As Reported by House Civil and Commercial Law Committee 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 58 5
1999-2000 6
REPRESENTATIVES WOMER BENJAMIN-TAYLOR-TIBERI- 8
TERWILLEGER-OLMAN-BUCHY-CALLENDER-WILLAMOWSKI-SALERNO 9
_________________________________________________________________
A B I L L
To amend sections 2721.01, 2721.02, 2721.03, 11
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 13
2721.10, 2721.11, 2721.12, 2721.13, 2721.14,
2721.15, 2907.36, and 3709.99, to enact new 14
section 3929.06 and section 2721.16, and to
repeal section 3929.06 of the Revised Code to 16
prohibit an award of attorney's fees under the
Declaratory Judgments Law unless a statute 17
expressly authorizes the award in connection with 18
a claim for declaratory relief under that Law or 19
unless an award of attorney's fees is authorized
by the Frivolous Conduct Law, the Civil Rules, or 20
an award of punitive or exemplary damages, to 22
prohibit injured parties or their legal
representatives from commencing a declaratory 23
relief action or another type of civil action 24
based on liability insurance coverage against an
insurance company until a judgment for damages 25
has been awarded against an insured tortfeasor, 26
to specify the binding legal effect of a judgment 28
rendered in a declaratory relief action between 29
an insured and an insurance company relative to
the coverage of a liability insurance policy upon 30
the insured's assignees and certain judgment 31
creditors, and to permit insurance companies to 32
assert against certain judgment creditors
coverage defenses generally available against 33
2
insureds under liability insurance policies. 34
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 36
Section 1. That sections 2721.01, 2721.02, 2721.03, 38
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 39
2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 be 40
amended and new section 3929.06 and section 2721.16 of the 42
Revised Code be enacted to read as follows:
Sec. 2721.01. As used in sections 2721.01 to 2721.15, 51
inclusive, of the Revised Code THIS CHAPTER, "person" means any 52
person, partnership, joint-stock company, unincorporated 54
association, society, municipal corporation, or other
corporation. 55
Sec. 2721.02. Courts (A) SUBJECT TO DIVISION (B) OF THIS 65
SECTION, COURTS of record may declare rights, status, and other 66
legal relations whether or not further relief is or could be 67
claimed. No action or proceeding is open to objection on the 68
ground that a declaratory judgment or decree is prayed for UNDER 69
THIS CHAPTER. The declaration may be either affirmative or 70
negative in form and effect. Such THE declaration has the effect 71
of a final judgment or decree. 73
(B) A PLAINTIFF WHO IS NOT AN INSURED UNDER A PARTICULAR 76
POLICY OF LIABILITY INSURANCE MAY NOT COMMENCE AGAINST THE 77
INSURER THAT ISSUED THE POLICY AN ACTION OR PROCEEDING UNDER THIS 78
CHAPTER THAT SEEKS A DECLARATORY JUDGMENT OR DECREE AS TO WHETHER 79
THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, DEATH, OR 80
LOSS TO PERSON OR PROPERTY THAT A PARTICULAR INSURED UNDER THE 81
POLICY ALLEGEDLY TORTIOUSLY CAUSED THE PLAINTIFF TO SUSTAIN OR 82
CAUSED ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL 84
REPRESENTATIVE TO SUSTAIN, UNTIL A COURT OF RECORD ENTERS IN A 85
DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE PLAINTIFF AND THAT 86
INSURED AS A TORTFEASOR A FINAL JUDGMENT AWARDING THE PLAINTIFF 87
DAMAGES FOR THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 88
3
INVOLVED.
