Savoie v. Grange Mut. Ins. Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Savoie, Admr., Appellant and Cross-Appellee, v. Grange Mutual
Insurance Company, Appellee and Cross-Appellant; Motorists
Mutual Insurance Company, Appellee.
[Cite as Savoie v. Grange Mut. Ins. Co. (1994), Ohio
St.3d .]
(No. 92-952 -- Submitted December 7, 1993 -- Decided
February 2, 1994.)
On Motion for Rehearing.

Frase, Weir, Baker & McCullough Co., L.P.A., and Robert E.
Weir, for appellant and cross-appellee.
Baker, Meekison & Dublikar and Jack R. Baker, for appellee
Motorists Mutual Insurance Company.

The judgment in this cause was announced on October 1,
1993 in 67 Ohio St.3d 500, 620 N.E.2d 809. A motion for
rehearing was filed by Motorists Mutual Insurance Company on
November 17, 1993. The motion for rehearing is denied.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Wright,. J., concurs in judgment only.
Wright, J., concurring in judgment only. Despite the
fact that appellee's motion for a rehearing clearly has merit,
I must overrule it.1 I say this only because the motion was
filed beyond the ten-day time limit provided by our Rules of
Practice.

FOOTNOTE:
1 An abridged portion of appellee's Proposition of Law
Number One in its motion follows:
"*** [T]his Court's opinion went far beyond the briefs and
arguments of counsel, making this case proper for rehearing.
"In paragraph 3 of this Court's syllabus, this Court held:
"[']An underinsurance claim must be paid when the
individual covered by an uninsured/underinsured policy suffers
damages that exceeds [sic] those monies available to be paid by
the tortfeasor's liability carriers. (Hill vs. Allstate Ins.
Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658, overruled.)[']

"Appellee Motorists Mutual Insurance Company submits that
paragraph 3 of the syllabus directly contravenes O.R.C.
{3937.18(A)(2) which provides:
"[']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.[']
"Pursuant to O.R.C. {3937.18(A)(2), a direct set-off [sic,
setoff] must be applied to the underinsured motorist coverage
in order to establish the amount of underinsurance coverage
available to the insured. As indicated by this Court in James
vs. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 389 [18
OBR 440, 443, 481 N.E.2d 272, 274], underinsurance was created
to cure the uninsured motorist loophole. However,
underinsurance was not created to provide the insured with an
excess insurance policy. In fact, this Court held in James,
supra at 389 [18 OBR at 443, 481 N.E.2d at 274] that the plain
meaning of the insurance policy and O.R.C. {3937.18 'entitles
the [insurer] to a set-off [sic] directly against the limits of
its underinsured motorist coverage.' The decision of this
Court as set forth in paragraph 3 of the syllabus is contrary
to O.R.C. {3937.18(A)(2) in that insurers which provide
underinsured motorist coverage which may be available in
wrongful death cases are not entitled to a set off [sic] of
payments made by the tortfeasor from available coverage, and
are thus deemed excess insurers.
"In addition, the Ohio General Assembly evaluated
underinsured motorist coverage on several occasions before
enacting the current statute. The analysis of that statute, as
published by the Legislative Service Commission, describes the
intent as:
"[']To make clear that the insurer is not liable to the
insured for any amounts that would duplicate the insured's
actual recovery of amounts under insurance and bonds covering
persons liable to the insured; and also that the insurer is not
liable for any amounts of damages sustained by the insured in
excess of the limits of the underinsurance motorist coverage,
(emphasis added).[']
"Thus, Motorists Mutual Insurance Company asserts that the
holding of this Court is contrary to both the plain meaning of
O.R.C. {3937.18 as well as the express intent of the General
Assembly. Moreover, the specific words used in the statute
must be construed according to their common usage and not
interpreted to mean something other than specifically stated.
O.R.C. {1.42. Therefore, O.R.C. {3937.18(A)(2) can only be
interpreted to require that an insurer providing underinsured
motorist coverage is entitled to a direct set off [sic] from
policy limits of all amounts recovered by the insured from the
tortfeasor or the tortfeasor's insurance provider.
"Appellee Motorists Mutual Insurance Company respectfully
requests a rehearing on this critical issue since this Court's
decision as set forth in paragraph three of the syllabus is
contrary to prior decisions of this Court and, more
importantly, the intent of the General Assembly as espoused in
O.R.C. {3937.18(A)(2)."
Appellee's abridged statement under its Proposition of Law

Number Two reads:
"*** [T]his Court has repeatedly held that any policy
language contrary to [O.R.C] {3937.18 violates public policy.
Ady vs. West American Ins. Co. (1982), 69 Ohio St.2d 593 [23
O.O.3d 495, 433 N.E.2d 547], syllabus. Likewise, insurance
policies with language which comport [sic] with O.R.C. {3937.18
must be deemed appropriate and valid. However, this Court's
decision herein, as set forth in paragraphs 1, 2, and 3 of the
syllabus, directly contravenes O.R.C. {3937.18 and prior
decisions of this Court which were not expressly overruled.
"Paragraph 1 of the syllabus, which prohibits the
limitation of wrongful death claims to the 'per person' policy
limit, is contrary to the general premise that insurers and
private persons may enter into [a] contract. Moreover, O.R.C.
{3937.18 does not prohibit such limitations of coverage even
though the statute does prohibit certain other policy
restrictions (i.e., reduction in coverage amounts because of
worker's [sic] compensation benefits).
"In addition, as discussed earlier, [O.R.C.]
{3937.18(A)(2) permits the set-off [sic] of payments made by
the tortfeasor from the coverage available pursuant to an
underinsured motorist policy. Paragraph 3 of the syllabus in
the case herein is contrary to that specific statute.
"Moreover, this Court's holding with respect to
interfamily stacking and the alleged narrow construction of
O.R.C. {3937.18(G) is clearly an invasion into the province of
the General Assembly. In fact, the anti-stacking language
provided in O.R.C. {3937.18 was included in the uninsured
motorist statute in June, 1980 in response to this Court's
repeated opinions that 'other insurance' clauses were repugnant
to the public policy and O.R.C. {3937.18. Curran vs. State
Automobile Ins. Co. (1971), 25 Ohio St.3d 33 [54 O.O.2d 166,
266 N.E.2d 566].
"In Karabin vs. State Automobile Mut. Ins. Co. (1984), 10
Ohio St.3d 163 [10 OBR 497, 462 N.E.2d 403], this Court
discussed the initial amendment to [O.R.C.] {3937.18(E), and
determined that this section 'provides a specific
modification[,] permitting insurers to confine their liability
to the limits of a single policy.' Karabin, supra at 165 [10
OBR at 499, 462 N.E.2d at 405-406]. Most important, however,
was this Court's interpretation of the anti-stacking language
within [O.R.C.] {3937.18(E) and this Court's conclusion that
the legislative intent was clear and that the statute itself
was unambiguous. Karabin, supra at 166 [10 OBR at 499, 462
N.E.2d at 406].
"Within the case sub judice, this Court completely ignores
its prior interpretations of this statute and has
single-handedly altered the legislative intent. Indeed,
[O.R.C.] {3937.18(G) was authored by the General Assembly in
direct response to this Court's conclusion that anti-stacking
language was contrary to public policy.
"Motorists Mutual Insurance Company asserts that the
anti-stacking provisions in insurance policies which are based
upon O.R.C {3937.18(G) are consistent with the intent of the
General Assembly and cannot be invalidated absent an amendment
to the statute. ***"