Kyle v. Buckeye Union Insurance

Francis E. Sweeney, Sr., J.,

dissenting.

{¶ 24} I respectfully dissent. I disagree with the majority’s determination that former R.C. 3937.18(J)(1) and (K)(2) address different topics and thus are not conflicting. Instead, I would hold that the statutory language is ambiguous and directly conflicting. Nevertheless, after construing the statute to give effect to the General Assembly’s intent, I believe that the subsections can be reconciled and that uninsured motorist coverage is available to appellants under their *174insurance policy as written. Accordingly, I would reverse the judgment of the court of appeals.

{¶ 25} The primary goal in statutory interpretation is to determine the intent of the General Assembly in enacting a statute and then giving effect to that intent. Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 274, 744 N.E.2d 719. It is our duty to give effect to the words used in the statute, not to delete words or insert words not used. Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus. If the words of a statute are unambiguous, our job is easy: we merely apply the law as written, without a need to interpret. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463.

{¶ 26} If the words of a statute are ambiguous, we must construe the statutory language to give effect to the General Assembly’s intent. Clark, 91 Ohio St.3d at 274, 744 N.E.2d 719. A statute is ambiguous when its language is subject to more than one reasonable interpretation. Id. In order to carry out the legislature’s intent, we must harmonize apparent inconsistencies whenever possible. Johnson’s Markets, Inc. v. New Carlisle Dept. of Health (1991), 58 Ohio St.3d 28, 35, 567 N.E.2d 1018. In determining legislative intent when faced with an ambiguous statute, we may consider several factors such as circumstances under which the statute was enacted, the objective of the statute, and the consequences of a particular construction. R.C. 1.49; Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 40, 741 N.E.2d 121. Finally, guiding us in our interpretation is the long-standing recognition that R.C. 3937.18 is remedial legislation and that we must therefore construe the statute liberally to give effect to its legislative purpose. Moore v. State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27, 31, 723 N.E.2d 97.

{¶ 27} For more than 30 years, this court has made clear that the purpose behind R.C. 3937.18 is to protect persons from losses that, because of the tortfeasor’s lack of liability coverage, would otherwise go uncompensated. Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 165, 51 O.O.2d 229, 258 N.E.2d 429. The majority, by refusing to find coverage, undermines this laudatory goal.

{¶ 28} Moreover, the circumstances under which the statute was enacted show that when both subdivisions were first introduced by 1997 H.B. No. 261, the objective was to allow exclusion from coverage for occupants of vehicles owned by an insured, but only if those vehicles were not identified in the policy. In this way, while the insurance company could exclude vehicles owned by the insured but not identified in the policy, the insured and insurer could also agree to identify all the family vehicles if they so chose. This protected the balance of interests — the insured’s interest in coverage and the insurer’s interest in receiving premiums for risks covered. This is what happened here. Appellants *175specifically identified in the policy the Honda Prelude, the car involved in the collision, and they paid a premium for UM/UIM coverage that applied to this vehicle.

{¶ 29} The next consideration is the consequence of a particular construction. By finding that the provisions do not conflict, the majority is ignoring the fact that, plainly read, former (J)(l) allows for UM/UIM coverage for other owned vehicles specifically identified in the policy. Yet former (K)(2) stated that all other owned vehicles were, by definition, not uninsured or underinsured vehicles. When both subsections of R.C. 3937.18 are read together, they are conflicting because former subsection (J)(l) permits coverage if the vehicle is identified in the policy while former subsection (K)(2) specifically states that even if a vehicle is identified in the policy, it can never be an uninsured vehicle for purposes of UM/UIM coverage.

{¶ 30} The Fourth District Court of Appeals in Morris v. United, Ohio Ins. Co., Ross App. No. 02CA2653, 2003-Ohio-1708, 2003 WL 1756416, had the opportunity to consider whether the statute was ambiguous. In an attempt to reconcile the subsections, that court reasoned:

{¶ 31} “Initially, we acknowledge that the owned but uninsured exclusion of R.C. 3937.18(J)(1) is intended to limit coverage and not create it. After all, its avowed purpose is to allow policies to ‘preclude coverage.’ But, in interpreting the language actually contained in the statute (and the industry form policies for that matter) we cannot avoid the only logical conclusion one can draw from the following language: ‘if the motor vehicle is not specifically identified in the policy under which a claim is made.’ The only logical inference one can draw from that language is that the (J)(l) exclusion from coverage is limited to vehicles that the claimant owns but has not covered under the policy. If the vehicle is listed in the uninsured motorist coverage, the exclusion cannot apply by its own terms, e.g., the claimant has purchased uninsured motorist coverage for that vehicle. A claimant in that situation is not attempting to stack coverage or ‘get something for nothing.’ She is simply attempting to claim coverage for which she has paid a premium. We read (J)(l) to mean that you have no coverage for a vehicle you own unless it is listed in the policy * * *.

{¶ 32} “Then we turn to the definitional provision of R.C. 3937.18(K)(2) and find that it says in essence — your vehicle can never be an uninsured motor vehicle even if you list it and pay a premium for it. The fact that (K)(2) precludes uninsured motorist coverage in an accident where the claimant, a spouse, or resident family member owns the vehicle, renders the (J)(l) promise of coverage for a listed vehicle illusory in nature. Do these provisions, when read in conjunction, mean that the consumer is purchasing uninsured motorist coverage for accidents only when they are not caused by the claimant’s own vehicle? *176When read on its own, (K)(2) certainly seems to relay that message. But, when we add (J)(l) to the mix, we are hard pressed to glean that meaning. In short, we find that (J)(l) and (K)(2) are so ambiguous as to be unenforceable when read together. * * * Apparently, the legislature itself agrees as they have subsequently repealed (K)(2) and left (J)(l) intact. * * * Therefore, we look to the statute’s overriding purpose of providing uninsured motorist coverage and disregard or eliminate subsection (K)(2), while giving effect to subsection (J)(l).” (Emphasis sic.) Id. at ¶ 18-19. See, also, Ratkosky v. Scottsdale Surplus Lines Ins. Co., Cuyahoga App. No. 81519, 2003-Ohio-2868, 2003 WL 21291024.

{¶ 33} The Moms opinion adheres to statutory construction principles and makes several valid points. I find it persuasive. Therefore, I believe that former R.C. 3937.18(J)(1) and (K)(2) do not cover different circumstances as interpreted by the majority. Instead, these statutory provisions are conflicting. Yet they can both be given effect and harmonized when former subsection (K)(2) is interpreted as applying only to vehicles not identified in the insurance policy. As Kathryn Kyle was injured while a passenger in a vehicle that was specifically identified in the policy, she is entitled to uninsured motorist coverage. This liberal construction is consistent with the purpose of R.C. 3937.18, which is to provide protection for persons injured by tortfeasors who lack sufficient insurance. I would reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

Resnick and Pfeifer, JJ., concur in the foregoing dissenting opinion.