured motorist coverage. Plaintiffs moved for a partial summary judgment declaring that under Ohio law they were entitled to underinsured motorist coverage pursuant to both policies. Nationwide filed a cross-motion for summary judgment asserting that Florida law applied but that, under either Florida or Ohio law, it was not required to provide underinsured motorist coverage. The trial court denied Nationwide's motion for summary judgment and granted plaintiffs' motion for partial summary judgment. On the parties' joint motion, the court found there is no just reason for delay on the court's summary judgment rulings in this matter. LAW AND ANALYSIS This court has jurisdiction over an appeal from an order granting partial summary judgment on a declaratory judgment claim where the trial court has found there is no just reason for delay pursuant to Civ.R. 54(B). A declaratory judgment action is a spe- -6- cial proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein which affects a substantial right is a final appealable order. General Accident Insurance Co. V. Insurance Co. Of North America (1989), 44 Ohio St.3d 17, paragraph two of the syllabus. Though the partial judgment rendered here does not determine all claims among all parties, the trial court's certifi- cation under Civ.R. 54(B) that there is no just reason for delay renders this final judgment appealable. Nonetheless, the trial court's failure to include a declara- tion of the parties' rights has crippled our ability to review its decision here: 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. Waldeck v. City of North College Hill (1985), 24 Ohio App.3d 189, 190 (quoting Kramer v. West American Insurance Co. [Oct. 6, 1982], Hamilton App. Nos. C-810829 and -810891, unreported, at 4). This court has previously recognized a trial court's obliga- tion to declare the parties' rights, although it has not been called upon to determine the effect of a trial court's failure to do so. Leader Natl. Ins. Co. v. Eaton (1997), 119 Ohio App.3d 688, 691 n. 1; Eason v. Johnson (July 22, 1999), Cuyahoga App. No. 74698, unreported. The lack of a declaration in the final judgment on a claim for declaratory judgment does not appear to be a jurisdictional -7- defect. But see Cleveland Industrial Square v. Cleveland (Sept. 30, 1993), Cuyahoga App. No. 63751, unreported. Accordingly, some appellate courts have chosen to supply the declaration that the trial court should have rendered. See, e.g., Harris, Jolliff & Michel, Inc. v. Motorist Mutual Insurance Co. (1970), 21 Ohio App.2d 81, 88. Nonetheless, we must be mindful that [t]his Court of Appeals does not have original subject matter jurisdiction to render an original declaratory judgment and may not accomplish that purpose in the guise of appellate review. Grange Mutual Casualty Co. v. Jordan (Nov. 6, 1991), Hancock App. No. 5-90-46, unreported, at 8 (citing State, ex rel. Neer, v. Indus. Corp. [1978], 53 Ohio St.2d 22). Other Ohio appellate courts have found error in the court's failure to make an explicit declaration and have reversed and re- manded on that basis. Indeed, at least two courts have raised the issue sua sponte: *** we cannot, in the interest of justice, ignore the failure; nor can we allow an inade- quate judgment to stand. **** The practice of terminating actions for declaratory judgment without determining the questions of construction or validity and without declaring rights, status or other legal relations thereunder cannot be allowed to continue. Fioresi v. State Farm Mutual Automobile Insurance Co. (1985), 26 Ohio App.3d 203, 203; also see Johnson v. North Union Local School Dist. Bd. Of Edn. (May 26, 2000), Union App. No. 14-2000-07, unreported. -8- The arguments the parties raise on appeal point up the difficulty with proceeding to review the trial court's declaratory judgment here. First, Nationwide assumes the trial court found Ohio law to apply and argues that that decision was erroneous, even though the court made no explicit determination about the applica- ble law. The parties each raise multiple alternative arguments why each policy does or does not provide coverage under Ohio and Florida law. Effectively, therefore, we are being asked to make the declarations the trial court should have made. We decline to do so. For this reason, we vacate the trial court's decision and remand for further proceedings. -9- This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said 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. MICHAEL J. CORRIGAN, J. and TIMOTHY E. MCMONAGLE, P.J. CONCUR JUDGE KENNETH A. ROCCO 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). .