While I reach the same result, I disagree with the reasons provided by the majority opinion.
In appropriate cases, a tort claimant is a proper party for a declaratory relief action to determine the applicability of the alleged tortfeasor's liability insurance. Celina Mut. Ins. Co. v.Sadler (1966), 6 Ohio App.2d 161, 165 [35 O.O.2d 319]; MarylandCas. Co. v. Pacific Coal Oil Co. (1941), 312 U.S. 270, 274 (applying Ohio law). Certainly, a tort claimant can be the plaintiff for such a declaratory relief action, if he can be a proper defendant. See, e.g., Sainsbury v. Hartford Accident Indemn. Co. (C.A.6, 1972), 469 F.2d 392 (applying Ohio law). Such proceedings need not await the tort claimant's recovery of a judgment against the alleged tortfeasor. Travelers Indemn. Co. v.Cochrane (1951), 155 Ohio St. 305 [44 O.O. 302], paragraph one of the syllabus (note that tort claimant was a party even though propriety of his presence was not discussed).
A tort claimant cannot prevail on an action for money damages against the alleged tortfeasor's insurer until the tort claimant has obtained a judgment against the tortfeasor. Chitlik v.Allstate Ins. Co. (1973), 34 Ohio App.2d 193 [63 O.O.2d 364]. The tort claimant's rights against the alleged tortfeasor's insurer stem from R.C. 3929.06, rather than any contractual relationship. By the terms of that statute, those rights do not mature until the tortfeasor's liability insurer fails to satisfy a judgment against its insured within thirty days after its entry.
However, the tort claimant can properly join the alleged tortfeasor's insurer as an additional party in the original tort action. Heuser v. Crum (1972), 31 Ohio St.2d 90 [60 O.O.2d 56], paragraph two of the syllabus; Lawreszuk v. Nationwide Ins. Co. (1977), 59 Ohio App.2d 111, 114 [13 O.O.3d 165]. In so doing, the tort claimant asserts the prospective liability of the tortfeasor's insurer, which cannot be finally adjudicated before the claimant obtains a judgment against the alleged tortfeasor.Id. Further, a tort claimant can now require the alleged tortfeasor to disclose the terms of any prospectively applicable liability policy. Civ. R. 26(B)(2). Thus, the tort claimant has an identifiable interest in the meaning of the alleged tortfeasor's insurance contract, *Page 36 even before he obtains a judgment.
However, this is not an appropriate case for declaratory relief instigated by the tort claimant, the insured, or the insurer. The applicability of this policy depends on the nature of the insured's liability, if the insured is liable. The insurer may have a duty to indemnify the alleged tortfeasor under some facts alleged by the tort claimant, but no duty to indemnify under other facts alleged by the tort claimant.
Thus, the policy's applicability can only be resolved by a trial of the issues presented by the pending tort case. The declaratory relief proceeding would not accelerate the determination of that issue, or conserve any party's efforts and expense. It only serves to duplicate another case already in process. Hence the trial court properly exercised its discretion by declining to grant relief in favor of any party to this case.
With regard to the third assignment of error, the tort claimant has not stated a legally cognizable damage claim against the alleged tortfeasor's insurer. Present Ohio case law does not recognize any duty owed by the tortfeasor's insurer to the tort claimant. The insurer has a duty only to its insured not to subject the insured to liability beyond policy limits by failing to negotiate with the tort claimant in good faith. Slater v.Motorists Mut. Ins. Co. (1962), 174 Ohio St. 148 [21 O.O.2d 420];Wasserman v. Buckeye Union Cas. Co. (1972), 32 Ohio St.2d 69 [61 O.O.2d 326]; Spitler v. State Auto. Mut. (1980), 61 Ohio St.2d 242 [15 O.O.3d 255].
By statute, a tort judgment may include prejudgment interest if the tortfeasor or his liability insurer fails to negotiate in good faith. R.C. 1343.03(C). But that statute does not subject the insurer to additional compensatory or punitive damages for a failure to deal fairly with the tort claimant.
The tort claimant in this case asserts that an insurance department regulation creates a duty for the insurer to deal fairly with the tort claimant, and corresponding liability for a breach of that duty. In my view the tort claimant can properly rely on the cited regulation without expressly pleading that regulation in the complaint. The tort claimant's trial court brief provided adequate notice of his intention to rely on that regulation. Civ. R. 44.1(A)(2); Harold v. Paradise (1973),36 Ohio App.2d 71, 76 [65 O.O.2d 66]; Americana Leasing, Inc. v.Neyman (Oct. 10, 1985), Cuyahoga App. No. 49564, unreported.
However, we need not determine whether the cited regulation purports to create a new type of civil liability rather than a regulatory tool for administrative proceedings. Likewise, we need not determine whether the legislation which authorized this regulation empowered the insurance department to create civil damage actions. No court can determine whether the liability insurer has negotiated with a claimant fairly until the claimant has finally established his right to recover and the amount of any such recovery. In this case, the claimant would also have to demonstrate the insurer's duty to indemnify the alleged tortfeasor for that liability. Consequently, if the insurer has any duty to this claimant, the present case asserts that claim prematurely.
Therefore, I concur in the judgment affirming the trial court's action, albeit for different reasons. *Page 37