Clark v. Scarpelli - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Clark v. Scarpelli, 91 Ohio St.3d 271, 2001-Ohio-39.]

CLARK, ADMR., APPELLANT, ET AL., v. SCARPELLI ET AL.; MID-CENTURY
INSURANCE COMPANY, APPELLEE.
[Cite as Clark v. Scarpelli (2001), 91 Ohio St.3d 271.]
Insurance -- Motor vehicles -- Mandatory offering of uninsured and
underinsured motorist coverage -- "Amounts available for payment"
language in R.C. 3937.18(A)(2), for the purpose of setoff, construed.
(Nos. 00-206 and 00-374 -- Submitted November 29, 2000 -- Decided April 11,
2001.)
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County,
No. 17883.
__________________
SYLLABUS OF THE COURT
For the purpose of setoff, the "amounts available for payment" language in R.C.
3937.18(A)(2) means the amounts actually accessible to and recoverable
by an underinsured motorist claimant from all bodily injury liability bonds
and insurance policies (including from the tortfeasor's liability carrier).
__________________

DOUGLAS, J. On October 16, 1996, Shane T. Parker died as a result of
injuries sustained in a one-car collision in Montgomery County, Ohio. The
automobile in which Shane was an occupant was owned by his mother, appellant,
Cheryl Clark. At the time of the accident, appellant was insured through a policy
of automobile liability insurance issued by appellee, Mid-Century Insurance
Company. Appellant's policy with Mid-Century included an uninsured and
underinsured motorist coverage provision with limits of $100,000 for each person
and $300,000 for each occurrence.

SUPREME COURT OF OHIO

On January 24, 1997, in the Court of Common Pleas of Montgomery
County, appellant filed a cause of action individually and as administrator of her
son's estate.1 In the complaint, appellant sought wrongful death damages
pursuant to R.C. Chapter 2125 on behalf of herself and other statutory wrongful
death beneficiaries. The complaint also included a survival claim on behalf of
Shane's estate and a declaratory judgment action against appellee seeking
underinsured motorist benefits.

On December 23, 1998, the trial court entered its decision granting in part
and denying in part appellee's motion for summary judgment. The trial court
found that reasonable minds could only conclude that James Scarpelli, the alleged
tortfeasor, was the driver of the vehicle at the time of the accident. The
tortfeasor's liability carrier subsequently settled with appellant for the $100,000
per person limit and appellant dismissed all claims against tortfeasor Scarpelli.
Relevant to the matters before this court, the trial court held that appellant and the
other wrongful death beneficiaries were not entitled to underinsured motorist
benefits because a provision of the Mid-Century policy unambiguously reduced
all claims arising out of the death of one person to the single, "each person"
policy limit of $100,000. The trial court therefore held that since the each-person
policy limit of the Mid-Century policy matched the per-person limit of the
tortfeasor's automobile liability policy, underinsured motorist benefits were not
available.

Appellant appealed the trial court's judgment to the Montgomery County
Court of Appeals. The court of appeals primarily focused on two specific issues
raised by the parties. The first issue concerned the parties' conflicting
interpretations of the setoff language in R.C. 3937.18(A)(2), specifically the
meaning of the "amounts available for payment" language set forth in the statute.
Before the court of appeals, appellant argued that the phrase "amounts available

1. Shane's father, Richard Parker, was also named a plaintiff.
2

January Term, 2001
for payment" means the amount "actually available" for payment from the
tortfeasor. In contrast, appellee contended that the phrase requires a policy-limit-
to-policy-limit comparison and if the tortfeasor's liability limits are the same as
the underinsured motorist coverage limits, then no recovery is available. The
second issue involved whether the language of the Mid-Century policy purporting
to limit all wrongful death beneficiary claims to the single each-person limit is
unambiguous and thus valid or ambiguous and thus invalid.

In regard to the first issue, the court of appeals decided in favor of
appellant and held, in effect, that if the actual amount available under the
tortfeasor's liability policy to each insured is less than the Mid-Century
underinsured motorist coverage limit, the insureds should recover the difference
up to the total of the appropriate limit of coverage. The court of appeals noted
that comparing the amount actually received from the tortfeasor with the limits of
the insureds' underinsured motorist coverage, instead of a limits-to-limits
comparison, is "the only interpretation of R.C. 3937.18(A)(2) which comports
with statutory public policy."

On the second question, the court of appeals considered whether each
wrongful death beneficiary was entitled to recover for his or her individual claims
under the separate, each-person limit of the Mid-Century policy up to the
maximum $300,000 each-occurrence limit, or whether all claims were restricted
to the $100,000 each person limit. An aggregate total of $100,000 had been
received and distributed among the four wrongful death beneficiaries, each
receiving less than the each-person underinsured motorist coverage limit. In
resolving this issue, the court of appeals found that the language of the Mid-
Century policy clearly and unambiguously restricted all wrongful death claims to
the single each-person limit. Thus, the amount recovered from the tortfeasor's
liability carrier, $100,000, was set off against the each-person limit of
underinsured motorist coverage of the Mid-Century policy, $100,000, thereby
3

SUPREME COURT OF OHIO
precluding Shane's wrongful death beneficiaries access to underinsured motorist
benefits.

Thereafter, appellant filed a motion requesting the court of appeals to
certify its decision as in conflict with the Fifth District Court of Appeals' decision
in Farmers Ins. of Columbus, Inc. v. Atkinson (Oct. 29, 1992), Stark App. No.
CA-8931, unreported, 1992 WL 318886. The court of appeals agreed and entered
an order certifying a conflict.

This cause is now before this court upon our determination that a conflict
exists (case No. 00-374) and upon the allowance of a discretionary appeal (case
No. 00-206).

On October 20, 1994, the General Assembly enacted Am.Sub.S.B. No. 20
("S.B. 20"), which effectuated changes to R.C. 3937.18, that section of the
Revised Code providing for the mandatory offering of uninsured and
underinsured motorist coverage. 145 Ohio Laws, Part I, 204, 240. R.C.
3937.18(A)(2), as amended by S.B. 20, provided2:

"Underinsured motorist coverage, which shall be in an amount of
coverage equivalent to the automobile liability or motor vehicle liability coverage
and shall provide protection for an insured against loss for bodily injury, sickness,
or disease, including death, suffered by any person insured under the policy,
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.
Underinsured motorist coverage is not and shall not be excess insurance to other
applicable liability coverages, and shall be provided only to afford the insured an
amount of protection not greater than that which would be available under the

2. There have been two subsequent amendments to R.C. 3937.18(A)(2) since the enactment of
S.B. 20. See 147 Ohio Laws, Part II, 2373; 2000 Sub.S.B. No. 267, effective September 21, 2000.
However, those changes were relatively minor, and the language of R.C. 3937.18(A)(2) under
consideration here has remained unchanged.
4

January Term, 2001
insured's uninsured motorist coverage if the person or persons liable were
uninsured at the time of the accident. The policy limits of the underinsured
motorist coverage shall be reduced by those amounts available for payment under
all applicable bodily injury liability bonds and insurance policies covering persons
liable to the insured." (Emphasis added.) 145 Ohio Laws, Part I, 210-211.

