Clark v. Scarpelli

Cook, J.,

concurring in part and dissenting in part. I agree with that part of the majority opinion that addresses whether the wrongful death claims can be limited to a single per-person limit. But because the majority also reaches and resolves an issue that is not before this court, I respectfully dissent from the syllabus and that part of the opinion regarding R.C. 3937.18(A)(2).

*285I

The majority devotes several pages to interpreting the “amounts available for payment” language in R.C. 3937.18(A)(2). In fact, the majority goes so far as to “affirm” the court of appeals on this issue and carry its interpretation over to the syllabus. The syllabus and analysis of R.C. 3937.18(A)(2), however, are gratuitous because the issue is not even before this court. Neither party appealed the portion of the court of appeals’ opinion that interpretéd the “amounts available for payment” language. Although Clark mentioned the issue in her brief to this court, we did not accept jurisdiction over this issue. Accordingly, the only issue actually raised here is whether Mid-Century’s policy properly limited wrongful death claims to a single per-person limit. By “deciding” the R.C. 3937.18(A)(2) question, the majority reaches out to address an issue not directly presented by this case. See Gibson v. Meadow Gold Dairy (2000), 88 Ohio St.3d 201, 203-204, 724 N.E.2d 787, 789 (choosing not to render an “advisory opinion” on an issue not directly presented). The result is syllabus law crafted from nothing more than dicta.

II

Even if the “amounts available for payment” language in R.C. 3937.18(A)(2) were before the court in this cause, I would nevertheless dissent because I view the majority decision as misconstruing the validity of Motorists Mut. Ins. Co. v. Andrews (1992), 65 Ohio St.3d 362, 604 N.E.2d 142, misappropriating authority reserved to the General Assembly, and misapplying the statute’s “triggering” provision. Following an overview of pre-1994 R.C. 3937.18(A)(2), I shall discuss each point in turn.

A. R.C. 3937.18(A)(2) Pre-S.B. 20

The version of R.C. 3937.18(A)(2) in effect prior to the passage of Am.Sub.S.B. No. 20 (“S.B. 20”) served three functions:

First, the subsection’s opening sentence set the minimum amount of underinsured motorist coverage (“UIM coverage”) to be offered by an insurer: “Under-insured motorist coverage * * * shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage * * 142 Ohio Laws, Part 1,1739.

Second, the subsection’s first sentence also established that UIM coverage was triggered for the insured only “where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured’s *286uninsured motorist coverage at the time of the accident.” This triggering language explicitly mandates a limits-to-limits comparison. Id. at 1739-1740.

Third, the subsection’s second sentence explained how the limits of an insured’s recovery were to be calculated: “The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.” Id. at 1740.

This court interpreted the triggering language in Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658. We held that “[ujnless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured’s policy are identical to the limits of liability set forth in the tortfeasor’s liability insurance coverage.” Id., syllabus.

Nearly three years later, the court revisited the triggering provision of former R.C. 3937.18(A)(2) in Andrews, 65 Ohio St.3d 362, 604 N.E.2d 142. Specifically, the court addressed “whether underinsured motorist coverage is available to an insured where the tortfeasor’s policy limit is greater than the insured’s policy limits but the claims of multiple claimants have resulted in undercompensation of the insured’s injuries.” (Emphasis added.) Id. at 364, 604 N.E.2d at 144. In finding that such circumstances triggered underinsured motorist coverage, the court construed the phrase “the limits of coverage available for payment” in the first sentence of subsection (A)(2) to mean “the amount actually available for payment” under the tortfeasor’s policy. (Emphasis added.) Id. at 366, 604 N.E.2d at 145-146.

The court again considered former R.C. 3937.18(A)(2) in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. There, we addressed whether multiple parties could recover UIM benefits when the limits of the UIM policy involved are identical to the limits of the tortfeasor’s liability policy. Id. at 508, 620 N.E.2d at 815. Savoie explicitly overruled Hill’s limits-to-limits comparison and held that “[a]n underinsurance claim must be paid when the individual covered by an uninsured/underinsured policy suffers damages that exceed those monies available to be paid by the tortfeasor’s liability carriers.” Id., paragraph three of the syllabus. With this holding, the Savoie court implicitly construed “the limits of coverage available for payment” to mean “the amounts which the tortfeasor’s insurer has already paid.” Id. at 508, 620 N.E.2d at 815. Notably, while the language of the Savoie construction varies slightly from the construction set forth in Andrews, the result of the Savoie holding is the same as the holding in Andrews. Neither case’s interpretation of the R.C. 3937.18(A)(2) triggering provision, however, is consistent with the intent of the General Assembly.

