Sorrell v. Thevenir - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
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Sorrell et al., Appellants, v. Thevenir, Appellee.
Clark et al. v. Quality Stores, Inc.
[Cite as Sorrell v. Thevenir (1994), Ohio St. 3d .]
Torts -- Damages -- Collateral benefits -- R.C. 2317.45
violates Sections 2, 5 and 16, Article I of the Ohio
Constitution, and is unconstitutional in toto.
R.C. 2317.45 violates Sections 2, 5 and 16, Article I of the
Ohio Constitution, and is unconstitutional
in toto.
(Nos. 92-2382 and 93-1041 -- Submitted January 11, 1994
-- Decided June 1, 1994.)
Appeal from the Court of Appeals for Gallia County, No.
91-CA-4.
On Order from the United States District Court, Northern
District of Ohio, Western Division, Certifying Questions of
State Law, No. 3:91CV7704.
Case No. 92-2382
In her complaint before the court of common pleas,
plaintiff-appellant Sherry A. Sorrell alleged that on September
15, 1988, she was working as a cashier at Brown's Market.
Plaintiff alleged that as she bent over to sweep dirt into a
dustpan, defendant-appellee, James A. Thevenir, came up behind
her and grabbed her about the waist. As a result of
defendant's unexpected conduct, plaintiff pulled herself up
suddenly and twisted. Consequently, plaintiff alleged she has
endured severe pain, requiring medical treatment and causing
her to miss work.
Plaintiff and her spouse filed the instant action
requesting damages for physical injuries, emotional distress,
loss of income and loss of consortium, and demanded a jury
trial. A jury eventually returned a verdict of compensatory
damages in the amount of $10,128.26. In response to an
interrogatory, the jury declared that $5,000 of this amount was
for pain and suffering. The jury awarded nothing for future
damages, and nothing to plaintiff's husband.
Subsequently, in accordance with R.C. 2317.45, the trial
court conducted a postverdict hearing wherein plaintiff
disclosed the extent and nature of all statutorily defined

collateral benefits received by her. Defendant asserted that
pursuant to R.C. 2317.45(B)(2) he was entitled to a setoff of
the entire jury verdict, since plaintiff had received over
$14,000 in workers' compensation benefits.
In an opinion dated January 31, 1991, the trial court
held R.C. 2317.45 to be unconstitutional under Section 16,
Article I (right to a remedy), and Section 5, Article I
(inviolate right to a jury trial) of the Ohio Constitution. In
addition, the court held that since the fundamental
constitutional right to a jury trial was involved, a strict
scrutiny test applied in determining the constitutionality of
R.C. 2317.45 under the Due Process Clause of the Ohio
Constitution. The trial court concluded that the statute
failed to meet the strict scrutiny test and further observed
that "[t]he statute was enacted to cure a supposed 'insurance
crisis.' There is no demonstrated evidence from which to
conclude that a 'crisis' ever existed or that [Am. Sub.H.B. No.
1, 142 Ohio Laws Part I, 1661] cured this 'crisis.' There is
no compelling reason to trample plaintiff's constitutional
rights to relieve a particular industry of liability." Thus,
the trial court entered judgment in favor of plaintiff for the
entire amount of the jury verdict without setting off the
collateral benefits (workers' compensation) she received.
Upon appeal, the court of appeals reversed and remanded in
a split decision. The appellate court majority held that while
the case was not exactly on point, Morris v. Savoy (1991), 61
Ohio St.3d 684, 576 N.E.2d 765, "indicates the [Supreme Court
of Ohio] would find R.C. 2317.45 to be constitutional."
The cause is now before this court pursuant to the
allowance of a motion to certify the record.
Case No. 93-1041
According to plaintiff-petitioner Bobbie Clark, on
November 4, 1989, he was injured as the result of the
negligence of defendant-respondent Quality Stores, Inc. in
maintaining its property.
Plaintiff and his spouse filed a personal injury action
against defendant in the United States District Court for the
Northern District of Ohio, Western Division. A jury returned a
general verdict in favor of plaintiff in the amount of
$241,168, plus $25,000 for the spouse's loss of consortium.
