{¶ 60} I disagree with the majority's conclusion regarding Allstate's second assignment of error. The majority holds that the trial court's judgment entry denying Allstate's motion to intervene was not a final, appealable order, because it lacked Civ.R. 54(B) language. On August 26, 2004, this court issued a judgment entry concluding that the trial court's denial of Allstate's motion to intervene was a final, appealable order. This court cited Fairview Gen.Hosp. v. Fletcher in support of its conclusion.3 Further, this court specifically concluded that the absence of Civ.R. 54(B) language did not affect the finality of the judgment.
{¶ 61} "The law of the case is a longstanding doctrine in Ohio jurisprudence. `(T)he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.'"4
{¶ 62} This court has already concluded that the denial of Allstate's motion to intervene was a final, appealable order. That conclusion should not be disturbed at this time pursuant to the law of the case doctrine.
{¶ 63} Additionally, several cases have citedFairview Gen. Hosp. v. Fletcher for the proposition that a denial of a motion to intervene is a final, appealable order.5 We note that the Eighth and Tenth Appellate Districts have generally *Page 770 held that a judgment entry denying a motion to intervene is a final, appealable order.6
{¶ 64} In this court's August 26, 2004 judgment entry, this court concluded that the (A)(2) prong of Civ.R. 24 was met, because neither of the other parties adequately represented Allstate's interest. Thus, pursuant to the law-of-the case doctrine, Allstate sought intervention as of right.7
{¶ 65} Further, in two substantially similar cases, this court and the Eighth District held that the insurance companies sought intervention of right, due to the fact that neither of the underlying parties adequately represented their interests.8 The "[d]enial of a motion to intervene as of right pursuant to Civ.R. 24(A)(2) affects a substantial right and is, therefore, a final appealable order."9 Since the denial of Allstate's motion to intervene as of right pursuant to Civ.R. 24(A) affected a substantial right, the trial court's denial of the motion to intervene was a final, appealable order.
{¶ 66} The majority cites cases from the First and Ninth Appellate Districts in support of its conclusion that Civ.R. 54(B) language is required in a judgment entry denying a motion to intervene to make it final and appealable.10 Alternatively, the Eighth District has held that Civ.R. 54(B) language is not required when an entity files a notice of appeal from a judgment entry denying a motion to intervene.11 Since there is competing case law from other districts on this issue, I believe it is inappropriate for the majority to effectively reverse this court's *Page 771 prior ruling in this matter, where this court held there was "no need for Civ.R. 54(B) language."
{¶ 67} In Queen City Lodge No. 69,Fraternal Order of Police v. State Emp. Relations Bd., the First District held that a judgment entry denying a motion to intervene is not a final, appealable order with the lack of Civ.R. 54(B) language.12 Interestingly, the First District also held that the entity whose motion to intervene was denied could not appeal the final judgment on the merits, because such entity was not a "party."13 Recognizing the potential dilemma, the First District concluded that the only remedy for the entity whose motion to intervene was denied was to attempt to intervene at the appellate level into an appeal filed by another party.14 In this matter, neither of the other parties appealed the trial court's decision on the merits. Therefore, if the First District's holding were strictly followed, Allstate could never seek appellate review of the trial court's judgment entry denying its motion to intervene.
{¶ 68} R.C. 2505.02, provides:
{¶ 69} "(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶ 70} "* * *
{¶ 71} "(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶ 72} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
{¶ 73} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action."
{¶ 74} In regard to this section, the Supreme Court of Ohio has held:
{¶ 75} "This division of the final order statute recognizes that, in spite of courts' interest in avoiding piecemeal litigation, occasions may arise in which a party seeking to appeal from an interlocutory order would have no adequate remedy from the effects of that order on appeal from final judgment. In some instances, `[t]he proverbial bell cannot be unrung and an appeal after final *Page 772 judgment on the merits will not rectify the damage' suffered by the appealing party."15
{¶ 76} The words of the Supreme Court of Ohio are especially applicable in light of the majority's decision to follow Queen City Lodge No. 69, Fraternal Order of Police v.State Emp. Relations Bd. Not only would Allstate not have an adequate remedy, it would have no remedy.