The first issue that we must address involves the practical application of
the setoff provision regarding underinsured motorist coverage in R.C.
3937.18(A)(2). This setoff provision was amended by S.B. 20 to provide that
"[t]he policy limits of the underinsured motorist coverage shall be reduced by
those amounts available for payment under all applicable bodily injury liability
bonds and insurance policies covering persons liable to the insured." Our
consideration of this matter will focus specifically on the "amounts available for
payment" language of the statute.

We begin, as we do in all cases involving statutory construction, by
ascertaining the intent of the General Assembly in enacting a statute and giving
effect to that intent. Cochrel v. Robinson (1925), 113 Ohio St. 526, 149 N.E. 871,
paragraph four of the syllabus. "If the meaning of the statute is unambiguous and
definite, it must be applied as written and no further interpretation is necessary."
State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio
St.3d 543, 545, 660 N.E.2d 463, 465. In order to determine the intent of the
General Assembly in enacting legislation the court must give effect to the words
used in the statute. Bernardini v. Conneaut Area City School Dist. Bd. of Edn.
(1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 3, 387 N.E.2d 1222, 1224. However,
where the words of the statute are ambiguous, a court is charged with construing
the language in a manner that reflects the intent of the General Assembly.
Cochrel, 113 Ohio St. 526, 149 N.E. 871, paragraph four of the syllabus.

A statute is ambiguous when its language is subject to more than one
reasonable interpretation. State v. Jordan (2000), 89 Ohio St.3d 488, 492, 733
5

SUPREME COURT OF OHIO
N.E.2d 601, 605. Initially, we note that the phrase "amounts available for
payment" is not defined in R.C. 3937.18. Since the enactment of S.B. 20 on
October 20, 1994, much confusion has surrounded R.C. 3937.18. Predictably,
and perhaps unavoidably, the General Assembly's promulgation of S.B. 20 has
spawned an increasing amount of litigation involving uninsured and underinsured
motorist coverage. The changes to R.C. 3937.18(A)(2) brought about by S.B. 20
have resulted in conflicting interpretations by various trial and appellate courts
throughout Ohio, leading to a state of uncertainty among insurers and insureds
concerning underinsured motorist coverage. Here, the statutory language at issue
is susceptible of at least two conflicting interpretations. The arguments raised in
this matter are a testament to the resultant confusion surrounding the statutory
language. Thus, we must delve further into the intent of the General Assembly in
enacting S.B. 20.

Accordingly, we must now look beyond the words of the statute and
construe R.C. 3937.18(A)(2), as amended by S.B. 20, in a manner that reflects the
purpose of the General Assembly. Cochrel, 113 Ohio St. 526, 149 N.E. 871,
paragraph four of the syllabus. We are guided by the rule that when a statute is
ambiguous, the court, in determining the intent of the General Assembly, may
consider the objective of the statute and the consequences of any particular
construction. R.C. 1.49(A) and (E). Moreover, R.C. 3937.18 is remedial
legislation. Stanton v. Nationwide Mut. Ins. Co. (1993), 68 Ohio St.3d 111, 113,
623 N.E.2d 1197, 1199. We, therefore, must construe the statute liberally to give
effect to its legislative purpose. R.C. 1.11; Curran v. State Auto. Mut. Ins. Co.
(1971), 25 Ohio St.2d 33, 38, 54 O.O.2d 166, 169, 266 N.E.2d 566, 569.
In
James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 18 OBR
440, 481 N.E.2d 272, disapproved on other grounds in Cole v. Holland (1996), 76
Ohio St.3d 220, 667 N.E.2d 353, the court discussed the motivation behind the
General Assembly's adoption of mandatory underinsured motorist coverage,
6

January Term, 2001
which was found at that time in former R.C. 3937.181. See 138 Ohio Laws, Part
I, 1459. "Underinsured motorist coverage was first required by statute after the
legislature discovered the `underinsurance loophole' in uninsured motorist
coverage--i.e., persons injured by tortfeasors having extremely low liability
coverage were being denied the same coverage that was being afforded to persons
who were injured by tortfeasors having no liability coverage. Thus, the original
motivation behind the enactment of [former] R.C. 3937.181(C) was to assure that
persons injured by an underinsured motorist would receive at least the same
amount of total compensation that they would have received if they had been
injured by an uninsured motorist." (Emphasis sic.) James, 18 Ohio St.3d at 389,
18 OBR at 443, 481 N.E.2d at 274-275. In discussing the issue of setoff, we held
that "[a]n insurer may apply payments made by or on behalf of an underinsured
motorist as a setoff directly against the limits of its underinsured motorist
coverage, so long as such setoff (1) is clearly set forth in the terms of the
underinsured motorist coverage and (2) does not lead to a result wherein the
insured receives a total amount of compensation that is less than the amount of
compensation that he would have received if he had been injured by an uninsured
motorist." (Emphasis added.) Id. at paragraph two of the syllabus.

We reiterated that position regarding underinsured and uninsured motorist
coverage in Cincinnati Ins. Co. v. Phillips (1990), 52 Ohio St.3d 162, 165, 556
N.E.2d 1150, 1153, when we concluded that "it would make no sense for this
court to reach the absurd result that an injured party is better off when struck by
an uninsured tortfeasor than by a person who possesses liability insurance."
Finally, in Motorists Mut. Ins. Co. v. Andrews (1992), 65 Ohio St.3d 362, 365,
604 N.E.2d 142, 145, construing former R.C. 3937.18(A)(2) in light of the
General Assembly's purpose in enacting the statute, we emphasized that "the
well-reasoned public policy behind requiring underinsured motorist coverage is to
7

SUPREME COURT OF OHIO
assure that an injured person receive at least the same amount of compensation
whether the tortfeasor is insured or uninsured."

It is clear that underinsured motorist coverage, as described in R.C.
3937.18(A)(2) as amended by S.B. 20, was not intended to be "excess insurance"
to the tortfeasor's applicable automobile liability insurance. The language of the
statute is unmistakable. The language of R.C. 3937.18(A)(2) also makes clear
that the statute was intended to ensure that a person injured by an underinsured
motorist should never be afforded greater protection than that which would have
been available had the tortfeasor been uninsured.

As can be gleaned from the public policy behind the enactment of the
underinsured motorist statute, as well as the statutory language, the purpose of
underinsured (and uninsured) motorist coverage is to treat injured automobile
liability policyholders the same whether a tortfeasor is underinsured or uninsured.
It is apparent from the foregoing that the General Assembly intended that when a
person carries automobile liability insurance and that person is injured in an
accident by an uninsured or underinsured tortfeasor, the insured policyholder may
be compensated up to the limits of his or her applicable uninsured/underinsured
motorist coverage for any losses sustained.