Subsequently, defendant moved for a setoff of $146,000 for
disability income, including future disability income, from
Social Security and the state of Ohio, as well as the
disability retirement benefits from the Public Employees
Retirement System.
Thereafter, in response to a motion by plaintiffs, the
federal district court certified the following questions to
this court:
"A. Whether O.R.C. {2317.45, which allows for the
reduction of an award of damages in a tort action by the amount
of collateral benefits, as defined in O.R.C. {2317.45, violates
the Ohio Constitution[?]
"B. Are Social Security disability income benefits paid
to Plaintiff a collateral source pursuant to O.R.C.
{2317.45(A)(1)(a) where the benefits were received following
the tort, and the plaintiff asserted and the defendant disputed
that the plaintiff was permanently and totally disabled as a

consequence of the tort, and each party submitted evidence to
support its position at trial[?]
"C. Are payments made through a disability income program
by Plaintiff's employer, the State of Ohio, a collateral source
pursuant to O.R.C. {2317.45(A)(1)(a) where the benefits were
received following the tort, the plaintiff asserted and the
defendant disputed that the plaintiff was permanently and
totally disabled as a consequence of the tort, and each party
submitted evidence to support its position at trial[?]
"D. Does Plaintiff's election to receive disability
retirement benefits pursuant to the provisions of the Public
Employees Retirement System, O.R.C. {145.01 et seq., cause
those benefits to be deemed a collateral source pursuant to
O.R.C. {2317.45(A)(1)(a) where the benefits were received
following the tort, the plaintiff asserted and the defendant
disputed that the plaintiff was permanently and totally
disabled as a consequence of the tort, and each party submitted
evidence to support its position at trial[?]
"E. What procedure should a trial court follow to
determine whether an entitlement to such collateral benefits
resulted from the tort, where the jury has returned a general
verdict in favor of the plaintiff[?]
"F. Which party has the burden of proof on the issues
under O.R.C. {2317.45(B)(2)(a)(i) of what collateral benefits
have been received or are 'reasonably certain' to be received
as a result of the tort within the next sixty months after
entry of judgment[?]"
The cause is now before this court pursuant to Rule XVI
(now XVIII) of the Supreme Court Rules of Practice.

Murray & Murray Co., L.P.A., Thomas J. Murray, Nancy L.
Ogden and Alicia Wolph; Schulman, Mestel & Burick Co., L.P.A.,
and Allen J. Schulman, Jr.; Porter, Little, Sheets & Lentes and
Jennifer L. Sheets, for appellants.
Theisen, Brock, Frye, Erb & Leeper Co., L.P.A., John E.
Erb, James S. Huggins and Paul A. MacKenzie, for appellee.
A. William Zavarello and Mark W. Ruf, urging reversal for
amicus curiae, Ohio Academy of Trial Lawyers.
Vorys, Sater, Seymour & Pease and William D. Kloss, urging
affirmance for amicus curiae, Ohio Insurance Institute.
Weston, Hurd, Fallon, Paisley & Howley, Ronald A. Rispo
and William H. Baughman, Jr., urging affirmance for amicus
curiae, Ohio Association of Civil Trial Attorneys.
Wolske & Blue, Gerald S. Leeseberg and Sarah H. Meirson,
for petitioners.
Shumaker, Loop & Kendrick and Robert G. Clayton, Jr., for
respondent.

A. William Sweeney, J. In the cases before us, R.C.
2317.45 is assailed as being unconstitutional on the grounds
that it violates the following provisions of the Ohio
Constitution: Section 16, Article I (due process, right to a
remedy and open courts), Section 2, Article I (equal
protection), and Section 5, Article I (right to a jury trial).
For the reasons that follow, we hold R.C. 2317.45 to be
unconstitutional under all of the foregoing constitutional
provisions.

In determining the constitutionality of any statute, we
begin our analysis with the principle that all legislative
enactments enjoy a strong presumption of constitutionality.
State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142,
57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus;
Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 274, 28 OBR
346, 349, 503 N.E.2d 717, 720; Brady v. Safety-Kleen Corp.
