dissenting.
{¶ 22} The majority suggests that in R.C. 4905.61, “treble the amount of damages” doesn’t mean “damages times three,” but rather “a penalty equal to damages times three.” The majority also apparently doesn’t believe that the General Assembly knows the difference between damages and penalties. Finally, the majority apparently wants to reverse Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736, 825 N.E.2d 599, but won’t because of the unctuous three-part test set forth in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256.
{¶ 23} “Treble damages” is not a secret code word. Even though the majority uses the term “treble damages,” R.C. 4905.61 does not; it uses the approximate equivalent “treble the amount of damages.” See Black’s Law Dictionary (8th Ed.2004) 419 (treble damages are “[d]amages that, by statute, are three times the amount that the fact-finder determines is owed”). There is no mysterious intent behind the General Assembly’s use of “treble the amount of damages.” I would *401assume that the General Assembly intended the term to have its normal and ordinary meaning. I would not, as the majority opinion does, add the word “penalty” to the definition of “treble the amount of damages.” Neither would I delete “the amount of,” as the majority does. To do either violates the most elementary principle of statutory construction, which is to give effect to the words used and not delete words used or insert words not used. Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217.
{¶ 24} Not only does the majority insert words into and delete words from R.C. 4905.61, it also misconstrues the context in which “treble the amount of damages” is used. The majority opinion correctly states that R.C. Title 49 “reflects a comprehensive statutory regime that governs the business activities of public utilities” and “compels public utilities to comply with the regulatory rubric through the imposition of penalties and forfeitures.” See, e.g., R.C. 4905.54, 4905.57, and 4905.59. As far as the majority and I can tell, there is only one provision in R.C. Title 49 that allows an injured party to obtain damages: R.C. 4905.61. Most people would take the General Assembly’s sole' use of “damages,” surrounded by a sea of penalties and forfeitures, as proof positive that the General Assembly intended the damages, whether trebled or not, to be damages and not a penalty.
{¶ 25} The majority is not so intrepid as that. Instead, it points to a separate sentence in R.C. 4905.61, which states, “Any recovery under this section does not affect a recovery by the state for any penalty provided for in such chapters” and concludes that R.C. 4905.61 “was intended to penalize public utilities for failing to comply with their statutory obligations.” I agree that the penalty provision of R.C. 4905.61 was intended to penalize public utilities, but am not creative enough to conclude that the General Assembly intended the damages provision to do anything other than what damages do: compensate an injured party. Perhaps if I, as the majority opinion does, gratuitously called the penalty provision of R.C. 4905.61 an “additional” penalty, I could convince myself that damages are penalties.
{¶ 26} I conclude that the General Assembly used the phrase “treble the amount of damages” not to impose a penalty, but to give injured parties an incentive to pursue cases that would otherwise be too small to justify the expense of legal action. This conclusion is sensible and doesn’t require the legalistic contortions necessary to transform “treble the amount of damages” into “a penalty equal to three times damages.” This conclusion also allows me to assume that the General Assembly knows the difference between damages and penalties.
{¶ 27} In Rosette, 105 Ohio St.3d 296, 2005-Ohio-1736, 825 N.E.2d 599, ¶ 13-14, this court stated:
Tricarichi & Carnes, L.L.C., and Carla M. Tricarichi; and Randy J. Hart and Mark Griffin, for appellees.{¶ 28} “The statutory language is clear: R.C. 5301.36(C) expressly provides that a mortgagor ‘in a civil action’ may sue for ‘damages.’ To conclude that R.C. 5301.36(C) creates a penalty, this court would have to delete the term ‘damages,’ a word used by the legislature, and insert the term ‘penalty’ or ‘forfeiture,’ words not chosen by the legislature. Doing so would flout our responsibility to give effect to the words selected by the legislature in enacting a statute.
{¶ 29} “Clearly, the General Assembly could have used the term ‘penalty’ or ‘forfeiture’ if it had intended R.C. 5301.36(C) to create an action for a penalty or forfeiture. Indeed, the legislature has used such penalty/forfeiture language in other statutes. See R.C. 1321.56 (‘[a]ny person who willfully violates section 1321.57 of the Revised Code shall forfeit to the borrower the amount of interest paid by the borrower’); see, also, R.C. 149.351(B)(2) (providing that any person aggrieved by the removal, destruction, transfer, or mutilation of a public record may bring a civil action to recover a forfeiture in the amount of one thousand dollars for each violation’). (Emphasis added.) To presume that the legislature meant ‘penalty’ or ‘forfeiture’ when it used the term ‘damages’ is to presume imprecision on the part of the General Assembly. We decline to make such a presumption in this case.”
{¶ 30} In short, less than two years ago, a majority of this court said essentially what I have said today. Today, a majority of this court reaches a contrary conclusion, though it does not reverse Rosette. (The liquidated damages of Rosette serve the same purpose as “treble the amount of damages” in this case: to give injured parties an incentive to pursue cases that would otherwise be too small to justify the expense of legal action.) Blind adherence to the absurd concept that this court cannot review and reverse its own reasoning whenever its prior reasoning is easy to apply, as stated in Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus, will result in many opinions being effectively, but not explicitly, overruled. Cases like Rosette will live in limbo, good law for all intents and purposes, but in reality, legal traps ready to ensnare even vigilant attorneys. It doesn’t make sense. If a majority of this court determines that one of its prior decisions should be overruled, it should overrule the prior decision. To do otherwise is to abdicate its role as a court of last resort. Still, I would hope that when this court overrules decisions, it will have better reasons for such action than it does today. I dissent.
Calfee, Halter & Griswold, L.L.P., Mark I. Wallach, James F. Lang, and William J. Michael; and McLaughlin & McCaffrey, L.L.P., and John F. McCaffrey, for appellants Ameriteeh Mobile Communications, L.L.C., and Cincinnati SMSA Limited Partnership. Zeiger, Tigges & Little, L.L.P., and John W. Zeiger; and Kirkland & Ellis, L.L.P., Stephen R. Patton, P.C., and Robert R. Gasaway, for appellants Verizon Wireless, a.k.a. New Par, Verizon Wireless, and AirTouch Eastern Region, L.L.C. Bricker & Eckler L.L.P., Kurtis A. Tunnell, Anne Marie Sierra, and Vladimir P. Belo, urging reversal for amici curiae, Ohio Manufacturers Association, Ohio Chamber of Commerce, National Federation of Business/Ohio, and Ohio Insurance Institute.