I respectfully dissent from the decision of the majority.
The two-year period during which an uninsured motorist claim must be presented which is a condition to State Automobile Mutual Insurance Company's ("State Auto") duty to provide Irene Marsh the uninsured motorist coverage that it sold her is founded, according to State Auto, on a statement by the Supreme Court inMiller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619,635 N.E.2d 317. Though it there found a one-year claims period to be unreasonably short and against public policy, the court went on to state:
"Finally, we do not suggest that time-limitation provisions of the type at issue in this case are altogether prohibited. Consistent with our analysis, a two-year period, such as that provided for bodily injury actions in R.C. 2305.10, would be a reasonable and appropriate period of time for an insured who has suffered bodily injuries to commence an action or proceeding for payment of benefits under the uninsured or underinsured motorist provisions of an insurance policy." Id. at 624-625,635 N.E.2d at 321.
This court is bound to follow and apply the precedents announced by the Supreme Court of Ohio. However, not every statement of a court creates a controlling precedent. Only those that are necessary to the decision that the court renders are a part of the ratio decidendi, the rule of law on which a case is decided, which forms the controlling precedent announced in the case. Language not directly related to the question before the court, that is, language incidental or collateral to the question decided, is obiter dictum, which inferior courts are not obliged to follow.
In Ohio, "[t]he syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specifc case before the Court for adjudication." S. Ct.R.Rep.Op. 1 (B). Other pronouncements in the text of the court's opinions are surely authoritative, and cannot be ignored. However, they do not carry the precedential force of a statement made in a syllabus.
The syllabus in Miller v. Progressive Cas. Ins. Co., supra, reads:
"A provision in a policy for uninsured or underinsured motorist coverage which precludes the insured from commencing any action or proceeding against the insurance carrier for payment of uninsured or underinsured motorist benefits, unless the insured has demanded arbitration and/or commenced suit within one year from the date of the accident, is void as against public policy. (Duriak v. Globe Am. Cas. Co. [1986], 28 Ohio St.3d 70, 28 OBR 168, 502 N.E.2d 620, overruled to the extent inconsistent herewith.)" *Page 363
In both Colvin v. Globe Am. Cas. Co. (1982), 69 Ohio St.2d 293, 23 O.O.3d 281, 432 N.E.2d 167, and Duriak v. Globe Am. Cas. Co. (1986), 28 Ohio St.3d 70, 28 OBR 168, 502 N.E.2d 620, the Supreme Court had approved one-year claims-reporting requirements for uninsured motorist coverage. Therefore, and appropriately, both decisions were overruled as precedent by Miller, supra. Because the two-year claims period approved in Miller was not before the court, its statement concerning that period is not a part of the controlling precedent of the court's decision in the case. We may not ignore it, but we are not required to follow it when the facts before us support a contrary result, as the facts do here. Two difficulties are presented by them.
First, in this case the insured was not aware of the tortfeasor's uninsured status until more than two years had passed from the date of the accident. This fact operated to automatically exclude Marsh from the benefits of the uninsured motorist coverage that she had purchased by requiring her to claim it before she had notice of the fact that she was entitled to it. The only way to cure that problem, consistent with Miller, is to impose a due-diligence obligation on the insured to inquire about the tortfeasor's insurance status within the two-year period after the accident. That is not an entirely satisfactory rule. Even when the inquiry is made, it may not be answered. Then, the insured must file a lawsuit to protect his rights. Promoting litigation should not be endorsed as a method of obtaining the benefit of contract rights.
Second, Miller apparently approved a two-year period for making an uninsured motorist claim because the underlying action against the tortfeasor must be brought within two years, pursuant to R.C.2305.10. An action that is voluntarily dismissed after the limitations period ends may be refiled within one year thereafter, pursuant to R.C. 2305.19. That is what happened here, and in that event the period for making an uninsured claim should not be shorter in term.
These problems show why judicial approval of any specific period of time that applies uniformly in all cases is a snare and a delusion. The better approach is that taken in Kraly v.Vannewkirk (1994), 69 Ohio St.3d 627, 635 N.E.2d 323, which, in effect, applies a discovery rule to determine when an uninsured motorist claim accrues. There, the court held that because a policyholder cannot make an uninsured claim until he determines that the tortfeasor is uninsured, the policyholder's claim for uninsured motorist coverage does not accrue until he discovers the tortfeasor's uninsured status. This court recently held the same with respect to underinsured motorist claims. Davis v.Farmers Ins. Group (Sept. 19, 1997), Montgomery App. No. 16378, unreported, 1997 WL 578954.
Any limitation on coverage that a policy creates should be construed strictly against the insurer and liberally in favor of the insured, in order that the purpose of the insurance shall not be defeated. Kitt v. Home Indemn. Co. (1950), *Page 364 153 Ohio St. 505, 41 O.O. 511, 92 N.E.2d 685. Engrafting a discovery rule onto the coverage limitation created by the two year claims period benefits the insured, who is burdened by engrafting a due diligence requirement. As between the two, a discovery rule is the better alternative because it preserves the uninsured motorist coverage that R.C. 3937.18 was enacted to create. Id. Use of a discovery rule to bring a time requirement into accord with the purposes of the law is an equitable remedy which the courts have an inherent power to impose. See O'Stricker v. JimWalter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727;Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438; Liddell v. SCA Serv. of Ohio,Inc. (1994), 70 Ohio St.3d 6, 635 N.E.2d 1233.
I would overrule the assignment of error and affirm the judgment of the trial court on the foregoing basis.