{¶ 77} The trial court's judgment entry denying Allstate's motion to intervene was a final, appealable order that did not require Civ.R. 54(B) language. Following Allstate's filing of a timely appeal of that order, the trial court was divested of jurisdiction. As the Supreme Court of Ohio has stated:
{¶ 78} "An appeal is perfected upon the filing of a written notice of appeal. R.C. 2505.04. Once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal. State ex rel. SpecialProsecutors v. Judges, Court of Common Pleas (1978),55 Ohio St.2d 94, 97 [9 O.O.3d 88, 378 N.E.2d 162]. The trial court retains jurisdiction over issues not inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm the judgment appealed from. Id.; Yee v. Erie Cty. Sheriff'sDept. (1990), 51 Ohio St.3d 43, 44 [553 N.E.2d 1354]."16
{¶ 79} In this matter, the act of conducting a jury trial was inconsistent with this court's ability to review whether Allstate should have been allowed to participate in that same jury trial. Since the trial court's actions were inconsistent with this court's review of Allstate's appeal of the denial of its motion to intervene, the trial court did not have jurisdiction to conduct the jury trial.17 Therefore, as the trial court did not have jurisdiction, the trial court's judgment entry following the jury trial is void.18
{¶ 80} Further, I disagree with the majority's holding regarding the trial court's decision on Allstate's motion to intervene. Allstate sought to intervene as of right pursuant to Civ.R. 24(A). "Civ.R. 24 should be liberally construed in favor of intervention."19 *Page 773
{¶ 81} Allstate sought to intervene because a determination of Border's mental state would be binding upon Allstate in a subsequent action to determine insurance coverage. As stated by the Supreme Court of Ohio:
{¶ 82} "Where a determination is made in an initial action against a tortfeasor relative to his culpable mental state, collateral estoppel precludes relitigation of the determination in a subsequent proceeding brought against the tortfeasor's insurer pursuant to R.C. 3929.06."20
{¶ 83} In interpreting the Supreme Court of Ohio's holding in Howell v. Richardson and applying it to a case similar to the case at bar, the Eighth Appellate District held:
{¶ 84} "When the liability insurer of a defendant in a tort action disputes coverage, the insurer has an interest in the outcome of the tort action independent of its insured's interests. The insurer will be bound by the results of the tort action in any subsequent proceeding to determine insurance coverage. Howell v. Richardson (1989),45 Ohio St.3d 365 [544 N.E.2d 878]. Thus, as a practical matter, determination of the tort action may impair the insurer's ability to protect its own interests in a coverage dispute.
{¶ 85} "Neither party to the tort action adequately represents the insurer's interests. Although the insurer and the insured share an interest in contesting liability, if liability is established, the insured has an interest in maximizing the portion of the claim which is covered by insurance, while the insurer would seek to minimize the covered portion of the claim. See, e.g., Alhamid v. GreatAm. Ins. Cos., [7th Dist] No. 02-CA-114, 2003-Ohio-4740 [2003 WL 22071544], at ¶ 17. Furthermore, the plaintiff and the insured defendant have a common interest in obtaining a general verdict, untested by interrogatories, to preclude the insurer from denying coverage if the jury finds liability.Tomcany v. Range Constr., [11th Dist.] No. 2003-L-071,2004-Ohio-5314 [2004 WL 2801671], at ¶ 33."21
{¶ 86} Allstate had an interest in this case, in that if it was determined that Border acted intentionally, coverage would be precluded under the policy. Additionally, as previously noted, neither of the other parties to the action adequately represented Allstate's interests. Thus, Allstate had grounds to intervene pursuant to Civ.R. 24(A).
{¶ 87} However, Civ.R. 24(A) also requires the motion to intervene be made in a timely fashion. *Page 774
{¶ 88} "The following factors are considered in determining timeliness: `(1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervener's failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.'"22
{¶ 89} The first factor to consider is the point to which the action had progressed. The case had been pending for more that one year and the motion was filed only two weeks prior to the scheduled trial date. These facts, standing alone, weigh against a finding that Allstate's motion to intervene was timely.
