The opinion
Sweeney, J.,
dissenting. While I can find no problem with the statement of law enunciated in paragraph one of the syllabus, I must vigorously dissent from the majority’s unnecessary and result-oriented decision to overrule the sound analysis and legal policy announced in Hutchinson v. J.C. Penney Cas. Ins. Co. (1985), 17 Ohio St. 3d 195 , 17 OBR 432, 478 N.E. 2d 1000 .
The majority of this court has taken a decidedly anti-consumer approach to the law by overruling this court’s decision in Hutchinson . By its opinion today, the majority has taken the ambiguous language of the policy written by the insurance company and construed such language in favor of the insurer and against the insured, who dutifully paid premiums for the uninsured motorist coverage in issue. Such an approach flies in the face of the well-established rule of construction to be employed in insurance con *170 tract cases, viz., that “[l]anguage in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer.” Faruque v. Provident Life & Acc. Ins. Co. (1987), 31 Ohio St. 3d 34 , 31 OBR 83, 508 N.E. 2d 949 , syllabus.
In my view, the reasoning employed in the Hutchinson opinion is just as valid today as it was on the date it was decided:
“In applying the principles of liberal construction to the subject uninsured motorist provision, we find plaintiffs arguments to be well-taken in that punitive damages are the type of damages which a party would be legally entitled to recover from an uninsured motorist where the facts and circumstances of the particular case warrant such an award. By structuring the language of the uninsured motorist provision as it did, the defendant insurance company has agreed to subrogate itself into the position of the uninsured motorist tortfeasor. Since the subject provision is not limited or qualified so as to clearly prohibit an award of punitive damages, it is logical and reasonable to assume that punitive damages could be proper in an appropriate case as a consequence of a bodily injury accident. Thus, in a proper case, such as the one subjudice, and given the language employed in the subject provision, we find that the defendant has contractually agreed to stand in the shoes of the tortfeasor and pay those damages which the insured would have been able to recover from the uninsured motorist as if she had sued the uninsured motorist herself. Such an interpretation is consonant with the reasoning enunciated in Kish [v. Central Natl. Ins. Group of Omaha (1981), 67 Ohio St. 2d 41 , 21 O.O. 3d 26, 424 N.E. 2d 288 ], supra. Moreover, the punishment or deterrent effect of punitive damages is not ignored under this analysis, since the defendant insurance company may subrogate and bring an action against the tortfeasor for tiie full measure of damages that it agreed to indemnify plaintiff, its insured.
“Therefore, we hold that as a matter of public policy, and in the absence of specific contractual language to the contrary, punitive or exemplary damages may be awarded to an insured under an uninsured motorist provision, where the issuer of the policy promises to pay damages for which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident.” Hutchinson, supra, at 198 , 17 OBR at 435, 478 N.E. 2d at 1003 .
As the passages above indicate, an award of punitive damages is specifically limited to only those cases where such damages would be appropriate where the insured would have been able to recover punitive damages from the uninsured motorist as if the insured had directly sued the uninsured tortfeasor. In addition, the Hutchinson opinion stated that insurers could insulate themselves from paying such damages under uninsured motorist provisions by simply stating that exemplary or punitive damages would be excepted from the catchall term of “damages.” Thus, if punitive damages could be paid only under the rarest of circumstances, especially since state law requires financial responsibility for all vehicle owners, one can only wonder why the majority would feel compelled to overrule Hutchinson with such unsettling zeal. The issue presented here is simply an issue of contract construction under an uninsured motorist clause where the terms employed are not defined in the policy *171 itself. If the insurer uses vague or ambiguous contractual terms that are susceptible to more than one interpretation, as it has here, then the insurer, as drafter of such language, should be subject to the liberal construction that must occur when such vague or ambiguous terms are employed. Faruque, supra. However, to deny the insured, who paid premiums for such coverage, the full benefit of damages that he would be legally entitled to recover from the tortfeasor/uninsured motorist, is to turn the rubric of liberal construction in contract cases completely around. While those in the majority may vehemently deny their convenient discard of the liberal construction standard, this is precisely what they have done here.
Turning to the supposed rationale employed by the present majority, its first reason to overrule Hutchinson boils down to the premise that the decision rendered by this court in Hutchinson was “controversial.” The majority proceeds to cite two law student-authored comments or case notes as some type of proof that the Hutchinson holding was incorrect. 5
If controversy, however, is a *172 legitimate basis for overruling sound legal precedent, then the majority seems to have inequitably embraced a result-oriented doctrine.