(1991), 61 Ohio St.3d 624, 631, 576 N.E.2d 722, 727. While
some of the arguments of the parties and amici curiae relate to
the wisdom of abrogating the collateral source rule, this
court's duty is to ignore such arguments and determine the
constitutionality of R.C. 2317.45 as an exercise of legislative
power. State ex rel. Bishop v. Mt. Orab Village Bd. of Edn.
(1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913,
919.
I
R.C. 2317.45,1 part of the Tort Reform Act of 1987
("Act"), was enacted by Am.Sub.H.B. No. 1, 142 Ohio Laws, Part
I, 1661, 1694, and became effective January 5, 1988. The
purpose of the Act, as stated in its title, is "to make changes
in civil justice and insurance law, thereby reducing the causes
of the current insurance crisis and preventing future crises,
and ensuring the availability and affordability of insurance
coverages required by charitable nonprofit organizations,
public organizations, political subdivisions, individual
proprietors, small businesses, and commercial enterprises."
One commentator noted that another purpose of the Act is
to prevent double recoveries in tort actions. Darling, Ohio
Civil Justice Reform Act (1987) 130-131; see, also, Note, The
Constitutionality of Offsetting Collateral Benefits Under Ohio
Revised Code Section 2317.45 (1992), 53 Ohio St. L.J. 587;
Baker v. Goldblatt (C.A. 6, 1992), 955 F.2d 402, 407. However,
opponents of the Act, including the Ohio Public Interest
Campaign, claimed that the insurance industry had contrived an
insurance crisis in order to promote and protect "organized
price gouging" by insurance underwriters. Gongwer News
Service, Inc., Ohio Report (Jan. 21, 1987) 2. See, also,
Schroeter & Rutzick, "Tort Reform" -- Being an Insurance
Company Means Never Having to Say You're Sorry (1986), 22
Gonzaga L.Rev. 31.
In any event, one effect of the Act is to limit the
collateral source rule adopted in Pryor v. Webber (1970), 23
Ohio St.2d 104, 52 O.O.2d 395, 263 N.E.2d 235.2 We turn now to
evaluating R.C. 2317.45 in light of the aforementioned
provisions of the Ohio Constitution.
II
Jury Trial
As this court stated in Cleveland Ry. Co. v. Halliday
(1933), 127 Ohio St. 278, 284, 188 N.E. 1, 3: "The right to a
jury trial does not involve merely a question of procedure.
The right to jury trial derives from Magna Charta. It is
reasserted both in the Constitution of the United States and in
the Constitution of the State of Ohio. For centuries it has
been held that the right of trial by jury is a fundamental
constitutional right, a substantial right, and not a procedural
privilege." Accord Kneisley v. Lattimer-Stevens Co. (1988), 40
Ohio St.3d 354, 356, 533 N.E.2d 743, 746. It has also been

held that "[t]he right of trial by jury, being guaranteed to
all our citizens by the constitution of the state, cannot be
invaded or violated by either legislative act or judicial order
or decree." Gibbs v. Girard (1913), 88 Ohio St. 34, 102 N.E.
299, paragraph two of the syllabus.
Section 5, Article I of the Ohio Constitution provides:
"The right of trial by jury shall be inviolate, except
that, in civil cases, laws may be passed to authorize the
rendering of a verdict by the concurrence of not less than
three-fourths of the jury." (Emphasis added.)
However, this constitutional provision does not guarantee
a jury trial in all cases, but only for those causes of actions
where the right existed at common law at the time the Ohio
Constitution was adopted. Belding v. State ex rel. Heifner
(1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the
syllabus. Given that negligence actions, which evolved from
the common-law action of trespass on the case, and battery
actions existed at common law at the time of the adoption of
our state Constitution, Section 5, Article I is an inviolate
and fundamental right that applies to the actions herein.
Kneisley, supra, 40 Ohio St.3d at 357, 533 N.E.2d at 746.
