[Cite as Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221.]

WALBURN ET AL., APPELLEES, v. DUNLAP ET AL.; NATIONAL UNION FIRE 

INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, APPELLANT. 

[Cite as Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221.]

Appellate procedure — Final orders — Declaratory judgment on liability not 

appealable while issue of damages is pending. 

(Nos. 2007-2150 and 2007-2302 — Submitted November 18, 2008 — Decided 

March 24, 2009.) 

APPEAL from and CERTIFIED by the Court of Appeals for Vinton County, 

No. 06CA655, 2007-Ohio-5398. 

__________________ 

SYLLABUS OF THE COURT

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. 

__________________ 

LUNDBERG STRATTON, J. 

{¶ 1} We are asked to determine whether an order granting partial 

summary judgment that declares that an insured is entitled to coverage, but does 

not decide whether the insured is entitled to damages, is a final, appealable order 

even when the trial court includes a Civ.R. 54(B) determination of no just reason 

for delay. 

{¶ 2} In addition, upon review of an order by the Fourth District Court of 

Appeals, we determined that a conflict exists and ordered that the parties brief the 

following issue: 
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{¶ 3} “In a case involving multiple claims, is a judgment in the 

declaratory judgment action a final appealable order when the trial court finds that 

an insured is entitled to coverage, includes a Civ.R. 54(B) certification, but does 

not address the issue of damages?” 

{¶ 4} We hold that 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. See Gen. Acc. Ins. v. Ins. Co. of N. Am. (1989), 44 

Ohio St.3d 17, 540 N.E.2d 266. Therefore, our answer to the certified question is 

no. In a case involving multiple claims, a judgment in a declaratory judgment 

action is not a final, appealable order when the trial court finds that an insured is 

entitled to coverage but has not addressed the issue of damages, even though the 

order includes a Civ.R. 54(B) certification. 

{¶ 5} Plaintiff-appellee Styrk Walburn was a passenger in a motor 

vehicle driven by Charles W. Billingsley when it collided with a vehicle driven by 

Wendy Sue Dunlap on January 23, 2001. At the time of the accident, Walburn 

was in the scope and course of his employment. 

{¶ 6} On January 23, 2003, plaintiffs-appellees, Styrk and Betty 

Walburn, filed a complaint against Wendy Sue Dunlap for negligent operation of 

a motor vehicle that resulted in injuries to Styrk Walburn. They included a claim 

for the loss of consortium of Betty Walburn. Because Dunlap was uninsured, the 

Walburns also asserted claims for uninsured- or underinsured-motorist (“UM”) 

coverage under their own liability insurance policy from Ohio Mutual Insurance 

Group and under insurance policies issued by appellant, National Union Fire 

Insurance Company of Pittsburgh, Pennsylvania (“National Union”), to 

Walburn’s employer. The Walburns requested an order determining the rights 

and responsibilities of the parties. The prayer for relief demanded an award of 

damages. 
January Term, 2009 

3 

{¶ 7} The plaintiffs and National Union filed cross-motions for summary 

judgment on the issue of the availability of UM coverage. On August 28, 2006, 

the trial court granted plaintiffs’ motion for partial summary judgment, denied 

National Union’s motion, and ordered that plaintiffs were entitled to UM 

coverage under the National Union policies. The judgment entry stated, “This is a 

Final and Appealable order. The Court finds there is no just cause for delay.” 

{¶ 8} National Union asked the trial court to reconsider its judgment, in 

part on the basis that it was not a final, appealable order, because the entry did not 

terminate the action or resolve all the claims against all parties. National Union 

also filed a notice of appeal with the Fourth District Court of Appeals (“Walburn 

I”). The trial court granted the motion for reconsideration and vacated the August 

28, 2006 judgment. In response, National Union moved the court of appeals to 

dismiss its appeal. The court granted National Union’s motion to dismiss. 

{¶ 9} The plaintiffs again filed a motion for summary judgment in the 

trial court on the issue of Wendy Sue Dunlap’s liability and their entitlement to 

UM coverage from National Union. The trial court granted partial summary 

judgment again to the plaintiffs on December 12, 2006. The judgment entry, 

almost identical to the August 28, 2006 entry, again stated that it was a final, 

appealable order and that there was no just cause for delay. 

