{¶ 22} I respectfully dissent. Although this issue is one of first impression in this district, it has been addressed by at least three of our fellow districts and numerous federal courts around the state. Each of these courts has held that, afterGalatis, there is no justiciable matter before the court. InReinbolt v. Natl. Fire Ins. Co., 158 Ohio App.3d 453,2004-Ohio-4845, 816 N.E.2d 1083, at ¶ 13-16, the Sixth Appellate District Court, quoting Indiana Ins. Co. v. M.D.O. Homes Inc. (Dec. 7, 2001), 11th Dist. No. 2000-L-167, 2001 WL 1561063, stated:
"Any person interested under a written contract, inter alia, may have the court determine any question of construction or validity arising under the contract and obtain a declaration of rights, status, or other legal relations under it. R.C. 2721.03. A declaratory judgment may be either affirmative or negative in form and effect. R.C. 2721.02(A); McConnell v. Hunt Sports Enterprises (1999), 132 Ohio App.3d 657 [725 N.E.2d 1193]. In order to maintain an action for declaratory judgment, a party must show that a real controversy exists between the parties, which is justiciable in character, and that speedy relief is necessary to the preservation of rights which may be otherwise impaired or lost. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 97 [63 O.O.2d 149, 296 N.E.2d 261]. A trial court may dismiss a complaint for declaratory relief only if no real controversy or justiciable issue exists, or if the declaratory judgment will not terminate the uncertainty or controversy. Fioresi v. State Farm Mut. Auto. Ins. Co. (1985), 26 Ohio App.3d 203 [26 OBR 424, 499 N.E.2d 5], syllabus. Essentially, courts have the power to resolve present disputes and controversies, but do not have authority to issue advisory opinions to prevent future disputes.
"A real, justiciable controversy is a `genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 13 [574 N.E.2d 533]. The controversy must be a real or actual controversy. See Burger Brewing Co., supra. The resolution of that controversy must confer certain rights or status upon the litigants. J.C. Penney Cas. *Page 285 Ins. Co. v. Professionals Ins. Co. of Ohio (1990), 67 Ohio App.3d 167, 172 [586 N.E.2d 222]. An action will not lie to obtain a judgment which is merely advisory in nature or which answers a moot or abstract question. Cincinnati Metro. Hous. Auth. v. Cincinnati Dist. Council (1969), 22 Ohio App.2d 39, 43 [51 O.O.2d 45, 257 N.E.2d 410]. A court will not indulge in advisory opinions. Egan v. Natl. Distillers Chem. Corp. (1986), 25 Ohio St.3d 176 [25 OBR 243, 495 N.E.2d 904], syllabus.
"A trial court's ruling on a complaint for declaratory judgment is reviewed under an abuse of discretion standard. See Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35 [65 O.O.2d 179, 303 N.E.2d 871], syllabus. However, that discretion is predicated on the plaintiff's failure to state a claim upon which declaratory relief may be granted. A trial court must declare the rights of the parties when the complaint states a viable claim for relief. Peat Marwick Main Co. v. Elliott (Jan. 10, 1991), 10th Dist. No. 90AP-921 [1991 WL 2180].
"A trial court is not in a position to interpret a contract or define any rights arising from a contract in the absence of a specific present dispute. Therapy Partners of Am., Inc. v. Richards Healthcare, Inc. (Apr. 21, 1998), 10th Dist. No. 97APE09-1257 [1998 WL 195668]."
{¶ 23} The Reinbolt court went on to say:
In view of the applicable law, we must conclude that the trial court did not err in dismissing appellants' counterclaim without issuing a declaratory judgment. The Supreme Court of Ohio's decision in Galatis extinguished the Reinbolts' claims under all of the insurance contracts at issue. * * *
Appellants assert that because the Reinbolts could refile their claim in the future if Galatis is overturned, a lingering threat of future litigation still exists. Appellants cite Allstate Ins. Co. v. Long, 11th Dist. Nos. 2001-P-0038 and 2001-P-0039, 2003-Ohio-61 [2003 WL 102612], in support. In that case, the trial court dismissed an insurance company's declaratory judgment action as moot after the injured party voluntarily dismissed the underlying tort action against the insured pursuant to Civ.R. 41(A)(1)(a). The appellate court, citing the Supreme Court of Ohio's holding in Travelers Indem. Co. v. Cochrane (1951), 155 Ohio St. 305 [44 O.O. 302, 98 N.E.2d 840], held that a justiciable controversy still existed, even though there was no longer a pending action against the insured, because a lingering threat of future litigation still remained.
In our view, Long differs from the case before us. In Long, the underlying tort action was not extinguished by a superseding decision of the Supreme Court of Ohio. In the current case, Galatis determined that the Reinbolts do not have a cause of action for underinsured motorist coverage and will not have *Page 286 such a claim in the future. Accordingly, no justiciable controversy remains regarding underinsured motorist coverage and the trial court did not err in dismissing appellants' complaint for declaratory judgment.
Reinbolt at ¶ 17-19. See, also, Indiana Ins. Co. v. Fox, 2d Dist. No. 20638, 2005-Ohio-1040, 2005 WL 567330.
{¶ 24} I would affirm on the issue of the dismissal of the declaratory judgment. On the issue of the cross-appeal, I would also affirm, as the issue is one of first impression in our district and I cannot say it is frivolous or was filed to harass or maliciously injure appellees.