R.C. 2317.45 requires trial courts to deduct from a
plaintiff's jury award collateral benefits which have been or
will be received by the plaintiff, irrespective of whether the
collateral benefits are actually duplicated in the jury's
verdict. The statute does not require that damages be
allocated between economic or noneconomic damages or even past
or future economic damages. The statute merely directs the
trial court to deduct the amount of the collateral benefit from
the total jury award. In this respect, courts may, consistent
with R.C. 2317.45, enter judgments in disregard of the jury's
verdict and thus violate the plaintiff's right to have all
facts determined by the jury, including damages. See Miller v.
Wikel Mfg. Co. (1989), 46 Ohio St.3d 76, 81, 545 N.E.2d 76, 81
(Douglas, J., concurring in part and dissenting in part). As a
result of R.C. 2317.45, plaintiff Sorrell in case No. 92-2382
has not been fully compensated for her injuries because the
specific jury award for her pain and suffering is totally
eliminated due to her receipt of workers' compensation
benefits, even though workers' compensation allows no
compensation whatsoever for pain and suffering. As plainly
illustrated by Mrs. Sorrell's case, R.C. 2317.45 can wipe out
an entire jury award and essentially grant the tortfeasor a
rebate for the damages he caused. See Morris v. Savoy (1991),
61 Ohio St.3d 684, 710, 576 N.E.2d 765, 784 (A.W. Sweeney, J.,
concurring in part and dissenting in part). Instead of
eliminating a double recovery, as is one of the statute's
ostensible goals, R.C. 2317.45 eliminated any recovery the jury
found that Mrs. Sorrell was entitled to for her pain and
suffering. In the case of Mr. Clark in case No. 93-1041, the
jury award could also be seriously curtailed by R.C. 2317.45.
We hold that R.C. 2317.45 encroaches upon the fundamental
and inviolate right to trial by jury, and therefore is
unconstitutional under Section 5, Article I of the Ohio
Constitution.
III
Due Process

Section 16, Article I of the Ohio Constitution provides,
inter alia, that every person who sustains a legal injury
"shall have remedy by due course of law." The "due course of
law" provision is the equivalent of the "due process of law"
provision in the Fourteenth Amendment to the United States
Constitution. Direct Plumbing Supply Co. v. Dayton (1941), 138
Ohio St. 540, 544, 21 O.O. 422, 424, 38 N.E. 2d 70, 72.
Defendants contend that the rational basis test as applied
in Morris, supra, is applicable here in determining whether
R.C. 2317.45 is constitutional under the Due Process Clause.
According to principles of due process, however, governmental
action which limits the exercise of fundamental constitutional
rights is subject to the highest level of judicial scrutiny.
See, e.g., Natl. Assn. for Advancement of Colored People v.
Alabama ex rel. Patterson (1958), 357 U.S. 449, 78 S.Ct. 1163,
2 L.Ed.2d 1488. Under the strict scrutiny standard for
reviewing legislation which restricts the exercise of
fundamental rights, a statute will be considered
unconstitutional unless it is shown to be necessary to promote
a compelling governmental interest. See Shapiro v. Thompson
(1969), 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600,
615; and Primes v. Tyler (1975), 43 Ohio St.2d 195, 198-199, 72
O.O.2d 112, 114, 331 N.E. 2d 723, 726 (equal protection cases).
As pointed out earlier, the right to a jury trial in
negligence and personal injury actions is a fundamental right.
Thus, in order to determine whether R.C. 2317.45 violates the
Due Process Clause of the Ohio Constitution, a strict scrutiny
standard of review applies.
In our view, R.C. 2317.45 has not been shown to be
necessary to promote a compelling state interest that requires
undermining the fundamental and inviolate right to a jury
trial. Moreover, we believe that R.C. 2317.45 does not
withstand scrutiny even under the less stringent rational basis
standard employed in Morris, supra, because it does not bear a
real and substantial relationship to the health, safety, morals
or general welfare, and it is unreasonable and arbitrary. See
Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346,
503 N.E.2d 717.
The question whether R.C. 2317.45 addresses its goal of
reducing the causes of the so-called insurance crisis is
debatable given the paucity of credible empirical evidence that
a crisis existed, or that there is a relationship between tort
reform legislation and the availability or affordability of
insurance. Compare, e.g., Natl. Underwriter (Dec. 21, 1984);
Insurance Services Office, Chief Executive Circular 2 (ISO,
October 3, 1986); with Vilsack, Insurance Crisis: Fact and
Fiction, (1987), 36 Drake L.Rev. 745; Consumer Reports (Aug.
