Community Insurance v. Ohio Department of Transportation

Being unable to agree with the majority, I respectfully dissent.

In Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp. (Jan. 20, 1976), Franklin App. No. 75AP-307, unreported, this court interpreted R.C. 2743.02(B), now R.C. 2743.02(D), which states:

Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant. * * *

In concluding that the language does not bar subrogation claims, the court stated:

However, the collateral recovery rule has no application where it is the question of only one recovery split into two parts one of which is owed by a subrogated liability insurance company. In that event there is no collateral recovery and, as pointed out previously, the claimant has partially assigned his claim and is not the real party in interest in relation to the assigned part. Instead, the subrogated insurer is the claimant, the only claimant if the entire property damage is subrogated, and one of two claimants if only part of the loss is subrogated.

Applying those rules to a case against the state in the Court of Claims, the claimant for the subrogated amount, or $9,000.00, is appellant. There is no evidence that appellant, the claimant for this part of the claim, is able to effect a collateral recovery through insurance proceeds, disability award, or otherwise. Hence, R.C. § 2743.02(B) has no application to this case and the subrogated *Page 736 insurance company may pursue its claim against the State of Ohio in the same fashion that it may pursue its claim against a private party.

In reversing Lumbermens, the majority relies on an analysis from Grange Mut. Cas. Co. v. Columbus (1989), 49 Ohio App.3d 50 . Initially, Grange interpreted R.C. 2744.05(B) which plainly addresses not only collateral sources, as does R.C.2743.02(D), but also subrogation claims. More specifically, R.C.2744.05(B) states:

If a claimant receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against a political subdivision recovered by that claimant. No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against a political subdivision with respect to such benefits. Nothing in this division shall be construed to limit the rights of a beneficiary under a life insurance policy or the rights of sureties under fidelity or surety bonds.

By contrast, although R.C. 2743.02(D) contains collateral source language similar to that in R.C. 2744.05(B), it does not purport to limit subrogation rights. Despite the fact that it has been amended since Lumbermens was decided and since R.C. 2744.05 was promulgated, R.C. 2743.02(D) continues to omit a prohibition against subrogation claims.

Further, I disagree with the rationale for overrulingLumbermens. The collateral source rule serves both a substantive and an evidentiary purpose. Klosterman v. Fussner (1994), 99 Ohio App.3d 534 . "Substantively, the collateral source rule is an exception to the general rule in tort actions that the measure of the plaintiff's damages is that which will make her whole. Through this exception, the plaintiff is allowed to receive more than the amount of damages she actually incurred. * * * As an evidentiary rule, the collateral source rule bars the introduction into evidence of collateral payments to the plaintiff in order to prevent the jury's consideration of such payments in determining the amount of damages." Id. at 538-539. In an exception to the collateral source rule, R.C. 2743.02(D) reduces recoveries by the aggregate of insurance proceeds. As Lumbermens noted, an insurance company in a subrogation action has no collateral insurance proceeds by which its recovery must be reduced. Accordingly, the requirement that any recovery be reduced by any collateral recovery does not apply to the insurance company in this case.

In the final analysis, the language in R.C. 2743.02(D) is designed to prevent double recovery. While that language ultimately may affect a claimant's extent of recovery due to insurance proceeds the claimant has received, it does not limit *Page 737 the right of claimant's insurance company who is not in the position to receive a double recovery. Although claimant's insurance company stands in her shoes, it is not subject to exception to the substantive and evidentiary rule that applies only if the party to the action would receive a double recovery.

Accordingly, I would overrule appellant's assignment of error seeking to reverse Lumbermens and would affirm the judgment of the trial court.