Indiana Ins. Co. v. Murphy , 2006 Ohio 1264 ( 2006 )

{¶ 27} I must respectfully dissent from the opinion of the majority. The Ohio State Legislature, which has the prerogative to determine matters of public policy, has spoken clearly and unequivocally on this issue. Prior to 1999, certain court rulings allowed allegedly injured parties to initiate or participate in declaratory judgment actions between insurance companies and their insureds. In direct response to these court rulings, the 123d General Assembly passed Sub. H.B. No. 58, effective September 24, 1999, clearly prohibiting such participation prior to the allegedly injured party obtaining a judgment awarding damages for the injury.

{¶ 28} Specifically, R.C. 2721.02 provides:

A plaintiff who is not an insured under a particular policy of liability insurance may not commence against the insurer that issued the policy an action or proceeding under this chapter that seeks a declaratory judgment or decree as to whether the policy's coverage provisions extend to an injury, death, or loss to person or property that a particular insured under the policy allegedly tortiously caused the plaintiff to sustain or caused another person for whom the plaintiff is a legal representative to sustain, until a court of record enters in a distinct civil action for damages between the plaintiff and that insured as a tortfeasor a final judgment awarding the plaintiff damages for the injury, death, or loss to person or property involved.

(Emphasis added.) R.C. 2721.02(B). The intent of the legislature is further confirmed in R.C. 2721.12 and 3929.06, which also prevent the allegedly injured party from relitigating a final declaratory judgment.

{¶ 29} The clear, unequivocal, and unambiguous statement of public policy contained in Sub. H.B. No. 58 is to remove any right of the allegedly injured party to participate in a declaratory-judgment action between the insurance company and the insured, unless and until the allegedly injured party has obtained a final judgment for damages against the insured. The 123d General Assembly expressed this in the bill itself at Sections 4 and 5.²

{¶ 30} In order to obtain the majority's result in this case, they would have to play a game of semantics to avoid the result the Ohio Legislature intended. If they truly believe the legislative enactments to be ambiguous on this issue, they should look to R.C. 1.49 as instructive on what factors this court should consider in resolving the perceived conflict. They should then arrive at the same conclusion that the trial court and I have reached: that the public policy of Ohio currently prohibits an allegedly injured party from participating in a declaratory-judgment action between the insurance company and the insured prior to obtaining a final judgment against the insured.

{¶ 31} Accordingly, I would affirm the decision of the trial court.

²{¶ a} Sections 4 and 5 of Sub. H.B. 58 provide:

{¶ b} SECTION 4. The General Assembly declares that, in enacting divisions (A) and (B) of new section 3929.06 and new division (B) of section 2721.02 of the Revised Code in this act, in outright repealing existing section 3929.06 of the Revised Code in this act, and in making conforming amendments to sections 2721.03 and 2721.04 of the Revised Code in this act, it is the intent of the General Assembly to supersede the effect of the holding of the Ohio Supreme Court in Krejci v. Prudential Prop. Cas. Ins. Co. (1993), 66 Ohio St. 3d 15 [607 N.E.2d 446], Broz v. Winland (1994), 68 Ohio St. 3d 521, 524-525 [629 N.E.2d 395], and Mezerkor v. Mezerkor (1994), 70 Ohio St. 3d 304, 308 [638 N.E.2d 1007], that existing section 3929.06 of the Revised Code does not preclude the commencement of a civil action under that section or a declaratory judgment action or proceeding under Chapter 2721. of the Revised Code against an insurer that issued a policy of liability insurance until a court of record enters in a distinct civil action for damages between the plaintiff and an insured tortfeasor a final judgment awarding the plaintiff damages for the injury, death, or loss to person or property involved.

{¶ c} SECTION 5. The General Assembly declares that, in enacting new division (C) of section 2721.02, new division (B) of section 2721.12, and division (C) of new section 3929.06 of the Revised Code in this act and in making conforming amendments to division (A) of section 2721.12 of the Revised Code in this act, it is the intent of the General Assembly to supersede the effect of the holding of the Ohio Supreme Court in Broz v. Winland (1994), 68 Ohio St. 3d 521, [629 N.E.2d 395], and its progeny relative to the lack of binding legal effect of a judgment or decree upon certain persons who were not parties to a declaratory judgment action or proceeding between the holder of a policy of liability insurance and the insurer that issued the policy.