1986), "The Manufactured Crisis" 544.
However, with respect to the goal of R.C. 2317.45 of
eliminating double recoveries, the means employed in the
statute to attain the goal are both irrational and arbitrary.
Of primary significance is that the statute requires deductions
from jury verdicts irrespective of whether a collateral benefit
defined in R.C. 2317.45(A)(1) is actually included in the
verdict. While the goal of preventing double recoveries is not
arbitrary or unreasonable, as the majority held in Morris,
supra, R.C. 2317.45 fails to take into account whether the

collateral benefits to be deducted are within the damages
actually found by the jury, especially where there are no
interrogatories to quantify the categories of damages that make
up the general verdict. Thus, the statute can arbitrarily
reduce damages that a jury awards a plaintiff, since under the
statute it is irrelevant whether any collateral benefit
actually represents any portion of the jury's award. In the
case of Mrs. Sorrell, R.C. 2317.45 arbitrarily and unreasonably
eliminated her entire jury award since, her workers'
compensation benefits exceeded the jury verdict of damages,
notwithstanding that workers' compensation pays nothing for
pain and suffering.
In addition, amicus curiae Ohio Academy of Trial Lawyers
raises the persuasive argument that no double recovery from a
tortfeasor occurs in the typical tort case involving collateral
benefits, since ordinarily one of the supposed double
recoveries is merely the plaintiff's benefit of his bargain
with his own insurance company. In both of the causes sub
judice, the benefit of the bargain is the employer-paid
workers' compensation and disability compensation programs that
are earned by the plaintiff-employees as an employment benefit.
In any event, regardless of whether the jury allocates
damages to categories, R.C. 2317.45 does not accord due process
to tort victims under either the strict scrutiny or rational
basis test, and therefore we hold that it violates the Due
Process Clause found in Section 16, Article I of the Ohio
Constitution.
IV
Equal Protection
Section 2, Article I of the Ohio Constitution provides:
"All political power is inherent in the people.
Government is instituted for their equal protection and
benefit, and they have the right to alter, reform or abolish
the same, whenever they may deem it necessary; and no special
privileges or immunities shall ever be granted, that may not be
altered, revoked, or repealed by the general assembly."
The standard for determining whether a statutory
classification involving a fundamental right violates the Equal
Protection Clause of the Ohio Constitution is again the strict
scrutiny test. Shapiro, supra. The limit placed upon
governmental action by the Equal Protection Clauses of the Ohio
and United States Constitutions are nearly identical. Kinney
v. Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio St.2d 120,
123, 70 O.O.2d 206, 207-208, 322 N.E.2d 880, 882. Thus, the
statutory classifications of R.C. 2317.45 are unconstitutional
unless it can be shown that they are necessary to promote a
compelling governmental interest. Shapiro, supra.
R.C. 2317.45 and 2305.27 establish two classifications of
tort victims: medical malpractice tort victims and all other
tort victims. In Morris, supra, the majority upheld the
constitutionality of R.C. 2305.27 in setting off medical
malpractice collateral benefits. However, the viability of
that holding is questionable at best given our resolution of
the causes sub judice.
Under R.C. 2305.27, jury awards in medical malpractice
claims are subject to a collateral source rule different from
the rule for awards in all other tort cases. R.C. 2305.27 does

not require deduction of collateral benefits attributable to
insurance proceeds where premiums were paid either by or for
the plaintiff, or by the plaintiff's employer. Savage v.
Correlated Health Serv., Ltd. (1992), 64 Ohio St.3d 42, 591
N.E.2d 1216, and Hodge v. Middletown Hosp. Assn. (1991), 62
Ohio St. 3d 236, 581 N.E.2d 529, held that the collateral
source rule of R.C. 2305.27 does not require setoffs for
benefits received from workers' compensation, Social Security
or Medicare. However, under R.C. 2317.45, all
non-medical-malpractice tort awards would be reduced by the
amount of such benefits.
