Morris v. Savoy

Herbert Brown, J.,

concurring. I am in agreement with the analysis of the constitutional issues contained in the majority opinion by Justice Wright. I write separately only to comment on an issue not raised by the questions certified to us by the district court, but which will be presented in the case to which the certification relates.7

R.C. 2305.27 provides:

“Except as provided in section 2743.02 of the Revised Code, in any medical claim, as defined in division (D) of section 2305.11 of the Revised Code, an award of damages shall not be reduced by insurance proceeds or payments or other benefits paid under any insurance policy or contract where the premium or cost of such insurance policy or contract was paid either by or for the person who has obtained the award, or by his employer * * (Emphasis added.)

R.C. 2305.27 prohibits the reduction of an award of damages by any amounts paid under any insurance policy where the premium or cost of the policy is paid for by the employer of the person who obtains the award.

This court has recognized that the workers’ compensation laws are “ * * * founded upon the principle of insurance * * See State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 274, 143 N.E. 574, 575. Indeed, this court has referred to workers’ compensation as “workmen’s compensation insurance.” Id. at syllabus. See, also, id. at 276, 143 N.E. at 575. Throughout R.C. Chapter 4123,8 the General Assembly uses terms such as “state insurance fund,” “insurance fund,” “self-insurers,” “premiums,” “coverage,” and other similar terms and phrases consistent with the concept of insurance. Further, as this court indicated in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 615, 23 O.O.3d 504, 509, 433 N.E.2d 572, 577, an employer who commits an “intentional tort” against his or her employee is not immune from liability simply because the employer complies with the workers’ compensation laws since “[a]n insurance policy does not *695protect the policy holder from the consequences of his intentional tortious act.” (Emphasis added.)

The laws governing workers’ compensation establish an insurance scheme whereby employers pay for “insurance” coverage to compensate their employees for injuries sustained during the course of employment. Thus, workers’ compensation benefits may constitute (within the meaning of R.C. 2305.27) payments under an insurance policy or contract where the premium or cost of the policy is paid for by the employer of the person who obtains the award.

However, the district court did not certify the question of what constitutes “insurance” under R.C. 2305.27. Thus, any pronouncement we might make on the issue would be advisory, “ * * * and it is well-settled that this court does not indulge itself in advisory opinions.” Armco, Inc. v. Pub. Util. Comm. (1982), 69 Ohio St.2d 401, 406, 23 O.O.3d 361, 365, 433 N.E.2d 923, 926.

. Further, neither party has argued the issue in his brief, and on a question of this significance, I believe we should have briefs and arguments before rendering a decision.

. See, generally, R.C. 4123.01 et seq. See, specifically (as just a few of many such examples), R.C. 4123.01(A)(1)(b), 4123.03, 4123.05, 4123.29, 4123.30, 4123.32, 4123.34, 4123.342, 4123.35(A), 4123.38, 4123.74 and 4123.79.