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Cryptosporidium species cause one of the common opportunistic infections in immunocompromised persons. Due to lack of effective treatment, Cryptosporidium infection can cause prolonged and often life-threatening diarrhea in AIDS patients. The use of molecular biologic tools has made significant contributions to one's understanding of the biology and epidemiology of Cryptosporidium species. This chapter provides a snapshot of the Cryptosporidium genomes and discusses what has been learned about cryptosporidiosis from the genomic data. It discusses the key features of the Cryptosporidium genomes. Cryptosporidium hominis used to be one of the genotype of C. parvum but was renamed as a separate species a few years ago based largely on the host specificity, pathogenicity, and sequence differences from type II C. parvum at various genomic loci. The C. hominis genome shares an extremely high degree of similarity with that of C. parvum. The major metabolic pathways encoded by the compact Cryptosporidium genome are highly streamlined by the absence of virtually all de novo synthetic capacities, such as those for amino acids, nucleotides, and fatty acids. The chapter deals with genomic data associated with host-pathogen interactions and pathogenesis, genomics and the development of molecular diagnostic and epidemiologic tools, and genome sequencing and public health. The lack of progress in research on the treatment of and vaccines against cryptosporidiosis is a particular public health concern. Better collaboration among molecular biologists, parasitologists, clinicians and other public health researchers, and the support of public health institutions, funding agencies, and policy decision makers will increase this progress.
Nucleotide sequence alignment of the two major copies of the partial ITS-1 (8611-8829), 5.8S (8830-8988, bold type), ITS-2 (8989-9545), and partial 28S (9546-9590, underlined) rRNA genes of C. hominis. The 5.8S gene of C. parvum is identical to the sequence AAEL01000242.
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Cincinnati Insurance Co. v. Consolidated Equipment Co.
¶1. This case is before us on the appeal of Nickles Bakery, Inc. and United States Fidelity and Guaranty Co. (Nickles, U.S.F.&G. and/or Appellants) from a trial court decision granting a motion to dismiss Nickles and U.S.F.&G. as parties from two pending declaratory judgment actions. The declaratory judgment actions were filed after an explosion on June 23, 1998, when an employee of Consolidated Equipment Co. (Consolidated) was servicing an oil burner on a commercial oven at Nickles. At the time of the explosion, U.S.F.&G. insured Nickles, and paid $760,000 for damage to the oven. Nickles also suffered $145,000 in uninsured losses. As a result, both Nickles and U.S.F.&G. filed a complaint against Consolidated for the damages.
¶3. The trial court erred as a matter of law in interpreting that injured parties, Nickles Bakery, Inc. and the United States Fidelity and Guaranty Co., were not entities pursuant to Ohio Rev. Code Ann. §2721.12(A) that had "any interest that would be affected" by a declaratory judgment action between the tortfeasor and the tortfeasor's insurance carrier regarding disputes over liability insurance coverage for the injuries claimed in the underlying litigation.
¶4. Based on its erroneous finding, the trial court erred when it granted the Motion to Drop Nickles Bakery, Inc. and the United States Fidelity and Guaranty Co., thereby dismissing them from the declaratory judgment action in which they have an interest that would be affected by the declaratory judgment.
¶5. After reviewing applicable law and the record, we find that both assignments of error have merit. Accordingly, the trial court judgment will be reversed, and this matter will be remanded for further proceedings.
¶8. "any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a * * * contract * * * may have determined any question of construction or validity arising under the instrument, [or] contract, * * * and obtain a declaration of rights, status, or other legal relations under it."
¶9. R.C. 2721.12(A) further says that: "when declaratory relief is sought under this chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding." This section and its predecessor have been interpreted as requiring that "a real justiciable controversy exists between adverse parties, and speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost." American Life & Acc. Ins. Co. of Ky. v. Jones (1949), 152 Ohio St. 287, paragraph two of the syllabus.
¶10. Admittedly, a justiciable controversy exists between CIC (the insurer) and Consolidated (the insured). However, the issue is whether Appellants, as an injured tort claimant and its subrogated insurer, have an interest such that they should be included as parties.
¶11. Appellants contend that they have an interest in the controversy and are proper parties because their ability to proceed in the underlying litigation will be affected by the outcome of the declaratory judgment action. In particular, they point out that under 1999 amendments to the Declaratory Judgment Act, they will be legally bound by the declaratory judgment results. In contrast, CIC says that tort claimants lack a sufficient interest in a tortfeasor's insurance policy before a judgment is obtained against the insured tortfeasor, i.e., CIC argues that a claimant's interest in coverage controversies is practical rather than legal.
¶12. Before we address these issues, we should note that the procedural posture of this case makes a difference. Specifically, this case does not involve a direct action by a tort claimant against the tortfeasor's insurer. In the early 1990's, the Ohio Supreme Court approved direct actions by injured claimants to determine a liability insurer's obligation to indemnify. See Krejci v. Prudential Prop. & Cas. Ins. Co. , 66 Ohio St.3d 15, 1993-Ohio-190; and Broz v. Winland , 68 Ohio St.3d 521, 1994-Ohio-529. In Broz , the Ohio Supreme Court commented that: "[t]he fact that the injured victim can initiate such an action is significant. R.C. 2721.03 provides that a declaratory judgment action is available to `[a]ny person interested' under a written contract of any nature for purposes of establishing rights and duties thereunder. Thus, even before judgment against the tortfeasor is obtained, an injured victim is an interested party under the tortfeasor's insurance policy." 68 Ohio St.3d at 525. Broz also held that if injured tort claimants were not joined in declaratory judgment actions, they would not be bound by the proceedings. Id.
