[Cite as Berardo v. Felderman-Swearingen, 2020-Ohio-3098.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LUIGI BERARDO, APPEAL NO. C-190515
: TRIAL NO. A-1706896
and
TINA BERARDO, : O P I N I O N.
Plaintiffs-Appellants,
vs. :
DEVIN Q. FELDERMAN-
SWEARINGEN, :
Defendant-Appellee,
and :
HUMANA,
:
and
PROGRESSIVE SPECIALTY :
INSURANCE COMPANY,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: May 27, 2020
Dennis C. Mahoney and Amanda L Patton, for Plaintiffs-Appellants,
Jamey T. Pregon, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Luigi and Tina Berardo appeal the judgment of the Hamilton County
Court of Common Pleas denying their post-trial motion for judgment
notwithstanding the verdict, additur or, in the alternative, a new trial on damages.
However, because we have no jurisdiction to entertain the appeal, we dismiss it.
{¶2} In December 2015, the Berardos were injured in a car accident when a
car driven by Devin Q. Felderman-Swearingen collided with their car. The Berardos
were insured under an automobile liability policy with Progressive Specialty
Insurance Company (“Progressive”), which provided uninsured/underinsured-
motorist coverage and medical-payments coverage. Progressive paid medical bills on
behalf of both Luigi and Tina Berardo for treatment of their injuries sustained in the
accident. Luigi Berardo was insured under an individual health insurance policy
through Humana, which paid medical bills for the treatment of his injuries.
{¶3} In December 2017, the Berardos filed an action against Felderman-
Swearingen, Progressive, and Humana. The Berardos alleged that they were injured
as a result of Felderman-Swearingen’s negligence. They alleged that Humana and
Progressive, having paid for medical expenses incurred by the Berardos for injuries
sustained in the accident, should assert their subrogation interests in the action or be
forever barred. In addition, the Berardos alleged that they were entitled to a
judgment against Progressive under the terms of their uninsured/underinsured-
motorist coverage because their injuries and damages exceeded the insurance
coverage of Felderman-Swearingen’s insurance policy.
{¶4} Felderman-Swearingen filed an answer denying liability. Progressive
filed an answer and asserted a cross-claim against Felderman-Swearingen. Humana
filed a motion to dismiss and a motion to intervene as a party-plaintiff.
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{¶5} In June 2018, the Berardos dismissed their uninsured/underinsured-
motorist claim against Progressive. The dismissal entry specifically indicated that
the Berardos’ claims against Progressive for medical-payments coverage, as well as
Progressive’s cross-claim against Felderman-Swearingen, remained open. In
addition, the entry stated, “The dismissal does not affect the claims brought against
all other remaining parties to this action.”
{¶6} On April 19, 2019, the trial court granted Humana’s motion to dismiss,
and granted Humana’s motion to intervene. The court deemed Humana’s
intervening complaint, which asserted claims against Felderman-Swearingen and
Progressive, filed as of the date of the court’s entry.
{¶7} The matter proceeded to a jury trial on April 22. The jury entered
verdicts in favor of both of the Berardos against Felderman-Swearingen. The jury
awarded Luigi Berardo damages in the amount of $23,677, $19,677 of which was for
medical expenses and $4,000 of which was for past noneconomic damages. The jury
awarded $0 to Luigi Berardo for past economic damages and for future noneconomic
damages. The jury awarded Tina Berardo damages in the amount of $9,853, all of
which was for medical expenses. The jury awarded Tina Berardo $0 for past
economic damages, $0 for past noneconomic damages, and $0 for future
noneconomic damages.
{¶8} The Berardos filed a motion for judgment notwithstanding the verdict,
additur or, in the alternative, a new trial. They asserted that the jury’s findings for
noneconomic damages, $4,000 for Luigi Berardo and $0 for Tina Berardo, were not
supported by the evidence. They asked the trial court to award an additional
$80,000 for Luigi Berardo and $25,000 for Tina Berardo, for noneconomic
damages. In the alternative, they sought a new trial on the ground of inadequate
damages.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Prior to the trial court’s hearing on the Berardos’ post-trial motion,
Progressive filed a notice that stated it “will not be attending or participating” in the
hearing. Progressive further stated that it “will adhere to the [c]ourt’s decision.”
{¶10} Following the hearing, the trial court denied the motion, stating in its
entry, “Pursuant to Civil Rule 54, this is a final appealable order.” At the time of the
trial court’s judgment, the Berardos’ medical-payments subrogation claim against
Progressive and both insurers’ claims against Felderman-Swearingen, and Humana’s
claim against Progressive remained pending. The Berardos now appeal.
