2000 OHIO 401 - Lippert v. Peace

[This opinion has been published in Ohio Official Reports at

88 Ohio St.3d 541

.]




LIPPERT, APPELLANT, v. PEACE; ALLSTATE INSURANCE COMPANY, APPELLEE.
                      [Cite as Lippert v. Peace,

2000-Ohio-401

.]
Automobile liability insurance—Uninsured/underinsured motorist coverage—
        Court of appeals’ judgment vacated and cause remanded to trial court.
        (No. 99-925—Submitted April 11, 2000—Decided May 24, 2000.)
       APPEAL from the Court of Appeals for Hancock County, No. 5-99-01.
                                  __________________
        Walter J. Skotynsky, for appellant.
        Oxley, Malone, Fitzgerald & Hollister, P.L.L., Michael J. Malone and
Bradley S. Warren, 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} The issue of whether the insurance contract constitutes a new or a
renewal contract was not raised in the court below. This court will not ordinarily
consider a claim of error that was not raised in any way in the appellate court and
was not considered or decided by that court. State v. Williams (1977),

51 Ohio St.2d 112

5 O.O.3d 98

364 N.E.2d 1364

; Toledo v. Reasonover (1965),

5 Ohio St.2d 22

34 O.O.2d 13

213 N.E.2d 179

, paragraph two of the syllabus.
       {¶ 5} 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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