In our view, the ostensible purposes of R.C. 2317.45 do
not withstand equal protection scrutiny under a strict scrutiny
analysis. Given that one of the purposes of R.C. 2317.45 is to
limit double recoveries, the different treatment for medical
malpractice tort victims with regard to collateral recovery is
not necessary to promote a compelling governmental interest,
especially where the statutory classifications are established
in response to a crisis that has not clearly been established
to have existed. See Morris, supra, 61 Ohio St.3d at 710-711,
576 N.E.2d at 784 (A.W. Sweeney, J., concurring in part and
dissenting in part).
Moreover, a statutory classification violates the Equal
Protection Clause of the Ohio Constitution if it treats
similarly situated people differently based upon an illogical
and arbitrary basis. Id. See State v. Buckley (1968), 16 Ohio
St.2d 128, 45 O.O. 2d 469, 243 N.E. 2d 66; and Klepper v. Ohio
Bd. of Regents (1991), 59 Ohio St.3d 131, 570 N.E.2d 1124. The
arbitrariness of R.C. 2317.45 in this regard is cogently
pointed out by amicus curiae, Ohio Academy of Trial Lawyers:
"If there was an insurance crisis, it would be a crisis
affecting all tort defendants. There is no rational reason for
distinguishing between medical malpractice tort defendants and
all other tort defendants. This disparate treatment can result
in vastly different results involving the same injury. For
example, two tort victims suffer the identical injury, the
laceration of an artery resulting in death. One tort victim is
injured by a piece of broken glass while driving a company
truck within the scope of employment. The other tort victim is
injured by the medical negligence of a physician who lacerates
an artery during an elective surgery procedure. Both tort
victims remain in the hospital for ten days before their
death. Due to the difference in the collateral source
statutes, these two identical injuries may result in vastly
different compensation for the victim. The Equal Protection
Clause mandates that those similarly situated be similarly
treated."
Thus, even under the less stringent rational basis test
applied by the majority in Morris, supra, we believe that R.C.
2317.45 is constitutionally infirm on equal protection
grounds. Accordingly, we hold that R.C. 2317.45 also violates
Section 2, Article I of the Ohio Constitution.
V
Right to a Remedy/Open Courts
Section 16, Article I of the Ohio Constitution provides in
full:
"All courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation, shall have
remedy by due course of law, and shall have justice
administered without denial or delay."
In construing this constitutional provision in Hardy v.
VerMeulen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626, 628, we
noted that "[w]hen the Constitution speaks of remedy and injury
to person, property, or reputation, it requires an opportunity
granted at a meaningful time and in a meaningful manner."
Accord Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d
54, 60, 514 N.E.2d 709, 716: "Denial of a remedy and denial of
a meaningful remedy lead to the same result: an injured
plaintiff without legal recourse." (Emphasis sic.)
In the Sorrells' case, the statute not only denies
plaintiffs a meaningful remedy, it completely obliterates the
entire jury award. As discussed earlier, the statute treats
all collateral sources the same and requires collateral
benefits to be deducted from the total jury award regardless of
whether the jury specifically awards damages in a category for
which there were collateral benefits. Under these
circumstances where the collateral source benefits reduce the
entire jury award, the tortfeasor obtains a rebate for the
damages he or she caused, and the victim's rights to a jury
trial, a meaningful remedy and open courts become hollow rights
hardly worth exercising. See Morris, supra, 61 Ohio St.3d at
710, 576 N.E. 2d at 784 (A.W. Sweeney, J., concurring in part
and dissenting in part).
While R.C. 2317.45 does not completely abolish the right
to open courts for tort victims, its effect is to hinder the
fundamental right of victims to obtain satisfaction for
injuries or damages sustained. In our view, Section 16,
Article I not only protects the right to file a lawsuit, but
also protects the right to a judgment or verdict properly
rendered in the suit, since obtaining damages is the ultimate
goal of any tort action. Id., 61 Ohio St.3d at 708, 576 N.E.2d
at 782-783.
In addition, certain tort victims will realize that R.C.
