Wright v. Cincinnati Ins. Co. , 159 Ohio App. 3d 154 ( 2004 )

{¶ 36} I concur fully in the opinion and judgment of this court. I write separately merely to lament the apparent death of the doctrine that issues not raised in the trial court are waived for purposes of appellate review.

{¶ 37} I had intended to write a dissenting opinion in this case. I agree that the law-of-the-case doctrine does not bar application of Westfield Ins. Co. v. Galatis,100 Ohio St.3d 216, 797 N.E.2d 1256, for all of the reasons so ably set forth in Judge Wolff's opinion for this court. I had thought, however, that Cincinnati Insurance had waived any claim it might have had that the Wrights were not insureds under the policy when it failed to make this argument in the trial court when this case was originally decided in the trial court.

{¶ 38} Fortunately, before I wrote my dissenting opinion, I reread Westfield Ins. Co. v. Galatis. It is clear that the insurance company in that case had made no argument in the trial court, or in the court of appeals, that the plaintiffs and their decedent were not insureds under that policy but raised that argument for the first time in its brief in the Supreme Court. I conclude, therefore, that any issues of law an appellee can make in support of a judgment rendered in a trial court can be made at any stage of subsequent proceedings in the litigation. In the circumstances of this case, that may not be an altogether unjust result. I can imagine circumstances, however, where application of this doctrine would be unjust.

{¶ 39} Suppose, for example, that a motorist injured afterScott-Pontzer but before Galatis makes a claim under an underinsured-motorist provision in a corporate insurance policy. There are two issues. One issue is whether the claimant was an employee at the time of the accident, as opposed to having been merely an independent contractor; the other issue is whether uninsured/underinsured-motorist coverage was properly offered and rejected. Both issues go to a jury. Special interrogatories establish that the jury found for the plaintiff on the employee/independent contractor issue, but found for the defendant on the offer-and-rejection issue, resulting in a verdict and judgment for the defendant. The employee had been on her way home from work at the time of the accident.

{¶ 40} On appeal it is apparent that the trial court erred in submitting the offer-and-rejection issue to the jury because, under prevailing case law, there was never an adequate offer, so the purported rejection of uninsured/underinsured-motorist coverage was ineffective. Before the case is finally disposed of on appeal, however, Galatis is decided, and the insurance company argues that it should prevail because even though the plaintiff succeeded in proving to the satisfaction of the jury that she was an employee, she was not in the course of her employment when the accident occurred, or at least there is no evidence in the record to that effect. Had the plaintiff been aware of the fact that an issue would be raised concerning whether she was in the course of her employment, however, she would have offered proof that she had agreed to stop at the post office on her way home to mail some important documents for the company. Unless the insurance company is deemed to have waived any argument about the way the employment issue was submitted to the jury, the judgment for the defendant insurance company will have to be affirmed, based uponGalatis, and this seems fundamentally unfair to me.

{¶ 41} Where a litigant contemplates that it might argue that a decision of a higher court should be overruled, when and if the litigation should ultimately reach that court, I believe that the litigant has an obligation to raise the issue in the trial court, so that the adverse party can make up an appropriate factual record on that issue. Issues ought not to be tried, and resolved, for the first time in an appellate court.

{¶ 42} Notwithstanding my views on this subject, I recognize that the Ohio Supreme Court, in Westfield Ins. Co. v. Galatis, supra, has held otherwise. Therefore, I reluctantly concur in the judgment of this court.