{¶ 90} The second factor for consideration is the purpose of the intervention. In its motion to intervene, Allstate stated that its participation could be "limited to the submission of interrogatories to the jury on factual issues relevant to coverage." When a party seeks to intervene solely to submit jury interrogatories to the jury, intervention should generally be permitted.23
{¶ 91} The third factor is the length of time Allstate knew of its interest. In its motion to intervene, Allstate claimed that the issue of whether Border acted intentionally or negligently was set forth in the original complaint. Davis argues that Allstate, therefore, should have known about its interest in the case upon the filing of the complaint. However, discovery was not completed until approximately the same time Allstate's motion to intervene was filed. Specifically, the depositions of Davis and Border were filed on April 26, 2004, the same day Allstate filed its motion to intervene. It is important to note the content of the depositions. In his deposition, Border stated:
{¶ 92} "Davis was staring right at me, and I just caught his eye right away because he was staring me down, obviously, and as soon as I looked at him he just came at me at a very quick pace with his arms like this. He had something in his right hand; I couldn't tell what it was. It was something silver — I don't know. He started walking at me very forcefully, and he got within striking distance of me. I just swung at him with my right hand. I had my drink in my hand and I hit him on the side of the face."
{¶ 93} Davis said the following in his deposition: *Page 775
{¶ 94} "And they were saying something and the kid that [Border] was with went through the door and he was still looking at me saying something, so I assumed that he wanted to talk to me because I couldn't understand what he was saying. And I walked — got up, walked over to [Border] and I was hit with a glass."
{¶ 95} Taken together, these depositions reveal that Border's striking of Davis with a cocktail glass may have been intentional. There is nothing in the record indicating that the specific details of this event were revealed to Allstate until the depositions were filed. Further, prior to the depositions being filed, there was nothing in the record, such as answers to interrogatories or other discovery, that gave either of the underlying parties' accounts of what specifically occurred on the night in question.
{¶ 96} While it was generally asserted in the initial complaint that Border had struck Davis in the face with a glass "while swinging his arm," the details of the event were not included in the record until the depositions were filed. Allstate's interest in this case was dependent upon Border's mental state when he struck Davis. Until Allstate was aware of the details of the event, from which Border's mental state could be inferred, Allstate could not reasonably determine its interest in the underlying case.
{¶ 97} The fourth factor is the prejudice to Davis and Border by granting Allstate's motion to intervene.
{¶ 98} "Where intervention of right is at issue, greater consideration may be given to the possible prejudice to the intervenor as against the delay or prejudice to the original parties in adjudicating their rights and liabilities."24 This is because a different standard applies regarding the timeliness inquiry depending on whether the intervenor was seeking permissive intervention or intervention of right.25 Thus, "[w]here an intervenor has a right to intervene, the scales tip in favor of allowing intervention despite the existence of conditions that might otherwise militate against intervention, including timeliness."26
{¶ 99} In its motion to intervene, Allstate specifically stated that it would not seek a continuance of the already scheduled trial date. Allstate sought to accommodate the court's schedule. In its motion to intervene, Allstate asserted that its participation could be limited to the submission of jury interrogatories. As such, the only additional issues for the jury to consider would be related to *Page 776 Border's mental state when he struck Davis. Appellee argues that the trial date would have had to be continued due to Allstate's proposed filing of an intervening complaint and cross-claim regarding a declaration on certain coverage issues. However, "the trial court could have easily limited appellant's intervention to submission of jury interrogatories and conditioned appellant's intervention upon no continuances in its favor. The existing parties would thus not be prejudiced by the granting of appellant's motion."27
{¶ 100} In weighing the potential prejudice to the parties against Allstate's right to intervene, Allstate should have been permitted to intervene. Allstate's interest in the matter affected a substantial right, in that it would be bound by the jury's verdict in the underlying action.28 Conversely, the prejudice to the remaining parties would be relatively minimal, as the only new issues would relate to Border's mental state.