*287B. Legislative Intent and the R.C. 3937.18(A)(2) Triggering Provision

By reaching the setoff issue, the majority implicitly accepts that UIM coverage has first been triggered. But the majority ignores that the legislature expressly stated that it intended to supersede the interpretation of the triggering provision espoused in Andrews and Savoie. In so doing, the General Assembly intended to provide for a hmits-to-Iimits comparison in the triggering provision. And once a limits-to-limits comparison is done in this case, UIM coverage is not triggered, and the setoff question is not even reached.

The majority of this court continues to indulge its preferred public policy. It evaluates the practical consequences of construing R.C. 3937.19(A)(2) as a limits-to-limits comparison and, finding the consequence of such a construction unpalatable, repeatedly concludes that this simply cannot be what the legislature intended.

I find that the plain language of the triggering provision mandates a limits-to-limits comparison. But even assuming arguendo that the statute is ambiguous, the court may consider, in addition to other matters, not just the object of the statute and the consequences of a particular construction, but also “[t]he circumstances under which the statute was enacted,” “the legislative history,” and “[t]he common law or former statutory provisions, including laws upon the same or similar subjects.” R.C. 1.49(B), (C), and (D). It is axiomatic that “[ajmbiguity in a statute should be resolved by examining the legislative intent of the statute.” Delli Bovi v. Pacific Indemn. Co. (1999), 85 Ohio St.3d 343, 345, 708 N.E.2d 693, 694.

The majority relies heavily upon the purported absence of a legislative explanation for the altered language of the setoff provision, stating that “[w]e find it significant that nowhere in the S.B. 20 amendments to R.C. 3937.18(A)(2), either in the codified or uncodified sections, does the General Assembly indicate any intent, expressed or implied, to legislatively supersede our decision in Andrews.” The majority would thus presume that Andrews’s interpretation of the triggering provision remains valid. But the uncodified law states:

“It is the intent of the General Assembly in amending division (A)(2) of section 3937.18 of the Revised Code to supersede the effect of the holding of the Ohio Supreme Court in the October 1, 1993 decision in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500 [620 N.E.2d 809], relative to the application of underinsured motorist coverage in those situations involving accidents where the tortfeasor’s bodily injury liability limits are greater than or equal to the limits of the underinsured motorist coverage.” Section 7, S.B. 20, 145 Ohio Laws, Part I, 238.

Given such an explicit expression of legislative intent, I cannot agree that the General Assembly intended to adhere to the Andrews-Savoie construction of the triggering provision of R.C. 3937.18(A)(2). Because Savoie and Andrews contain *288the same erroneous interpretation of the statute, superseding Savoie has the practical effect of superseding Andrews. The “triggering” sentence of R.C. 3937.18(A)(2) should therefore not be interpreted pursuant to the AndrewsSavoie “amount recovered to limits of UIM coverage” comparison. Rather, the uncodified law should be viewed as evincing an intent to correct this court’s prior, erroneous interpretation of the triggering provision set forth in Andrews and Savoie and to reinforce the limits-to-limits comparison that the plain language of the statute warrants.

I note that the effect of the statutory scheme is not to vitiate the actual existence of UIM coverage as some may claim. Rather, the insured has purchased coverage that, as with much insurance, is subject to context-specific determinations of applicability. While the policy may not provide accessible coverage in regard to a specific claim, depending upon a limits-to-limits comparison, the policy may at the same time remain fully accessible in another claim. The insured chooses the amount of coverage he desires and is free to contract for greater levels of coverage that would increase the likelihood of applicability.

C. The Public Policy Behind R.C. 3937.18(A)(2)

Instead of acknowledging the uncodified law, the majority continues to rely upon “the public policy behind the enactment of the underinsured motorist statute, as well as the statutory language” to conclude that “the purpose of underinsured (and uninsured) motorist coverage is to treat injured automobile liability policyholders the same whether a tortfeasor is underinsured or uninsured.” I disagree for two reasons.