{¶11} Our appellate jurisdiction is limited to the review of final orders. See
Ohio Constitution, Article IV, Section 3(B)(2); Lycan v. Cleveland, 146 Ohio St.3d
29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21. An order is final and appealable only if it
meets the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B). Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus;
State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶
5.
{¶12} Civ.R. 54(B) applies where more than one claim for relief is presented
or multiple parties are involved, and where the court has rendered a final judgment
as to fewer than all claims or parties. Chef Italiano at 88. An entry of judgment
involving fewer than all claims or parties is not a final, appealable order unless the
court expressly determines that there is “no just reason for delay.” Civ.R. 54(B);
Scruggs at ¶ 6. Use of the language, “there is no just reason for delay,” is mandatory.
Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). Without it, the
order is neither final nor appealable. Id.; Daudistel v. Silverton, 1st Dist. Hamilton
No. C-120611, 2013-Ohio-2103, ¶ 8.
{¶13} We ordered the parties to submit supplemental briefs to address
whether the trial court’s judgment was a final, appealable order. In his supplemental
brief, Felderman-Swearingen contends that it was his belief that the Berardos had
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OHIO FIRST DISTRICT COURT OF APPEALS
reached agreements with Progressive and Humana to protect their subrogation
interests with the proceeds from an eventual verdict. The record before us, however,
is devoid of any entries dismissing these parties if in fact the claims had been settled.
Thus, they remain pending.
{¶14} The Berardos contend that the insurers’ subrogation claims are
derivative and do not vest until a verdict is finalized and they are paid. However, a
verdict was rendered in their favor, and the subrogation claims which were ripe for
decision remain unresolved.
{¶15} Felderman-Swearingen also argues that a judgment that resolves an
insured’s claim against a tortfeasor constitutes a final, appealable order despite the
lack of Civ.R. 54(B) certification, even though the judgment does not resolve an
insurer’s derivative subrogation claim in the same action. He cites several cases for
this proposition, including Strayer v. Cox, 2015-Ohio-2781, 38 N.E.3d 1162 (2d
Dist.), Hines v. Aetna Cas. & Sur. Co., 8th Dist. Cuyahoga No. 59600, 1992 WL 2588
(Jan. 9, 1992), and Ashbaugh v. Family Dollar Stores, 4th Dist. Highland No. 99 CA
11, 2000 WL 146391 (Jan. 20, 2000). However, those cases are distinguishable
because they held that when judgment is entered in favor of defendants in a
personal-injury case, any subrogation claim is mooted. Here, judgment was entered
in favor of the plaintiffs, so the subrogation claims are not moot. They remain
pending and undecided.
{¶16} Felderman-Swearingen acknowledges that the trial court’s entry
lacked the Civ.R. 54(B) certification language. He cites Knickel v. City of Marion, 3d
Dist. Marion No. 9-2000-75, 2001 WL 39592 (Jan. 17, 2001), for the proposition that
even if an order “does not quote exact language” from Civ.R. 54(B), the order
constitutes a final, appealable order. In Knickel, the trial court’s judgment entry did
not use the Civ.R. 54(B) “no just reason for delay” language, and instead stated that
there was “no reasonable cause for delay.” Id. at *2. The Third District held that the
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OHIO FIRST DISTRICT COURT OF APPEALS
trial court’s order was final and appealable because it was obvious from the court’s
use of “nearly identical” language that the court had “intended to comply in all
respects with Civ.R. 54.”
{¶17} Although the trial court’s entry cited Civ.R. 54 generally and stated
that it was “a final appealable order,” the order did not include the mandatory Civ.R.
54(B) language: “there is no just reason for delay,” any similar language, or any
reference to subsection (B). As we have held, “[m]erely describing an order as final
and appealable, without express reference to the language of Civ.R. 54(B), is not
sufficient to satisfy the rule’s certification requirement.” JP Morgan Chase Bank v.
Stotler, 1st Dist. Hamilton No. C-130720, 2014-Ohio-4238, ¶ 10. Because the court’s
order entered judgment as to fewer than all the claims and did not include the
requisite Civ.R. 54(B) certification that there is “no just reason for delay,” the order
appealed from is not a final and appealable order. See Kelly v. Swoish FT Blue Ash,
LLC, 1st Dist. Hamilton No. C-160461, 2017-Ohio-836, ¶ 7.
{¶18} Consequently, we are without jurisdiction to entertain the appeal, and
for that reason, the appeal is dismissed.
Appeal dismissed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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