Based on this premise, we construe the "amounts available for payment"
language in R.C. 3937.18(A)(2), as amended by S.B. 20, as requiring a
comparison between the amounts that are actually accessible to the injured
claimant from the tortfeasor's automobile liability insurance carrier and the
injured claimant's own underinsured motorist coverage limits. The phrase
"amounts available for payment" means just that. In other words, it means those
amounts the insured actually recovers from a tortfeasor whose liability policy is
subject to the claim of the insured and also to the claims of other injured persons.
For the reasons stated throughout this opinion, we find that this construction is
supported by the statutory language and prior decisions of this court regarding
8

January Term, 2001
R.C. 3937.18(A)(2), and, we believe, is the only interpretation that truly reflects
the public policy behind the adoption of mandatory underinsured motorist
coverage in this state.

In 1992, this court decided the case of Motorists Mut. Ins. Co. v. Andrews,
65 Ohio St.3d 362, 604 N.E.2d 142. In Andrews, the court considered the
application of underinsured motorist coverage in a situation similar to the case at
bar, involving multiple claimants. In Andrews, the question before the court was
"whether underinsured motorist coverage is available to an insured where the
tortfeasor's policy limit is greater than the insured's policy limits but the claims of
multiple claimants have resulted in undercompensation of the insured's injuries."
Id. at 364, 604 N.E.2d at 144. We held in Andrews that "[w]hen determining
whether a motorist is underinsured within the meaning of [former] R.C.
3937.18(A)(2), the amount actually available for payment under the tortfeasor's
liability insurance policy must be compared with the insured's underinsured
motorist coverage limits. If the amount available for payment is less than the
insured's underinsured policy limits, then the insured is entitled to underinsured
motorist coverage." (Emphasis added.) Id. at syllabus.
In
Andrews we rejected a comparison-of-the-limits approach where "the
claims of multiple claimants result in reduction of the amount available for
payment to the insured below the underinsured motorist limits." (Emphasis sic.)
Id. at 365-366, 604 N.E.2d at 145. In so doing, the court determined that "the
clear language of [former] R.C. 3937.18(A)(2) requires a comparison between the
amount actually available for payment to an insured and the policy limits of the
insured's underinsured motorist coverage. The operative language of [former]
R.C. 3937.18(A)(2) states that `[u]nderinsured motorist coverage * * * shall
provide protection * * * where the limits of coverage available for payment to the
insured * * * are less than the limits for the insured's uninsured motorist coverage
at the time of the accident. * * *' Reading this statute, in conjunction with the
9

SUPREME COURT OF OHIO
public policy behind its adoption, the inescapable conclusion is that, when
determining whether a motorist is underinsured, the amount actually available for
payment under the tortfeasor's policy must be compared with the insured's
underinsured motorist coverage limits. If the amount available for payment is
less than the insured's underinsured policy limits, then the insured is entitled to
underinsured motorist coverage. This is the only reading of R.C. 3937.18(A)(2)
which can give full effect to the General Assembly's stated intent." (Emphasis
sic.) Id. at 366-367, 604 N.E.2d at 145-146.

The court, in applying the above rationale to the facts of Andrews,
concluded that the Andrewses were entitled to underinsured motorist benefits.
The court reached this result by first determining the amount available for
payment, i.e., the amount that was actually available, and could in fact be paid, to
the Andrewses from the tortfeasor's automobile liability policy. The court then
compared that amount, which was zero dollars after the exhaustion of the
tortfeasor's liability limits by payments made to one injured claimant, to the
underinsured motorist coverage limits of the Andrewses' policy. Id. at 364 and
367, 604 N.E.2d at 144 and 146.

We realize that the court in Andrews did not focus its attention on the
question of setoff and instead limited its analysis to certain, specific language in
R.C. 3937.18(A)(2) that is not under consideration in this case. In addition, we
recognize that our decision in Andrews preceded the enactment of S.B. 20 by
approximately two years. Moreover, in deciding this matter, we are cognizant of
the fact that S.B. 20 eliminated the phrase "amounts actually recovered" from
R.C. 3937.18(A)(2) and substituted the phrase "amounts available for payment"
when it amended R.C. 3937.18(A)(2). However, the court in Andrews did
specifically consider the term "amount available for payment," a term virtually
identical to that which we are called upon to interpret today.
10

January Term, 2001

It is presumed that the General Assembly is fully aware of any prior
judicial interpretation of an existing statute when enacting an amendment. State
ex rel. Huron Cty. Bd. of Edn. v. Howard (1957), 167 Ohio St. 93, 96, 4 O.O.2d
83, 84, 146 N.E.2d 604, 607. In enacting S.B. 20, the General Assembly chose to
adopt the language "amounts available for payment," a phrase that is repeated
throughout Andrews and interpreted in our decision to mean those amounts
actually accessible to and recoverable by the claimant from the tortfeasor's
liability policy. Thus, we conclude that the General Assembly was fully advised
when the Senators and Representatives chose the language "amounts available for
payment."

Further, if we were to adopt a strict "policy-limits-to-policy-limits"
comparison approach we would be creating the potential for the law to treat
uninsured and underinsured motorist claimants differently. Had the General
Assembly intended such a result there would be no need for the "amounts
available for payment" language. The General Assembly could have simply
chosen other language, such as "the policy limits of the underinsured motorist
coverage shall be reduced by the policy limits under all applicable bodily injury
liability bonds and insurance policies covering persons liable to the insured." Of
course such an approach would be inequitable and would defeat, rather than
advance, the public policy reasons, set forth by the General Assembly in the
statute itself, for adopting mandatory underinsured motorist coverage.

The argument might be made that our resolution of Andrews was in error.
Despite our holding in Andrews, some may contend that, through the plain
language of R.C. 3937.18(A)(2), it was the intent of the General Assembly to
provide that underinsured motorist coverage is never available where the limits of
the tortfeasor's coverage are equal to or greater than the limits of the underinsured
motorist coverage. An additional contention might be that Andrews is no longer
11

SUPREME COURT OF OHIO
good law in light of the S.B. 20 changes to R.C. 3937.18(A)(2). We have
considered these arguments and reject them for the following reasons.

Our decision in Andrews completely and properly resolves the issue in this
matter. The court in Andrews noted that a limits-to-limits comparison approach is
proper only in situations where a single claimant is involved. Id., 65 Ohio St.3d
at 365-366, 604 N.E.2d at 145. Therein lies the distinction. The court,
accordingly, determined that in situations where "the claims of multiple claimants
result in reduction of the amount available for payment to the insured below the
underinsured motorist limits," the insured is entitled to underinsured motorist
coverage. Id. We noted that a strict policy-limits-to-policy-limits approach in
situations involving multiple claimants would not give full effect to the public
policy behind the General Assembly's enactment of the underinsured motorist
statute. Id. at 366-367, 604 N.E.2d at 145-146.

