I respectfully concur in part and dissent in part.
I disagree with the majority, on logical or perhaps epistemological grounds, on whether denial of a summary judgment can ever be reversible error.
Granting a motion for summary judgment may be a final order and may be reversible error because it terminates the case.
Denial of a motion for summary judgment, however, can never be a final appealable order, nor can it ever be reversible error. When a trial court denies summary judgment, even though reasonable minds could have reached only one conclusion, the case is still pending in the trial court and not appealable at that time. A denial of summary judgment can never be a final order.
Once a court has denied a motion for summary judgment, it will have to take evidence in the matter. If reasonable minds could have reached only one conclusion from the evidence, then the party would win on the merits and could not appeal. If the court decides it the other way, then the decision is against the manifest weight of the evidence and would be reversible because of that error. The denial of a motion for summary judgment then becomes moot and can never be reached on appeal.
As to the majority's concern that a trial court could overrule all motions for summary judgment, I do not perceive it as a problem either practically or analytically. Trial courts have more than enough to do and not likely to overrule a valid motion for summary judgment simply because it might escape appellate review. Having done so, they would have to conduct a full scale trial. Practically *Page 405 speaking, there is a far greater incentive for the trial courts to properly apply Civ.R. 56 than this court's power of review.
Analytically, it is much the same result. After having overruled a valid motion for summary judgment and after having gone through a complete trial, the evidence would still be the same, i.e., reasonable minds could disagree about it, and the moving party would prevail. If the moving party did not prevail, the verdict would be against the manifest weight of the evidence. Back to square one. I would overrule the first assignment of error for these reasons.
I would sustain the second assignment of error.
R.C. 3937.32(E) requires that when cancellation is for nonpayment of the premium, the insured must be given ten days notice. In this case, the notice sent out on June 20, 1988 said the policy would be canceled as of "June 30, 1988 at 12:01 a.m." This is, of course, only nine days. Love contends that where the notice is invalid and ineffective when it was sent, it can never ripen into a valid notice of cancellation. Thus, his policy was never canceled and is still effective. Motorists contends that although the notice was ineffective to cancel the policy as of June 30, 1988, it became effective on the tenth day despite the mistake.
The weight of authority supports Motorists' position. Appellee cites the discussion in 17 Couch on Insurance 2d (Rev.Ed. 1983) 629, Section 67:169, the cases there and two Ohio cases, Black v. Globe Am. Cas. Co. (1984), 19 Ohio App.3d 58, 19 OBR 141, 482 N.E.2d 1278, and Shreve v. Leader Natl. Ins. Co. (June 30, 1983), Clermont App. No. CA83-02-016, unreported, 1983 WL 4420. Black and Shreve rely on an analysis of basic public policy and equitable principles. They reason that the purpose of the statute is to give the policyholder notice of the cancellation so he can avoid being uninsured, either by paying the premium or obtaining other coverage. So even if the cancellation date is incorrect, the insured still knows he has the ten days to act, and it would be inherently unfair to impose liability on the insurer for a technical failure.
Appellant Love relies on DeBose v. Travelers Ins. Co. (1983),6 Ohio St.3d 65, 6 OBR 108, 451 N.E.2d 753, and claims that this case, not the appellate decisions or the foreign decisions, is controlling. I find the DeBose case is not exactly on point because in that case there was a complete failure to comply with the statute. As noted in a footnote, the court found that the notice given did not comply with the statute and there was no real proof it had ever been mailed.
DeBose was construed, however, by the Third District as requiring strict compliance in Balster v. Poeppelman (Sept. 27, 1989), Auglaize App. No. 2-87-24, unreported, 1989 WL 111965. The Balster court cited and relied on Lucido v. Motors Ins.Corp. (Nov. 19, 1981), Mahoning App. No. 81 CA 32, unreported, 1981 WL 4813, another strict-compliance case. *Page 406
There are also strong public policy arguments for the "strict compliance" position. If we adopt a "ten-days-means-ten-days-and-nothing-less" strict-compliance standard, in the short run it will result in some insurance companies having to provide coverage without having received their premium, which as the Shreve court said, is an inequitable result.
On the other hand, this issue keeps rearing its head over the years, e.g., Lucido in 1981, Shreve in 1983, Black in 1984 andBalster in 1989. In the long run, some insurers, perhaps only a small minority, will keep sending out noncomplying notices, and this means the courts will have to keep deciding whether the particular form of noncompliance in the case is sufficient compliance. Nothing is resolved.
I believe this lack of resolution is what the Supreme Court sought to eliminate with its holding in DeBose. The primary function of any judicial system is to resolve disputes. As a corollary to that, it is the duty of the courts to apply the actual language of a statute as written. If the statute says ten days' notice, under the ordinary rules of construction, it must mean ten days' notice. If giving the statute its precise construction will also eliminate future cases on the same issue, there is even a stronger reason for adhering to a strict construction. I would find that DeBose, supra, is controlling here and that it sets a strict-compliance standard for R.C.3937.32(E).
For the very same reasons, I find that the other argument advanced in support of this assignment of error, relating to proof of the receipt of the notice, is not persuasive. The statute says the insurer must mail notice of the cancellation, but says nothing about receipt. The legislature was aware, no doubt, that not every letter mailed is properly delivered and received, but nonetheless it chose mailing as the standard of compliance. Much as we cannot rewrite the ten-day standard, we cannot rewrite the mailing standard. I would sustain assignment of error two and reverse the decision of the trial court. I concur in overruling assignment of error three. Thus, I dissent in part. *Page 407