Savoie v. Grange Mut. Ins. Co.

SUBJECT TO FURTHER EDITING

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Savoie, Admr., Appellant and Cross-Appellee, v. Grange Mutual

Insurance Company, Appellee and Cross-Appellant; Motorists

Mutual Insurance Company, Appellee.

[Cite as Savoie v. Grange Mut. Ins. Co. (1993), Ohio St.3d

.]

Insurance -- Underinsured motorist coverage -- Wrongful death

-- Each person entitled to recover under R.C. 2125.02 has

separate claim subject to any per accident limit --

Insurers may contractually preclude stacking of

uninsured/underinsured limits for separate vehicles, when

-- Underinsurance claim must be paid, when -- Each person

who is covered by a uninsured/underinsured policy has a

separate claim subject to a per person policy limit.

1. Each person who is presumed to have been damaged as a result

of a wrongful death claim may, to the extent of his or her

damages, collect from the tortfeasor's liability policy up

to its per person limits subject to any per accident

limit. Liability policy provisions which purport to

consolidate wrongful death damages suffered by individuals

into one "each person" policy limit are unenforceable.

(State Farm Auto. Ins. v. Rose [1991], 61 Ohio St. 3d 528,

575 N.E.2d 459, and paragraphs one and two of the syllabus

of Burris v. Grange Mut. Cos. [1989], 46 Ohio St.3d 84,

545 N.E.2d 83, overruled; Wood v. Shepard [1988], 38 Ohio

St.3d 86, 526 N.E.2d 1089, applied and followed.)

2. Insurers may contractually preclude intrafamily stacking --

the stacking of uninsured/underinsured limits of policies

and coverages purchased by family members living in the

same household. Insurers may not contractually preclude

interfamily stacking -- the aggregation of

uninsured/underinsured limits of policies purchased by two

or more people who are not members of the same household.

(Hower v. Motorists Mut. Ins. Co. [1992], 65 Ohio St.3d

442, 605 N.E.2d 15, overruled; Karabin v. State Auto.

Mut. Ins. Co. [1984], 10 Ohio St. 3d 163, 10 OBR 497, 462

N.E.2d 403, and paragraph one of the syllabus of Dues v.

Hodge [1988], 36 Ohio St. 3d 46, 521 N.E.2d 789, limited.)

3. An underinsurance claim must be paid when the individual

covered by an uninsured/underinsured policy suffers

damages that exceed those monies available to be paid by

the tortfeasor's liability carriers. (Hill v. Allstate

Ins. Co. [1990], 50 Ohio St. 3d 243, 553 N.E.2d 658,

overruled.)

4. Each person, who is covered by an uninsured/underinsured

policy and who is presumed to be damaged pursuant to R.C.

2125.01, has a separate claim subject to a separate per

person policy limit. (Wood v. Shepard [1988], 38 Ohio

St.3d 86, 526 N.E.2d 142, applied; Paragraph two of the

syllabus of Dues v. Hodge, supra, limited.)

(No. 92-952 -- Submitted March 17, 1983 -- Decided October 1, 19

93.)

Appeal and Cross-Appeal from the Court of Appeals for

Holmes County, No. CA-450.

The facts in this case have been stipulated by all the

parties. On September 28, 1989, Christina L. Savoie was killed

in an automobile accident caused by Gary F. Miller, who was

driving the automobile in which Christina was a passenger. The

automobile operated by Gary Miller, a 1982 Honda Accord, was

owned by Earl R. Miller. Earl Miller had given his son, Gary,

permission to operate the automobile. David L. Byland was also

injured in this accident when the car driven by Gary Miller

crashed into his truck. The collision, the instantaneous death

of Christina Savoie, and the injuries to David Byland were all

proximately caused by the negligence of Gary Miller.

The Honda operated by Gary Miller and owned by Earl Miller

was covered by a Grange Mutual Casualty Company automobile

insurance policy. The limits for liability for this policy were

$100,000 per person and $300,000 per accident.

There were also in effect two uninsured/underinsured

insurance policies from Motorists Mutual Insurance Company.

Each policy provided coverage in the amount of $100,000 per

person and $300,000 per accident.

Under the provisions of the first policy with Motorists,

Policy No. 4246-06-200902-07A ("Motorists Policy I"), Donald

Savoie, the decedent's father was the named insured. Mary

Savoie, the decedent's mother, was a listed driver on the

policy.

Under the second policy with Motorists, No.

4246-04-200901-01D ("Motorists Policy II"), Donald Savoie was

the named insured with Mary Savoie, Christina Savoie and Debbie

Savoie, the sister of the decedent, being listed as drivers.

Mary Savoie, the duly appointed administrator of her

daughter Christina's estate, filed a wrongful death action

against Gary Miller and Earl Miller for all persons sustaining

loss by the death of Christina. She also sought recovery for

the entire class of injured persons against Motorists'

underinsured coverage. David Byland also made a claim against

Gary and Earl Miller through Grange for the injuries he

incurred as a result of the automobile accident. Mary Savoie

asserts Grange paid David Byland $75,000 in full and final

settlement of his claim.

