[Cite as McKinley Dev. Leasing Co., Ltd. v. Westfield Ins. Co., 2022-Ohio-2128.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

McKINLEY DEVELOPMENT LEASING 

COMPANY, LTD., et al.

Plaintiffs-Appellees

-vsWESTFIELD INSURANCE COMPANY

Defendant-Appellant

JUDGES:

Hon. William., Hoffman, P. J.

Hon. John W. Wise, J.

Hon. Patricia A. Delaney, J. 

Case No. 2021CA00142

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the ourt of Common 

Pleas, Case No. 2020 CV 00815

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 22, 2022

APPEARANCES:

For Plaintiffs-Appellees For Defendant-Appellant

LEE E. PLAKAS DAVID G. UTLEY

GARY A. CORROTO RICHARD M. GARNER

MARIA C. KLUTINOTY EDWARDS SUNNY L. HORACEK

COLLIN S. WISE COLLINS ROCHE UTLEY & GARNER

PLAKAS MANNOS 655 Metro Place South, Suite 200

200 Market Avenue North, Suite 300 Dublin, Ohio 43017

Canton, Ohio 44702

THOMAS W. WINKHART EDWARD M. KOCH

KELSEY M. SULLIVAN MARC L. PENCHANSKY

WINKHART & MINOR, LLC WHITE AND WILLIAMS, LLP

825 South Main Street 1650 Market Street

North Canton, Ohio 44720 One Liberty Place, Suite 1800

Philadelphia, PA 19103
Stark County, Case No. 2021CA00142 2

Wise, J.

{¶1} Appellant Westfield Insurance Company appeals the October 14, 2021, and 

November 9, 2021, decisions of the Stark County Court of Common Pleas granting 

summary judgment in favor of Appellees McKinley Development Leasing Company, Ltd., 

et al.

STATEMENT OF THE FACTS

{¶2} This appeal concerns the issue of whether Appellee McKinley

Development Leasing Company, Ltd., et al., a property developer, is entitled to coverage 

for lost business income under its Policy of insurance with Appellant Westfield Insurance 

Company. 

{¶3} The relevant facts and procedural history are as follows:

{¶4} McKinley Development Leasing Company, Ltd., McKinley Development 

Leasing Company (A), Ltd., and McKinley Leasing Company (D), Ltd. (collectively 

referred to as "McKinley" or "Appellees") are a group of local real estate development and 

leasing companies owned and operated/managed by developers William J. Lemmon, 

Robert J. DeHoff and his son, Daniel J. DeHoff. McKinley owns several commercial 

properties located in North Canton, Ohio, which it leases to multiple businesses.

{¶5} McKinley is insured by Westfield Insurance Company under a commercial 

business owner policy, CWP 4 697 218, effective February 16, 2020 to February 16, 2021. 

{¶6} In early 2020, in response to the COVID-19 pandemic, Ohio Governor Mike 

De Wine issued Executive Order 2020-OID of March 9, 2020 declaring a state of 

emergency. Following the Executive Order, on March 15, 2020, the Ohio Department of 

Health Director issued the Director's Order In Re: Order Limiting the Sale of Food and 
Stark County, Case No. 2021 CA 00142 3

Beverages, Liquor, Beer and Wine to Carry-Out and Delivery Only, and on March 22, 

2020, the Ohio Department of Health Director issued Director's Stay at Home Order. 

Throughout the country, businesses that were deemed "non-essential" were forced to 

curtail their business or were completely shut down by the Civil Authority Orders in an 

attempt to slow the spread of the Pandemic. 

{¶7} Appellant McKinley claimed that the Pandemic and the governmentmandated shutdowns resulted in the inability of McKinley and its tenants to utilize, access, 

and/or possess the premises. As a result, McKinley submitted an insurance claim to 

Westfield for loss of business income and extra expense, as well as coverage under the 

Civil Authority provision of the Policy. 

{¶8} In turn, Westfield denied coverage on the basis that McKinley could not 

demonstrate a direct physical loss of or damage to its property. 

{¶9} As a result of the denial of coverage, McKinley filed a Complaint against 

Westfield, which included claims of breach of contract, breach of the covenant of good 

faith and fair dealing, and declaratory judgment. 