(C) IN AN ACTION OR PROCEEDING FOR DECLARATORY RELIEF THAT 91
A JUDGMENT CREDITOR COMMENCES IN ACCORDANCE WITH DIVISIONS (A) 93
AND (B) OF THIS SECTION AGAINST AN INSURER THAT ISSUED A 95
PARTICULAR POLICY OF LIABILITY INSURANCE, THE INSURER HAS AND MAY 96
ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR 97
ANY COVERAGE DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT 98
AGAINST THE HOLDER OF THE POLICY IN AN ACTION OR PROCEEDING UNDER 99
THIS CHAPTER BETWEEN THE HOLDER AND THE INSURER. 100
IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF THE 103
ACTION OR PROCEEDING FOR DECLARATORY RELIEF, THE HOLDER OF THE 104
POLICY COMMENCES A SIMILAR ACTION OR PROCEEDING AGAINST THE
INSURER FOR A DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE 105
PROVISIONS EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR 106
PROPERTY UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE 107
COURT INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL 108
JUDGMENT WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF 109
THAT INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED 110
TO ALSO HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR 111
PURPOSES OF THE JUDGMENT CREDITOR'S ACTION OR PROCEEDING FOR 112
DECLARATORY RELIEF AGAINST THE INSURER. THIS DIVISION SHALL 113
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 114
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 115
Sec. 2721.03. Any SUBJECT TO DIVISION (B) OF SECTION 124
2721.02 OF THE REVISED CODE, ANY person interested under a deed, 126
will, written contract, or other writing constituting a contract, 127
or ANY PERSON whose rights, status, or other legal relations are 129
affected by a constitutional provision, statute, rule as defined
in section 119.01 of the Revised Code, municipal ordinance, 130
township resolution, contract, or franchise, may have determined 131
any question of construction or validity arising under such THE 132
instrument, constitutional provision, statute, rule, ordinance, 134
resolution, contract, or franchise and obtain a declaration of 135
rights, status, or other legal relations thereunder UNDER IT. 136
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The testator of a will may have the validity of the will 138
determined at any time during his THE TESTATOR'S lifetime 139
pursuant to sections 2107.081 to 2107.085 of the Revised Code. 140
Sec. 2721.04. A SUBJECT TO DIVISION (B) OF SECTION 2721.02 149
OF THE REVISED CODE, A contract may be construed by a declaratory 150
judgment OR DECREE either before or after there has been a breach 152
thereof OF THE CONTRACT.
Sec. 2721.06. Sections 2721.03 to 2721.05, inclusive, of 161
the Revised Code do not limit or restrict the exercise of the 163
general powers conferred in BY DIVISION (A) OF section 2721.02 of 165
the Revised Code in any ACTION OR proceeding where IN WHICH 166
declaratory relief is sought, UNDER THIS CHAPTER AND in which a 167
judgment or decree will terminate the controversy or remove an 169
uncertainty.
Sec. 2721.07. Courts of record may refuse to render or 178
enter a declaratory judgment or decree when such UNDER THIS 179
CHAPTER IF THE judgment or decree would not terminate the 180
uncertainty or controversy giving rise to the ACTION OR 181
proceeding IN WHICH THE DECLARATORY RELIEF IS SOUGHT. 182
Sec. 2721.08. All orders, judgments, and decrees under 191
sections 2721.01 to 2721.15, inclusive, of the Revised Code, THIS 193
CHAPTER may be reviewed ON APPEAL as ARE other orders, judgments, 195
and decrees are reviewed OF THE COURT OF RECORD INVOLVED. 196
Sec. 2721.09. Whenever SUBJECT TO SECTION 2721.16 OF THE 205
REVISED CODE, WHENEVER necessary or proper, A COURT OF RECORD MAY 206
GRANT further relief based on a declaratory judgment or decree 209
previously granted may be given UNDER THIS CHAPTER. The 210
application therefor FOR THE FURTHER RELIEF shall be by petition 211
to A COMPLAINT FILED IN a court having OF RECORD WITH 212
jurisdiction to grant the FURTHER relief. If the application is 214
sufficient, the court shall, on reasonable notice, SHALL require 215
any adverse party, whose rights have been adjudicated by the 216
declaratory judgment or decree, to show cause why THE further 218
relief should not be granted forthwith. 220
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Sec. 2721.10. When a AN ACTION OR proceeding IN WHICH 229
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 230
inclusive, of the Revised Code, THIS CHAPTER involves the 232
determination of an issue of fact, such THAT issue may be tried 234
and determined in the same manner as issues of fact are tried and 235
determined in other civil actions in the court in which the
ACTION OR proceeding is pending. 236
Sec. 2721.11. In any ACTION OR proceeding IN WHICH 245
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 246
inclusive, of the Revised Code THIS CHAPTER, the court may make 247
such AN award of COURT costs as is equitable and just. 248
Sec. 2721.12. When (A) SUBJECT TO DIVISION (B) OF THIS 258
SECTION, WHEN declaratory relief is sought UNDER THIS CHAPTER IN 259
AN ACTION OR PROCEEDING, all persons shall be made parties who 261
have or claim any interest which THAT would be affected by the 262
declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING. 263
No EXCEPT AS PROVIDED IN DIVISION (B) OF THIS SECTION, A 265
declaration shall NOT prejudice the rights of persons WHO ARE not 267
MADE parties to the ACTION OR proceeding. In any ACTION OR 268
proceeding which THAT involves the validity of a municipal 270
ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or 271
franchise is alleged to be unconstitutional, the attorney general 273
ALSO shall also be served with a copy of the COMPLAINT IN THE 275
ACTION OR proceeding and shall be heard. In any ACTION OR 276
proceeding which THAT involves the validity of a township 277
resolution, the township shall be made a party and shall be 278
heard.
