03/19/2003 Case Announcements #2 - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as 03/19/2003 Case Announcements #2, 2003-Ohio-1314.]
The Supreme Court of Ohio

CASE ANNOUNCEMENTS AND ADMINISTRATIVE ACTIONS

March 19, 2003

MERIT DECISIONS WITHOUT OPINIONS

2002-0740. Purvis v. Cincinnati Ins. Co.
Greene App. No. 2001-CA-104, 2002-Ohio-1803. This cause is pending before the
court as an appeal and cross-appeal from the Court of Appeals for Greene County.
Upon consideration of appellants/cross-appellees' motion for summary reversal,

IT IS ORDERED by the court, sua sponte, that the oral argument in this case
scheduled for March 25, 2003, be, and hereby is, cancelled.

IT IS FURTHER ORDERED that the court of appeals' decision with respect
to appellants/cross-appellees' Propositions of Law Nos. I and II be reversed on the
authority of Kemper v. Michigan Millers Mut. Ins. Co., 98 Ohio St.3d 162, 2002-
Ohio-7101, 781 N.E.2d 196. Whereas this is a decision on the merits of
appellants/cross-appellees' Propositions of Law Nos. I and II, the provisions of
S.Ct.Prac.R. XI(2) apply to this disposition.

IT IS FURTHER ORDERED that appellants/cross-appellees' Proposition of
Law No. III and the cross-appeal remain pending and are held for decision pending
disposition of Supreme Court case No. 2002-0610, Geren v. Westfield Ins. Co.,
Lucas App. No. L-01-1398, 2002-Ohio-1230.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg Stratton and
O'Connor, JJ., concur.

Lundberg Stratton and O'Connor, JJ., concur separately.

Cook, J., not participating.

O'Connor, J., concurring separately.

Because I acknowledge that Kemper v. Michigan Millers Mut. Ins. Co., 98
Ohio St.3d 162, 2002-Ohio-7101, 781 N.E.2d 196, controls this issue, I agree that
summary reversal is appropriate. Nonetheless, I am compelled to write this
concurrence because I voted to reconsider Kemper. 98 Ohio St.3d 1492, 2003-
Ohio-1189, 785 N.E.2d 474.
In Kemper, we accepted jurisdiction on the following questions certified by
the United States District Court for the Northern District of Ohio: "(1) Are the
requirements of Linko v. Indemnity Ins. Co. [2000], 90 Ohio St.3d [445, 739
N.E.2d 338], relative to an offer of UM/UIM coverage, applicable to a policy of
insurance written after enactment of [1997] HB 261 and before [2001] SB 97?"
and "(2) If the Linko requirements are applicable, does, under [1997] HB 261, a
signed rejection act as an effective declination of UM/UIM coverage, where there
is no other evidence, oral or documentary, of an offer of coverage?"
In response to these questions, the majority summarily stated, "We answer
certified question No. 1 in the affirmative and certified question No. 2 in the
negative."
Chief Justice Moyer, joined by Justice Lundberg Stratton, authored a dissent
that amply illustrated the flaws inherent in that majority's holding. Chief Justice
Moyer wrote: "The majority not only imposes [the Linko] requirements without
any statutory basis or legal analysis, but it also ignores the fact that R.C. 3937.18,
as amended by H.B. 261, unlike the former statute, speaks directly to the
requirements that are necessary for a valid offer and rejection of UM/UIM
coverage. In view of these amendments and the absence of any statutory support
to impose the Linko requirements, I would conclude that such requirements are
inapplicable to insurance policies written after the effective date of H.B. 261." 98
Ohio St.3d 162, 2002-Ohio-7101, 781 N.E.2d 196, at ¶ 6.
Moreover, "where the language of a statute is clear and unambiguous, it is
the duty of the court to enforce the statute as written, making neither additions to
the statute nor subtractions therefrom." Hubbard v. Canton City School Dist. Bd. of
Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, at ¶ 14. As illustrated
in Chief Justice Moyer's dissent, the Kemper decision adjusted the statutory
UM/UIM offer-and-rejection mandates that came into effect following H.B. 261.
I voted to reconsider Kemper for the purpose of bringing this court's rule of
law into conformity with R.C. 3937.18. Now that this court has resolved not to
reconsider Kemper, I accordingly must concur that summary reversal is appropriate
here.