¶14. "[t]he General Assembly declares that, in enacting divisions (A) and (B) of new section 3929.06 and new division (B) of section 2721.02 of the Revised Code in this act, in outright repealing existing section 3929.06 of the Revised Code in this act, and in making conforming amendments to sections 2721.03 and 2721.04 of the Revised Code in this act, it is the intent of the General Assembly to supersede the effect of the holding of the Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins. Co. (1993), 66 Ohio St. 3d 15, Broz v. Winland (1994), 68 Ohio St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio St. 3d 304, 308, that existing section 3929.06 of the Revised Code does not preclude the commencement of a civil action under that section or a declaratory judgment action or proceeding under Chapter 2721. of the Revised Code against an insurer that issued a policy of liability insurance until a court of record enters in a distinct civil action for damages between the plaintiff and an insured tortfeasor a final judgment awarding the plaintiff damages for the injury, death, or loss to person or property involved.
¶16. "The General Assembly declares that, in enacting new division (C) of section 2721.02, new division (B) of section 2721.12, and division (C) of new section 3929.06 of the Revised Code in this act and in making conforming amendments to division (A) of section 2721.12 of the Revised Code in this act, it is the intent of the General Assembly to supersede the effect of the holding of the Ohio Supreme Court in Broz v. Winland (1994), 68 Ohio St. 3d 521, and its progeny relative to the lack of binding legal effect of a judgment or decree upon certain persons who were not parties to a declaratory judgment action or proceeding between the holder of a policy of liability insurance and the insurer that issued the policy." 1999 H 58, §§ 4 and 5, eff. 9-24-99.
¶17. Consequently, under the amended statutes, Appellants, as an injured tort claimant and a subrogated insurer who steps into the shoes of the injured tort claimant, could not bring a direct action against CIC before obtaining a judgment against Consolidated. As we mentioned, however, this is not the procedural posture of the present case. Instead, Appellants were made part of the action as defendants and third-party defendants.
¶19. "[a] plaintiff who is not an insured under a particular policy of liability insurance may not commence against the insurer that issued the policy an action or proceeding under this chapter that seeks a declaratory judgment or decree as to whether the policy's coverage provisions extend to an injury, death, or loss to person or property that a particular insured under the policy allegedly tortiously caused the plaintiff to sustain or caused another person for whom the plaintiff is a legal representative to sustain, until a court of record enters in a distinct civil action for damages between the plaintiff and that insured as a tortfeasor a final judgment awarding the plaintiff damages for the injury, death, or loss to person or property involved."
¶21. "read that statute as barring the State Court Plaintiffs from intervening in this litigation. Section 2721.02(B) prohibits someone who is not an insured from commencing an action. The verb commence means to begin or to initiate. See Webster's Third New International Dictionary at 456. See also, Ohio R. Civ. P. 3(A) (`A civil action is commenced by filing a complaint with the court....'); Cover v. Hildebran , 103 Ohio App. 413, 415, 145 N.E.2d 850, 852 (1957) (commence is synonymous with bring). The State Court Plaintiffs did not commence this litigation; rather, Indiana initiated this lawsuit, requesting declaratory relief under 28 U.S.C. §§ 2201. The language of §2721.02(B) does not remotely suggest that parties, such as the State Court Plaintiffs, are precluded from seeking leave to intervene in a declaratory judgment action brought by an insurer against its insured. " 2000 WL 987829, *2 (emphasis in original).
¶22. We agree with the District Court's reasoning. Under a plain reading of R.C. 2721.02(B), all that is barred is a direct action on behalf of a tort claimant. Since the present cases were not direct actions by a tort claimant against an insurer, R.C. 2721.02(B) does not provide a basis for dismissing Appellants as parties.
¶23. In Midwest Maintenance , the District Court went on to consider whether the claimants should be allowed to intervene as of right under Fed. Civ. R. 24(a). Ultimately, the court decided that intervention of right was warranted. 2000 WL 987829, *4. Again, however, we do not have the same procedural situation, as Appellants did not ask to intervene. Instead, they were made parties to declaratory judgment actions, as defendants and third-party defendants. Thus, the issue is whether Appellants were improperly joined as defendants and third-party defendants.
¶24. Under Civ. R. 21, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." A decision to add or drop parties is within the trial court's discretion. Bill Gates Custom Towing, Inc. v. Branch Motor Exp. Co. (1981), 1 Ohio App.3d 149, 150. However, in exercising this discretion, courts should bear in mind that the rule is intended to bring in a party " `who, through inadvertence, mistake or for some other reason, * * * [has] not been made a party [originally] and whose presence * * * is * * * necessary or desirable * * *.' "
¶25. Although the above comment refers to "adding" parties, the same observation applies to dismissal of an existing party. In view of the effect of the 1999 amendments to the Declaratory Judgments Act and R.C. 3929.06, we believe that Appellants were proper parties to the declaratory judgment actions and should not have been dismissed. Declaratory judgment jurisdiction was originally given to probate courts in 1932, and was then extended to " `courts of record within their respective jurisdictions' by the Uniform Declaratory Judgments Act" in 1933. Radaszewski v. Keating (1943), 141 Ohio St. 489, 495. Before the Declaratory Judgments Act was adopted, however, injured parties already had the right by statute to bring actions against an insurance company after they obtained judgments against an insured tortfeasor. See, e.g., Stacey v. Fidelity & Cas. Co. of New York (1926), 114 Ohio St. 633 (interpreting G.C. 9510-4, as amended in 1919). G.C. 9510-4 was a predecessor statute to R.C. 3929.06, which today authorizes supplemental actions by judgment creditors against a tortfeasor's insurer.
