dissenting.
{¶ 31} I would answer the certified question in the affirmative, relying on James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 18 OBR 440, 481 N.E.2d 272. In James, this court stated, “Generally, where an insured has not interfered with an insurer’s subrogation rights, the insurer may neither be reimbursed for payments made to the insured nor seek setoff from the limits of its coverage until the insured has been fully compensated for his injuries. (Newcomb v. Cincinnati Ins. Co. [1872], 22 Ohio St. 382, followed.)” Id. at paragraph one of the syllabus. I would reaffirm the “make whole” doctrine; I see no reason to abandon or limit a legal precedent that has been protecting injured Ohioans for over 125 years.
{¶ 32} I am also concerned that the majority leaves open the question of whether an insurance company can be subrogated for the gross amount of a recovery. For example, if medical expenses were $40,000 and a $51,000 settlement netted $34,000 for the injured person, allowing subrogation of the gross amount would enable the insurance company to collect $6,000 more than the injured party received in settlement. I would answer that question now: an insurance company should not be able to exact more in subrogation than its insured receives net of costs associated with a lawsuit or settlement. To rule otherwise would enable insurance companies to reach into their insureds’ pockets. I dissent.
Resnick and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion. Marshall & Melhorn, L.L.C., Jennifer J. Dawson and Michael A. Gonzalez, for appellee. Clark, Perdue, Roberts & Scott and Douglas S. Roberts, urging reversal for amicus curiae Ohio Academy of Trial Lawyers. Cloppert, Latanick, Sauter & Washburn, Robert L. Washburn and Rory P. Callahan, urging reversal for amicus curiae Ohio Education Association. Kreiner & Peters Co., L.P.A., Daran P. Kiefer, Helen A. Thompson and Ted M. Traut, urging affirmance for amici curiae Golden Rule Insurance Company, U.S. Humana Health Plan of Ohio, Inc., Medical Mutual of Ohio, QualChoice Health Plan, Inc., and the National Association of Subrogation Professionals.