{¶ 101} Finally, the jury trial was held when the trial court was divested of jurisdiction. Therefore, the results of the jury trial are void.29 Since the trial court should be required to set this matter for a new jury trial, the prejudice to the other parties by allowing Allstate to intervene would be nonexistent.
{¶ 102} The final factor is whether there are any unusual circumstances relevant to the issue of intervention. As the Eighth District noted, an insurance company is in a unique position in a case like this.30 While it has a duty to defend its insured, this is typically done by providing independent counsel to represent the insured. Obviously, the insurance company would prefer a verdict in favor of its insured.31 Alternatively, however, if liability is to be assigned to the insured, the insurance company would prefer a finding that the insured acted intentionally, thereby precluding coverage under the insurance policy.32
{¶ 103} Accordingly, an insurance company may initially provide an independent attorney to represent its insured. If, as the case develops, it appears that the insurance company's interests are the same as those of its insured, it may not be necessary for the insurance company to intervene as a separate party. If, *Page 777 however, as occurred in this matter, it becomes evident that the interests of the insurance company and those of the insured may be in conflict, the insurance company may seek to intervene in the case to protect its interests. As stated by this court:
{¶ 104} "While [the insurance company] could have sought intervention at an earlier stage in the proceedings, intervention would presumably have been unnecessary if, for instance, a settlement was reached * * *. Further, the earlier stages of litigation, including pleading practice, motion practice, discovery, and court appearances, did not impede appellant's interests. Appellant's intervention from day one * * * would have accomplished nothing but increasing appellant's attorney fees and costs."33
{¶ 105} In conclusion, Allstate sought intervention as of right pursuant to Civ.R. 24(A). While this was done only two weeks prior to the scheduled trial date, the record reveals that Allstate may not have become aware of its interest until that time; the other parties, at most, would have been minimally prejudiced; Allstate sought to limit its participation to submitting interrogatories; Allstate had a unique position in this matter; and the fact that Allstate would be bound by a determination of Border's mental state in the jury trial all weigh in favor of finding that Allstate's motion to intervene was timely.
{¶ 106} The judgment of the trial court should be reversed, and this matter should be remanded for the trial court to reset this matter for a new jury trial, where Allstate is permitted to participate.
3 Fairview Gen. Hosp. v. Fletcher (1990),69 Ohio App.3d 827, 591 N.E.2d 1312.
4 Hopkins v. Dyer, 104 Olio St.3d 461,2004-Ohio-6769, 820 N.E.2d 329, ¶ 15, quoting Nolan v.Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1,462 N.E.2d 410.
5 See State v. Busta (June 29, 2001), 11th Dist. No. 99-P-0035, 2001 WL 735788, at *2 and Henderson v.Luhring, 5th Dist. No. 02-COA-017, 2002-Ohio-4208,2002 WL 1889269, at ¶ 12.
6 Fouche v. Denihan (1990), 66 Ohio App.3d 120, 126,583 N.E.2d 457 and Grogan v. T.W. Grogan Co. (2001),143 Ohio App.3d 548, 558, 758 N.E.2d 702, citing Widder Widder v. Kutnick (1996), 113 Ohio App.3d 616,681 N.E.2d 977.
7 See Hopkins v. Dyer, supra, at ¶ 15.
8 Tomcany v. Range Constr., 11th Dist. No. 2003-L-071, 2004-Ohio-5314, 2004 WL 2801671, at ¶ 32, andKrancevic v. McPherson, 8th Dist. No. 84511,2004-Ohio-6915, 2004 WL 2931012, at ¶ 5-8.