¶26. In 1932, the Ohio Supreme Court reviewed such a supplemental action that was brought against an insurer. See Hartford Acc. & Indem. Co. v. Randall (1932), 125 Ohio St. 581. The issue in Hartford was whether an insurer may be bound by notice of a suit given by an injured claimant rather than the policyholder. In Hartford, the claimant's attorney had told the insurer's agent that he was going to file suit, and asked if he should send a copy of the petition to the agent. The agent's response was that sending the petition would be futile because the company would not defend the insured. Id. at 583-84.
¶28. "On the other hand, it is conceivable that a person carrying insurance, who is not financially responsible, might by collusion with the insurance company deliberately omit to give the required notice, for the sole purpose of defeating a claimant. If it should be held that the notice must be given by or through the insured, the door might thereby be opened to fraud and collusion which would be made the means of defeating just claims. It must be held that by virtue of section 9510-4, General Code, an injured person has a potential interest and a substantial right in the policy from the very moment of his injury, and, although it does not develop into a vested right until a judgment is secured, his rights are such, even before judgment, as to entitle him to comply with the terms and conditions of the policy, and thus make them effective in his behalf in the event the insured fails to discharge his duty under the policy." Id. at 586.
¶29. During this discussion, the court relied on a federal case that declared an injured party "a beneficiary and real party in interest" in the tortfeasor's liability policy. Id., citing Slavens v. Standard Accident Ins. Co. (C.A. 9 1928), 27 F.2d 859. Hartford has never been overruled or modified by the Ohio Supreme Court and is still being followed. See Sanderson v. Ohio Edison Co. , 69 Ohio St.3d 582, 1994-Ohio-379.
¶30. Admittedly, Hartford involved a judgment creditor action and the issue of notice rather than a declaratory judgment action. It was also decided before declaratory judgment jurisdiction was generally given to courts. Nonetheless, after the Declaratory Judgments Act was enacted, and insurers were given the right to bring actions to decide coverage issues, injured claimants were included as parties to the litigation. For example, in Ohio Farmers Indem. Co. v. Chames (1959), 170 Ohio St. 209, an insurer filed a declaratory judgment action against several parties, including the named insured, the tortfeasor (whose coverage was disputed), and two injured tort claimants. The petition alleged that no coverage existed and that the insurer was not obligated to defend any action brought against the insured or to pay any judgment. Id. at 210-11.
¶32. "The use of the declaratory judgment action to establish whether there was coverage under the provisions of a liability insurance policy has often been resorted to by insurers in recent years. In many instances this type of action will determine in advance advisability of instituting or continuing the prosecution of negligence actions against the insured or others which may come within the protection of the policy and often accomplishes the speedier and more economical disposition of cases of this kind and the avoidance of a multiplicity of actions. Consequently, the remedy should be applied liberally whenever the result will be to settle the controversy one way or another." Id. at 213.
¶33. Chames is similar to the present case, in that no direct action was brought against the insurer. Instead, the tort claimants were simply included as affected defendants. Likewise, tort claimants have been allowed to intervene in declaratory judgment actions brought by the tortfeasor's insurers, where they were not originally named as parties. See, e.g., Nationwide Mut. Ins. Co. v. Finkley (1996), 112 Ohio App.3d 712, 714, and Auto-Owners Ins. Co. v. Perry (1993), 84 Ohio App.3d 787, 788 [injured parties allowed to intervene in declaratory judgment action, pursuant to Civ. R. 24(A)]. And, as we mentioned earlier, the federal district court has held that tort claimants should be allowed to intervene under Fed. Civ. R. 24(a). Midwest Maintenance , 2000 WL 987829, *4.
¶34. In contending that dismissal was improper in the present case, Appellants rely on two cases where injured parties were held necessary or proper parties under R.C. 2721.12. As we said before, R.C. 2721.12(A) requires all persons who have a claim or interest to be made part of a declaratory judgment proceeding. The cases cited by Appellants are St. Paul Fire & Marine Ins. Co. (C.P. Lake County 1970), 25 Ohio Misc. 26, 265 N.E.2d 814 (holding that the injured party is necessary and the party's absence is jurisdictional); and Nationwide v. Manley (Ct. App. 1957), 78 Ohio Law Abs. 362, 152 N.E.2d 691 (finding that the injured claimant is a proper party in a declaratory judgment action between an insurer and its insured). In both of these cases, the insurer initiated the declaratory judgment suit, so no issue of "commencing" a direct action was involved. Instead, as here, the tort claimants were simply named as defendants in controversies brought by a party to the insurance contract.
¶35. CIC has not discussed the cases cited by Appellants. Instead, CIC cites cases holding that plaintiffs are not interested parties in an insurance contract until judgment is obtained against the insured tortfeasor. See J.C. Penny & Cas. Ins. Co. v. Professional Ins. Co. (1990), 67 Ohio App.3d 167. However, J.C. Penny did not involve the same situation as the present case. J.C. Penny was a direct action brought by the tort claimant's uninsured motorists carrier against the insurance company for the tortfeasor. In that situation, the Sixth District Court of Appeals held, as had other districts, that "an injured party could not maintain a direct action against the tortfeasor's insurer absent a judgment against the insured." Id. at 171. We agree with this statement, as it was the law before Broz and is once again the law in Ohio, per the 1999 amendments.
¶36. In J.C. Penny , the Sixth District relied on D.H. Overmyer Telecasting Co. v. American Home Assurance Co. (1986), 29 Ohio App.3d 31, which had held that a plaintiff is not a party interested in the insurance contact until he obtains judgment against the insured tortfeasor. 67 Ohio App.3d at 171. Again, however, D.H. Overmyer involved a direct action by a tort claimant against the tortfeasor's insurer. 29 Ohio App.3d at 31-32.
