2000 OHIO 396 - Coletta v. Yang

[This opinion has been published in Ohio Official Reports at

88 Ohio St.3d 538

.]




   COLETTA, ADMR., APPELLANT, v. YANG ET AL.; ST. PAUL FIRE & MARINE
                          INSURANCE COMPANY, APPELLEE.
                      [Cite as Coletta v. Yang,

2000-Ohio-396

.]
Automobile liability insurance—Uninsured/underinsured motorist coverage—
        Court of appeals’ judgment vacated and cause remanded to trial court.
        (No. 99-378—Submitted April 11, 2000—Decided May 24, 2000.)
     APPEAL from the Court of Appeals for Montgomery County, No. 17289.
                                  __________________
        Santen & Hughes and William E. Santen, Jr., for appellant.
        Bieser, Greer & Landis, L.L.P., Leo F. Krebs and Sean P. Donovan, for
appellee.
                                  __________________
        {¶ 1} The judgment of the court of appeals is vacated and the cause is
remanded to the trial court for further proceedings and consideration, where
applicable, of the Supreme Court’s decisions in Wolfe v. Wolfe (2000),

88 Ohio St.3d 246

725 N.E.2d 261

, and Moore v. State Auto. Mut. Ins. Co. (2000),

88 Ohio St.3d 27

723 N.E.2d 97

.
        DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        DOUGLAS, J., concurs separately.
        MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
                                  __________________
        DOUGLAS, J., concurring.
        {¶ 2} I concur for the reasons set forth in my concurrence in Stickney v.
State Farm Mut. Auto. Ins. Co. (2000),

88 Ohio St.3d 504

727 N.E.2d 1286

.
                                  __________________
                             SUPREME COURT OF OHIO




       LUNDBERG STRATTON, J., dissenting.
       {¶ 3} I respectfully dissent because I do not agree that Wolfe v. Wolfe
(2000),

88 Ohio St.3d 246

725 N.E.2d 261

, or Moore v. State Auto. Mut. Ins. Co.
(2000),

88 Ohio St.3d 27

723 N.E.2d 97

, applies to this case. A remand for
application of either one of these cases will result in the parties and the court below
struggling to comply with an order that has no relevance to the issues.
       {¶ 4} This case involves the application of R.C. 3937.44, which relates to
liability coverage (although appellant consistently argued the merits of R.C.
3937.18[H], the uninsured motorrist/underinsured motorist counterpart of R.C.
3937.44). The parties agreed that the applicable insurance policy was issued in
December 1996 and that Am.Sub.S.B. No. 20 (“S.B. 20”) applied. Although the
appellant argued in favor of the former version of R.C. 3937.18, as interpreted by
Savoie v. Grange Mut. Ins. Co. (1993),

67 Ohio St.3d 500

620 N.E.2d 809

, the
court of appeals applied R.C. 3937.18(H) and 3937.44 as amended by S.B. 20.
       {¶ 5} The appellate court has already determined that the insurance contract
was entered into in December 1996, more than two years after the enactment of
S.B. 20. The accident occurred in August 1997. The appellate court correctly
concluded that R.C. 3937.18(H) and 3937.44, as amended by S.B. 20, applied. I
believe that a Wolfe analysis is unnecessary. Furthermore, the parties did not appeal
this issue; therefore, I believe it has been waived.
       {¶ 6} In addition, I do not agree that the analysis of R.C. 3937.18(A)(1) in
Moore v. State Auto. Mut. Ins. Co. has any application to an analysis of R.C.
3937.18(H) or to 3937.44. However, to the extent that the majority believes that
these cases apply, I respectfully dissent for the reasons set forth in the dissenting
opinions in Wolfe v. Wolfe,

88 Ohio St.3d at 252-255

725 N.E.2d at 267-269

, and
Moore v. State Auto. Mut. Ins. Co.,

88 Ohio St.3d at 33-36

723 N.E.2d at 103-105

.
       MOYER, C.J., and COOK, J., concur in the foregoing dissenting opinion.
                               __________________




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