On June 26, 1990, Mary Savoie, in her capacity as

administrator, filed a complaint for declaratory judgment in

the Holmes County Court of Common Pleas. In this complaint,

Mary, as administrator, asked that the court determine the

various rights and obligations between herself, as the

decedent's mother, Donald Savoie, as the decedent's father,

Debbie Savoie, as the decedent's sister, Grange, as the

tortfeasor's liability insurer, and Motorists, as the provider

of underinsured coverage to Mary Savoie, Donald Savoie and

Debbie Savoie (collectively, "the Savoies").

In its initial findings of fact and conclusions of law,

the trial court determined that the Savoies were entitled to

collect up to $300,000 from the tortfeasor's insurer, Grange.

The trial court also found that the limits of the two Motorists

uninsured/underinsured policies in which the Savoies were named

insureds could not be "stacked" or combined. Finally, the

trial court found that the Savoies were not permitted to

collect upon their underinsurance coverage because their own

policy limits were identical to the limits of the tortfeasor's

liability policy.

On August 22, 1991, the court filed amended findings of

fact and conclusions of law which came to the same ultimate

conclusions as the first entry.

On October 30, 1991, the trial court filed second amended

findings of fact and conclusions of law. The court, after

citing State Farm Auto. Ins. Co. v. Rose (1991), 61 Ohio St. 3d

528, 575 N.E.2d 459, concluded the Savoie claimants

collectively were limited to the "$100,000 each person" limit

in the tortfeasor's insurance policy with Grange. The court

reiterated its holding regarding the uninsured/underinsured

policy with Motorists.

Mary Savoie, as administrator, appealed the trial court's

decision. On April 17, 1992, the Court of Appeals for Holmes

County determined that the trial court had erred when it held

that the Savoies were collectively restricted to the "$100,000

each person" language in the tortfeasor's liability policy with

Grange. Instead, the court of Appeals held that the Savoie

claimants were collectively subject to the "$300,000 each

accident" limit. The court of appeals affirmed the trial

court's treatment of the Savoies' underinsurance policies.

The cause is before this court pursuant to the allowance

of a motion and cross-motion to certify the record.

Frase, Weir, Baker & McCullough and Robert E. Weir; and

Norman S. Davitt, for appellant and cross-appellee.

Reynolds & Reynolds and Craig R. Reynolds for appellee and

cross-appellant.

Baker, Meekison & Dublikar, Gregory A. Beck, Carol A.

Costa and Rosemarie A. Hall, for appellee Motorists Mutual

Insurance Company.

Scanlon & Henretta Co., L.P.A., J. Thomas Henretta and Ann

Marie O'Brien, for amicus Ohio Academy of Trial Lawyers.

Pfeifer, J. Mary Savoie, as administrator, raises

three questions of automobile insurance law, which have been

the subject of continued redefinition and controversy within

this court: What are the effects of "per person" limits in

liability policies on multiple wrongful death claimants? When

is it permissible to combine or stack uninsured/underinsured

motorists policies? To what extent do underinsurance policies

provide coverage to their own named insureds facing inadequate

compensation from a tortfeasor's liability insurer?

I

Mary Savoie, administrator, contends that the decedents'

parents and sister are each entitled to recover up to $100,000

under the tortfeasor's "per person" limitations in his

liability policy and are collectively subject to the $300,000

per occurrence limit. Grange argues that the multiple

claimants must be merged under the wrongful death statute into

a single cause of action brought by the administrator and are,

therefore, confined to a single combined "per person" recovery

limit.

In a refreshing moment of candor, Motorists' attorney in

oral argument urged this court to:

"***use the statute in a wrongful death [claim] to get to

a position where all the insurance companies know that when

there is a death claim, no matter what the policy says, we have

in fact a full policy exposed. That would reduce so much

litigation. It would reduce so much complexity. It would allow

us in the insurance industry to at least focus on what the

claim is and then we would know. That's the posture that

Motorists Mutual would like to present to the court in this

case, and if the court takes that posture, then, certainly

Grange Mutual owes $225,000."

The liability policy issued by Grange provides:

"The limit of liability shown in the Declarations for

'each person' for Bodily Injury Liability is our maximum limit

of liability for all damages, including damages for care, loss

of services or death, arising out of bodily injury sustained by

any one person in any one auto accident. Subject to this limit

for 'each person', the limit of liability shown in the

Declarations for 'each accident' for Bodily Injury Liability is

our maximum limit of liability for all damages for bodily

injury resulting from any one accident. ***This is the most we

will pay regardless of the number of

"1. Insureds;

"2. Claims made;

"3. Vehicles or premiums shown in the Declarations; or

"4. Vehicles involved in the accident."

In an attempt to narrowly interpret its own insurance

policy provision, Grange ignores the elevated status of

wrongful death claims in Ohio.

To manage the presentment of wrongful death claims the

General Assembly enacted R.C. 2125.02, which charges the

estate's administrator with the responsibility of consolidating

the wrongful death damages of all claimants into one action.

The statute also provides that "the surviving spouse, the

children, and the parents of the decedent" all "are rebuttably

presumed to have suffered damages" resulting from wrongful

death. R.C. 2125.02(A)(1).

Previously, in Wood v. Shepard (1988), 38 Ohio St. 3d 86,

526 N.E.2d 1089, this court held that an underinsured motorists

policy could not consolidate all the wrongful death claims of

those presumed to have suffered damages under R.C. 2125.02 and

subject them to a single per person limit in that policy .