¶37. In its brief, CIC also relies on cases holding that only persons who are legally affected are proper parties to a lawsuit. See, e.g., Schriber Sheet Metal & Roofers v. Shook, Inc. (1940), 64 Ohio App. 276. At the risk of being repetitive, Schriber again involved a direct action by an allegedly injured party. In Schriber , a subcontractor filed a declaratory judgment action based on a contract between General Motors (GM) and a general contractor (Shook). The subcontractor was not a party to the contract. However, GM deducted money from payments made to Shook, based on alleged negligence of the subcontractor. Shook, in turn, deducted the same amount of money from its payment to the subcontractor. 64 Ohio App. at 277.
¶38. The subcontractor asked for a declaration of the rights of the parties to the contract between GM and Shook. In addition, Shook filed a cross-petition against GM. Ultimately, the petition was dismissed due to the lack of privity between GM and the subcontractor, and the cross-petition was dismissed because it was not the proper subject of a set-off or counterclaim. On appeal, we upheld the dismissal. Specifically, we found that GM was not a proper party to the declaratory judgment action because there was no privity between GM and the subcontractor. Additionally, we concluded that Shook's claim was not a proper cross-claim because it did not ask for interpretation of the contract. Id. at 286.
¶39. Based on these conclusions, we felt the petition should be dismissed unless the Declaratory Judgments Act had enlarged the procedure as to joinder of defendants. Id. at 285. In this regard, counsel for Shook argued that the term "affected" in the declaratory judgment statute meant anyone who was "practically" rather than "legally" affected. We disagreed, concluding that only persons who were legally affected were proper parties to a lawsuit. Id. Notably, we observed that if the federal rules of procedure had been adopted in Ohio, as had been proposed, the parties may have been able to combine the claims in a single action. Id. at 287. At the time, of course (1940), Ohio had not yet adopted the Civil Rules of Procedure.
¶40. When the Civil Rules were adopted in 1970, Civ. R. 20(A) was included, and allowed permissive joinder of claims arising out of the same transaction, occurrence, or series of transactions or occurrences, and involving common questions of law or fact. Under Civ. R. 20(A), the claims in Schriber would likely have been allowed, since they arose from the same transaction or series of transactions and involved common questions of law and fact. Furthermore, for reasons that will become apparent, the relevance of Schriber and other cited authorities is questionable, since they were decided before the 1999 amendments.
¶41. Finally, CIC relies on authority from our own district indicating that tort claimants merely have a "contingent interest" in a declaratory judgment action before they obtain a judgment against the tortfeasor. See United States Fidelity and Guaranty Co. v. Elano Corp. (Aug. 15, 1991), Greene App. No. 90-CA-84, 1991 WL 355163. In Elano , twenty persons residing near Elano's facility brought an action in federal court for damages for groundwater contamination. Subsequently, Elano's insurer, U.S.F.&G., filed a declaratory judgment action in state court, asking for a decision on the duty to defend and indemnify. The trial court denied the motion of the twenty individuals to intervene both permissively and as of right, and on appeal, we affirmed. In the course of our decision, we commented that the interest of the proposed intervenors was merely contingent, because Elano's tort liability had not yet been decided. 1991 WL 355163, *2-3. We also found that the trial court did not abuse its discretion in denying permissive intervention. The basis for this conclusion was that the addition of twenty intervenors could unnecessarily complicate the action and cause delay.
¶43. "1) In a civil action that a judgment creditor commences in accordance with divisions (A)(2) and (B) of this section against an insurer that issued a particular policy of liability insurance, the insurer has and may assert as an affirmative defense against the judgment creditor any coverage defenses that the insurer possesses and could assert against the holder of the policy in a declaratory judgment action or proceeding under Chapter 2721. of the Revised Code between the holder and the insurer.
¶44. "2) If, prior to the judgment creditor's commencement of the civil action against the insurer in accordance with divisions (A)(2) and (B) of this section, the holder of the policy commences a declaratory judgment action or proceeding under Chapter 2721. of the Revised Code against the insurer for a determination as to whether the policy's coverage provisions extend to the injury, death, or loss to person or property underlying the judgment creditor's judgment, and if the court involved in that action or proceeding enters a final judgment with respect to the policy's coverage or noncoverage of that injury, death, or loss, that final judgment shall be deemed to have binding legal effect upon the judgment creditor for purposes of the judgment creditor's civil action against the insurer under divisions (A)(2) and (B) of this section. This division shall apply notwithstanding any contrary common law principles of res judicata or adjunct principles of collateral estoppel."
¶45. In Howell , the Ohio Supreme Court refused to allow a tortfeasor's liability to be relitigated in a supplemental action brought against the insurer under R.C. 3929.06. 45 Ohio St.3d at 367. In this regard, the court noted that collateral estoppel does not apply simply to those who were parties to a proceeding. Instead, it "applies likewise to those in privity with the litigants and to those who could have entered the proceeding but did not avail themselves of the opportunity." Id. Because the insurer in Howell could have intervened in the prior action but chose not to do so, the court found no inequity in binding it to the results of that proceeding. The court stressed that "[i]t is this opportunity that must be seized. Otherwise, whether seized or not, the opportunity to litigate in the original action will preclude relitigation of liability in the supplemental proceeding." Id.
¶48. "The application of res judicata would deny * * * [the injured claimants] the right to litigate an issue they did not litigate in the declaratory action. They were not parties to this prior action nor were they in privity with the * * * [insured tortfeasors] in the action. In fact, the * * * [insured tortfeasors] and the * * * [injured claimants] were adverse parties, at least in regard to the underlying tort action. The * * * [insured tortfeasors'] primary concern is to insulate themselves from liability, whereas the * * * [injured claimants'] concern is to obtain redress for their injuries. Thus, it cannot reasonably be found that the * * * [insured tortfeasors] were adequate surrogates to protect the rights of the * * * [injured claimants]. Thus, the * * * [injured claimants], who were neither engaged in the litigation of the declaratory judgment action nor in privity with the * * * [insured tortfeasors], cannot be bound by the decision reached in the prior action." Id. at 523-24.
