State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of Trustees

Decision Date19 April 1995
Docket NumberNo. 94-2217,94-2217
Citation72 Ohio St.3d 62,647 N.E.2d 486
PartiesThe STATE ex rel. SOLOMON, Appellant, v. BOARD OF TRUSTEES OF the POLICE AND FIREMEN'S DISABILITY AND PENSION FUND, Appellee.
CourtOhio Supreme Court

Assad E. Solomon was employed as a police officer for the city of Cleveland for over twenty-four years. Mr. Solomon applied for disability retirement benefits in 1979. At that time, he was a widower. In April 1980, appellee, Board of Trustees of the Police and Firemen's Disability and Pension Fund ("board"), granted Mr. Solomon permanent total disability benefits pursuant to R.C. 742.37(C)(2). Mr. Solomon elected to receive a single annuity retirement allowance in the adjusted monthly amount of $1,424.82.

On May 31, 1991, Mr. Solomon married appellant, Patricia E. Solomon. On June 7, 1991, the board received a completed form from Mr. Solomon to add his wife as a dependent so that she could receive health care benefits. On July 31, 1991, Mr. Solomon completed and executed an application to cancel his single annuity plan and reselect a joint and survivor annuity plan naming Mrs. Solomon as beneficiary. The application included the following language:

"SECTION II--Explanation of Rights

" * * * [Y]ou may, upon your post-retirement marriage, cancel the plan under which you are currently being paid and reselect a joint and survivor annuity plan naming your current spouse as beneficiary. * * * The change in your monthly allowance will be effective the first day of the month following the month in which your application is received.

"SECTION III--Recision of Current Plan and Selection of Joint and Survivor Annuity Plan

" * * *

"I agree to accept a reduced monthly allowance so that upon my prior death Patricia Solomon whom I hereby nominate as beneficiary * * * will be entitled to receive a lifetime monthly allowance equal to 50% * * * of my reduced monthly allowance * * *."

This application was received by the board on August 2, 1991. On August 8, 1991, Mr. Solomon died of colon cancer, which he had been suffering from for two years. On September 1, 1991, the board issued a check to Mr. Solomon in the reduced monthly amount of $1,157.21, which was electronically deposited in his account. Upon being informed that Mr. Solomon had died prior to September 1, the board recovered the deposit.

By letter dated October 2, 1991, an administrator advised Mrs. Solomon that Mr. Solomon's application for the joint and survivor annuity plan was voided by his death prior to the effective date of his reselection. In March 1993, the board upheld the administrative determination that the application was invalid "because Mr. Solomon died before the first of the month following the date the application was received." The board subsequently affirmed its decision and advised Mrs. Solomon that her administrative remedies were exhausted.

On April 1, 1994, Mrs. Solomon commenced an action in the Court of Appeals for Franklin County seeking a writ of mandamus compelling the board to honor Mr. Solomon's application and to pay her accumulated and continuing joint and survivor retirement benefits. After the parties filed evidence and briefs, the court of appeals denied the writ.

The cause is now before this court upon an appeal as of right.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, Marc J. Jaffy and Sue Fauber, Columbus, for appellant.

Betty D. Montgomery, Atty. Gen., and Daniel A. Malkoff, Asst. Atty. Gen., for appellee.

PER CURIAM.

Mrs. Solomon asserts in her first proposition of law that when a retiree reselects a joint and survivor annuity plan and the election is filed with the board, the reselection is not voided by the death of the retiree before payments under the new plan commence, and the surviving spouse is entitled to receive benefits. In order to be entitled to a writ of mandamus, Mrs. Solomon must establish (1) that she has a clear legal right to accumulated and continuing joint and survivor retirement benefits, (2) that the board has a corresponding clear legal duty to provide these benefits, and (3) that she possesses no adequate remedy in the ordinary course of law. State ex rel. Shimola v. Cleveland (1994), 70 Ohio St.3d 110, 112, 637 N.E.2d 325, 326. On appeal, we review the judgment of the court of appeals to determine if it abused its discretion in denying the requested writ of mandamus. State ex rel. Hipp v. N. Canton (1994), 70 Ohio St.3d 102, 103, 637 N.E.2d 317, 318. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 97, 637 N.E.2d 311, 314.

The Police and Firemen's Disability and Pension Fund ("fund") is an organization created by R.C. 742.02 to provide disability benefits and pensions to members of the fund and their surviving spouses, children, and dependent parents. Police & Fire Retirees of Ohio, Inc. v. Police & Firemen's Disability & Pension Fund (1985), 18 Ohio St.3d 231, 18 OBR 289, 480 N.E.2d 482. The administration, control, and management of the fund is vested in the board. R.C. 742.03(B). R.C. 742.3711(A) provides that upon application for retirement, "a member of the fund may elect to receive a retirement allowance payable throughout his life, or he may elect, on a form provided by the board, to receive the actuarial equivalent of his retirement allowance in a lesser amount payable for his life and continuing after his death to a surviving designated beneficiary" under one of the specified optional plans. Mr. Solomon, widowed at the time of his retirement, elected to receive a single annuity retirement allowance under R.C. 742.3711(A) rather than a lesser amount so that a surviving beneficiary could receive benefits following his death.

R.C. 742.3711(C) provides:

"Following marriage or remarriage, a member of the fund may elect a new optional plan of payment based on the actuarial equivalent of his single lifetime benefit as determined by the board. The plan shall become effective the first day of the month following an application of a form approved by the board." (Emphasis added.)

In construing a statute, a court's paramount concern is the legislative intent. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. "In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." Id. at 594-595, 589 N.E.2d at 1323. Words used in a statute must be taken in their usual, normal or customary meaning. R.C. 1.42.

R.C. 742.3711(C) specifies that the reselected plan becomes "effective the first day of the month following an application of a form approved by the board." The first day of the month in which the board receives the election is the date on which the new plan takes effect or becomes operative. See Black's Law Dictionary (6 Ed.1990) 515, defining "effective date." The new plan encompasses the designation of a beneficiary as well as the reduction of the monthly benefit amount.

Mrs. Solomon contends that R.C. 742.3711(C) provides that the post-retirement reselection is effective when received by the board and that only the effectiveness of the payment under the new plan is delayed until the first day of the month following receipt by the board of the reselection. Mrs. Solomon thus concludes that although her husband died prior to the first day of the month following receipt of his reselection application, the new plan, with the sole exception of the payment provision, was effective immediately upon receipt by the board. However, Mrs. Solomon's interpretation of R.C. 742.3711(C) contravenes its plain language that the "plan" and not merely payment under the plan is ineffective until the first day of the following month. It is the duty of the court to give effect to the words used and not to insert words not used. State ex rel. Richard v. Bd. of Trustees of the Police & Firemen's Disability & Pension Fund (1994), 69 Ohio St.3d 409, 412, 632 N.E.2d 1292, 1295.

As the court of appeals held in its opinion:

"Relator's contentions directly contradict the language of the applicable statute and rule. According to those provisions, the application is not effective when received; it is effective on the first day of the month following the application. Because Mr. Solomon died prior to the effective date of his application requesting a change from the single...

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