Appeals: Failure to include language in order for appeal re finality results in dismissal. Ohio Cas. Ins. Co. v. City of Providence,

COA, NPO 11/16/2012

Posted: 26 Nov 2012 09:16 PM PST

Ohio Cas. Ins. Co. v. City of Providence, COA, NPO 11/16/2012

As a general matter, “this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality.” Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood–Mosaic Corp., 454 S.W.2d 705, 706 (Ky.1970)). With that said, the circuit court had the authority to bifurcate Providence’s action against OCC into two separate claims (i.e., one claim for the interpretation of the contract and its
coverage provisions, another for an assessment of damages pursuant to the contract). The circuit court also had the authority to render its decision regarding coverage immediately appealable while reserving the separate issue of damages for a later date—provided that it did so by following the requirements of Kentucky Civil Rule (CR) 54.02. See Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469, 470 (Ky. 1994).

However, CR 54.02 required the circuit court’s order to recite not only that it was final, but that there was “no just reason for delay.” Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky. 2008). “Absent those certifications,
the rule is not invoked.” Spencer v. Estate of Spencer, 313 S.W.3d 534, 540 (Ky. 2010). Here, the circuit court’s order simply recites that it is “a final and appealable order,” but omits that there was “no just reason for delay”; its
subsequent order overruling OCC’s CR 52.02 motion for additional findings did not cure this omission; and, as a consequence, the circuit court’s order, which is the
subject of this appeal, is merely interlocutory and unripe for review. Watson, 245 S.W.3d 722.

The hard fact is that it was appellant Ohio Casualty’s responsibility to ensure that the circuit court’s judgment was in the proper form to invoke CR 54.02. Spencer, 313 S.W.3d at 540. Having failed to do so, Ohio Casualty has left this Court with no option other than to DISMISS its appeal.

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