First, the express words chosen by the General Assembly in the enacted statute and in the uncodified law evince a public policy contrary to that policy espoused by the majority. The second sentence of R.C. 3937.18(A)(2) as amended by S.B. 20 states, as the majority recognizes, that underinsured motorist coverage is not excess insurance to other applicable coverages. That sentence provides that “[u]nderinsured motorist coverage * * * shall be provided only to afford the insured an amount of protection not greater- than that which would be available under the insured’s uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident.” (Emphasis added.) 145 Ohio Laws, Part I, 210-211. While this declaration of purpose does not preclude equal recovery, neither does it guarantee equal recovery. Rather, the sentence operates only as a limitation on the amount of recovery through UIM coverage. Because a statute is to be read in its entirety, the first sentence of R.C. 3937.18(A)(2) as described in the foregoing discussion demonstrates the intent to permit potentially different results under UM versus UIM coverage. Even if this provision is construed as ambiguous, the previously addressed, probative, uncodified law found in S.B. 20 reveals the legislative intent to overrule *289expressly the Andrews-Savoie rationale and to preserve the limits-to-limits comparison in the triggering provision, however inequitable a result it may at times produce. See Section 7, S.B. 20, 145 Ohio Laws, Part I, 238.

Second, this court’s past articulation of the presumed public policy underlying the statutory scheme lacks support. In James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 389, 18 OBR 440, 443, 481 N.E.2d 272, 274, the court stated:

“Underinsured motorist coverage was first required by statute after the legislature discovered the ‘underinsurance loophole’ in uninsured motorist coverage — i.e., persons injured by tortfeasors having extremely low liability coverage were being denied the same coverage that was being afforded to persons who were injured by tortfeasors having no liability coverage. Thus, the original motivation behind the enactment of [former] R.C. 3937.181(C) was to assure that persons injured by an underinsured motorist would receive at least the same amount of total compensation that they would have received if they had been injured by an uninsured motorist.” (Emphasis sic.)

The articulation of public policy set forth in James should not be, and cannot be, regarded as authoritative. This is so because there is no authority supporting James’s declaration of public policy, as a review of the legislative history of R.C. 3937.18 and 3937.181 reveals.

The passage of Am.Sub.H.B. No. 22 in 1979 amended former R.C. 3937.18 and enacted former R.C. 3937.181. 138 Ohio Laws, Part 1,1459. The amendments to former R.C. 3937.18 related to UM coverage and are not germane here. Rather, the present inquiry is concerned with the enactment of former R.C. 3937.181.

Former R.C. 3937.181(A) defined underinsured motorist coverage and explained its application:

“As used in this section, ‘underinsured motorist coverage’ means coverage in an automobile or motor vehicle liability policy protecting an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are insufficient to pay the loss up to the insured’s uninsured motorist coverage limits.” 138 Ohio Laws, Part I, 1459.

This provision did not guarantee UIM recovery equal to the amount recoverable under UM coverage. Rather, much like the second sentence of current R.C. 3937.18(A)(2), former R.C. 3937.181(A) expressly limited UIM recovery to no more than the amount recoverable under UM coverage. This cannot be said to have created the guarantee of equal recovery that James and its progeny proclaimed as the public policy behind the statutory scheme.

*290Nor does former R.C. 3937.181(C) support such public policy. Yet, the James majority stated that the claimed public policy motivated the enactment of that specific section. James, 18 Ohio St.3d at 389, 18 OBR at 443, 481 N.E.2d at 274-275. It was only in later decisions that the court stated that this “public policy” underlies the entirety of the statutory scheme. Neither construction was correct, as former R.C. 3937.181(C) provided:

“The benefits provided under underinsured motorist coverages shall be subject to the same provisions as to denial of coverage, insolvency, subrogation, or off-set as provided in uninsured motorist coverage under divisions (B), (C), and (D) of section 3937.18 of the Revised Code.” 138 Ohio Laws, Part 1,1460.

Former R.C. 3937.181(C) simply made various sections of the uninsured motorist statute applicable to underinsured coverage. Former R.C. 3837.18(B), for example, defined when a motor vehicle was to be classified as uninsured. Section (C) of that statute permitted a right of subrogation and offset, qualified by insolvency proceedings and “subject to the terms and conditions of [uninsured] coverage.” Id. at 1459. Finally, section (D) precluded offset of workers’ compensation recovery. Id. None of these sections articulated a public policy guaranteeing equal recovery regardless of whether a tortfeasor was underinsured or uninsured. Nor did they create a scheme whereby that would always be the end result. Instead, these statutory provisions simply placed qualifications and protections upon UIM recovery, once such recovery could be had under the statutory scheme. Therefore, there is simply no statutory support for the purported “public policy” animating James.