The General Assembly and this court have expressed the

view that damages for wrongful death claims should not be

limited. Even the Ohio Constitution in its Bill of Rights

provides:

"The amount of damages recoverable by civil action in the

courts for death caused by the wrongful act, neglect, or

default of another, shall not be limited by law." Section 19a,

Article I, Constitution of Ohio.

Consistent with this view, each person who is presumed to

have been damaged as a result of a wrongful death, to the

extent of his or her damages, may collect from the tortfeasor's

liability policy up to its per person limits subject to any per

accident limit. Liability policy provisions which purport to

consolidate wrongful death damages suffered by individuals are

unenforceable because they directly violate the policy

expressed by the General Assembly and this court.

Because this court in State Farm Auto. Ins. v. Rose

(1991), 61 Ohio St. 3d 528, 575 N.E.2d 459, and in paragraphs

one and two of the syllabus of Burris v Grange Mut. Cos.

(1989), 46 Ohio St.3d 84, 545 N.E.2d 83, has misinterpreted the

legislative status of wrongful death claims in Ohio, these

cases are overruled accordingly.

By applying our analysis to the facts in the case before

us, we find the mother, father and the sister of the decedent

are individually entitled to recover, to the extent they prove

damages, a maximum of $100,000 each up to $225,000 which is the

balance of the Grange liability policy limits available to the

Savoie claimants. On this issue, the holding of the court of

appeals is affirmed.

II

The Savoies ask this court to declare that antistacking

clauses contained in two separate uninsured/underinsurance

policies are both unenforceable. Motorists, the insurer under

both of these policies, urges that the clauses be enforced.

The antistacking provisions in both policies are identical.

They provide:

"OTHER INSURANCE

"If there is other applicable similar insurance available

under more than one policy or provision of coverage

"1. Any recovery for damages for bodily injury sustained

by an insured may equal but not exceed the higher of the

applicable limit for any one vehicle under this insurance or

any other insurance

"2. Any insurance we provide with respect to a vehicle you

do not own shall be excess over any other collectible insurance.

"3. We will pay only our share of the loss. Our share is

the proportion that our limit of liability bears to the total

of all applicable limits."

The Motorists policy also attempts to prohibit the

stacking of multiple uninsured/underinsured policy limits which

have been purchased by the same family.

"Two or More Auto Policies

"If this policy and any other auto insurance policy issued

to you by us apply to the same accident, the maximum limit of

our liability under all the policies shall not exceed the

highest applicable limit of liability under any one policy."

This antistacking language in the policies passes the

"unambiguous," "clear" and "conspicuous" test as delineated in

Dues v. Hodge (1988), 36 Ohio St. 3d 46, 521 N.E.2d 789,

paragraph one of the syllabus.

However, we no longer support the analysis of antistacking

language used in Dues v. Hodge. Our discomfort is rooted in a

concern that liability insurers are collecting multiple

premiums for multiple policies, while limiting recovery by

antistacking language -- the import of which is not known or

understood by the insured consumer until tragedy strikes.

Dues v. Hodge and its progeny broadly contravened the line

of cases which was developing prior to the enactment of R.C.

3937.18(E), now 3937.18(G), in 1980. In Curran v. State Auto.

Mut. Ins. Co. (1971), 25 Ohio St.2d 33, 54 O.O.2d 166, 266

N.E.2d 566, this court in an unanimous decision announced that

antistacking provisions were "repugnant" to the purpose of the

uninsured/underinsured motorists statute when they are used by

an insurer to deny coverage to an insured because other

uninsured coverage is available to the insured under a

different policy from a different insurer. In Grange Mut. Cas.

Co. v. Volkmann (1978), 54 Ohio St. 2d 58, 8 O.O.3d 70, 374

N.E.2d 1258, this court again unanimously held antistacking

provisions in an uninsured policy to be unenforceable when

separate coverages were available from separate policies

covering different vehicles. Time after time, this court held

antistacking provisions to be in contravention of R.C. 3937.18.

The General Assembly responded to this developed line of

cases by adding the following provision to the statute:

"Any automobile liability or motor vehicle liability

policy of insurance that includes uninsured motorist coverage

may include terms and conditions that preclude stacking of

uninsured motor vehicle coverages." 138 Ohio Laws, Part I,

1458, 1459.

This court, in Karabin v. State Auto. Mut. Ins. Co.

(1984), 10 Ohio St. 3d 163, 10 OBR 497, 462 N.E.2d 403, held

that this amendment was "unambiguous," and expressed the will

of the General Assembly to permit insurers to preclude stacking

in all circumstances. In later cases the court held that R.C.

3937.18(G) gives insurance companies a license to contractually

preclude the stacking of separate uninsured/underinsured

coverages, irrespective of the number of policies involved, the

number of premiums paid, or the number of vehicles covered,

provided that the antistacking language is "unambiguous,"

"clear," and "conspicuous." Dues v. Hodge, supra.

The current version of the statute provides:

"(G) Any automobile liability or motor vehicle liability

policy of insurance that includes coverages offered under

division (A) of this section [uninsured and underinsured

coverages] may include terms and conditions that preclude

stacking of such coverages." 139 Ohio Laws, Part II, 2936, 2938.

The present statute permits insurance companies to

contractually preclude the stacking of coverages in "any ***

liability policy." We find this provision to be ambiguous. It

is unclear whether R.C. 3937.18(G) is intended to allow the

contractual preclusion of intra-family stacking, inter-family

stacking, or both.