{¶ 10} National Union filed a notice of appeal from the December 12 

judgment entry (“Walburn II”). The court of appeals raised concerns about the 

finality of the August 28, 2006 entry and ordered the parties to brief the issue of 

the court’s jurisdiction over the December 12, 2006 entry. The court of appeals 

subsequently dismissed Walburn II for lack of jurisdiction. The appellate court 

concluded that the August 28, 2006 order was a final, appealable order under R.C. 

2505.02(B)(2) because it was an order that affected a substantial right made in a 

special proceeding and the trial court had included a Civ.R. 54(B) certification 

that there was no just reason for delay. 2007-Ohio-5398 at ¶ 10. The court of 
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appeals also held that the trial court had lacked jurisdiction to reconsider and 

vacate the August 28 final order. Thus, when National Union voluntarily 

dismissed Walburn I, the court held, its right to appeal was terminated. Id. at ¶ 

12. 

{¶ 11} The Fourth District Court of Appeals certified that its decision was 

in conflict with decisions by the Second, Ninth, and Tenth District Courts of 

Appeals in Beheshtaein v. Am. States Ins. Co., Montgomery App. No. 20839, 

2005-Ohio-5907; Walter v. Allstate Ins. Co., Summit App. No. 21032, 2002-

Ohio-5775; and Tinker v. Oldaker, Franklin App. Nos. 03AP-671 and 03AP1036, 2004-Ohio-3316. 

{¶ 12} We determined that a conflict exists and ordered that the parties 

brief the issue. This cause is also before us on National Union’s discretionary 

appeal. 

{¶ 13} “It is well-established that an order must be final before it can be 

reviewed by an appellate court. If an order is not final, then an appellate court has 

no jurisdiction.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d at 20, 540 

N.E.2d 266. “An appellate court, when determining whether a judgment is final, 

must engage in a two-step analysis. First, it must determine if the order is final 

within the requirements of R.C. 2505.02. If the court finds that the order 

complies with R.C. 2505.02 and is in fact final, then the court must take a second 

step to decide if Civ.R. 54(B) language is required.” Id. at 21. 

{¶ 14} In this case, the court of appeals applied R.C. 2505.02(B)(2), 

which provides, “An order is a final order that may be reviewed, affirmed, 

modified, or reversed, with or without retrial, when it is * * * [a]n order that 

affects a substantial right made in a special proceeding * * *.” The court 

determined that the trial court’s August 28, 2006 order was a final order because 

it was a declaratory judgment that decided insurance coverage, thus affecting a 

substantial right of National Union, citing Gen. Acc. Ins. Co. Because the trial 
January Term, 2009 

5 

court added a Civ.R. 54(B) certification, the order became final and appealable, 

according to the court of appeals. 

{¶ 15} We must first determine whether the August 28, 2006 order is a 

final order under R.C. 2505.02(B)(2). The answer depends upon whether this 

case falls within the dictates of Gen. Acc. or, as National Union contends, neither 

the August 28, 2006 order nor the December 12, 2006 order is a final order 

because they were not orders that affected a substantial right made in a special 

proceeding. 

{¶ 16} Gen. Acc. was an action for declaratory judgment in which the 

plaintiff insurance company asked the trial court to declare that the defendants 

Insurance Company of North America (“INA”) and National Union had a duty to 

defend and indemnify in a companion tort case. INA filed a counterclaim for a 

declaration that it did not have a duty to defend and also requested that General 

Accident be required to reimburse the $1 million that INA had contributed to 

General Accident’s settlement of the underlying action. The trial court issued an 

order that INA had no duty to defend and included a Civ.R. 54(B) certification 

that there was no just reason for delay. General Accident appealed. INA moved 

to dismiss for lack of a final, appealable order. The court of appeals dismissed the 

action. 

{¶ 17} In Gen. Acc., we held that a declaratory judgment was a special 

proceeding and that the duty to defend involves a substantial right to both the 

insured and the insurer. Thus, the trial court’s judgment was a final order under 

R.C. 2505.02 because it was “an order that affects a substantial right made in a 

special proceeding.”1

 We reasoned that although there were other pending 

claims, the trial court had made a Civ.R. 54(B) determination that there was no 

just reason for delay, and thus, the order was a final, appealable order. 

