Izev v. Nationwide Mut. Ins. Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Izev v. Nationwide Mut. Ins. Co., 88 Ohio St.3d 507, 2000-Ohio-419.]

IZEV, APPELLANT, v. NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLEE.
[Cite as Izev v. Nationwide Mut. Ins. Co. (2000), 88 Ohio St.3d 507.]
Automobile liability insurance -- Uninsured/underinsured motorist coverage -- Court of
appeals' judgment vacated and cause remanded to trial court.
(No. 99-2258 -- Submitted April 26, 2000 -- Decided May 24, 2000.)
APPEAL from the Court of Appeals for Medina County, No. 2865-M.
__________________

Dennis O. Norman, for appellant.

Weston, Hurd, Fallon, Paisley & Howley, L.L.P., Gregory E. O'Brien and Randy
L. Taylor, for appellee.
__________________

The judgment of the court of appeals is vacated, and the cause is remanded to the
trial court for further proceedings and consideration, where applicable, of the Supreme
Court's decisions in Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, 725 N.E.2d 261, and
Moore v. State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27, 723 N.E.2d 97.
Douglas,
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

DOUGLAS, J., concurs separately.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

DOUGLAS, J., concurring. I concur for the reasons set forth in my concurrence in
Stickney v. State Farm Mut. Auto. Ins. Co. (2000), 88 Ohio St.3d 504, 727 N.E.2d 1286.
__________________

LUNDBERG STRATTON, J., dissenting. I respectfully dissent because I do not
agree that Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, 725 N.E.2d 261, or Moore v.
State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27, 723 N.E.2d 97, applies to this
case. A remand for application of either one of these cases will result in the parties

and the court below struggling to comply with an order that has no relevance to the
issues.

Appellant's first proposition of law in this case challenges the
constitutionality of R.C. 3937.18(H). The court below refused to address this issue
because appellant did not raise it at the trial court level. Likewise, the issue is not
properly before this court. This court will not ordinarily consider a claim of error
that was not raised in any way in the appellate court and was not considered or
decided by that court. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98,
364 N.E.2d 1364, paragraph two of the syllabus; Toledo v. Reasonover (1965), 5
Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d 179, paragraph two of the syllabus.

Appellant's second proposition of law argues that his insurance policy is
void as against public policy because it provides that all derivative claims flowing
from an injury to one person are subject to the per-person limits of the policy. The
appellate court determined that Am.SubS.B. No. 20, enacted on October 20, 1994,
was the statutory law in effect on November 25, 1995, the date appellant's policy
was renewed. Appellant did not appeal this finding; therefore, I believe that
appellant has waived the issue. I do not agree that this court has the authority to
remand a case for application of Wolfe when the parties have not raised the issue.
A remand for the court below to apply Wolfe gives the appellant a second bite at
the apple in the event that the policy, according to Wolfe's interpretation, was
issued prior to October 20, 1994, so that the law prior to Am.Sub.S.B. No. 20
would apply. This was not the issue before us when we voted to allow the appeal
in this case.

Furthermore, I do not believe that the analysis of R.C. 3937.18(A)(1) in
Moore v. State Auto. Mut. Ins. Co. has any application to an analysis of R.C.
3937.18(H). However, to the extent that the majority believes that these cases
apply, I respectfully dissent for the reasons set forth in the dissenting opinions in

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Wolfe v. Wolfe, 88 Ohio St.3d at 252-255, 725 N.E.2d at 267-269, and Moore v.
State Auto. Mut. Ins. Co., 88 Ohio St.3d at 33-36, 723 N.E.2d at 103-105.

MOYER, C.J., and COOK, J., concur in the foregoing dissenting opinion.

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