2317.45 could render their trip to court futile since receipt
of collateral benefits defined in the statute makes pursuit of
a claim not worth the time and expense involved. For these
tort victims, like plaintiffs herein, R.C. 2317.45 undermines
the right to a jury trial, a meaningful remedy and open courts.
VI
Based on all the foregoing, we hold that R.C. 2317.45
violates Sections 2, 5 and 16, Article I of the Ohio
Constitution, and is unconstitutional in toto.
Therefore, in case No. 92-2382, the judgment of the court
of appeals is reversed and the judgment of the trial court is
reinstated. In case No. 93-1041, the first certified question
is answered in the affirmative, thereby rendering the remaining
certified questions moot.
Judgments accordingly.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., and Wright, J., dissent.

FOOTNOTES:
1 R.C. 2317.45 provides as follows:
"(A)(1) As used in this section:

"(a) 'Collateral benefits' means benefits that a plaintiff
has received, or may be entitled to receive within the next
sixty months after the entry of judgment, as a result of an
injury, death, or loss to person or property that is a subject
of a tort action, from any of the following:
"(i) The government of the United States, or any state or
any political subdivision of any state, under a program that
provides medical, hospital, sickness, dental, or other health
benefits, including, but not limited to, social security,
medicare, and medicaid;
"(ii) A federal, state, or political subdivision of a
state disability income or workers' compensation program, or a
wage continuation program of an employer;
"(iii) A medical, hospital, sickness, dental, or other
health insurance program;
"(iv) An accident insurance program that provides medical,
hospital, sickness, dental, or other health benefits;
"(v) A contract or agreement under which medical,
hospital, sickness, dental, or other health services are
provided or under which the cost[s] of those services are paid
for or reimbursed.
"(b) 'Rights of recoupment' means rights or [sic]
recoupment through subrogation, trust agreement, contract,
lien, operation of law, or otherwise.
"(c) 'Tort action' means a civil action for damages for
injury, death, or loss to person or property. 'Tort action'
includes a product liability claim that is subject to sections
2307.71 to 2307.80 of the Revised Code, but does not include a
civil action for damages for a breach of contract or another
agreement between persons.
"(d) 'Trier of fact' means the jury or, in a nonjury
action, the court.
"(2) As used in this division and divisions (B)(2)(a) and
(c)(i) of this section, 'plaintiff' includes, in a wrongful
death action, the decedent and all beneficiaries of the action.
"(B)(1) Except as provided in division (C) of this
section, if a plaintiff in a tort action is entitled to an
award of compensatory damages, that plaintiff shall disclose to
the court after such entitlement is determined all relevant
collateral benefits, all rights of recoupment relative to the
disclosed collateral benefits, and the costs, premiums, or
charges for any of the disclosed collateral benefits paid or
contributed within the three-year period immediately preceding
the accrual of the cause of action, by the plaintiff, any
member of his immediate family, or the employer of the
plaintiff or any member of his immediate family or, in a
wrongful death action, the decedent, any beneficiary of the
action, the employer of the decedent or any beneficiary of the
action, any member of the immediate family of the decedent or
any such beneficiary, or the employer of any member of the
immediate family of the decedent or any such beneficiary.
"(2) Upon the disclosure required by division (B)(1) of
this section, the court shall do all of the following:
"(a) Determine whether both of the following are satisfied
in relation to any of the disclosed collateral benefits:
"(i) The plaintiff has received the disclosed collateral
benefit or is reasonably certain to receive it within the next

sixty months after the entry of judgment;
"(ii) There are no rights of recoupment respecting the
disclosed collateral benefit.
"(b) As to any disclosed collateral benefits in relation
to which both requirements of division (B)(2)(a) of this
section are satisfied, determine the total of the costs,
premiums, or charges for such benefits paid or contributed
within the three-year period immediately preceding the accrual
of the cause of action, by the plaintiff, any member of his
immediate family, or the employer of the plaintiff or any
member of his immediate family or, in a wrongful death action,
the decedent, any beneficiary of the action, the employer of
the decedent or any beneficiary of the action, any member of
the immediate family of the decedent or any such beneficiary,
or the employer of any member of the immediate family of the
decedent or any such beneficiary;
"(c) Prior to entering judgment for the plaintiff, do both
of the following:
"(i) Subtract from the compensatory damages that the
plaintiff otherwise would be awarded the amount of any
disclosed collateral benefits in relation to which both
requirements of division (B)(2)(a) of this section are
satisfied:
"(ii) Subject to the limitation specified in this
division, add to the balance derived under division
(B)(2)(c)(i) of this section the total of any costs, premiums,
and charges described in division (B)(2)(b) of this section.