"Intrafamily" stacking occurs when an individual or an

entire family is insured by several separate

uninsured/underinsured policies insuring different vehicles.

When the individual or a family member is injured by an

uninsured or underinsured motorist, he or she will try to

combine, or stack, each of the policies' underinsurance limits

to compensate the injured individual.

"Interfamily" stacking occurs when an individual has paid

a premium for an uninsured/underinsured motorists policy and is

riding in an automobile, which is owned by someone other than a

family member living in the same household and is insured by a

separate uninsured/underinsured motorists policy. When the

individual is injured by an uninsured or underinsured motorist

while riding in this automobile, he will seek to recover

compensation from the policy insuring the automobile in which

he was riding and his own uninsured/underinsured motorists

policy for which he has paid a premium.

In light of the disfavor which antistacking provisions

have received by this court in cases such as Curran, supra, and

Volkmann, supra, we conclude that R.C. 3937.18(G) should be

narrowly construed. Insurers may contractually preclude,

intrafamily stacking -- the stacking of uninsured/underinsured

limits of policies and coverages purchased by family members in

the same household. Insurers may not contractually preclude

interfamily stacking -- the aggregation of

uninsured/underinsured limits of policies purchased by two or

more people who are not members of the same household.

In intrafamily stacking situations, insurers can provide

reduced premiums for clients who purchase multiple

uninsured/underinsured policies for separate vehicles. If the

premium has been reduced, it logically follows that benefits

can be restricted. However, the injured individual in an

interfamily stacking scenario seeks to combine the limits of

two policies for which premiums have not been reduced because

of their mutual existence. Because insurers are attempting to

prevent the full payment of two policy limits resulting from

the full, unadjusted premium payment of two unrelated insurance

policies, the contractual preclusion of interfamily stacking is

unconscionable. We do not believe that the legislature

intended to sanction such a practice.

With this reading of R.C. 3937.18's scope, the cases

decided prior to the 1980 enactment of division (E) breathe

renewed life to the extent they apply to interfamily stacking.

Because Hower v. Motorists Mut. Ins. Co. (1992), 65 Ohio

St.3d 442, 605 N.E.2d 15, involves interfamily stacking, it is

overruled. The case of Karabin, supra, and the first syllabus

paragraph of Dues v. Hodge, supra, are limited to apply to

intrafamily stacking only.

This interpretation of R.C. 3937.18(G) is consistent with

the concerted effort of the General Assembly to force all

motorists to maintain liability insurance coverage on motor

vehicles being operated within the State of Ohio. The

Financial Responsibility Act requires that all motorists have

the "ability to respond in damages for liability," and provides

severe penalties for failure to comply. R.C. 4509.01(K).

Regrettably, the General Assembly has not succeeded in its

effort to force every motorist to maintain liability insurance

coverage. While it is impossible to accurately measure the

number, the best insurance industry estimate would indicate

that fifteen to twenty-five percent of Ohio motorists are

driving without any liability insurance coverage. New York

Times, September 3, 1990, A-10. The purchase of full

uninsured/underinsured coverage is the only possible means for

responsible motorists to protect themselves and their families.

By applying the above holding to the facts in this case,

we conclude that Mary and Donald, because they are members of

the same household, may not stack the limits of their two

uninsured/underinsured policies with Motorists. Because Debbie

Savoie is only an insured in one of these policies, she does

not qualify to stack the limits.

The holding of the court of appeals on the issue of

stacking is affirmed.

III

Finally, this court considers how the money paid by the

tortfeasor's liability insurer affects the Savoies' ability to

collect from their underinsurance carrier. In Part I of this

opinion, we held that the Savoies were entitled to collect up

to $225,000 from the tortfeasor's liability carrier, Grange.

The Savoies are insureds in two uninsured/underinsurance

policies with Motorists, each having limits of $100,000 per

person, $300,000 per accident limits. As a result of their

wrongful death claims, the Savoies seek to recover from these

policies.

Motorists argues that it is not liable to the Savoies at

all because the $100,000 per person, $300,000 per occurrence

limits of its underinsurance policy are identical to the limits

of the tortfeasor's liability policy, and hence the tortfeasor

was not underinsured. Hill v. Allstate Ins. Co. (1990), 50

Ohio St. 3d 243, 553 N.E.2d 658.

In order to arrive at the proper conclusion in this case,

it is critical to review the purpose of R.C. 3937.18, which

explains how monies received from a tortfeasor's liability

insurer reduce, or do not reduce, the limits of an

underinsurance policy. An individual covered by an

underinsurance policy is entitled to receive compensation in an

amount no less than what he would receive if he had been

injured by an uninsured motorist. James v. Michigan Mut. Ins.

Co. (1985), 18 Ohio St.3d 386, 18 OBR 440, 481 N.E. 2d 272.

Thus, underinsured motorists who suffer from injuries caused by

an automobile accident are entitled to collect up to the full

limits of their underinsurance policy to the extent that their

damages exceed the amounts which the tortfeasor's insurer has

already paid to them. The Savoies may collect up to the limits

of their policy with Motorists to the extent that their damages

exceed the $225,000 which they are entitled to receive from

Grange.