9 Myers v. Basobas (1998), 129 Ohio App.3d 692,696, 718 N.E.2d 1001, citing Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 29 OBR 479, 505 N.E.2d 1010 andMorris v. Investment Life Ins. Co. (1966),6 Ohio St.2d 185, 35 O.O.2d 304, 217 N.E.2d 202. See, also, Likoverv. Cleveland (1978), 60 Ohio App.2d 154, 155,14 O.O.3d 125, 396 N.E.2d 491, citing Holibaugh v. Cox (1958),167 Ohio St. 340, 4 O.O.2d 461, 148 N.E.2d 677; andSutherland v. ITT Residential Capital Corp. (1997),122 Ohio App.3d 526, 537, 702 N.E.2d 436, citing Blackburn v.Hamoudi, 29 Ohio App.3d at 352, 29 OBR 479,505 N.E.2d 1010.
10 See, e.g., Queen City Lodge No. 69, Fraternal Orderof Police v. State Emp. Relations Bd., 1st Dist. No. C-060530, 2007-Ohio-170, 2007 WL 121740, at ¶ 12 andGehm v. Timberline Post Frame, 9th Dist. No. 22479, 2005-Ohio-5222, 2005 WL 2401906, at ¶ 8-9.
11 Filippi v. Ahmed, 8th Dist. No. 86927,2006-Ohio-4368, 2006 WL 2441753, at ¶ 4-5.
12 Queen City Lodge No. 69, Fraternal Order of Policev. State Emp. Relations Bd., 2007-Ohio-170, 2007 WL 121740, at ¶ 12.
13 Id. at ¶ 14-15.
14 Id. at ¶ 17.
15 State v. Muncie (2001), 91 Ohio St.3d 440, 451,746 N.E.2d 1092, quoting Gibson-Myers Assoc, v.Pearce (Oct. 27, 1999), Summit App. No. 19358,1999 WL 980562, *2.
16 In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215,829 N.E.2d 1207, at ¶ 9.
17 Id.
18 Id. at ¶ 15.
19 Heiney v. Godwin, 9th Dist. No. 21784,2004-Ohio-2117, 2004 WL 894500, at ¶ 6, citing State exrel. Smith v. Frost (1995), 74 Ohio St.3d 107, 108,656 N.E.2d 673.
20 Howell v. Richardson (1989), 45 Ohio St.3d 365,544 N.E.2d 878, paragraph one of the syllabus.
21 Krancevic v. McPherson. 8th Dist. No. 84511,2004-Ohio-6915, 2004 WL 2931012, at ¶ 6-7.
22 State ex rel. First New Shiloh Baptist Church v.Meagher (1998), 82 Ohio St.3d 501, 503, 696 N.E.2d 1058, quoting Triax Co. v. TRW, Inc. (C.A.6, 1984),724 F.2d 1224, 1228.
23 See Tomcany v. Range Constr., 11th Dist. No. 2003-L-071, 2004-Ohio-5314, 2004 WL 2801671, at ¶ 44-47.
24 Krancevic v. McPherson, 2004-Ohio-6915,2004 WL 2931012, at ¶ 8, citing Likover v. Cleveland (1978), 60 Ohio App.2d 154, 159, 14 O.O.3d 125,396 N.E.2d 491.
25 HER, Inc. v. Parenteau, 153 Ohio App.3d 704,2003-Ohio-4370, 795 N.E.2d 720, at ¶ 14.
26 Id., citing Blackburn v. Hamoudi (1986),29 Ohio App.3d 350, 29 OBR 479, 505 N.E.2d 1010 and Fouche v.Denihan (1990), 66 Ohio App.3d 120, 583 N.E.2d 457.
27 Tomcany v. Range Constr., 11th Dist. No. 2003-L-071, 2004-Ohio-5314, 2004 WL 2801671, at ¶ 45.
28 Krancevic v. McPherson, supra, at ¶ 6, citingHowell v. Richardson, paragraph one of the syllabus.
29 In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215,829 N.E.2d 1207, at ¶ 15.
30 Krancevic v. McPherson, 2004-Ohio-6915,2004 WL 2931012, at ¶ 6-7.
31 Id. at ¶ 7.
32 Id.
33 Tomcany v. Range Constr., 11th Dist. No. 2003-L-071, 2004-Ohio-5314, 2004 WL 2801671, at ¶ 44.