Lundberg Stratton, J., concurs in the foregoing concurring opinion.

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2002-0977. Purvis v. Cincinnati Ins. Co.
Greene App. No. 2001-CA-104, 2002-Ohio-1803. This cause is pending before the
court on the certification of a conflict by the Court of Appeals for Greene County.
Upon consideration of the merits,

IT IS ORDERED by the court, sua sponte, that the oral argument in this case
scheduled for March 25, 2003, be, and hereby is, cancelled.

IT IS FURTHER ORDERED by the court that this cause be reversed on the
authority of Kemper v. Michigan Millers Mut. Ins. Co., 98 Ohio St.3d 162, 2002-
Ohio-7101, 781 N.E.2d 196.

IT IS FURTHER ORDERED that the appellants recover from the appellees
their costs herein expended, that a mandate be sent to the Court of Appeals for
Greene County to carry this judgment into execution, and that a copy of this entry
be certified to the Clerk of the Court of Appeals for Greene County for entry.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg Stratton and
O'Connor, JJ., concur.

Lundberg Stratton and O'Connor, JJ., concur separately.

Cook, J., not participating.

O'Connor, J., concurring separately.

Because I acknowledge that Kemper v. Michigan Millers Mut. Ins. Co., 98
Ohio St.3d 162, 2002-Ohio-7101, 781 N.E.2d 196, controls this issue, I agree that
summary reversal is appropriate. Nonetheless, I am compelled to write this
concurrence because I voted to reconsider Kemper. 98 Ohio St.3d 1492, 2003-
Ohio-1189, 785 N.E.2d 474.
In Kemper, we accepted jurisdiction on the following questions certified by
the United States District Court for the Northern District of Ohio: "(1) Are the
requirements of Linko v. Indemnity Ins. Co. [2000], 90 Ohio St.3d [445, 739
N.E.2d 338], relative to an offer of UM/UIM coverage, applicable to a policy of
insurance written after enactment of [1997] HB 261 and before [2001] SB 97?"
and "(2) If the Linko requirements are applicable, does, under [1997] HB 261, a
signed rejection act as an effective declination of UM/UIM coverage, where there
is no other evidence, oral or documentary, of an offer of coverage?"
In response to these questions, the majority summarily stated, "We answer
certified question No. 1 in the affirmative and certified question No. 2 in the
negative."
Chief Justice Moyer, joined by Justice Lundberg Stratton, authored a dissent
that amply illustrated the flaws inherent in that majority's holding. Chief Justice
Moyer wrote: "The majority not only imposes [the Linko] requirements without
3

any statutory basis or legal analysis, but it also ignores the fact that R.C. 3937.18,
as amended by H.B. 261, unlike the former statute, speaks directly to the
requirements that are necessary for a valid offer and rejection of UM/UIM
coverage. In view of these amendments and the absence of any statutory support
to impose the Linko requirements, I would conclude that such requirements are
inapplicable to insurance policies written after the effective date of H.B. 261." 98
Ohio St.3d 162, 2002-Ohio-7101, 781 N.E.2d 196, at ¶ 6.
Moreover, "where the language of a statute is clear and unambiguous, it is
the duty of the court to enforce the statute as written, making neither additions to
the statute nor subtractions therefrom." Hubbard v. Canton City School Dist. Bd. of
Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, at ¶ 14. As illustrated
in Chief Justice Moyer's dissent, the Kemper decision adjusted the statutory
UM/UIM offer-and-rejection mandates that came into effect following H.B. 261.
I voted to reconsider Kemper for the purpose of bringing this court's rule of
law into conformity with R.C. 3937.18. Now that this court has resolved not to
reconsider Kemper, I accordingly must concur that summary reversal is appropriate
here.

Lundberg Stratton, J., concurs in the foregoing concurring opinion.

4