In Hill v. Allstate Ins. Co., supra, a majority of this

court held without elaboration that an underinsurance carrier

avoids responsibility to its insureds when the limits of its

policy are identical to the limits of the tortfeasor's

liability policy. This decision incorrectly construes R.C.

3937.18, and is now expressly overruled.

In Part I of this opinion, we concluded that the claim of

each of the Savoies is a separate claim and is entitled to its

own per person policy limit under the terms of the tortfeasor's

liability policy. We have not addressed whether each of the

Savoies, who are also insureds in an underinsured policy, is

entitled to a separate per person limit or whether all claims

must be consolidated into one per person policy limit.

This court's holding in Wood v. Shepard, supra, is

completely dispositive of this issue. According to Wood, each

insured, who under an underinsured motorists policy has the

right to have a wrongful death action brought in his or her

name pursuant to R.C. 2125.01, has a separate wrongful death

claim subject to a separate per person policy limit. See,

also, Motorists Mut. Ins. Co. v. Andrews (1992), 65 Ohio St. 3d

362, 604 N.E.2d 142.

Despite previous attempts by this court to restrict the

application of Wood, we hold today that it remains good law in

Ohio. Each person, who is covered by an uninsured/underinsured

policy and who is presumed to be damaged pursuant to R.C.

2125.01, has a separate claim subject to a separate per person

policy limit.

Two cases, Burris v. Grange Mut. Co., supra, and State

Farm Auto. Ins. Co. v. Rose, supra, narrow the holding in

Wood. To the extent they do so, they are overruled. Paragraph

two of the syllabus of Dues v. Hodge, supra, is limited to

apply only to cases involving a single bodily injury which has

not resulted in wrongful death.

By applying the holding in Wood v. Shepard, supra, to the

facts in this case, we conclude that Mary, Donald, and Debbie

Savoie are each entitled to recover up to the $100,000 "per

person" policy limits in the Motorists underinsurance policy,

to the extent that each family member's damages exceed the

payments which each has received from Grange; however, in no

event should Motorists be obligated to pay more than a total of

$300,000. The holding of the court of appeals addressing the

extent that underinsured motorists coverage is set off by the

tortfeasor's liability coverage is reversed.

Judgment affirmed in part

and reversed in part

A.W. Sweeney, Douglas, Resnick and F.E. Sweeney, JJ.,

concur.

Moyer, C.J., and Wright, J., dissent.

Douglas, J., concurring. For far too long now various

majorities of this court have been attempting, in interpreting

liability, uninsured and underinsured automobile insurance

policies, to place square legal pegs in round legal holes.

Because of this, the law in this area has become increasingly

confused. Today, despite caustic dissents, Justice Pfeifer has

attempted to bring some semblance of order to what most

reasonable persons with knowledge and interest in the field

concede is an area of the law that badly needs clarification.

Justice Pfeifer inherited this problem -- he was not a part of

creating the admitted confusion. While not all of us in the

majority agree with every detail in Justice Pfeifer's opinion,1

his valiant effort will be of immeasurable help.

It is important to now recognize that this court has been

attempting to apply the same law to differing fact patterns and

that the approach has not, cannot and will not work. We should

recognize, and Justice Pfeifer's opinion does so, that

uninsured-motorist cases are different from

underinsured-motorist cases; that multiple-claimant cases are

different from single-claimant cases; that cases involving

wrongful death are different from those where death is not

involved; and that cases where there is a tortfeasor liability

policy are different from those where there is no liability

policy.

Thus, we have cases (1) where the tortfeasor is insured

and there is only one injured claimant; (2) where the

tortfeasor is insured and there is more than one injured

claimant; (3) where the tortfeasor is insured and there is a

single wrongful death; (4) where the tortfeasor is insured and

there are injured claimants and a wrongful death claimant or

claimants; (5) where a tortfeasor is uninsured and there are

single or multiple injured claimants and single or multiple

wrongful death claimants and any or all of such claimants have

uninsured-motorist coverage and underinsured-motorist

coverage. While this list is not exhaustive, it makes the

point that given different fact patterns, the law, as applied

to cases with differing facts, will also be different when all

of the language of R.C. 3937.18 is considered and when R.C.

2125.01 and 2125.02 are factored into the equation.

While there are many examples of how this court, in this

field, has taken the law applying to one fact pattern and

forced that law onto another differing fact pattern in order to

reach a desired result, one such example will suffice.

Wood v. Shepard (1988), 38 Ohio St.3d 86, 526 N.E.2d 1089,

was a case where (1) the tortfeasor was insured; (2) one victim

was killed; (3) three victims were injured; and (4) the killed

and injured parties had an underinsured-automobile insurance

policy which was the subject of the action. State Farm Auto.

Ins. Co. v. Rose (1991), 61 Ohio St.3d 528, 575 N.E.2d 459,

involved (1) an insured tortfeasor with a liability policy; and

(2) one victim of wrongful death. The issue involved the

extent of the coverage available under the tortfeasor's

liability policy -- and had nothing to do with

underinsured-motorist coverage, the question presented by Wood.