¶49. As we mentioned earlier, the legislature attempted to supersede the holding in Broz as to the lack of binding legal effect of a judgment on persons who were not parties to a declaratory judgment action. 1999 H 58, §§ 4 and 5, eff. 9-24-99. However, we do not think that this part of the statute can survive, consistent with due process, if injured claimants are excluded as parties from declaratory judgment actions. The Ohio Supreme Court has clearly stressed that "the existing Ohio requirement that there be an identity of parties or their privies is founded upon the sound principle that all persons are entitled to their day in court. The doctrine of res judicata is a necessary judicial development involving considerations of finality and multiplicity, but it should not be permitted to encroach upon fundamental and imperative rights." Whitehead v. General Tel. Co. (1969), 20 Ohio St.2d 108, 116, overruled on other grounds in Grava v. Parkman Twp. , 73 Ohio St.3d 379, 382-83,1995-Ohio-331.
¶51. "[F]or a judgment or decree to be res judicata, or to operate as estoppel, there must be an identity of issues and an identity of parties or persons in privity with the parties. We have also held that the term 'parties' includes those who are directly interested in the subject matter of a suit, who have a right to make a defense, or who control the proceedings. * * * It has often been suggested that a person, although not technically a party to a prior judgment, may nevertheless be connected with it by his interest in the result of that litigation and by his active participation therein, so as to be bound by that judgment." 20 Ohio St.3d at 114-115.
¶52. In our opinion, it is logically inconsistent to say on one hand, that a party does not have an interest in a proceeding such that he is a proper or necessary party, and to claim, on the other, that he is bound by a judgment in the same proceeding because his interest is sufficiently strong. Yet, this is the conundrum created by the 1999 amendments to the Declaratory Judgments Act and to R.C. 3929.06.
¶53. In view of the Ohio Supreme Court's observation in Broz that insured tortfeasors are not adequate surrogates to protect the interests of injured claimants, we must conclude that the trial court abused its discretion in dismissing Appellants as parties. We believe Appellants were proper parties, and may even have been necessary parties, since the 1999 amendments indicate that collateral estoppel will preclude relitigation of coverage issues in any supplemental action brought against an insurer under R.C. 3929.06. As we stressed in Elano , denying permissive intervention is not an abuse of discretion where the denial fails to result in the application of collateral estoppel effect. 1991 WL 355163, *3. By the same token, if denial of intervention (or dismissal of parties, as in the present case) causes a collateral estoppel effect, then the denial or dismissal is an abuse of discretion.
¶55. "will create little or no interference with or complication of the litigation. The insurer, having brought the declaratory judgment action, is forced to present its case as to why the policy should be invalidated. Surely it runs counter to our notions of fairness and justice to find that the company would be harmed by being forced to face a stronger, more vigorous opposition. The role of this court and the judicial process is to reach a just and equitable resolution based on the facts, a task which can only be aided and served by the assistance of the strongest possible arguments by counsel."
¶56. We agree with these observations. Dismissing parties or failing to allow intervention is particularly troubling in cases like the present, where no appeal has been taken from the coverage decision. Accordingly, based on the preceding discussion, the first assignment of error is sustained. Moreover, since the disposition of this assignment of error necessarily means that the trial court erred in dismissing Appellants as parties, the second assignment of error is sustained as well.
¶57. In light of the foregoing discussion, both assignments of error are sustained, and the decision of the trial court is reversed. This case will be remanded for further proceedings consistent with this opinion.


§ 69-3 Fee; expiration of license.
§ 69-4 Application for license; procedure for issuance.
§ 69-5 Matters of investigation.
§ 69-6 Denial of license.
§ 69-8 Transfer of license.
§ 69-9 Investigation of proposed transfers.
§ 69-10 Return of fees.
§ 69-11 Operation of junkyards.
§ 69-12 Inspection of junkyards.
§ 69-13 Revocation and suspension of license.
§ 69-15 Violations and penalties.
§ 69-16 Applicability of provisions.
Any worn-out and discarded material in general that may be turned to some use; odds and ends; old iron or other metal, glass, paper, cordage or other waste or discarded material which may be treated or prepared so as to be used again in some form; and old rope, chain, iron, copper and parts of machinery, motor vehicles and bottles gathered or bought up by tradesmen called "junk dealers."
Any person, corporation or partnership who or which is engaged in the business or occupation of buying and selling junk, and includes the terms "junk shop keeper" and "motor vehicle junk dealer."
The place, lands and premises where or from which a junk dealer conducts his business or occupation and keeps, stores or has thereon or therein any junk, and includes the terms "junk shop" and "motor vehicle junkyard."
It shall be unlawful for any junk dealer to engage in his business or occupation from a junkyard within the limits of the Township of Elk without first having obtained a junkyard license and without complying with the provisions of this chapter.
Editor's Note: Former Section 201, which immediately followed this section and which provided for a junk dealer's and junk yard licenses, was deleted 12-2-1976.
The sum of $150 per year shall be charged for a junkyard license. The said license shall expire on December 31 of each year and may be renewed under the provisions of this chapter for additional periods of one year. The aforesaid fee shall be apportioned and prorated if the license is issued after January 15. The said fee is deemed to be necessary for inspection, supervision, public health, fire and police protection and other governmental functions, as well as revenue.