 

1. Gen. Acc. applied a former version of R.C. 2505.02. 1986 Am.Sub.H.B. No. 412, 141 Ohio 

Laws, Part II, 3597. 
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{¶ 18} First, National Union contends that this declaratory judgment is not 

a special proceeding for purposes of R.C. 2505.02(B)(2). National Union argues 

that when an insured’s demand for declaratory relief is made in the context of, 

and inextricably intertwined with, the insured’s action for breach of contract, an 

order that declares that coverage exists is part of the underlying breach-ofcontract action and not made in a special proceeding. 

{¶ 19} In Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, 

we considered the question of what constitutes a final order in a special 

proceeding. We held, “Orders that are entered in actions that were recognized at 

common law or in equity and were not specially created by statute are not orders 

entered in special proceedings pursuit to R.C. 2505.02.” Id. at syllabus. We later 

clarified that “[i]t is the underlying action that must be examined to determine 

whether an order was entered in a special proceeding.” Walters v. Enrichment 

Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, 121-122, 676 N.E.2d 890. 

{¶ 20} On the other hand, “[d]eclaratory judgment actions are a special 

remedy not available at common law or at equity.” Gen. Acc., 44 Ohio St.3d at 

22, 540 N.E.2d 266. This definition has since been codified in R.C. 

2505.02(A)(2): “ ‘Special proceeding’ means an action or proceeding that is 

specially created by statute and that prior to 1853 was not denoted as an action at 

law or a suit in equity.” 

{¶ 21} Here, the Walburns sought a declaration of the parties’ rights and 

responsibilities as they pertain to UM coverage for the Walburns’ claims. Under 

Gen. Acc. and R.C. 2505.02(A)(2), this is a declaratory judgment action that is a 

special proceeding for purposes of R.C. 2505.02(B)(2). 

{¶ 22} However, this conclusion does not end the analysis. Next, we must 

determine whether an order that declares that an insured is entitled to UM 

coverage but does not address damages affects a substantial right for purposes of 

R.C. 2505.02(B)(2). Since Gen. Acc., R.C. 2505.02(A)(1) has been added to 
January Term, 2009 

7 

define “substantial right” as “a right that the United States Constitution, the Ohio 

Constitution, a statute, the common law, or a rule of procedure entitles a person to 

enforce or protect.” 

{¶ 23} National Union contends that an order that declares that an insured 

is entitled to insurance coverage but does not rule on whether the insured is 

entitled to damages does not affect a substantial right. National Union cites the 

conflict case Tinker v. Oldaker, Franklin App. Nos. 03AP-671 and 03AP-1036, 

2004-Ohio-3316, in which the Tenth District Court of Appeals concluded that an 

order that entitled an insured to UM coverage but did not decide damages did not 

affect a substantial right and was not a final order. 

{¶ 24} In Gen. Acc., we held that the duty to defend involves a substantial 

right to both the insured and the insurer. 44 Ohio St.3d 17, 540 N.E.2d 266, at 

paragraph one of the syllabus. We discussed the immediate consequences to both 

the insured and the insurer of a decision regarding the duty to defend. If an 

insurer mistakenly refuses to defend its insured, that insurer is liable for the costs 

of defending its insured in the initial litigation and of defending itself in a 

subsequent action by its insured. On the other hand, the insurer may incur 

substantial costs if wrongfully required to defend an insured in a case that a court 

may later hold was not within the terms of the policy. Id. at 21. 

{¶ 25} Likewise, an insured, when not provided a defense, may have to 

choose a quick settlement over costly litigation, file a separate declaratory 

judgment action against the insurer, or incur great expense defending without 

insurance. Id. at 22. Because the duty to defend was of great importance to both 

the insured and the insurer, we concluded that it involved a substantial right. Id. 

{¶ 26} A declaration that an insured is entitled to UM coverage presents a 

different scenario. Here, the court ordered that National Union must provide UM 

coverage. However, the Walburns must still establish their damages in order to 

receive the UM benefits. National Union is obligated to pay the Walburns only if 
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they are awarded damages. Thus, a declaration that an insured is entitled to 

coverage but does not address damages does not affect a substantial right as that 

term is defined in R.C. 2505.02(A)(1). 