Notwithstanding this, the majority in Rose, in its zeal to

weaken, in some way, the holding in Wood, said, at 532, 575

N.E.2d at 462, that "* * * we further limit the holding in Wood

v. Shepard, supra, and find it applicable only to those

instances where the policy limitations in uninsured or

underinsured motorist provisions do not track the corresponding

limitation on liability coverage, and are ambiguous on their

face," -- whatever that means. The majority clearly took

apples and compared them with oranges, thereby bringing about

the exact result predicted by Justice Asher Sweeney in his

dissenting opinion in Rose, wherein he said that "[b]y further

'limiting' the well-reasoned decision in Wood v. Shepard * * *,

the members of the present majority create more uncertainty in

this area of law at the expense of the policyholders who will

receive less than Ohio law entitles them to in their policies

of automobile insurance." Rose, supra, 61 Ohio St.3d at 533,

575 N.E.2d at 462-463 (Sweeney, J., dissenting).

At the very least, the majority opinion is returning us to

square one, whence we can move step-by-step in a logical,

properly reasoned and statutorily based manner. Justice

Pfeifer's contribution to this salutary goal should be

applauded -- not maligned.

I concur.

F.E. Sweeney, J., concurs in the foregoing concurring

opinion.

FOOTNOTE:

1 As an example, I do not agree with the citation, as used,

to Section 19a, Article I of the Ohio Constitution.

Moyer, C.J., dissenting. I respectfully dissent from

Part II of the majority's opinion because I believe it

contradicts the clear intent of the General Assembly and

overrules recent, well-reasoned decisions of this court

recognizing that intent. In cases preceding 1980, this court

held that provisions barring the stacking of uninsured and

underinsured coverages violated public policy and were thus

unenforceable. Grange Mut. Cas. Co. v. Volkmann (1978), 54

Ohio St.2d 58, 8 O.O.3d 70, 374 N.E.2d 1258; Curran v. State

Auto. Mut. Ins. Co. (1971), 25 Ohio St.2d 33, 54 O.O.2d 166,

266 N.E.2d 566. In 1980, the General Assembly enacted what is

now R.C. 3937.18(G), which provides:

"Any automobile liability or motor vehicle liability

policy of insurance *** may include terms and conditions that

preclude stacking of [uninsured and underinsured] coverages."

This court correctly and unanimously interpreted this

statute as a legislative countermand of Volkmann and Curran.

Karabin v. State Auto. Mut. Ins. Co. (1984), 10 Ohio St.3d 163,

10 OBR 497, 462 N.E.2d 403. In Karabin, Dues v. Hodge (1988),

36 Ohio St.3d 46, 521 N.E.2d 789, and most recently in Hower v.

Motorists Mut. Ins. Co. (1992), 65 Ohio St.3d 442, 605 N.E.2d

15, we held that such clauses were enforceable when clear,

conspicuous, and unambiguous.

Now, a majority of this court holds that such clauses are

unenforceable to preclude "interfamily" stacking of coverages

in separate policies. The action of the majority defies not

only logic and sound jurisprudence but also, more importantly,

the General Assembly.

The majority no longer supports the reasoning of Dues

because it is concerned that insurers are taking advantage of

insureds who purchase insurance policies without knowing the

import of the antistacking language they contain. Yet the very

purpose of the standard we enunciated in the first paragraph of

the syllabus of Dues, that these provisions must be

"unambiguous," "clear," and "conspicuous," was to ensure that

those who purchased policies did understand the import of the

antistacking language. The majority even admits that the

language in the Motorists policies satisfies the Dues test.

Although the majority properly holds that appellant may not

stack coverages in this case, it does not adequately explain

why Dues does not protect all insureds. Even in an interfamily

situation, the policy language cannot simultaneously be clear,

unambiguous, and conspicuous on one hand, but on the other be

so confusing that insureds do not understand its import.

The majority further asserts that Dues "broadly

contravened the line of cases which was developing prior to the

enactment of R.C. 3937.18(E), now 3937.18(G) in 1980." This is

simply not so. Rather, the General Assembly in enacting R.C.

3937.18(E) countermanded those cases. Karabin and Dues merely

recognized that fact.

The distinction is pivotal. When the General Assembly

enacts a valid, constitutional law that reverses or alters law

that this court has announced, this court is bound to follow

that law. To do otherwise violates the fundamental principle

of separation of powers.

The majority admits that the enactment of R.C. 3937.18(G)

was a "response" to our pre-1980 cases holding antistacking

provisions unenforceable. It further admits that this court,

in Karabin, supra, a unanimous decision, recognized this

statute to be a declaration permitting antistacking

provisions. The majority then concludes, however, that R.C.

3937.18(G) is somehow ambiguous and in need of judicial

construction. Specifically, the majority contends that the

words "any *** liability policy" are "unclear" and "not

clarified anywhere in the statute." What is there to clarify?

The word "any" is defined as: "concerning a being or thing of

the sort named, without limitation as to which, and thus

constructively of every one of them, since every one may in

turn be taken as a representative ***." (Emphasis added.) 1

Oxford English Dictionary (2 Ed. 1989) 539. Nevertheless, the

majority finds "any *** liability policy" to be ambiguous and

uses this perceived ambiguity to conclude that the phrase

refers, not to any liability policy without restriction, but

only to those liability policies held within a single family.

In creating this distinction, the majority's muse outshines

even that of appellant's counsel, who never argued or briefed

it at any stage in this proceeding. Furthermore, we rejected a

similar distinction, between interpolicy and intrapolicy

stacking, in Karabin. There is likewise scant justification

for the majority's distinction between interfamily and

intrafamily stacking.