Editor's Note: Former Section 202A, which immediately preceded this section and set forth the fee for a junk dealer's license, was deleted 12-2-1976.
All applications for licenses shall be made in writing to the Township Clerk and shall be accompanied by the required fee. Applications for licenses shall set forth therein the name and residence of the applicant, the location from which or at which the applicant will conduct his business or occupation and a description or drawing of the lands and premises, showing the dimensions thereof. If the applicant does not own the said lands and premises, the consent of the owner thereof shall be written thereon or appended thereto for the use thereof for the said business or occupation. All applications shall be submitted in duplicate and shall be signed by the applicant.
The Township Clerk shall notify the Township Committee of the said application not later than its next regular meeting. If there is a Zoning Ordinance in effect in the Township, the Township Clerk shall send a copy of the application to the Secretary of the Zoning Board of Adjustment, with a request that the said Board investigate the location of the proposed place of business and give its recommendation of approval or disapproval with regards to the same and the reasons therefor to the Township Committee. The Township Committee shall make or order to be made its own investigation with regards to the applicant and proposed location for his business or occupation.
Editor's Note: See Ch. 96, Unified Development.
In its investigation the Zoning Board of Adjustment shall be guided by the provisions of the Zoning Ordinance and shall not approve the application if the conduct of the business or occupation of junk dealer or a junkyard at the proposed location is not permitted by the said ordinance, and no license shall be issued if there is a violation thereof.
If there is no violation of the Zoning Ordinance by the conduct of the business or occupation of a junk dealer or the location of a junkyard at the lands and premises designated, and, after investigation, the Township Committee finds that the provisions of this chapter or any other ordinances of the Township of Elk will not be violated by the conduct of the said business or occupation at the proposed site, the Township Committee shall, by motion or resolution on its books, approve the issuance of a license or licenses to the applicant, at the location or site designated. The Township Clerk shall thereafter issue the license to the applicant, which said license shall contain therein the name and residence of the licensee and a brief but accurate description of the lands and premises from which the licensee will conduct his business or occupation.
Whether the applicant has ever been convicted or pleaded guilty, non vult or nolo contendere to a complaint, charge or indictment amounting to a high misdemeanor under the laws of the State of New Jersey.
Whether the conduct of the said business or occupation of junk dealer at the proposed site or location would be materially injurious to the public health, morals, comfort, prosperity, convenience or otherwise detrimental to the general welfare of Elk Township and its inhabitants.
Whether the conduct of the said business or occupation of junk dealer at the proposed site or location would produce or be likely to produce a condition materially offensive to the senses of sight, hearing and smell and thus injure the public welfare.
Whether the said business or occupation cannot be conducted at the proposed site or location in full compliance with the provisions of this chapter.
Whether the property taxes are in arrears at the time the application is submitted.
Whether the said business or occupation is not in possession of a current and valid certificate of general liability insurance covering the operation and location of said business.
The Township Committee shall not grant a license to the applicant if, after its investigation, it finds that any of the propositions set forth in § 69-5 are answered in the affirmative.
Applications for license renewal shall be submitted 45 days prior to the date established in § 69-3.
Licenses shall be renewable on January 1 of each year upon application therefor and payment of the fee required, by motion of resolution of the Township Committee. The Township Committee shall have the power to initiate its own investigation on applications for renewals, and if it finds that conditions have changed since the prior investigation held thereon so that any of the propositions in § 69-5 are answered in the affirmative, the application for renewal shall be denied.
No license renewal shall be granted if there exists any violations of this chapter.
The name and residence of both the transferor and transferee.
If the transferee proposes to conduct his business or occupation at lands and premises other than those of the transferor, a description of the lands and premises where the transferee proposes to conduct his business or occupation.
If the proposed transfer is that of a junkyard license to other lands and premises, a description of the lands and premises to which the transfer is proposed.
The consent, signed by the transferor to the proposed transferee.
The tax i.d. number for the transferee.
A current and valid certificate of insurance for the transferee.
If the transfer proposed is to any other lands and premises than those being used for the said business or occupation, a full investigation as in the granting of a license shall be made. No transfer shall be permitted which will violate the provisions of the Zoning Ordinance or the provisions of § 69-5 of this chapter.
All fees paid by the applicant for a license or the transfer of a license which is denied by the Township Committee shall be returned.
No junk shall be dismantled, stored or stacked within 50 feet of the right-of-way of any public highway, nor within 25 feet of the rear and side lines of any junkyard.
No junk or refuse shall be ignited and burned within 100 feet of any buildings on adjacent properties or in such a manner as to cause excessive smoke to go onto adjacent properties or public highways and thereby be injurious or dangerous to the public health, safety and welfare.
A fence at least six feet in height and constructed 50 feet from the right-of-way of any public highway and 25 feet from the rear and side lines of any junkyard, enclosing any such junkyard or any part of the premises used as a junkyard and having a gate which can be secured against unauthorized entry within said fence, shall be built around and surround any junkyard which is within 1,500 feet of any dwelling house not situate on the licensed premises.
No condition which is a public fire or health hazard or a public nuisance shall be permitted to exist and continue in a junkyard.
All junkyards shall be open to inspection by the Township Committee or any authorized agency or person of the Township of Elk, such as the police, fire officers and the Board of Health, during reasonable hours and at reasonable times.
Licenses may be revoked permanently or suspended for any period of time for any violation of the provisions of this chapter including, but not limited to, § 69-5. Any conviction or plea of non vult or nolo contendere to a charge of receiving stolen goods by the holder of a license shall be sufficient cause for suspension, and if the same occurs more than three times, it shall be sufficient cause for permanent revocation.