Furthermore, the enactment of S.B. 20 had no effect whatsoever on the
validity of our holding in Andrews. We find it significant that nowhere in the S.B.
20 amendments to R.C. 3937.18(A)(2), either in the codified or uncodified
sections, does the General Assembly indicate any intent, express or implied, to
legislatively supersede our decision in Andrews. In fact, by adopting virtually the
same language, "amounts available for payment," from our decision in Andrews,
the presumption is that the General Assembly approved of our holding when it
enacted the S.B. 20 changes to R.C. 3937.18(A)(2). Thus, Andrews is still good
law and completely dispositive of the matters before us.

Of course, and in any event, in construing statutory language, we must
proceed under a presumption that, in enacting a statute, the General Assembly
intended a "just and reasonable result." R.C. 1.47(C). However, that intention
would be utterly destroyed should we adopt a strict "limits to limits" comparison
approach. It would be manifestly absurd to interpret the S.B. 20 amendments to
R.C. 3937.18(A)(2) as permitting an insurer to offset, against its own insured,
12

January Term, 2001
those amounts that a tortfeasor's automobile liability insurance carrier has paid to
other injured parties. In circumstances involving matching limits and multiple
claimants, if an insurer were able to set off payments made to injured parties other
than its own insureds, in many if not most instances, an insured would receive no
compensation from the tortfeasor and would also be unable to collect
underinsured motorist benefits. We cannot and do not believe that that is what the
General Assembly intended when it enacted R.C. 3937.18(A)(2).3

3. The emphasis of this section, and the fallacy of a strict "limits-to-limits" comparison approach,
can perhaps be best demonstrated by the following two examples.

Suppose one person ("Craig") is injured in an automobile accident caused by an insured
tortfeasor ("Bob"). Bob has automobile liability insurance with limits of $100,000 per person and
$300,000 per accident. Craig has provable damages of $150,000. Craig recovers $100,000 from
Bob's insurer. Craig has automobile liability insurance that includes a provision for
uninsured/underinsured motorist coverage with limits of $100,000 per person and $300,000 per
accident. Pursuant to R.C. 3937.18(A)(2), Craig's automobile liability carrier can "set off" the
$100,000 that Craig received from Bob's automobile liability carrier. Thus, since the tortfeasor's
(Bob's) limits and the injured claimant's (Craig's) limits are the same, Craig receives nothing
from his underinsured motorist coverage even though his provable damages are $150,000. This
outcome is consistent with the interpretation of the setoff provision and the "amounts available for
payment" language of R.C. 3937.18(A)(2). That is, Craig's underinsured motorist coverage
cannot be accessed as "excess insurance" and Craig is not any better or any worse off than if the
tortfeasor had been uninsured as opposed to underinsured. In either instance, Craig would recover
only $100,000 as compensation for his injuries.

Now suppose that, in addition to Craig, there are three other passengers traveling in
Craig's automobile. All four occupants suffer injuries as a result of Bob's negligence and sustain
provable damages in excess of $100,000 each. Each person in Craig's vehicle has separate
automobile liability insurance policies that include uninsured/underinsured motorist coverage
provisions of $100,000 per person and $300,000 per accident. Bob's insurer pays $300,000, the
per-accident limit of liability, to Craig and his three passengers. Thus, assuming equal
distribution, each person in Craig's vehicle receives $75,000.

Suppose that the setoff provision of R.C. 3937.18(A)(2) and the "amounts available for
payment" language are interpreted using a strict policy-limits-to-policy-limits comparison
approach. In that instance, each passenger's automobile liability insurer would be permitted to set
off the $300,000 per-accident limit of the tortfeasor's policy against the policy limits of each
passenger's uninsured/underinsured motorist coverage. Thus, since the tortfeasor's liability policy
limits ($100,000/300,000) equals or exceeds the per-person limits ($100,000) of each individual's
policy, neither Craig nor his three passengers would recover under the provisions of their
underinsured motorist coverage. The net effect of permitting each person's insurer to set off the
per-accident limit of the tortfeasor's policy is, in this instance, to credit each insurer with the same
$300,000 obtained from the tortfeasor's insurer when, of course, only a total of $300,000 (not
$1,200,000) was actually distributed to the injured claimants.

If, however, Craig and his passengers had been injured by an uninsured motorist, each
person would have a separate uninsured motorist claim against his or her own insurer and would
13

SUPREME COURT OF OHIO

Accordingly, we hold that for the purpose of setoff, the "amounts
available for payment" language in R.C. 3937.18(A)(2) means the amounts
actually accessible to and recoverable by an underinsured motorist claimant from
all bodily injury liability bonds and insurance policies (including from the
tortfeasor's liability carrier). We, therefore, affirm the well-reasoned judgment of
the court of appeals on this issue.

A final issue remains for our consideration: the court of appeals'
certification, and our determination, of the existence of a conflict between two
appellate districts. We now proceed to answer the certified question.

The question that has been certified for our consideration is:

"Does the [policy language quoted below] unambiguously limit [uninsured
motorist/underinsured motorist] coverage to a single per-person limit for all
wrongful death claims derived from one deceased insured?"

The insurance policy at issue provides the following with regard to
underinsured motorist coverage:

"The limits of liability shown in the Declarations apply subject to the
following:

be able to collect uninsured motorist benefits up to the $100,000 per person limit. Thus,
comparing the two examples with the stated purpose and intent of R.C. 3937.18(A)(2), Craig and
his passengers would certainly be in a better position financially speaking had they been injured
by an uninsured tortfeasor.

Conversely, by interpreting the "amounts available for payment" language in R.C.
3937.18(A)(2) to mean those amounts that each claimant can actually access or recover from the
tortfeasor's automobile liability carrier, the result is the same whether Craig and his passengers are
injured by an uninsured tortfeasor or by an underinsured tortfeasor. Accordingly, where the
"amounts available for payment" from the tortfeasor to each occupant is $75,000, each person in
Craig's vehicle could access up to an additional $25,000 in underinsured motorist benefits from
his or her automobile liability carrier with no one person being able to recover more than his or her
$100,000 per-person policy limit. Under this interpretation, the result is the same whether Craig
and his passengers are injured by an uninsured tortfeasor or by an underinsured tortfeasor the
result mandated by the General Assembly when it expressed, in the statute, the purpose for
enacting the mandatory offering of underinsured motorist coverage.
14

January Term, 2001

"1. The limit for `each person' is the maximum for bodily injury sustained
by any person in any one accident. Any claim for loss of consortium or injury to
the relationship arising from this injury shall be included in this limit.

"2. Subject to the limit for `each person,' the limit for `each accident' is
the maximum for bodily injury sustained by two or more persons in any one
accident.

"3. Subject to the law of the state of the occurrence, we will pay no more
than these maximums regardless of the number of vehicles insured, insured
persons, claims, claimants, policies, or vehicles involved in the accident."
(Boldface omitted.)