By its tortured reading of R.C. 3937.18(G) and its

resurrection of reasoning similar to that rejected in Karabin,

the majority "breathe[s] renewed life" into the pre-1980 cases

that held antistacking clauses unenforceable. In resuscitating

these cases, however, the majority reads the statute partially

out of existence. R.C. 3937.18(G) traveled through two

committees, the House of Representatives, the Senate, and

across the Governor's desk before it became law. It should

take more than a simple majority of the members of this court

to unmake it.

In addition to the disrespect that the majority shows for

stare decisis, its rulings violate an even more fundamental

tenet of our system of government -- that of separation of

powers.

The framers of the federal Constitution well understood

the importance of the separation of powers. The issue was a

central concern in the constitutional debates, and received

significant attention in The Federalist Papers. James Madison,

according to one commentator, advocated the independence of

each branch of government as a counterpoise against any one

branch imposing its will on that of the others. White,

Philosophy, The Federalist, and the Constitution (1987) 161.

Madison's own words confirm this view: "The accumulation

of all powers legislative, executive, and judiciary in the same

hands, whether of one, a few, or many, and whether hereditary,

self-appointed, or elective, may justly be pronounced the very

definition of tyranny." The Federalist (1788), No. 47. And

further, "[i]n framing a government which is to be administered

by men over men, the great difficulty lies in this: you must

first enable the government to control the governed; and in the

next place, oblige it to control itself. The Federalist

(1788), No. 51.

Maintaining separation of powers concerned Alexander

Hamilton as well. He wrote in The Federalist (1787), No. 9,

"[t]he regular distribution of power into distinct departments;

the introduction of legislative balances and checks *** are

means, and powerful means, by which the excellences of

republican government may be retained and its imperfections

lessened or avoided." In The Federalist (1788), No. 71,

Hamilton wrote, "[t]he same rule, which teaches the propriety

of a partition between the various branches of power, teaches

us likewise that this partition ought to be so contrived as to

render the one independent of the other."

The Supreme Court of the United States has emphasized the

necessity of maintaining separation of powers. It has stated

that it is "essential to the successful working of this system"

to prevent the encroachment of one branch upon the powers of

another. Kilbourn v. Thompson (1881), 103 U.S. 168, 191, 26

L.Ed. 377, 387. In Myers v. United States (1926), 272 U.S. 52,

47 S.Ct. 21, 71 L.Ed. 160, Justice Brandeis, in dissent, wrote

that although friction between the branches of government is

inevitable, this friction has the salutory effect of precluding

any one branch from exercising arbitrary power over any other.

Id. at 293, 47 S.Ct. at 85, 71 L.Ed. at 242-243, (Brandeis, J.,

dissenting.) And Justice Sutherland stated the following in

Humphrey's Executor v. United States (1935), 295 U.S. 602,

629-630, 55 S.Ct. 869, 874, 79 L.Ed. 1611, 1620: "The

fundamental necessity of maintaining each of the three general

departments of government entirely free from the control or

coercive influence, direct or indirect, or either of the others

*** is hardly open to serious question. So much is implied in

the very fact of the separation of the powers of these

departments by the Constitution, and in the rule which

recognizes their essential co-equality."

The Supreme Court of Ohio has stated that although Ohio

has no specific constitutional provision embodying the concept

of separation of powers, the doctrine is implicit in the entire

framework of the Constitution. South Euclid v. Jemison (1986),

28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. This court has

long recognized the importance of the principle of separation

of powers between the legislative and judicial branches of

government. In 1919, this court stated, "[p]robably our chief

contribution to the science of government is the principle of

the complete separation of the three departments of government,

executive, legislative and judicial. No feature of the

American system has excited greater admiration." State ex rel.

Greenlund v. Fulton (1919), 99 Ohio St. 168, 187, 124 N.E. 172,

177.

This court has considered the argument that the common law

could limit or supersede validly enacted statutes. In Leis v.

Cleveland Ry. Co. (1920), 101 Ohio St. 162, 128 N.E. 73, a

party asserted that two city ordinances were invalid because

they created a degree of care greater than that which existed

at common law. This court rejected the argument, reasoning

that "there is no guaranteed right in the rules of the common

law as guides of conduct and they may be added to or repealed

by legislative authority ***. 'The law itself, as a rule of

conduct, may be changed at the will *** of the legislature,

unless prevented by constitutional limitations. Indeed, the

great office of statutes is to remedy defects in the common law

as they are developed, and to adapt it to the changes of time

and circumstances.'" Id. at 165, 128 N.E. at 74.

This court has also considered, and consistently rejected,

the argument that a particular Act of the General Assembly

should not be enforced because it was unwise or unreasonable.

In Pohl v. State (1921), 102 Ohio St. 474, 475, 132 N.E. 20,

21, reversed on other grounds, 262 U.S. 404, 43 S.Ct. 628, 67

L.Ed. 1047, for example, a party challenged a statute that

prohibited certain types of instruction in public and parochial

schools. This court stated:

"Courts do not sit to review the wisdom of legislative

acts, nor do they possess such power. On the contrary, the

policy, the advisability, and the wisdom of all legislation,

subject to the veto of the governor and the referendum of the

people, are subjects for legislative determination

exclusively. The inexpediency, injustice or impropriety of a

legislative act is not a ground upon which the court may

declare the act void. The remedy for such evils must be sought

by an appeal to the justice and patriotism of the legislature

itself."