The holder of a license shall be given at least 10 days' notice of any proposed revocation or suspension of a license by reason of the violation of any of the provisions of this chapter and the grounds therefor. He shall be entitled to a public hearing upon request, to be held not less than 15 days thereafter. The Township Committee shall preside over any such hearing, hear the evidence and be judge of the facts. The licensee shall be entitled to be represented by counsel and present evidence on his behalf, as shall also the Township. After the hearing, the Township Committee shall have the Clerk record its findings and conclusions of law with regards to the same and any suspension or revocation ordered pursuant thereto.
Any person aggrieved by an action of the Township Committee granting, denying, transferring or refusing to transfer, renewing or revoking a license under this chapter may file a written request for a hearing before the Township Committee within 30 days after such action has been taken. The Township Clerk shall give notice of a public hearing upon this request, to be held not less than five days after service by mail upon the person requesting the hearing. The Clerk shall also give notice of the hearing to other persons directly interested in the action in question. At such hearing, the Township Committee shall determine whether the granting, denial, transfer, refusal to transfer, renewal or revocation of the license was in accordance with the provisions of this chapter and shall issue written findings of fact, conclusions of law and an order by resolution to carry out its findings and conclusions. These findings of fact and conclusions of law and order shall be included in the minutes of the Township and a copy shall be served upon the parties appearing or represented at the hearing.
A fine of not less than $50 nor more than $1,250.
A period of community service up to but not exceeding 90 days.
This chapter shall apply also to any junk dealers who make application to the State of New Jersey pursuant to the provisions of N.J.S.A. 39:11-2 et seq.


text:
Congregation for Bishops, Decree on On the Establishment of the Personal Apostolic Administration “Saint John Mary Vianney” Animarum bonum, 18 January 2002.
The good of souls is the supreme law and end of the Church, which God willed so that humans be saved in the unity of the people of the new covenant established in his blood, for Jesus Christ handed over his life to gather all people into one family (see John 11:52), of which the Church is “for all and each the visible sacrament of this saving unity” (LG, 9).
Receiving into the full communion of the Catholic Church members of the Union “Saint John Mary Vianney” of Campos in Brazil, the Supreme Pontiff John Paul II, through his letter Ecclesiae unitas published 25 December 2001, wished to recognize in law the distinctiveness of the Union “Saint John Mary Vianney,” placing it in a suitable juridic form by establishing an apostolic administration, having a personal nature, whose boundaries will be the same as the boundaries of the Diocese of Campos in Brazil, so that its members, inserted fittingly into the body of the Church, can cooperate in the communion of the successor of Peter to spread the Gospel.
I. By special mandate of the Supreme Pontiff, through a Decree of the Congregation for Bishops, the personal Apostolic Administration of “Saint John Mary Vianney” is established. It embraces only the Diocese of Campos in Brazil, and it is equal (aequatur) in law to diocese immediately subject to the Holy See.
II. The personal Apostolic Administration of “Saint John Mary Vianney” is governed by the norms of common law and this Decree, and is subject to the Congregation for Bishops and other dicasteries of the Roman curia according to the service of each.
III. The faculty of the apostolic administration is confirmed to celebrate the Eucharist, the other sacraments, the Liturgy of the Houses, and other liturgical actions according to the Roman Ritual and liturgical discipline, revised and established according to the prescripts of Saint Pius V, together with the accommodations which his successors as far as Blessed John XXIII have introduced.
IV. The personal Apostolic Administration of “Saint John Mary Vianney” is entrusted to the pastoral care of an apostolic administrator as its proper ordinary whom the Roman Pontiff names according to the norms of common law.
– cumulative with the power of the diocesan bishop of Campos in Brazil, since those who belong to the apostolic administration are at the same time faithful of the particular Church of Campos.
VI. §1. The presbyters and deacons who hitherto belong to the Union “Saint John Mary Vianney” are incardinated into the personal apostolic administration. The incardinated presbyters constitute the presbyterium of the administration. The clergy belong to the secular clergy in all regards, and therefore they cultivate their need for close unity with the diocesan presbyterate of Campos.
§2. The incardination of clerics is governed by the norms of universal law.
VII. §1. With the approval of the Holy See, the apostolic administrator would be able to have his own seminary in order to instruct recruits for the presbyterate whom he would be able to advance to holy orders.
§2. With the approval of the Holy See, the apostolic administrator would be able to establish in the administration institutes of consecrated life and societies of apostolic life and, at the same time, to advance candidates belonging to them to orders, according to the norms of common law.
VIII. §1. According to the norm of law and having sought the opinion of the bishop of the Diocese of Campos, the apostolic administrator would be able to erect personal parishes so that care is furnished to the faithful of the personal apostolic administration.
§2. Presbyters who are named parochi enjoy the same rights and duties which the common law prescribes, cumulatively with those which belong to the parochi of the territory.
IX. §1. The lay faithful, who until now belong to the Union “Saint John Mary Vianney,” become members of the new ecclesiastical circumscription. Those who, acknowledging that they bind themselves to the distinctiveness of the personal apostolic administration, request to belong to it, must manifest their desire in writing, and they must be enrolled in a register which must be preserved at the seat of the apostolic administration.
§2. In the same register are also inscribed the laity who presently belong to the apostolic administration and those who are baptized in it.
X. §1. The personal apostolic administration is to establish a council of governance (consilium regiminis) which is composed of at least six priests to whom it will belong to fulfill the functions which the common law attributes to the presbyteral council and the college of consultors, and whose statutes are approved by the apostolic administrator. This council is by no means extinguished sede vacante.
§2. The apostolic administrator can establish a pastoral council for the apostolic administration.
XI. The apostolic administrator will go to Rome every five years for the visit ad limina apostolorum and will present to the Roman Pontiff through the Congregation for Bishops a report on the state of the personal apostolic administration.