The majority herein then proceeds to assert a curious argument that the overruling of Hutchinson will somehow assist financially responsible consumers. In my view, such reasoning is flawed, and even somewhat disingenuous. The majority supposes, without one shred of empirical evidence, that the Hutchinson rationale “will raise premiums and pass the loss on to financially responsible consumers.” This argument is nothing more than a “red herring.” A much deeper analysis, which unfortunately the majority is either unable or unwilling to engage in, will reveal that if the insurer would pay its insured that which it promised to pay under the insurance contract, instead of untold thousands of dollars in attorney fees and other litigation costs to fight the type of rare claims such as the instant one, then perhaps “financially responsible consumers” will not be eventually saddled with the losses incurred on account of the theoretical “judgment-proof” tortfeasor the majority bemoans.
As intimated before, the convenient and simple solution for insurers to insulate themselves from those rare circumstances where Hutchinson would be invoked is to draft insurance language in a plain and comprehensible manner that would indicate that punitive damages will not be paid under particular circumstances. If the majority were truly as consumer-conscious as it professes to be, it would not permit insurers, such as the one here and in Hutchinson , to impose vague and ambiguous language on consumers with contractual terms that even a collection of eminent legal scholars could not agree on with precision.
Regrettably, the majority resorts to judicial legislation in order to protect not consumers, but drafters of insurance contracts who possess the wherewithal to avoid the rare circumstances as found here and in Hutchinson, supra, where punitive damages may be proper. The liberal construction rule of law has become hollow indeed, since here the majority has acknowledged that it will rescue in-artfully drafted insurance contract language by imposing a presumption of non-recoverability in favor of the insurer who falls prey to such nebulous drafting.
In any event, based on the sound public policy and legal principles employed in Hutchinson, supra, I would reverse the decision of the court of appeals below, which also attempted to unconstitutionally apply R.C. 3937.18(1) in order to retroactively impair an insurance contract obligation.
The majority refers to, and apparently relies on, the two student-authored comments or case notes in at least two different parts of its opinion. However, such reliance is questionable, especially on the one comment that concludes: “The Hutchinson court did suggest in dictum that an insurer could specifically exclude a punitive damages award from coverage.” Comment, Ohio’s Uninsured Motorist Coverage — Should the Legislature Re-Examine the Statute? (1986), 15 Cap. U.L. Rev. 325, at 345.
Apparently, the student author is unable to discern the difference between dictum and the syllabus law of a case enunciated by this court. Paragraph two of the syllabus in Hutchinson clearly provides: “As a matter of public policy, and in the absence of specific contractual language to the contrary, punitive or exemplary damages may be awarded to an insured under an uninsured motorist provision * * *.” (Emphasis added.)
In addition, both the law review comment and case notes, directly or indirectly, assail this court in Hutchinson, supra, for relying on an A.L.R. annotation that analyzed punitive damages in liability policies. The articles then essentially intimate that the Hutchinson majority did not review the annotation at all since the annotation stated in a footnote that its scope did not encompass uninsured motorist policies.
However, I direct the majority (and for that matter, the student authors) to review the context and language of Hutchinson that stated: “Plaintiff submits that approximately thirty-five jurisdictions around the country have allowed the recovery of punitive damages under various insurance policies', see, e.g., Hensley v. Erie Ins. Co. (W. Va. 1981), 283 S.E. 2d 227 ; see, also, Annotation (1982), 16 A.L.R. 4th 11 ; and that the rationale for allowing punitive damages is much stronger with respect to an uninsured motorist clause ** * *.” (Emphasis added.) Hutchinson, supra, at 197 , 17 OBR at 434, 478 N.E. 2d at 1002 .
The foregoing language, inter alia, clearly indicates first, that this court was merely setting forth one of the arguments of the plaintiff; and second, that the plaintiff in Hutchinson never argued that thirty-five jurisdictions permit punitive damages recovery under uninsured motorist coverage, but that the rationale for punitive damages was more worthy for consideration under uninsured motorist provisions than under other various liability policies where a punitive damage recovery was in fact permitted.
Given such fundamental errors in the student authors’ knowledge, comprehension and analysis, one wonders why the instant majority would want to risk its credibility by placing its imprimatur on law review comments or case notes that are of limited or no persuasive value.