The legislature is the primary judge of the needs of

public welfare, and this court will not nullify the decision of

the legislature except in the case of a clear violation of a

state or federal constitutional provision. Williams v. Scudder

(1921), 102 Ohio St. 305, 131 N.E. 481, paragraphs three and

four of the syllabus.

For its own part, this court has been fervent in

protecting its own branch from encroachment by the

legislature. Accordingly, this court has invalidated numerous

enactments of the General Assembly that intrude into the

exclusive powers of this court. Relying specifically on the

doctrine of separation of powers, this court invalidated R.C.

4509.101 to the extent that it permitted an appeal from a

decision of a trial court to the Registrar of Motor Vehicles.

South Euclid v. Jemison, supra, at paragraph one of the

syllabus. See, also, Cincinnati Polyclinic v. Balch (1915), 92

Ohio St. 415, 111 N.E. 159, paragraph two of the syllabus

(invalidating a portion of a statute to the extent that it

purported to limit the appellate jurisdiction of the court of

appeals); Schario v. State (1922), 105 Ohio St. 535, 138 N.E.

63, paragraph four of the syllabus (invalidating an Act

purporting to establish a time limit within which a court of

appeals had to perform a judicial function); Rockey v. 84

Lumber Co. (1993), 66 Ohio St.3d 221, 611 N.E.2d 789

(invalidating R.C. 2309.01 as in conflict with Civ.R. 8[A]).

In a case following the holding of Rockey, supra, this court,

in an opinion written by a member of the majority in the

instant case, reaffirmed its "great respect for the General

Assembly and *** great deference to its enactments ***." In re

Coy (1993), 67 Ohio St.3d 215, 219, N.E.2d , .

Conversely, this court has not been unaware of the

limitations upon its own power to create or alter certain

rules, even those that directly affect the judicial system.

Thus we held that the court lacked power to alter a statute

concerning the physician-patient privilege. We reasoned that

we must defer to the legislature when the rule involves a

substantive, and not procedural, right. State v. Smorgala

(1990), 50 Ohio St.3d 222, 553 N.E.2d 672, paragraph two of the

syllabus.

The teaching of these cases is that for generations this

court has recognized the distinction between the roles of the

legislative and judicial branches. It has enforced this

distinction both against itself and against Acts of the General

Assembly. Having steadfastly protected the judicial branch

from encroachment by the legislature, this court should now

reciprocate and refrain from judicially limiting legislation

whose result it simply does not like.

I dissent also from paragraphs one, three and four of the

syllabus. My primary objection to these holdings, which

overrule three recent decisions and limit another, is this

court's continued disrespect for stare decisis. I wrote to

oppose this trend in another recent case, Gallimore v.

Children's Hospital (1993), Ohio St.3d , N.E.2d

(Moyer, C.J., dissenting), and those principles apply equally

here. There has always been tension between certainty and

stability in the law and the drive to satisfy a judge's

individual desire to "do justice." I am concerned, however,

with that aspect of justice that requires that the same fact

pattern be treated in a similar manner. To do otherwise is to

abandon "justice" completely. This rule applies with special

force in cases of statutory interpretation, where the

legislature is the appropriate body to make any needed

corrections.

In Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84,

545 N.E.2d 83, and State Farm Auto. Ins. Co. v. Rose (1991), 61

Ohio St.3d 528, 575 N.E.2d 459, this court considered arguments

similar to those raised here but refused to extend Wood v.

Shepard (1988), 38 Ohio St.3d 86, 526 N.E.2d 1089, to apply to

liability coverage. The majority overrules these cases,

asserting that the framers of the Ohio Constitution, the

General Assembly and this court have all indicated that

"damages for wrongful death claims should not be limited."

Section 19a, Article I of the Ohio Constitution, however,

states only that wrongful death damages shall not be limited

"by law." (Emphasis added.) This means that there may be no

artifically imposed cap, by statute or judicial decision, on

total damages recoverable for wrongful death. See Kennedy v.

Byers (1923), 107 Ohio St. 90, 96, 140 N.E. 630, 632-633. It

does not mean, nor does any pronouncement by this court or the

General Assembly mean, that no insurance policy -- a contract

between the insured and the insurer for which the insured has

paid a premium for certain levels of coverage -- may limit a

provider's liability if that policy clearly and unambiguously

so provides. Indeed, if a provider's liability cannot be

limited by contract, might one argue that the $300,000 per

accident limits of the Grange and Motorists policies are

unenforceable "limitations" of wrongful death damages? Even

the majority does not contend that to be the case. To do so

would eviscerate the insurance law of Ohio created by the

General Assembly.

Citizens, whose conduct is bound by it, expect the law to

be certain, speedy and relatively inexpensive. We frustrate

this goal by creating a climate in which it is impossible to

predict what this court will do next.

Wright, J., concurs in the foregoing dissenting opinion.

Wright, J., dissenting. I admire the measured tone

adopted by the Chief Justice in his incisive and compelling

dissent, and certainly concur in same. I would not and could

not have been so restrained in addressing the majority's lack

of deference to the clear will of the General Assembly and

disregard for the doctrine of stare decisis.