Opinion
Nos. 99-727 and 99-1264.
Submitted April 11, 2000.
Decided May 24, 2000.
Appeal from and Certified by the Court of Appeals for Monroe County, No. 807.
James W. Peters, for appellant.
Thornburg Bean and Charles H. Bean, for appellee.
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.
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.
I do not agree with the majority's application of Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, 725 N.E.2d 261. In these cases, appellants asserted one proposition of law regarding the interpretation of R.C. 3937.18(A)(2), as amended by Am.Sub.S.B. No. 20 ("S.B. 20"), effective October 20, 1994. The court of appeals determined that the policy in question was issued on June 5, 1995, and that S.B. 20, as amended, applies to this case. The court noted that the appellant did not challenge this finding. The parties did not appeal this finding; therefore, I believe they have waived the issue. I do not agree that this court has the authority to remand a case for application of Wolfe when the parties have not raised the issue. A remand for the court below to apply Wolfe gives the appellant a second bite at the apple in the event that the policy, according to Wolfe's interpretation, was issued prior to October 20, 1994, so that the law prior to S.B. 20 would apply. This was not the issue before us when we voted to allow jurisdiction in this case.
However, to the extent that the majority believes that Wolfe should apply, I respectfully dissent for the reasons set forth in the dissenting opinions in Wolfe, 88 Ohio St.3d at 252-255, 725 N.E.2d at 267-269.
I also dissent to the majority's application of Moore v. State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27, 723 N.E.2d 97. The majority, without comment, merely applies Moore and its analysis of R.C. 3937.18(A)(1) and uninsured motorist coverage to the proposition of law regarding R.C. 3937.18(A)(2) and underinsured motorist coverage. To the extent that the majority intends Moore to apply to underinsured, as well as to uninsured motorist coverage, I respectfully dissent for the reasons set forth in my dissenting opinion in Moore, 88 Ohio St.3d at 33, 723 N.E.2d at 103.
Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.