Hillman v. Hastings Mut. Ins. Co., 92-2330

• Citation: 626 N.E.2d 73,68 Ohio St.3d 238
• Decision Date: 09 February 1994
• Docket Number: No. 92-2330,92-2330
• Parties: HILLMAN et al., Appellees and Cross-Appellants, v. HASTINGS MUTUAL INSURANCE COMPANY, Appellant and Cross-Appellee.
• Court: United States State Supreme Court of Ohio

Page 238

68 Ohio St.3d 238

626 N.E.2d 73

HILLMAN et al., Appellees and Cross-Appellants, v. HASTINGS MUTUAL INSURANCE COMPANY, Appellant and Cross-Appellee.

No. 92-2330.

Supreme Court of Ohio.

Submitted Dec. 14, 1993.

Decided Feb. 9, 1994.

APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No. 92AP-717.

Clark, Perdue & Roberts Co., L.P.A., and Dale K. Perdue, Columbus, for appellees and cross-appellants.

John C. Nemeth & Associates, John C. Nemeth and David A. Caborn, Columbus, for appellant and cross-appellee.

Raymond J. Tisone, Warren, for amicus curiae, Ohio Academy of Trial Lawyers.

The judgment of the court of appeals is affirmed on authority of paragraph three of the syllabus in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809.

A. WILLIAM SWEENEY, DOUGLAS, RESNICK, FRANCIS E. SWEENEY, Sr., and PFEIFER, JJ., concur.

MOYER, C.J., concurs separately.

WRIGHT, J., dissents.

PFEIFER, Justice, concurring.

I agree that the retroactive application of the third syllabus paragraph of Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, mandates that we affirm the court of appeals because Savoie, in all personal injury cases, eliminates the setoff against underinsurance policy limits of amounts received from other insurance carriers in the absence of intrafamily stacking. However, I would also eliminate the physical contact rule as requested by the cross-appellants.

MOYER, Chief Justice, concurring separately.

I concur separately in the judgment entry in the above-styled case. As my dissent in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, stated, I do not agree with the law announced in the majority decision. Nevertheless, it is the law on the issue in the above-styled case. As I believe all parties should receive equal application of the law announced by this court, and only for that reason, I concur in the judgment entry.

WRIGHT, Justice, dissenting.

The majority has decided this case on the basis of Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. It is my view that the majority has gone further than it did in Savoie in this matter. What has happened here, sub silentio, is the conversion of uninsured/underinsured motorist coverage to "excess" insurance. All of this, of course, is being done on the theory that R.C. 3937.18(A)(1) and (2) coupled with R.C. 3937.18(E) are somehow ambiguous. The majority in Savoie did not limit the operation and effect of R.C. 3937.18(A)(2) and 3937.18(E), which indicate with clarity that an insurer such as Hastings has the right to set off against its policy limits the amount paid by the tortfeasor's insurer. A setoff of underinsured/uninsured motorist coverage is permitted under R.C. 3937.18(E) provided the setoff is clearly and unambiguously set forth in the policy. See In re Nationwide Ins. Co. (1989), 45 Ohio St.3d 11, 543 N.E.2d 89, at the syllabus. In footnote 5 of In re Nationwide, this court provided an example of how a setoff is to be calculated, which applies directly to the instant case. The example set forth in In re Nationwide, wherein the amount actually recovered from the persons liable to the insured are set off against the limit of uninsured/underinsured liability coverage, is consistent with the General Assembly's intent in enacting R.C. 3937.18. The legislative history of Am.Sub.H.B. No. 22, as introduced by Representative R. James on January 2, 1979, provides the following example in discussing the effect of the bill:

"The policy, as originally issued, had limits of coverage below the amount of underinsured motorist coverage in the injured party's policy. ...