Mid-Century concedes that appellant and the other statutory wrongful
death beneficiaries of decedent Shane Parker are all insureds pursuant to the Mid-
Century policy. Mid-Century also acknowledges, in its brief before this court
(although appellee's attorney at oral argument seemed to assume a different
posture), that pursuant to applicable law each wrongful death beneficiary has a
separate, individual claim for uninsured/underinsured motorist coverage.

Pursuant to R.C. 2125.01 and 2125.02(A)(1), in an action for wrongful
death, the surviving statutory beneficiaries have the right to recover damages
suffered by reason of the wrongful death of the decedent. See Wood v. Shepard
(1988), 38 Ohio St.3d 86, 89, 526 N.E.2d 1089, 1092, and Sexton v. State Farm
Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, 23 O.O.3d 385, 433 N.E.2d 555.
Further, each statutory wrongful death beneficiary's claim is considered separate
and distinct from the claim of the estate, and from each other, pursuant to R.C.
2125.02(A)(1). Wood v. Shepard at 90, 526 N.E.2d at 1092.

R.C. 3937.18(H) provides:

"Any automobile liability or motor vehicle liability policy of insurance
that includes coverages offered under division (A) of this section or selected in
accordance with division (C) of this section and that provides a limit of coverage
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SUPREME COURT OF OHIO
for payment for damages for bodily injury, including death, sustained by any one
person in any one automobile accident, may, notwithstanding Chapter 2125. of
the Revised Code, include terms and conditions to the effect that all claims
resulting from or arising out of any one person's bodily injury, including death,
shall collectively be subject to the limit of the policy applicable to bodily injury,
including death, sustained by one person, and, for the purpose of such policy limit
shall constitute a single claim. Any such policy limit shall be enforceable
regardless of the number of insureds, claims made, vehicles or premiums shown
in the declarations or policy, or vehicles involved in the accident."

As set forth above, R.C. 3937.18(H) permits automobile liability insurers
to include provisions in their insurance policies that consolidate all individual
wrongful death claims arising out of any one person's bodily injury into a single
claim and thereby limit all wrongful death damages to a single per-person policy
limit. This consolidation must affirmatively appear in the policy, i.e., insurers
must include language within their policies of insurance that clearly and
unambiguously consolidates such claims in order to give effect to such a limit.
United States Fid. & Guar. Co. v. Lightning Rod Mut. Ins. Co. (1997), 80 Ohio
St.3d 584, 586, 687 N.E.2d 717, 719. In addition, it is well settled that "[w]here
provisions of a contract of insurance are reasonably susceptible of more than one
interpretation, they will be construed strictly against the insurer and liberally in
favor of the insured." King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519
N.E.2d 1380, syllabus.

Appellant contends in regard to the certified question that ambiguity exists
in at least two respects. First, appellant urges us to find that the terms "loss of
consortium" and "injury to the relationship" as used in the Mid-Century policy are
ambiguous. Second, appellant contends that the Mid-Century policy language
does not unambiguously consolidate all damages arising out of one person's
16

January Term, 2001
death to a single per-person limit but, instead, consolidates only loss-of-
consortium claims and injury-to-the-relationship claims into a single claim.

In attempting to limit wrongful death damages, insurers are not required to
use the exact wording set forth in R.C. 3937.18(H) or any other specific language.
R.C. 3937.18(H) provides that automobile liability insurance policies "may * * *
include terms and conditions to the effect that all claims resulting from or arising
out of any one person's bodily injury, including death, shall collectively be
subject to the limit of the policy applicable to bodily injury, including death,
sustained by one person, and, for the purpose of such policy limit shall constitute
a single claim." (Emphasis added.)

The Mid-Century policy provides in "Part II--Uninsured Motorist,
Coverage C,"4 that the insurer "will pay all sums which an insured person is
legally entitled to recover as damages from the owner or operator of an uninsured
motor vehicle because of bodily injury sustained by the insured person."
(Boldface omitted.) "Bodily injury" is defined in the Mid-Century policy as
"bodily injury to or sickness, disease or death of any person." According to the
Mid-Century policy's uninsured/underinsured motorist provision, an "[i]nsured
person" means "[a]ny person for damages that person is entitled to recover
because of bodily injury to you, a family member, or another occupant of your
insured car." (Boldface omitted.)

As set forth in these sections of the Mid-Century policy, appellee has
selected specific language that clearly allows for recovery of uninsured and
underinsured motorist benefits for qualifying statutory wrongful death
beneficiaries. The Mid-Century policy language provides that appellee "will pay
all sums which an insured person is legally entitled to recover as damages from
the owner or operator of an uninsured motor vehicle because of bodily injury
sustained by the insured person." (Emphasis added and boldface omitted.)
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Further, "insured person" is defined as "any person for damages that person is
entitled to recover because of bodily injury to you, a family member, or another
occupant of your insured car." (Emphasis added and boldface omitted.)

The question, however, remains whether the Mid-Century policy clearly
and unambiguously limited all losses that resulted from the death of Shane Parker
to a single per-person policy limit. The "Limits of Liability" section of the
uninsured/underinsured motorist provision of the policy provides:

"The limits of liability shown in the Declarations apply subject to the
following:

"1. The limit for `each person' is the maximum for bodily injury sustained
by any person in any one accident. Any claim for loss of consortium or injury to
the relationship arising from this injury shall be included in this limit."

We do not agree with appellant that the phrases "loss of consortium" and
"injury to the relationship" are ambiguous. The term "consortium" has long been
part of English and American jurisprudence. Moreover, in Gallimore v.
Children's Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052, at
paragraphs one and two of the syllabus, we interpreted "consortium" to include
services, society, companionship, comfort, love, solace, affection, guidance, and
counsel. Thus, we reject appellant's contention that this term is "so broad as to be
meaningless."

Furthermore, while we agree with appellant that a "loss of consortium"
action is different from a wrongful death action, we find that the phrase "injury to
the relationship" is a clear reference to claims for wrongful death as contemplated
by the Mid-Century policy. In reaching its resolution on this issue, the
Montgomery County Court of Appeals noted that "an action for wrongful death
arises out of the relationship between the decedent and his or her relatives [and
thus] it is an injury to the relationship as defined by the policy."

4. This provision of the Mid-Century policy includes underinsured motorist coverage.
18

January Term, 2001

In an action for wrongful death pursuant to R.C. 2125.01, the surviving
spouse, children, and parents of the decedent are all rebuttably presumed to have
suffered damages by reason of the wrongful death. R.C. 2125.02(A)(1). The
right of the statutory wrongful death beneficiaries to recover damages arises as a
result of the suffering incurred by reason of the wrongful death of the decedent.
Wood v. Shepard, 38 Ohio St.3d at 89, 526 N.E.2d at 1092. While the action
itself arises out of the death of the decedent, the action is brought for the
"exclusive benefit" of decedent's next of kin. R.C. 2125.02(A)(1). In that regard,
the wrongful death itself and the relationship between the decedent and his next of
kin are inextricably intertwined. It is axiomatic that there would be no cause of
action for wrongful death without both a wrongful death and the existence of at
least one living statutory beneficiary of the decedent. Thus, we agree with the
court of appeals that the language "loss of consortium or injury to the
relationship" encompasses all derivative claims, including claims for wrongful
death.