XII. In what pertains to judicial causes in the apostolic administration, the competent tribunal will be the Diocese of Campos, unless the apostolic administrator establishes a proper tribunal, in which case, with the approval of the Apostolic See, a tribunal of second instance will need to be established for it on a stable basis.
XIII. The seat of the administration will located in the city of Campos and its headquarters will be the Church of the Immaculate Heart of Our Lady of the Rosary of Fatima.
Given at Rome, from the Congregation for Bishops, 18 January 2002.
Congregation for Bishops, Decree on On the Establishment of the Personal Apostolic Administration “Saint John Mary Vianney” Animarum bonum, 18 January 2002, AAS 94 (2001) 305-308. English by: John A. Renken.

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text:
Can. 1481 §1. A party can freely appoint an advocate and procurator; except for the cases established in §§2 and 3, however, the party can also petition and respond personally unless the judge has decided that the services of a procurator or advocate are necessary.
§2. In a penal trial, the accused must always have an advocate either appointed personally or assigned by the judge.
§3. In a contentious trial which involves minors or in a trial which affects the public good, with the exception of marriage cases, the judge is to appoint ex officio a defender for a party who does not have one.
Can. 1482 §1. A person can appoint only one procurator who cannot substitute another unless the procurator has been given the expressed faculty to do so.
§2. If a person appoints several procurators for a just cause, however, they are to be designated in such a way that prevention is operative among them.
§3. Nevertheless, several advocates can be appointed together.
Can. 1483 The procurator and advocate must have attained the age of majority and be of good reputation; moreover, the advocate must be a Catholic unless the diocesan bishop permits otherwise, a doctor in canon law or otherwise truly expert, and approved by the same bishop.
Can. 1484 §1. Before the procurator and advocate undertake their function, they must present an authentic mandate to the tribunal.
§2. To prevent the extinction of a right, however, the judge can admit a procurator even if the mandate has not been presented, once a suitable guarantee has been furnished if the case warrants it; the act, however, lacks any force if the procurator does not correctly present the mandate within the peremptory time established by the judge.
Can. 1485 Without a special mandate, a procurator cannot validly renounce an action, an instance, or judicial acts nor come to an agreement, make a bargain, enter into arbitration, or in general do those things for which the law requires a special mandate.
Can. 1486 §1. For the removal of a procurator or advocate to take effect, they must be informed; if the issue has already been joined, the judge and the opposing party must also be informed about the removal.
§2. After the definitive sentence has been issued, the right and duty to appeal, if the mandating person does not refuse, remains with the procurator.
Can. 1487 For a grave cause, the judge either ex officio or at the request of the party can remove the procurator and the advocate by decree.
Can. 1488 §1. Both the procurator and the advocate are forbidden to resolve the litigation by bribery or to make an agreement for an excessive profit or for a share in the object in dispute. If they do so, the agreement is null, and the judge can fine them. Moreover, the bishop who presides over the tribunal can suspend the advocate from office and even remove him or her from the list of advocates if it happens again.
§2. Advocates and procurators can be punished in the same way if in deceit of the law they withdraw cases from competent tribunals so that the cases will be decided more favorably by other tribunals.
Can. 1489 Advocates and procurators who betray their office for gifts, promises, or any other reason are to be suspended from the exercise of legal assistance and punished with a fine or other suitable penalties.
Can. 1490 As far as possible, legal representatives are to be appointed in a stable manner in each tribunal, who receive a stipend from the tribunal and are to exercise, especially in marriage cases, the function of advocate or procurator on behalf of parties who wish to select them.

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§ 2. In Article 3 (4) and (5), the number “twelve” shall be replaced by “six”.
1. In Paragraphs (3) and (4), the words “two years” shall be replaced by “six months”.
2. In Paragraphs (5) and (6), the number “twelve” shall be replaced by “six”.
§ 4. In Article 25 (2), the number “six” shall be deleted.
§ 5. In Article 42 (2), the number “twelve” shall be replaced by “six”.
§ 6. In Article 45 (2), the number “twelve” shall be replaced by “six”.
§ 7. In Article 53 (2), the number “twelve” shall be replaced by “six”.
§ 8. In Article 62 (2) and (3), the number “twelve” shall be replaced by “six”.
§ 9. In Item 2 of Article 63 (1), the number “twelve” shall be replaced by “six”.
§ 10. In Article 64, the number “twelve” shall be replaced by “six”.
§ 11. In Article 72 (7), the number “twelve” shall be replaced by “six”.
§ 12. In Article 79 (2), the words “two per cent” shall be replaced passim by “one per cent”.
§ 13. In Article 283 (3) and (4), the number “twelve” shall be replaced by “six”.
1. In Item 3, the words “two years” shall be replaced by “six months”, and the words “one year and four months” shall be replaced by “six months”.
2. In Items 4 and 5, the number “twelve months” shall be replaced passim by “six”.
1. In Paragraph (3), the number “ten” shall be replaced passim by “four”.
2. In Paragraph (4), the words “six months” shall be replaced passim “four months”.
§ 16. In § 14 of the Transitional and Final Provisions, Item 2 shall be repealed.
“§ 16. Elections of mayoralty mayors shall be conducted only in those mayoralties which satisfy the requirements of Item 1 of Article 16 of the Territorial Administration of the Republic of Bulgaria at the date of promulgation of the decree of the President scheduling the elections of municipal councillors and mayors”.
§ 18. This Act shall enter into force as from the date of promulgation thereof in the State Gazette.
This Act was passed by the 41st National Assembly on 2 June 2011, and the Official Seal of the National Assembly has been affixed thereto.