{¶10} After overruling Westfield's motion to dismiss the complaint, McKinley 

moved for partial summary judgment on liability. (February 9, 2021 Order Overruling 

Westfield's Motion to Dismiss the Complaint). 

{¶11} Concurrently, Westfield moved for summary judgment on all claims. 

{¶12} By Judgment Entry filed October 14, 2021, the trial court granted McKinley’s 

motion for summary judgment and denied Westfield's motion with the exception of 

punitive damages and bad faith claims. 
Stark County, Case No. 2021 CA 00142 4

{¶13} Thereafter, on November 9, 2021, the trial court certified its October 14, 

2021, summary judgment entry for immediate appeal. 

{¶14} It is from this decision Appellant now appeals, raising the following errors 

for review:

ASSIGNMENTS OF ERROR

{¶15} “I. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S MOTION 

FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR 

SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF EXPERIENCED A 

"DIRECT PHYSICAL LOSS OF OR DAMAGE TO" ITS PROPERTY FROM THE 

PRESENCE OF COVID-19 IN THE COMMUNITY AND THE PASSAGE OF CIVIL 

AUTHORITY ORDERS TO CURB COVID-19'S SPREAD. 

{¶16} “II. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S MOTION 

FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR 

SUMMARY JUDGMENT ON THE GROUND THAT THE POLICY'S CIVIL AUTHORITY 

PROVISION ENTITLED MCKINLEY TO COVERAGE. 

{¶17} “III. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S MOTION 

FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR 

SUMMARY JUDGMENT ON THE GROUND THAT THE VIRUS EXCLUSION DOES 

NOT APPLY TO MCKINLEY'S CLAIM FOR LOST BUSINESS INCOME. 

{¶18} “IV. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION 

FOR SUMMARY JUDGMENT BECAUSE MCKINLEY HAS NOT ESTABLISHED THAT 

IT SUSTAINED ANY DAMAGES.”
Stark County, Case No. 2021 CA 00142 5

FINAL APPEALABLE ORDER ANALYSIS

{¶19} We find we do not have jurisdiction to review the trial court's judgment. 

{¶20} Section 3, (B)(2), Article IV, of the Ohio Constitution gives appellate court's 

jurisdiction to review final orders or judgments. See also Gehm v. Timberline Post & 

Frame, 112 Ohio St.3d 514, 2007–Ohio–607, 861 N.E.2d 519. If there is no final 

appealable order, we have no jurisdiction to review the matter. General Accident 

Insurance v. Insurance Company of North America (1989), 44 Ohio St.3d 17, 540 N.E.2d 

266. We have no option but to dismiss the appeal. Renner's Welding and Fabrication, Inc. 

v. Chrysler Motor Corporation (1996), 117 Ohio App.3d 61, 689 N.E.2d 1015.

{¶21} In Walburn v. Dunlap, 121 Ohio St.3d 373, 2009–Ohio–1221, 904 N.E.2d 

863, the Supreme Court held: “An order that declares that an insured is entitled to 

coverage but does not address damages is not a final order as defined in R.C. 

2505.02(B)(2), because the order does not affect a substantial right even though made in 

a special proceeding.” Syllabus by the court. 

{¶22} A judgment in a declaratory judgment action is not a final appealable order

if the trial court finds the insured is entitled to coverage, but has not addressed the issue 

of damages even if the order includes a certification made pursuant to Civ.R. 54(B). “ ‘As 

a general rule, even where the issue of liability has been determined, but a factual 

adjudication of relief is unresolved, the finding of liability is not a final appealable order

even if Rule 54(B) language was employed.’ A trial court's use of such language does not 

convert an otherwise non-final order into a final, appealable order.” Id. Walburn at 

paragraph 31, quoting Noble v. Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381. 
Stark County, Case No. 2021 CA 00142 6

See also Estate of Helsep v. Allstate Ins. Co., 5th Dist. Stark No. 09-CA-282, 2010-Ohio2722, ¶¶ 3-6.

{¶23} Upon review, we find we have no jurisdiction to review the matter. 

{¶24} For the reasons stated in the foregoing opinion, the appeal from the

judgment of the Stark County Court of Common Pleas is dismissed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

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