The remainder of paragraph one of the "Limits of Liability" section is also
clear. In construing this remaining policy language, we find that the Mid-Century
policy does clearly and unambiguously restrict all wrongful death claims to a
single per-person policy limit. This section provides that the "each person" limit
of $100,000, as shown on the declarations page of the policy, is the maximum
amount available for bodily injury sustained by any person in any one accident.
Only one person, Shane Parker, sustained bodily injury. The "bodily injury"
sustained by Parker was his death. Bodily injury is defined in the Mid-Century
policy as including death. Because we have concluded that the phrase "injury to
the relationship" encompasses wrongful death claims, any claim arising from the
wrongful death of Shane Parker is included in the single each-person policy limit.
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Therefore, we hold that the language of the Mid-Century policy restricting
all wrongful death claims to the single each-person policy limit is clear and
unambiguous.

Accordingly, the judgment of the court of appeals is affirmed in all
respects.
Judgment affirmed.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

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

COOK, J., concurring in part and dissenting in part. I agree with that
part of the majority opinion that addresses whether the wrongful death claims can
be limited to a single per-person limit. But because the majority also reaches and
resolves an issue that is not before this court, I respectfully dissent from the
syllabus and that part of the opinion regarding R.C. 3937.18(A)(2).
I

The majority devotes several pages to interpreting the "amounts available
for payment" language in R.C. 3937.18(A)(2). In fact, the majority goes so far as
to "affirm" the court of appeals on this issue and carry its interpretation over to
the syllabus. The syllabus and analysis of R.C. 3937.18(A)(2), however, are
gratuitous because the issue is not even before this court. Neither party appealed
the portion of the court of appeals' opinion that interpreted the "amounts available
for payment" language. Although Clark mentioned the issue in her brief to this
court, we did not accept jurisdiction over this issue. Accordingly, the only issue
actually raised here is whether Mid-Century's policy properly limited wrongful
death claims to a single per-person limit. By "deciding" the R.C. 3937.18(A)(2)
question, the majority reaches out to address an issue not directly presented by
this case. See Gibson v. Meadow Gold Dairy (2000), 88 Ohio St.3d 201, 203-
20

January Term, 2001
204, 724 N.E.2d 787, 789 (choosing not to render an "advisory opinion" on an
issue not directly presented). The result is syllabus law crafted from nothing more
than dicta.
II

Even if the "amounts available for payment" language in R.C.
3937.18(A)(2) were before the court in this cause, I would nevertheless dissent
because I view the majority decision as misconstruing the validity of Motorists
Mut. Ins. Co. v. Andrews (1992), 65 Ohio St.3d 362, 604 N.E.2d 142,
misappropriating authority reserved to the General Assembly, and misapplying
the statute's "triggering" provision. Following an overview of pre-1994 R.C.
3937.18(A)(2), I shall discuss each point in turn.
A. R.C. 3937.18(A)(2) Pre-S.B. 20

The version of R.C. 3937.18(A)(2) in effect prior to the passage of
Am.Sub.S.B. No. 20 ("S.B. 20") served three functions:

First, the subsection's opening sentence set the minimum amount of
underinsured motorist coverage ("UIM coverage") to be offered by an insurer:
"Underinsured motorist coverage * * * shall be in an amount of coverage
equivalent to the automobile liability or motor vehicle liability coverage * * *."
142 Ohio Laws, Part I, 1739.

Second, the subsection's first sentence also established that UIM coverage
was triggered for the insured only "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 at the time of the accident." This
triggering language explicitly mandates a limits-to-limits comparison. Id. at
1739-1740.

Third, the subsection's second sentence explained how the limits of an
insured's recovery were to be calculated: "The limits of liability for an insurer
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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." Id. at 1740.

This court interpreted the triggering language in Hill v. Allstate Ins. Co.
(1990), 50 Ohio St.3d 243, 553 N.E.2d 658. We held that "[u]nless otherwise
provided by an insurer, underinsured motorist liability insurance coverage is not
available to an insured where the limits of liability contained in the insured's
policy are identical to the limits of liability set forth in the tortfeasor's liability
insurance coverage." Id., syllabus.

Nearly three years later, the court revisited the triggering provision of
former R.C. 3937.18(A)(2) in Andrews, 65 Ohio St.3d 362, 604 N.E.2d 142.
Specifically, the court addressed "whether underinsured motorist coverage is
available to an insured where the tortfeasor's policy limit is greater than the
insured's policy limits but the claims of multiple claimants have resulted in
undercompensation of the insured's injuries." (Emphasis added.) Id. at 364, 604
N.E.2d at 144. In finding that such circumstances triggered underinsured motorist
coverage, the court construed the phrase "the limits of coverage available for
payment" in the first sentence of subsection (A)(2) to mean "the amount actually
available for payment" under the tortfeasor's policy. (Emphasis added.) Id. at
366, 604 N.E.2d at 145-146.

The court again considered former R.C. 3937.18(A)(2) in Savoie v.
Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. There, we
addressed whether multiple parties could recover UIM benefits when the limits of
the UIM policy involved are identical to the limits of the tortfeasor's liability
policy. Id. at 508, 620 N.E.2d at 815. Savoie explicitly overruled Hill's limits-to-
limits comparison and held that "[a]n underinsurance claim must be paid when the
individual covered by an uninsured/underinsured policy suffers damages that
exceed those monies available to be paid by the tortfeasor's liability carriers." Id.,
22

January Term, 2001
paragraph three of the syllabus. With this holding, the Savoie court implicitly
construed "the limits of coverage available for payment" to mean "the amounts
which the tortfeasor's insurer has already paid." Id. at 508, 620 N.E.2d at 815.
Notably, while the language of the Savoie construction varies slightly from the
construction set forth in Andrews, the result of the Savoie holding is the same as
the holding in Andrews. Neither case's interpretation of the R.C. 3937.18(A)(2)
triggering provision, however, is consistent with the intent of the General
Assembly.
B. Legislative Intent and the R.C. 3937.18(A)(2) Triggering Provision

By reaching the setoff issue, the majority implicitly accepts that UIM
coverage has first been triggered. But the majority ignores that the legislature
expressly stated that it intended to supersede the interpretation of the triggering
provision espoused in Andrews and Savoie. In so doing, the General Assembly
intended to provide for a limits-to-limits comparison in the triggering provision.
And once a limits-to-limits comparison is done in this case, UIM coverage is not
triggered, and the setoff question is not even reached.

