concurring in syllabus and judgment. I concur in the syllabus and the judgment of the majority. The decision of the court of appeals, however, should be affirmed on the basis stated in that court’s opinion, to wit: that the payments received by the Rubys from B&O and Westfield should be set off against Midwestern’s liability limit under the policy issued by it to the Rubys. By admittedly, sua sponte, raising the subrogation issue, in a further attempt to shore up the ill-advised decision in Bogan v. Progressive Cos. Ins. Co. (1988), 36 Ohio St. 3d 22, 521 N.E. 2d 447, the majority only further confuses the issue. The inevitable consequence of reaching a predetermined result is convolution.
In addition, while I do not concur in Justice Sweeney’s ultimate result as expressed in his dissent, I do, however, agree with his analysis of those issues *163which would be dispositive of this case, absent setoff.
Sweeney, J., dissenting. The majority herein sua sponte considers an issue that was not reviewed by the court of appeals below. In my opinion, such a practice undermines confidence in the orderly process of appellate procedure, and does nothing more than give the impression that the majority is raising the issue in order to arrive at a predetermined result.
The reason the majority bypasses the main issue presented in this appeal, i.e., whether plaintiffs are entitled to recover under the underinsured motorist provision of their policy with defendant, is quite obvious in my view. The majority glosses over this issue because the language of the policy can, under a reasonable interpretation, entitle plaintiffs to a recovery under the facts developed below. This same conclusion may be drawn from the provisions in the policy dealing with setoff, namely, that defendant-insurance company is not clearly entitled to a setoff under a reasonable interpretation of the subject underinsured motorist provision.
It is black-letter law in this state that “[l]anguage in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer.” Buckeye Union Ins. Co. v. Price (1974), 39 Ohio St. 2d 95, 68 O.O. 2d 56, 313 N.E. 2d 844, syllabus. Moreover, as this court held in James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St. 3d 386, 18 OBR 440, 481 N.E. 2d 272, at paragraph two of the syllabus:
“An insurer may apply payments made by or on behalf of an underinsured motorist as a setoff directly against the limits of its underinsured motorist coverage, so long as such set-off (1) is clearly set forth in the terms of the underinsured motorist coverage. * * * ft
In reviewing the thrust of the majority opinion, I cannot help but conclude that the majority has misapplied the proper standards to be used in insurance-contract-interpretation cases and has, in this particular case, strictly construed the terms of the contract against the insured, and liberally construed the terms in favor of the drafter of the contract, i.e., defendant.
Since the majority decides the instant cause on an issue not reviewed by the court of appeals, nor on the issues heretofore mentioned in this dissent, several relevant facts should be illuminated here. As plaintiffs point out, with regard to defendant’s subrogation rights, defendant was aware of the accident at issue prior to plaintiffs’ settlement with B&O Railroad and Resendez’s insurer. Since defendant’s agent Frost-Stange issued both Resendez’s policy and plaintiffs’ policy, the defendant, by and through its agent, Frost-Stange, would have been aware of the accident at issue and all of the surrounding circumstances when defendant received the Resendez claim for property damage. To say that defendant had no knowledge of the accident or claims that were being made is ludicrous when in reality FrostStange, its agent, had such knowledge.
Additionally, the majority reaches its conclusions based on the mistaken assumption that plaintiffs were under some duly to file a claim against the Resendez estate. As mentioned before, defendant, through its agent, appears to have had ample notice of the accident prior to any settlements that were made and prior to the close of the Resendez estate. As plaintiffs submit, however, and contrary to the majority’s intimations, there was nothing that the defendant-insurer could have *164done. By operation of its own policy, defendant required plaintiffs to recover the limits of the Resendez policy before their underinsured motorist coverage would be effective. In order to accomplish this, plaintiffs were required by Resendez’s insurer to obtain a full and complete release. Thus, even if plaintiffs had filed a claim against the Resendez estate, as the majority states they should have, the claim would have been released by plaintiffs when settling with Resendez’s insurer by operation of defendant’s own policy. As plaintiffs assert, they cannot be said to have interfered with defendant’s subrogation rights when plaintiffs’ actions were in complete and total compliance with the terms and conditions of their policy with defendant.
Based on the foregoing, I would reverse the decisions of the courts below thereby finding underinsured motorist coverage for plaintiffs. At the very least, however, I would remand the cause to the court of appeals to determine whether defendant’s subrogation rights were interfered with. The action of the majority in sua sponte deciding this cause on an issue not reviewed below deprives the parties of a full appellate review and establishes a convenient standard for courts to resort to result-oriented jurisprudence in the future.