Indemnity Co. v. Plymouth , 146 Ohio St. 96 ( 1945 )

In my judgment, ordinarily the questions of whether an indemnity company is required to defend under the provisions of its indemnity contract and whether a given state of facts comes within the coverage of such contract are not proper subjects to be determined in an action for a declaratory judgment for the reason that under the Ohio statute the indemnity company has the right to have those questions determined by a jury after liability has been established. However, the indemnity company (the insurer), the village of Plymouth (the insured) and the administratrix of the estate of the deceased, all being parties in the instant case, coupled with the fact that all parties herein waived a trial by jury upon those questions and joined in a prayer for a declaratory judgment, all are bound by the present judgment. Therefore I concur. See Radaszewski v. Keating, Exrx., 141 Ohio St. 489, 49 N.E.2d 167.

TURNER, J., concurs in the foregoing concurring opinion.