Webb v. McCarty

O’Donnell, J.,

dissenting.

{¶ 11} Respectfully, I dissent.

{¶ 12} The plain language of former R.C. 3937.18(A)(2) specifies when underinsured-motorist coverage arises: “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 uninsured motorist coverage.” (Emphasis added.) Thus, pursuant to this language; it appears that when the tortfeasor’s liability coverage limits are less than the plaintiffs uninsured-motorist coverage limits, the plaintiff is entitled to underinsured-motorist coverage in accordance with the policy. However, the Ohio Supreme Court has rejected this interpretation in Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425, 746 N.E.2d 1077, and Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 744 N.E.2d 719. Instead, in those decisions, the court held that the phrase “available for payment,” as used in R.C. 3937.18(A)(2), does not refer to the tortfeasor’s policy limits but rather refers to the amounts actually recovered from the tortfeasor. Thus, pursuant to Littrell and Clark, a plaintiff is entitled to underinsured-motorist benefits when the amount the plaintiff actually recovers *295from the tortfeasor is less than the limits of the plaintiffs uninsured-motorist coverage.

Maguire & Schneider, L.L.P., Wayne E. Hassay, and Sharlene I. Chance, for appellees. John C. Cahill, for appellant.

{¶ 13} I can find no language in this statute that refers to “the amounts actually recovered.” My analysis of this statute is, therefore, that it has been wrongly interpreted and applied; that these cases have produced a body of case authority at odds with legislative intent, thereby defying practical workability; and that abandoning our Littrell/Clark precedent would not create an undue hardship for those who have relied upon it.

{¶ 14} Accordingly, I would apply Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, overrule Littrell and Clark, give meaning to the plain language of this statute, reverse the judgment of the court of appeals, and adopt the well-reasoned dissent authored by Justice Cook in Littrell.