[Cite as Myers v. Brown, 192 Ohio App.3d 670, 2011-Ohio-892.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                            JUDGES:
MYERS,                                             :        Hon. W. Scott Gwin, P.J.
                                                   :        Hon. Sheila G. Farmer, J.
        Appellee,                                  :        Hon. Julie A. Edwards, J.
                                                   :
-v-                                                :
                                                   :        Case No. 2010-CA-00238
BROWN; AMCO Insurance Company,                     :
                                                   :
        Appellant.                                 :        OPINION




CHARACTER OF PROCEEDING:                               Civil appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2009CV03124

JUDGMENT:                                              Affirmed

DATE OF JUDGMENT ENTRY:                                February 22, 2011

APPEARANCES:

The Okey Law Firm and Steven P. Okey; and Joyce Kimbler, for appellee.

Ralph F. Dublikar and Eric J. Stecz, for appellant.



        GWIN, Presiding Judge.

        {¶ 1} Defendant-appellant AMCO Insurance Company appeals a judgment of

the Court of Common Pleas of Stark County, Ohio, which overruled its motion to

bifurcate plaintiff-appellee Louise A. Myers’s claim for punitive damages from her claim

for compensatory damages. Appellant assigns a single error to the trial court:
        {¶ 2} “I. The trial court committed reversible error when it denied appellant’s

motion to bifurcate plaintiff’s punitive damages claim pursuant to R.C. 2315.21(B).”

        {¶ 3} The record indicates that this case arose out of a traffic accident. Appellee

alleged that defendant David L. Brown1 caused an accident while under the influence of

alcohol and/or drugs, which resulted in personal injury to her. She alleged that Brown

acted in malice, hatred, ill-will, a spirit of revenge, and/or a conscious disregard for the

rights and safety of other persons, and she sought punitive damages. Her claim against

appellant AMCO is for uninsured/underinsured-motorist coverage and medical-payment

coverage. Appellant AMCO has filed a cross-claim against Brown for indemnification if

appellee prevails on her claims against it.

        {¶ 4} On July 2, 2010, appellant filed a motion to bifurcate the punitive-damages

claim from the compensatory-damages claim pursuant to R.C. 2315.21.                           The court

overruled the motion, finding that the case appellant relied on, Hanners v. Ho Wah

Genting Wire & Cable, Franklin App. No. 09AP-361, 2009-Ohio-6481, was not binding

on the trial court, because it arose out of the Tenth District and there was no case law

from the Fifth District.

        {¶ 5} Appellee relies on a conflicting case out of the Eighth District, Havel v.

Villa St. Joseph, Cuyahoga App. No. 94677, 2010-Ohio-5251.

        {¶ 6} The first question that arises is whether the denial of a motion to bifurcate

is a final, appealable order. On this issue, Hanners and Havel both found that the order

is final and appealable. We agree.

1
  On October 9, 2009, defendant David Brown moved the trial court to bifurcate the proceedings. The
court overruled the motion on October 28, 2009. He renewed his motion on December 21, 2009. When
the trial court overruled the motion a second time, he filed an appeal that he subsequently voluntarily
dismissed. He filed no notice of appeal in the present case, and although he urges reversal of the trial
court’s decision, he designates himself an appellee. We will refer to him as a defendant.

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       {¶ 7} R.C. 2315.21 (B), as amended effective April 7, 2005, states that in a tort

action that will be tried to a jury, if there is a claim for compensatory damages and for

punitive and exemplary damages and any party moves for bifurcation, then the trial

court shall bifurcate the matter.

       {¶ 8} This court has jurisdiction to review the final orders or judgments of trial

courts pursuant to Section 3(B)(2), Article IV of the Ohio Constitution and R.C. 2501.02.

R.C. 2505.02 lists the circumstances under which an order is final. Subsection 6 is the

provision pertinent here: “An order determining the constitutionality of any changes to

the Revised Code * * * made by S.B. 80 of 125th General Assembly, including the

amendments of Section[ ] * * * 2315.21 of the Revised Code.”

       {¶ 9} Both the Hanners court and the Havel court found that a trial court’s order

denying a motion to bifurcate implicitly determines that the mandatory bifurcation

language in R.C. 2315.21(B) is unconstitutional. Hanners, 2009-Ohio-6481, at ¶ 13;

Havel, 2010-Ohio-5251, at ¶ 19.

       {¶ 10} We find that the order appealed from implies that the bifurcation language

in the statute is unconstitutional, although it does not state so expressly. We conclude

that we have jurisdiction to review the matter.

       {¶ 11} R.C. 2315.21(B) makes bifurcation of a tort action mandatory if there are

claims for both compensatory and punitive and exemplary damages and if any party

requests it. By contrast, Civ.R. 42 (B) provides that a court may order a separate trial of

a claim, cross-claim, counterclaim, or third-party claim or of any separate issue or of any

number of claims.     Thus, the rule expressly vests the trial court with discretion in




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deciding whether bifurcation is necessary. The rule contains no exception for tort

actions. The statute and the rule are clearly in conflict.

       {¶ 12} Section 5(B), Article IV, of the Ohio Constitution gives the Ohio Supreme

Court exclusive authority to prescribe rules governing the practice and procedure in all

courts of the state. The constitution provides that when a law conflicts with a rule

promulgated by the Supreme Court, the law has no force or effect.           This section

articulates one of the basic concepts of United States jurisprudence, the separation of

powers of the judicial and legislative branches. State ex rel. Loyd v. Lovelady, 108 Ohio

St. 3d 86, 2006-Ohio-161, 840 N.E. 2d 1062.

       {¶ 13} If there is a conflict between the rule and the statute, the court’s rules

prevail on procedural matters, but the legislature’s statutes prevail on substantive

matters. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368,

2008-Ohio-2637, 889 N.E. 2d 500. Substantive laws or rules relate to rights and duties

giving rise to a cause of action, while procedural rules concern the “machinery” for

carrying on the suit. Norfolk S. RR. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248,

875 N.E. 2d 919, citing Jones v. Erie RR. Company (1922), 106 Ohio St. 408, 140 N.E.

366.

       {¶ 14} The Hanners court found that R.C. 2315.21 (B) is a substantive law

because even though it mandates particular procedures for tort actions, the legislative

intent was to create and define a defendant’s right to ensure that the jury does not

inappropriately consider the defendant’s misconduct when determining questions of

liability or compensatory damages. Hanners, 2009-Ohio-6481, at ¶ 28.




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       {¶ 15} By contrast, the Havel court found that the statute is procedural, because

it “plainly and unambiguously regulates the procedure at trial for determining

compensatory and punitive damages in a tort action.” Havel, 2010-Ohio-5251, at ¶ 29.

We agree.

       {¶ 16} We find that R.C. 2315.21 (B) is not substantive, because it does not

create or define rights and duties giving rise to a cause of action. The statute gives

defendants no additional rights, but sets out the procedural rules whereby courts can

better protect the rights to a jury and to due process that the parties have always

possessed.

       {¶ 17} We find that R.C. 2315.21 (B) clearly conflicts with the Supreme Court’s

rules, and the rule controls.      We also conclude that insofar as R.C. 2315.21(B)

mandates bifurcation, it is unconstitutional, because it violates Section 5(B), Article IV of

the Ohio Constitution.

       {¶ 18} The assignment of error is overruled.

       {¶ 19} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

                                                                        Judgment affirmed.

       FARMER and EDWARDS, JJ., concur.




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