Davis v. Dembeck
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[Cite as Davis v. Dembeck, 99 Ohio St.3d 49, 2003-Ohio-2462.] DAVIS, APPELLANT AND CROSS-APPELLEE, v. DEMBEK, APPELLEE; TRANSCONTINENTAL INSURANCE COMPANY ET AL., APPELLEES AND CROSSAPPELLANTS. [Cite as Davis v. Dembek, 99 Ohio St.3d 49, 2003-Ohio-2462.] Insurance Underinsured motorist coverage Discretionary appeal allowed Court of appeals judgment reversed Cause remanded to trial court to apply Ferrando v. Auto-Owners Mut. Ins. Co. Cross-appeal denied. (No. 2003-0054 Submitted March 25, 2003 Decided May 16, 2003.) APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No. 01AP-1450, 2002-Ohio-6443. __________________ {¶1} The discretionary appeal is allowed. {¶2} The judgment of the court of appeals is reversed, and the cause is remanded to the trial court to apply Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927. {¶3} The cross-appeal is denied. MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur. LUNDBERG STRATTON, J., dissents. O CONNOR, J., dissents. __________________ LUNDBERG STRATTON, J., dissenting. {¶4} I respectfully dissent from the majority s decision to remand this case for an analysis of prejudice under Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927. I dissented from paragraph two of the Ferrando syllabus, in which the court merely presumed the prejudicial effect of an insured s breach of a subrogation provision in an insurance policy. SUPREME COURT OF OHIO Id. at ¶ 105. I believe that an insured s breach of a subrogation-related provision of an insurance policy is per se prejudicial. There is no need for the additional time and expense of a factual inquiry into the issue. This is particularly so in a Scott-Pontzer case, in which a party may be asserting an extremely stale claim or one in which the possibility of collection from the tortfeasor never existed and therefore the usual issues of the insurer s refusal to defend or participate never arose. See Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 710 N.E.2d 1116. {¶5} As I explained in Ferrando, the rights of the insurer are actually prejudiced by the breach of a consent-to-settle or subrogation provision of an insurance policy. If a tortfeasor has been released from further liability, it is my opinion that any inquiry is a useless exercise that merely prolongs the tortuous routes created by Scott-Pontzer. {¶6} Therefore, for the foregoing reasons, I respectfully dissent from the decision to remand. In addition, I would allow the cross-appeal by Transcontinental Insurance Company and Continental Casualty Company. __________________ Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul O. Scott, for appellant and cross-appellee. Keener, Doucher, Curley & Patterson, L.P.A., and Thomas J. Keener, for appellees and cross-appellants Transcontinental Insurance Company and Continental Casualty Company. __________________ 2
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