The majority of this court continues to indulge its preferred public policy.
It evaluates the practical consequences of construing R.C. 3937.19(A)(2) as a
limits-to-limits comparison and, finding the consequence of such a construction
unpalatable, repeatedly concludes that this simply cannot be what the legislature
intended.

I find that the plain language of the triggering provision mandates a limits-
to-limits comparison. But even assuming arguendo that the statute is ambiguous,
the court may consider, in addition to other matters, not just the object of the
statute and the consequences of a particular construction, but also "[t]he
circumstances under which the statute was enacted," "the legislative history," and
"[t]he common law or former statutory provisions, including laws upon the same
or similar subjects." R.C. 1.49(B), (C), and (D). It is axiomatic that "[a]mbiguity
23

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in a statute should be resolved by examining the legislative intent of the statute."
Delli Bovi v. Pacific Indemn. Co. (1999), 85 Ohio St.3d 343, 345, 708 N.E.2d
693, 694.

The majority relies heavily upon the purported absence of a legislative
explanation for the altered language of the setoff provision, stating that "[w]e find
it significant that nowhere in the S.B. 20 amendments to R.C. 3937.18(A)(2),
either in the codified or uncodified sections, does the General Assembly indicate
any intent, expressed or implied, to legislatively supersede our decision in
Andrews." The majority would thus presume that Andrews's interpretation of the
triggering provision remains valid. But the uncodified law states:

"It is the intent of the General Assembly in amending division (A)(2) of
section 3937.18 of the Revised Code to supersede the effect of the holding of the
Ohio Supreme Court in the October 1, 1993 decision in Savoie v. Grange Mut.
Ins. Co. (1993), 67 Ohio St.3d 500, [620 N.E.2d 809], relative to the application
of underinsured motorist coverage in those situations involving accidents where
the tortfeasor's bodily injury liability limits are greater than or equal to the limits
of the underinsured motorist coverage." Section 7, S.B. 20, 145 Ohio Laws, Part
I, 238.

Given such an explicit expression of legislative intent, I cannot agree that
the General Assembly intended to adhere to the Andrews-Savoie construction of
the triggering provision of R.C. 3937.18(A)(2). Because Savoie and Andrews
contain the same erroneous interpretation of the statute, superseding Savoie has
the practical effect of superseding Andrews. The "triggering" sentence of R.C.
3937.18(A)(2) should therefore not be interpreted pursuant to the Andrews-Savoie
"amount recovered to limits of UIM coverage" comparison. Rather, the
uncodified law should be viewed as evincing an intent to correct this court's prior,
erroneous interpretation of the triggering provision set forth in Andrews and
24

January Term, 2001
Savoie and to reinforce the limits-to-limits comparison that the plain language of
the statute warrants.

I note that the effect of the statutory scheme is not to vitiate the actual
existence of UIM coverage as some may claim. Rather, the insured has purchased
coverage that, as with much insurance, is subject to context-specific
determinations of applicability. While the policy may not provide accessible
coverage in regard to a specific claim, depending upon a limits-to-limits
comparison, the policy may at the same time remain fully accessible in another
claim. The insured chooses the amount of coverage he desires and is free to
contract for greater levels of coverage that would increase the likelihood of
applicability.
C. The Public Policy Behind R.C. 3937.18(A)(2)

Instead of acknowledging the uncodified law, the majority continues to
rely upon "the public policy behind the enactment of the underinsured motorist
statute, as well as the statutory language" to conclude that "the purpose of
underinsured (and uninsured) motorist coverage is to treat injured automobile
liability policyholders the same whether a tortfeasor is underinsured or
uninsured." I disagree for two reasons.

First, the express words chosen by the General Assembly in the enacted
statute and in the uncodified law evince a public policy contrary to that policy
espoused by the majority. The second sentence of R.C. 3937.18(A)(2) as
amended by S.B. 20 states, as the majority recognizes, that underinsured motorist
coverage is not excess insurance to other applicable coverages. That sentence
provides that "[u]nderinsured motorist coverage * * * shall be provided only to
afford the insured an amount of protection not greater than that which would be
available under the insured's uninsured motorist coverage if the person or persons
liable were uninsured at the time of the accident." (Emphasis added.) 145 Ohio
Laws, Part I, 210-211. While this declaration of purpose does not preclude equal
25

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recovery, neither does it guarantee equal recovery. Rather, the sentence operates
only as a limitation on the amount of recovery through UIM coverage. Because a
statute is to be read in its entirety, the first sentence of R.C. 3937.18(A)(2) as
described in the foregoing discussion demonstrates the intent to permit potentially
different results under UM versus UIM coverage. Even if this provision is
construed as ambiguous, the previously addressed, probative, uncodified law
found in S.B. 20 reveals the legislative intent to overrule expressly the Andrews-
Savoie rationale and to preserve the limits-to-limits comparison in the triggering
provision, however inequitable a result it may at times produce. See Section 7,
S.B. 20, 145 Ohio Laws, Part I, 238.

Second, this court's past articulation of the presumed public policy
underlying the statutory scheme lacks support. In James v. Michigan Mut. Ins.
Co. (1985), 18 Ohio St.3d 386, 389, 18 OBR 440, 443, 481 N.E.2d 272, 274, the
court stated:

"Underinsured motorist coverage was first required by statute after the
legislature discovered the `underinsurance loophole' in uninsured motorist
coverage--i.e., persons injured by tortfeasors having extremely low liability
coverage were being denied the same coverage that was being afforded to persons
who were injured by tortfeasors having no liability coverage. Thus, the original
motivation behind the enactment of [former] R.C. 3937.181(C) was to assure that
persons injured by an underinsured motorist would receive at least the same
amount of total compensation that they would have received if they had been
injured by an uninsured motorist." (Emphasis sic.)

The articulation of public policy set forth in James should not be, and
cannot be, regarded as authoritative. This is so because there is no authority
supporting James's declaration of public policy, as a review of the legislative
history of R.C. 3937.18 and 3937.181 reveals.
26

January Term, 2001

The passage of Am.Sub.H.B. No. 22 in 1979 amended former R.C.
3937.18 and enacted former R.C. 3937.181. 138 Ohio Laws, Part I, 1459. The
amendments to former R.C. 3937.18 related to UM coverage and are not germane
here. Rather, the present inquiry is concerned with the enactment of former R.C.
3937.181.

Former R.C. 3937.181(A) defined underinsured motorist coverage and
explained its application:

"As used in this section, `underinsured motorist coverage' means coverage
in an automobile or motor vehicle liability policy protecting an insured against
loss for bodily injury, sickness, or disease, including death, 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
insufficient to pay the loss up to the insured's uninsured motorist coverage
limits." 138 Ohio Laws, Part I, 1459.

This provision did not guarantee UIM recovery equal to the amount
recoverable under UM coverage. Rather, much like the second sentence of
current R.C. 3937.18(A)(2), former R.C. 3937.181(A) expressly limited UIM
recovery to no more than the amount recoverable under UM coverage. This
cannot be said to have created the guarantee of equal recovery that James and its
progeny proclaimed as the public policy behind the statutory scheme.