Nonetheless, this court cited James’s articulation of the purported public policy underlying former R.C. 3937.181 as supporting the result reached in Hill, 50 Ohio St.3d at 246, 553 N.E.2d at 661. Such reliance was misplaced. In Hill, the court addressed a situation in which the injured insured happened to receive the same amount of recovery from UIM coverage that he would have received under UM coverage, not because of the purported public policy, but because he was a single claimant who had purchased the same UIM and UM coverage limits. Cf. Beagle v. Walden (1997), 78 Ohio St.3d 59, 63, 676 N.E.2d 506, 508-509 (explaining that because “[i]nsureds purchase their levels of protection,” an insured who purchases equal UM7UIM coverage and who is the only claimant “is guaranteed total recovery for an accident up to those policy limits, regardless of the tortfeasor’s insurance status”). The Hill court’s reference to James’s public policy was not dispositive, then, but merely mischaracterized the natural result of Hill as an outgrowth of public policy.

James’s “public policy” soon became an enabling mantra, relied upon to ignore the actual language of the triggering provision of R.C. 3937.18(A)(2). See, e.g., Savoie, 67 Ohio St.3d at 508, 620 N.E.2d at 815; Andrews, 65 Ohio St.3d at 364-*291365, 604 N.E.2d at 144-145 (both citing James). To accept James’s declaration of public policy is to accept judicial fiat as capturing the supposed will of the people. The expressed will of the people as set forth in the statutory language and uncodified law, however, rejects the majority’s claimed public policy.

With its analysis here, the majority uses this “public policy” to reject the legislature’s decision and again decides what the UM/UIM insurance law of this state should be. But the role of a court is not to decide what the law should say; rather, the role of this court is to interpret what the law says as it has been written by the General Assembly — regardless of whether it constitutes sound policy. Cablevision of the Midwest, Inc. v. Gross (1994), 70 Ohio St.3d 541, 544, 639 N.E.2d 1154, 1156 (“A court’s role is to interpret, not legislate”).

D. UIM Coverage is not Triggered in This Case

Following this court’s decisions in Andrews and Savoie, the General Assembly amended the setoff provision of R.C. 3937.18(A)(2) in 1994 with the passage of S.B. 20. Both the S.B. 20 version and current R.C. 3937.18(A)(2)5 provide:

“The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.” 145 Ohio Laws, Part I, 211.

In considering this amended language — specifically the change from “amounts actually recovered” to “amounts available for payment” — the majority concludes that the legislature intended to adhere to this court’s pre-S.B. 20 interpretation in Andrews of what “amounts available for payment” means. Such reasoning espouses the view that the 1994 amendment to the statute was merely cosmetic, then, as it would have effected no substantive change.

Not only does this case fail to present this issue to this court, but this case also could not properly present the setoff issue, because UIM coverage is not even triggered under the policies involved here. As the majority concedes, Andrews interpreted the triggering provision of (A)(2) and not the setoff provision. While Andrews construed “the limits of coverage available for payment” in the triggering provision of subsection (A)(2) to mean “the amount actually available for payment” — essentially the same as “those amounts actually recovered” in the language of the former setoff sentence of the subsection — this interpretation was erroneous both then and now. Andrews, 65 Ohio St.3d at 366, 604 N.E.2d at 145-146. The Andrews-Savoie rationale has not only been superseded; moreover, it *292was predicated on an unsupported perception of public policy and was contrary to the plain language of R.C. 3937.18(A)(2).

That statute’s plain language both provided and provides for a limits-to-limits comparison in the triggering provision. In this case, the tortfeasor’s liability coverage was in the amount of $100,000 per person. Clark’s UIM policy also had a $100,000 per-person limit. Therefore, under the limits-to-limits comparison mandated by the first sentence of R.C. 3937.18(A)(2), Clark’s UIM coverage is not triggered. The statute’s setoff provision is therefore irrelevant.

Ill

For the foregoing reasons, I decline to reach an issue not presented by this case and then elevate resulting dicta to the level of syllabus law. Further, were the issue presented, I would hold (1) that the intent of the General Assembly in S.B. 20 was to make clear that a limits-to-limits comparison is used in determining whether UIM coverage applies, and (2) that because the limits of the tortfeasor’s coverage are the same as the UIM coverage in this case, the issue of setoff is never reached.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing opinion. Jim Slagle, Marion County Prosecuting Attorney, for appellant. Daniel E. Shifflet & Co., L.P.A., and Kevin P. Collins, for appellee.

. The General Assembly amended other sections of R.C. 3937.18 in 1997 (147 Ohio Laws, Part II, 2372), 1999 (S.B. No. 57), and 2000 (Sub.S.B. No. 267). These amendments did not alter those provisions of R.C. 3937.18(A)(2) discussed herein.