The amount of those costs, premiums, and charges that is added
to that balance shall not exceed any amount subtracted pursuant
to division (B)(2)(c)(i) of this section from the compensatory
damages that the plaintiff otherwise would be awarded.
"(3) Except as provided in division (B)(1) of this
section, in another section of the Revised Code, or in the
Rules of Evidence, evidence of collateral benefits is not
admissible in a tort action and shall not be submitted to or
considered by the trier of fact in determining whether to award
compensatory damages to a plaintiff in a tort action or in
determining the amount of any such damages.
"(C) This section does not apply as follows:
"(1) In tort actions against the state in the court of
claims or in tort actions against political subdivisions of
this state that are commenced under or are subject to Chapter
2744. of the Revised Code;
"(2) To any medical claim, as defined in section 2305.11
of the Revised Code."
2 The syllabus of Pryor states in part:
"1. In a tort action the measure of damages is that which
will compensate and make the plaintiff whole.
"2. The collateral source rule is an exception to the
general rule of compensatory damages in a tort action, and
evidence of compensation from collateral sources is not
admissible to diminish the damages for which a tort-feasor must
pay for his negligent act.
"3. Under the collateral source rule, benefits in the
form of diminished wages, received by a plaintiff from his
employer during the period he is not able to work because of a
tort-feasor's negligent act, are collateral benefits and are

not admissible on the issue of damages. However, if the
tort-feasor claims that benefits received are not collateral
but are direct benefits, the burden of establishing that such
benefits are direct benefits, and therefore admissible on the
issue of damages, is on the tort-feasor."
Moyer, C.J., dissenting. Since I do not find R.C.
2307.43 to be unconstitutional, I dissent from the majority's
opinion.
In Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d
765, we upheld the setoff of collateral benefits in medical
malpractice actions against equal protection and due process
challenges. We held that the General Assembly's elimination of
double recoveries to plaintiffs is not "unreasonable or
arbitrary," nor does it "offend fundamental fairness." Id. at
693, 576 N.E.2d at 772. I find that same logic applicable
given the context in which the issues now arise.
The majority holds that a plaintiff in a negligence case
has rights to a remedy and a trial by jury that are violated by
the setoff requirements of R.C. 2317.45. In both cases before
us, as well as in every conceivable factual situation, the
plaintiffs after the setoff will receive at least as much total
compensation from all sources as the amount awarded by the
jury. If the underlying purpose of tort law is to wholly
compensate victims, due process is satisfied when the plaintiff
recovers, from all sources, the amount that the jury deems a
just and appropriate award. By disallowing a setoff for
collateral benefits, the majority sanctions a windfall for the
plaintiff at the expense of all insureds. One must ask, what
purpose is served by such reasoning? The majority will allow a
plaintiff to take substantially more than what a jury found to
be full compensation. If a plaintiff's rights are violated by
application of a collateral benefit setoff, then it follows
that a defendant's rights are equally violated by abrogating
the setoff provisions.
The majority asserts that R.C. 2317.45 creates
circumstances in which a tortfeasor may receive a "rebate."
The purpose of tort law is thwarted by denying double recovery
only if we assume that that purpose is to punish the tortfeasor
and not to compensate the victim. The alternative, as
expressed by the majority, is to create two liabilities where
there was only one before, thereby doubling exposure, the cost
of which will be shared by all who purchase liability insurance.
Because I believe that the elimination of double
recoveries is a rational exercise of the General Assembly's
powers and that no fundamental right of the plaintiffs has been
abridged, I dissent from the decision announced today.
Wright, J., concurs in the foregoing dissenting opinion.