Wolfe v. Wolfe

Cook, J.,

dissenting. Because I would adhere to this court’s decision in Benson v. Rosler (1985), 19 Ohio St.3d 41, 19 OBR 35, 482 N.E.2d 599, I respectfully dissent.

The majority’s decision today interprets R.C. 3937.31(A) as mandating successive two-year periods of guaranteed coverage rather than one such initial period. From this conclusion, the majority then determines that Benson is no longer a correct statement of the law, and that only at the beginning of a two-year mandatory coverage period may new contracts of insurance exist. These propositions, however, do not follow from the majority’s initial conclusion concerning R.C. 3937.31(A), and are therefore adopted without analytical support.

To appreciate the flaw in the majority’s analysis, it is useful to view it against the background of the law as it existed prior to today. In Benson this court held that even if a renewal occurred within a mandatory two-year coverage period under R.C. 3937.31(A), it could still be considered a “new contract” where the terms of the policy supported that characterization. In such instances, the law in effect on the date of the renewal applied.

The majority now announces that the Benson court misconstrued this issue and that we are to look only to the beginning of each R.C. 3937.31(A) two-year period for the “new contract” date. The majority apparently believes that its conclusion concerning mandatory periods compels the proposition that renewals within a mandatory period may not be “new contracts.” It is at this point that the logic of the majority’s analysis breaks down.

While the majority attempts to undercut the Benson decision based upon its interpretation that R.C. 3937.31(A) contemplates successive mandatory periods, in fact, that interpretation does not contradict the holding in Benson. Benson. held that a renewal could be a new contract even if it occurred within a mandatory two-year period. Even accepting the majority’s expansion of R.C. 3937.31(A) to require successive two-year mandatory periods, the Benson court’s analysis applies equally well to the first mandatory period as to later ones. In *253other words, it makes no difference during which mandatory period the renewal occurs — the rationale that a renewal may be a new contract even during such periods remains the same. Thus, the majority’s citation to R.C. 3937.31(A) as the reason for reversing Benson is plainly insufficient.

In fact, by concentrating its analysis upon the number of mandatory coverage periods required under R.C. 3937.31(A), the majority actually misses the crucial issue in this controversy. What it should have analyzed is whether a renewal may be considered a “new contract” if it occurs within a mandatory two-year period. It is that statement that needed to be countered in order to overrule or limit Benson.

Had the majority analyzed this issue, however, it would have found little, if any, support for its elimination of Benson as a valid statement of law on this point. First, it is “a basic tenet of insurance law that each time an insurance contract is renewed, a separate and distinct policy comes into existence.” Hercules Bumpers, Inc. v. First State Ins. Co. (C.A.11, 1989), 863 F.2d 839, 842, citing 13 Appleman, Insurance Law and Practice (Rev.Ed.1976), Section 7648; see, also, Moses v. Am. Home Assur. Co. (Ala.1979), 376 So.2d 656, 658. Based upon that premise and principles of contract law, the Benson court appropriately reasoned that, where a policy is written for a specific term and would expire unless the insured acted upon the renewal offer by paying a premium, the language of the policy should be given effect and the renewal considered a new contract.

Moreover, as the Benson court understood, the text of R.C. 3937.31(A) contains no justification for a departure from these basic insurance and contract concepts. That statute includes neither a mandate nor even a suggestion concerning what is and is not a new contract. Regardless of the number of two-year periods it requires, the statute concerns itself only with the availability of coverage during those years. Had the General Assembly meant to convert all insurance policies into two-year continuing contracts, thereby prohibiting any characterization of renewals as new contracts despite their very terms, certainly it would have used more specific terms, as it has elsewhere in the Revised Code. See, e.g., R.C. 3319.08 (concerning continuing contracts for teachers). This is particularly true when to do so would depart from well-settled insurance concepts. At the very least, the General Assembly would have eliminated from R.C. 3937.31(A), as superfluous, the concept of renewals within a mandatory term. Thus, the majority in effect adds provisions to the statute in order to support its determination — a determination unfounded based upon the text of the statute.

I also disagree with the majority’s assertion that Benson’s continued validity would circumvent the purpose of R.C. 3937.31(A). According to the majority’s own reasoning, R.C. 3937.31(A) was enacted to further the public policy of ensuring that all motorists maintain some form of liability coverage on motor *254vehicles in Ohio. The General Assembly achieved this goal by imposing upon insurers various cancellation restrictions. Contrary to the majority’s view, this purpose is in no way compromised by adherence to Benson and established concepts of insurance and contract law. The proposition that a renewal may be considered a new contract quite plainly has no effect upon the statute’s continuation of insurance coverage provision.

Finally, I disagree with the majority’s visions of chaos concerning compliance with the uninsured and underinsured offering requirements were we to follow Benson. The majority specifically warns: “Were we to adopt appellee’s argument, insurance companies would have the unenviable task of complying with R.C. 3937.18(A) every time a renewal constituted a new policy of insurance.” The statutory language of R.C. 3937.18(C), however, specifically excepts renewals and replacement contracts from the' offering requirement of R.C. 3937.18(A). In those instances, the insured’s prior choice controls unless the insured expressly requests such coverage. See, e.g., Remington v. Triplett (June 30, 1999), Fairfield App. No. 98CA00070, unreported, 1999 WL 547815; Savage v. Shelby Ins. Group (July 22, 1998), Crawford App. No. 3-98-03, unreported, 1998 WL 409146. Thus, no infeasible compliance task would await insurance companies were we to simply follow Benson and continue to hold that the terms of the policy itself, rather than a statute enacted for a different purpose, control whether a renewal constitutes a new contract.

Given that no valid support exists to overturn or limit Benson, I believe that it should remain the law on this issue and should control the outcome of this case. Accordingly, based upon Benson, I would conclude that the terms of the policy at issue dictate whether the renewal constitutes a new contract, regardless of whether that renewal occurred within a mandatory guarantee period under R.C. 3937.31(A).

Lundberg Stratton, J., concurs in the foregoing dissenting opinion.