dissenting. I respectfully dissent from the majority opinion. Although I agree that AIC’s failure to properly answer the amended complaint entitled Davis to a default judgment, I disagree with the majority’s conclusion that the later jury verdict exonerating Dr. Guarnieri and AIC is “irrelevant.” Rather, the verdict renders the trial court’s failure to grant a default judgment against AIC nonprejudicial. Additionally, I dissent from the extension of the holding in Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642 N.E.2d 365.
I. DEFAULT JUDGMENT
The majority frames the issue in the present case as whether a default judgment can be entered against a defendant who was ultimately found not negligent at' trial. Yet, in its discussion of the issue, the majority neglects the *19leading case on the subject, Frow v. De La Vega (1872), 82 U.S. (15 Wall.) 552, 21 L.Ed. 60. In that case, the Supreme Court held that when multiple defendants are alleged to be jointly liable and fewer than all defendants default, a court may not render a liability determination as to the defaulting parties unless and until the remaining defendants are found liable on the merits. Justice Bradley wrote, “If the court in such a case as this can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the others, then this absurdity might follow: there might be one decree of the court sustaining the charge of joint fraud committed by the defendants; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant’s bill. And such an incongruity, it seems, did actually occur in this case. Such' a state of things is unseemly and absurd, as well as unauthorized by law.
“[I]f the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.” Id. at 554, 21 L.Ed. at 61.
The Frow doctrine has been widely accepted by treatises, see 10 Moore’s Federal Practice (3 Ed.1997), Section 55.25; 10 Wright, Miller & Kane, Federal Practice and Procedure (2 Ed.1983), Section 2690; 21 Federal Procedure, Lawyers Edition (1997), Section 51:64, and by the federal circuits. See Farzetta v. Turner & Newall, Ltd. (C.A.3, 1986), 797 F.2d 151, 154 (stating that Frow stands for the proposition that “if at trial facts are proved that exonerate certain defendants and that as a matter of logic preclude the liability of another defendant, the plaintiff should be collaterally estopped from obtaining a judgment against the latter defendant, even though it failed to participate in the proceeding in which the exculpatory facts were proved”); In re Uranium Antitrust Litigation (C.A.7, 1980), 617 F.2d 1248, 1256-1258 (distinguishing Frow on grounds that, because liability in the case at bar was joint and several, nonliability of some defendants would not logically preclude liability of other defendants). In Internatl. Controls Corp. v. Vesco (C.A.2, 1976), 535 F.2d 742, 746, fn. 4, the court questioned the continued validity of Frow in light of the passage of the Federal Rules of Civil Procedure, but ultimately concluded that “[i]n any event, at most, Frow controls in situations where the liability of one defendant necessarily depends upon the liability of the others.”
In the present case, Davis alleged that these defendants were jointly and severally liable and specifically that AIC was responsible for the medical malpractice of its agent, Dr. Guarnieri, by way of the doctrine of respondeat superior. As this court stated in Strode v. Pressnell (1988), 38 Ohio St.3d 207, 217, 527 N.E.2d 1235, 1244, “It is axiomatic that for the doctrine of respondeat superior to *20apply, an employee must be liable for a tort committed in the scope of his employment.” Had AIC properly answered, as a matter of logic and law, it would be impossible to maintain an action against AIC after the jury exonerated Dr. Guarnieri of liability.
The Frow doctrine was meant to apply precisely in this situation, to prevent the absurdity that results in granting a judgment based on respondeat superior against the employer when the employee has committed no wrongdoing. Under Frow, the trial court could not enter a liability determination against AIC, the defaulting defendant, unless and until the remaining defendant, Dr. Guarnieri, was found liable on the merits. Because Dr. Guarnieri was not found liable on the merits, the trial court’s failure to grant the default judgment was not prejudicial.
The Maryland Court of Appeals, that state’s highest court, reached the same conclusion in the context of respondeat superior in a medical malpractice case. Curry v. Hillcrest Clinic, Inc. (1995), 337 Md. 412, 653 A.2d 934. In that case, the plaintiff alleged that the defendant hospital was liable under the doctrine of respondeat superior for the medical malpractice of its doctor. The hospital failed to answer and default judgment was entered against it. The hospital was permitted to participate in the scheduled arbitration hearing on the issue of damages only. The arbitration panel, however, found that to the extent that the doctor was negligent, that negligence was not the proximate cause of the plaintiffs injuries. The arbitration panel then entered a final judgment of no liability for the hospital. On appeal from the arbitration, the trial court vacated the final entry and permitted the hospital to defend on the merits. After a jury trial, a verdict was entered in favor of both the doctor and hospital on all counts. On appeal, the intermediate appellate court held that the plaintiff was not entitled to a default judgment against the hospital.
The Maryland Court of Appeals agreed, holding that Frow “certainly operates where the conduct of a defendant who appeared and successfully defended on the merits is the sole basis for liability of a defaulting defendant under the principle of respondeat superior.” 337 Md. at 430, 653 A.2d at 943. Specifically, the court held that “in a negligence case, a finding that an appearing agent or servant has not committed actionable negligence inures to the benefit of a defaulting principal whose liability rests solely on respondeat superior.” Id. at 434, 653 A.2d at 945.
Even a more relaxed view of the Frow rule dictates a finding that the trial court’s failure to grant Davis’s motion for default judgment was not prejudicial. In Hunt v. Inter-Globe Energy, Inc. (C.A.10, 1985), 770 F.2d 145, 148, the court held that a default judgment entered against one of several defendants, each of whom is jointly and severally liable for plaintiffs damages, establishes only liability and not the defaulting defendant’s relative share of fault. Accord *21Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc. (C.A.7, 1983), 722 F.2d 1319, 1324; Montcalm Publishing Corp. v. Ryan (S.D.N.Y.1992), 807 F.Supp. 975, 977-978. Under this view of Frow, any default judgment against AIC could establish only its liability. AIC’s responsibility for Davis’s damages, however, is still dependent upon Dr. Guarnieri’s liability. Because Dr. Guarnieri was exonerated, AIC’s relative share of the damages is zero and Davis has suffered no harm from the trial court’s failure to grant the default judgment.
II. COMMONALITY OF INSURANCE
I additionally disagree with the majority’s extension of Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642 N.E.2d 365, and join Justice Lundberg Stratton’s reasoning as stated in Part II of her dissent.
For these reasons, I would reverse the court of appeals’ judgment ordering entry of a default judgment against AIC. I would also reverse the court of appeals’ judgment ordering a new trial against EM Care and would affirm the court of appeals’ judgment denying a new trial against Dr. Guarnieri and IMS.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.