Nor does former R.C. 3937.181(C) support such public policy. Yet, the
James majority stated that the claimed public policy motivated the enactment of
that specific section. James, 18 Ohio St.3d at 389, 18 OBR at 443, 481 N.E.2d at
274-275. It was only in later decisions that the court stated that this "public
policy" underlies the entirety of the statutory scheme. Neither construction was
correct, as former R.C. 3937.181(C) provided:

"The benefits provided under underinsured motorist coverages shall be
subject to the same provisions as to denial of coverage, insolvency, subrogation,
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or off-set as provided in uninsured motorist coverage under divisions (B), (C), and
(D) of section 3937.18 of the Revised Code." 138 Ohio Laws, Part I, 1460.

Former R.C. 3937.181(C) simply made various sections of the uninsured
motorist statute applicable to underinsured coverage. Former R.C. 3837.18(B),
for example, defined when a motor vehicle was to be classified as uninsured.
Section (C) of that statute permitted a right of subrogation and offset, qualified by
insolvency proceedings and "subject to the terms and conditions of [uninsured]
coverage." Id. at 1459. Finally, section (D) precluded offset of workers'
compensation recovery. Id. None of these sections articulated a public policy
guaranteeing equal recovery regardless of whether a tortfeasor was underinsured
or uninsured. Nor did they create a scheme whereby that would always be the end
result. Instead, these statutory provisions simply placed qualifications and
protections upon UIM recovery, once such recovery could be had under the
statutory scheme. Therefore, there is simply no statutory support for the
purported "public policy" animating James.

Nonetheless, this court cited James's articulation of the purported public
policy underlying former R.C. 3937.181 as supporting the result reached in Hill,
50 Ohio St.3d at 246, 553 N.E.2d at 661. Such reliance was misplaced. In Hill,
the court addressed a situation in which the injured insured happened to receive
the same amount of recovery from UIM coverage that he would have received
under UM coverage, not because of the purported public policy, but because he
was a single claimant who had purchased the same UIM and UM coverage limits.
Cf. Beagle v. Walden (1997), 78 Ohio St.3d 59, 63, 676 N.E.2d 506, 508-509
(explaining that because "[i]nsureds purchase their levels of protection," an
insured who purchases equal UM/UIM coverage and who is the only claimant "is
guaranteed total recovery for an accident up to those policy limits, regardless of
the tortfeasor's insurance status"). The Hill court's reference to James's public
28

January Term, 2001
policy was not dispositive, then, but merely mischaracterized the natural result of
Hill as an outgrowth of public policy.
James's "public policy" soon became an enabling mantra, relied upon to
ignore the actual language of the triggering provision of R.C. 3937.18(A)(2). See,
e.g., Savoie, 67 Ohio St.3d at 508, 620 N.E.2d at 815; Andrews, 65 Ohio St.3d at
364-365, 604 N.E.2d at 144-145 (both citing James). To accept James's
declaration of public policy is to accept judicial fiat as capturing the supposed will
of the people. The expressed will of the people as set forth in the statutory
language and uncodified law, however, rejects the majority's claimed public
policy.

With its analysis here, the majority uses this "public policy" to reject the
legislature's decision and again decides what the UM/UIM insurance law of this
state should be. But the role of a court is not to decide what the law should say;
rather, the role of this court is to interpret what the law says as it has been written
by the General Assembly--regardless of whether it constitutes sound policy.
Cablevision of the Midwest, Inc. v. Gross (1994), 70 Ohio St.3d 541, 544, 639
N.E.2d 1154, 1156 ("A court's role is to interpret, not legislate").
D. UIM Coverage is not Triggered in This Case

Following this court's decisions in Andrews and Savoie, the General
Assembly amended the setoff provision of R.C. 3937.18(A)(2) in 1994 with the
passage of S.B. 20. Both the S.B. 20 version and current R.C. 3937.18(A)(2)5
provide:

"The policy limits of the underinsured motorist coverage shall be reduced
by those amounts available for payment under all applicable bodily injury liability

5. The General Assembly amended other sections of R.C. 3937.18 in 1997 (147 Ohio Laws, Part
II, 2372), 1999 (S.B. No. 57), and 2000 (Sub.S.B. No. 267). These amendments did not alter
those provisions of R.C. 3937.18(A)(2) discussed herein.
29

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bonds and insurance policies covering persons liable to the insured." 145 Ohio
Laws, Part I, 211.

In considering this amended language--specifically the change from
"amounts actually recovered" to "amounts available for payment"--the majority
concludes that the legislature intended to adhere to this court's pre-S.B. 20
interpretation in Andrews of what "amounts available for payment" means. Such
reasoning espouses the view that the 1994 amendment to the statute was merely
cosmetic, then, as it would have effected no substantive change.

Not only does this case fail to present this issue to this court, but this case
also could not properly present the setoff issue, because UIM coverage is not even
triggered under the policies involved here. As the majority concedes, Andrews
interpreted the triggering provision of (A)(2) and not the setoff provision. While
Andrews construed "the limits of coverage available for payment" in the
triggering provision of subsection (A)(2) to mean "the amount actually available
for payment"--essentially the same as "those amounts actually recovered" in the
language of the former setoff sentence of the subsection--this interpretation was
erroneous both then and now. Andrews, 65 Ohio St.3d at 366, 604 N.E.2d at 145-
146. The Andrews-Savoie rationale has not only been superseded; moreover, it
was predicated on an unsupported perception of public policy and was contrary to
the plain language of R.C. 3937.18(A)(2).

That statute's plain language both provided and provides for a limits-to-
limits comparison in the triggering provision. In this case, the tortfeasor's
liability coverage was in the amount of $100,000 per person. Clark's UIM policy
also had a $100,000 per-person limit. Therefore, under the limits-to-limits
comparison mandated by the first sentence of R.C. 3937.18(A)(2), Clark's UIM
coverage is not triggered. The statute's setoff provision is therefore irrelevant.
III
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January Term, 2001

For the foregoing reasons, I decline to reach an issue not presented by this
case and then elevate resulting dicta to the level of syllabus law. Further, were
the issue presented, I would hold (1) that the intent of the General Assembly in
S.B. 20 was to make clear that a limits-to-limits comparison is used in
determining whether UIM coverage applies, and (2) that because the limits of the
tortfeasor's coverage are the same as the UIM coverage in this case, the issue of
setoff is never reached.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
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Lamkin, Van Eman, Trimble, Beals & Rourke and Thomas W. Trimble;
Crew, Buchanan & Lowe and Jeffrey A. Swillinger, for appellant.

Smith, Rolfes & Skavdahl Co., L.P.A., Matthew J. Smith and James P.
Nolan II, for appellee.

Elk & Elk Co., L.P.A., and Todd O. Rosenberg, urging reversal for amicus
curiae, Ohio Academy of Trial Lawyers.
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