Opinion
No. 71-517
Decided December 22, 1971.
Prohibition — Extraordinary writ — Not available, when — Adequate and ordinary remedy available.
IN PROHIBITION.
Relators are the plaintiffs in a personal injury action presently pending in the Court of Common Pleas of Lake County. Nationwide Mutual Insurance Company, the insurance carrier for certain of the defendants in that personal injury action, has filed a complaint for a declaratory judgment in the same court seeking to have the court declare that one of the defendants was not acting within the scope of his employment, and was not acting with consent of the other defendants who are named insureds of Nationwide.
Relators ask this court to prohibit the respondent court from proceeding in the declaratory relief action. They contend that the respondent court is exceeding its jurisdiction because the questions upon which the declaration is sought are determinable in the previously filed personal injury action.
Mr. Ellis B. Brannon, for relators.
Messrs. Baker, Byron Hackenberg and Mr. Barry M. Byron, for respondent.
The statutory authority for courts of record in this state to hear declaratory judgment actions is R.C. 2721.02.
Whether to proceed in a declaratory relief action is a matter for the determination of the trial court in the first instance. Following such determination appropriate appellate procedures are available to the parties.
Prohibition will not lie where there is a plain and adequate remedy in the ordinary course of the law. State, ex rel. Bartlett, v. Baynes (1969), 20 Ohio St.2d 129; State, ex rel. Winnefeld, v. Court of Common Pleas (1953), 159 Ohio St. 225.
It should be manifestly clear that our decision to deny the writ in this case is not based on Ohio Farmers Indemnity Co. v. Chames (1959), 170 Ohio St. 209. In that case, the determination of "permission" did not affect the issues in the personal injury action. In the instant case, the question of "course and scope of employment" is one of the issues in the personal injury action.
Writ denied.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.
JUSTICE DUNCAN sat in this case during oral argument, but did not participate in the decision.