[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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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶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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       {¶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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