{¶ 27} Cases in which an insured seeks both a defense and 

indemnification are controlled by Gen. Acc. This case, however, involves only 

the insured’s entitlement to coverage and does not involve a duty to defend. 

While a decision regarding the duty to defend immediately affects a substantial 

right of the insured or insurer, a decision that an insured is entitled to UM 

coverage, without a determination of damages, does not. Consequently, we hold 

that an order that declares that an insured is entitled to UM coverage but does not 

determine damages does not affect a substantial right for purposes of R.C. 

2505.02(B)(2). The August 28, 2006 judgment entry in this case did not affect a 

substantial right made in a special proceeding and, therefore, was not a final order 

as defined in R.C. 2505.02(B)(2). 

{¶ 28} The conflict cases recognized this distinction. In Tinker v. 

Oldaker, Franklin App. Nos. 03AP-671 and 03AP-1036, 2004-Ohio-3316, the 

plaintiffs were injured in a motor vehicle accident caused by Christy Oldaker. 

Their complaint arguably sought a declaration that they were entitled to UM 

coverage from the company that insured Mr. Tinker’s employer and for an award 

of damages. Id., ¶ 12, fn. 2. The trial court ordered that the plaintiffs were 

entitled to UM coverage but did not address damages. The appellate court in 

Tinker concluded that there was no final, appealable order. “[E]ven assuming the 

order was rendered in a special proceeding, it did not ‘affect’ a substantial right.” 

Id. at ¶ 14. 

{¶ 29} In Walter v. Allstate Ins., Summit App. No. 21032, 2002-Ohio5775, the plaintiffs sought a declaration that they were entitled to UM coverage 

under their personal automobile policy for damages that Mary Walter sustained in 

a collision with another vehicle. The trial court granted summary judgment on the 
January Term, 2009 

9 

issue of UM coverage, but did not decide damages. ¶ 6. The Ninth District Court 

of Appeals determined that an order determining liability but deferring the issue 

of damages was not a final order. ¶ 10. 

{¶ 30} In Beheshtaein v. Am. States Ins. Co., Montgomery App. No. 

20839, 2005-Ohio-5907, the Second District Court of Appeals concluded that 

despite the order’s Civ.R. 54(B) certification, the summary judgment on the issue 

of insurance coverage was interlocutory because other issues involving damages 

and priority of coverage had not yet been resolved. ¶ 2. 

{¶ 31} Because this was not a final order, the Civ.R. 54(B) determination 

of no just reason for delay was of no effect. See Gen. Acc., 44 Ohio St.3d at 21, 

540 N.E.2d 266. “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.” Noble v. Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381. A 

trial court’s use of such language does not convert an otherwise nonfinal order 

into a final, appealable order. Id. 

{¶ 32} Consequently, we answer no to the certified question. We hold 

that in a case involving multiple claims, a judgment in a declaratory judgment 

action is not a final, appealable order when the trial court finds that an insured is 

entitled to coverage but has not addressed the issue of damages, even though the 

order includes a Civ.R. 54(B) certification. 

{¶ 33} The trial court again granted partial summary judgment to the 

Walburns on the issue of UM coverage under the National Union policy on 

December 12, 2008. Even though the trial court had included a Civ.R. 54(B) 

determination in both the August 28, 2006 and the December 12, 2006 orders, 

because the trial court had not yet determined the issue of damages, neither 

judgment entry was a final, appealable order, and the parties’ rights to appeal 

have not yet attached. 
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{¶ 34} Consequently, we reverse the judgment of the court of appeals, and 

we remand this matter to the trial court for further proceedings consistent with 

this opinion. 

Judgment reversed 

and cause remanded. 

 MOYER, C.J., and O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., 

concur. 

 PFEIFER, J., dissents and would dismiss the cause as having been 

improvidently accepted and certified. 

__________________ 

 Agee, Clymer, Mitchell & Laret and C. Russell Canestraro, for appellees. 

 Janik, Dorman & Winter, L.L.P., Steven G. Janik, and Christopher Van 

Blargan, for appellant. 

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