(B) A DECLARATORY JUDGMENT OR DECREE THAT A COURT OF 281
RECORD ENTERS IN AN ACTION OR PROCEEDING UNDER THIS CHAPTER 282
BETWEEN AN INSURER AND A HOLDER OF A POLICY OF LIABILITY 283
INSURANCE ISSUED BY THE INSURER AND THAT RESOLVES AN ISSUE AS TO 284
WHETHER THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, 285
DEATH, OR LOSS TO PERSON OR PROPERTY THAT AN INSURED UNDER THE 286
6
POLICY ALLEGEDLY TORTIOUSLY CAUSED SHALL BE DEEMED TO HAVE THE 287
BINDING LEGAL EFFECT DESCRIBED IN DIVISION (C)(2) OF SECTION 289
3929.06 OF THE REVISED CODE AND TO ALSO HAVE BINDING LEGAL EFFECT 292
UPON ANY PERSON WHO SEEKS COVERAGE AS AN ASSIGNEE OF THE 293
INSURED'S RIGHTS UNDER THE POLICY IN RELATION TO THE INJURY, 294
DEATH, OR LOSS INVOLVED. THIS DIVISION APPLIES WHETHER OR NOT AN 295
ASSIGNEE IS MADE A PARTY TO THE ACTION OR PROCEEDING FOR 296
DECLARATORY RELIEF AND NOTWITHSTANDING ANY CONTRARY COMMON LAW 297
PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL 298
ESTOPPEL.
Sec. 2721.13. Sections 2721.01 to 2721.15, inclusive, of 307
the Revised Code THE PROVISIONS OF THIS CHAPTER are remedial, and 309
shall be liberally construed and administered.
Sec. 2721.14. Sections 2721.01 to 2721.15, inclusive, of 318
the Revised Code THE PROVISIONS OF THIS CHAPTER shall be so 319
interpreted and construed as to effectuate their general purpose 320
to make the law of this state uniform with the law of those 321
states which THAT enact similar sections, PROVISIONS and to 323
harmonize, as far INSOFAR as possible, with federal laws and 325
regulations on the subject of declaratory judgments and decrees. 326
Sec. 2721.15. With the exception of sections 2721.02 and 335
2721.03 of the Revised Code, sections 2721.01 to 2721.15, 336
inclusive, of the Revised Code THE PROVISIONS OF THIS CHAPTER are 337
independent and severable, and the invalidity of any part of 338
sections 2721.01 and 2721.04 to 2721.15, inclusive, of the 340
Revised Code THOSE PROVISIONS does not affect or render the 342
remainder of such sections THOSE PROVISIONS invalid or 343
inoperative.
Sec. 2721.16. (A) A COURT OF RECORD SHALL NOT AWARD 346
ATTORNEY'S FEES TO ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF 347
UNDER THIS CHAPTER UNLESS A SECTION OF THE REVISED CODE 350
EXPLICITLY AUTHORIZES A COURT OF RECORD TO AWARD ATTORNEY'S FEES 352
ON A CLAIM FOR DECLARATORY RELIEF UNDER THIS CHAPTER OR UNLESS AN 354
AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY SECTION 2323.51 OF THE 355
7
REVISED CODE, BY THE CIVIL RULES, OR BY AN AWARD OF PUNITIVE OR 356
EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S
FEES. REFERENCES IN ANOTHER SECTION OF THE REVISED CODE TO AN 359
AWARD OF COSTS OR EXPENSES INCURRED IN CONNECTION WITH AN ACTION 360
OR PROCEEDING DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR 361
PURPOSES OF THIS DIVISION. 362
(B) CONSISTENT WITH SECTION 2721.13 OF THE REVISED CODE, 366
THE PROVISIONS OF THIS SECTION ARE REMEDIAL IN NATURE. 367
NOTWITHSTANDING ANY PROVISION OF THE REVISED CODE IN EXISTENCE ON 369
THE DAY IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, 370
NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE 371
DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT NATURE, 373
NOTWITHSTANDING THE HOLDING IN ANY DECISION OF A COURT OF THIS 374
STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S FEES TO A PARTY TO A 375
CIVIL ACTION OR PROCEEDING BASED ON COMMON LAW GROUNDS RATHER 376
THAN A STATUTORY AUTHORIZATION OF THE GENERAL ASSEMBLY, 377
REGARDLESS OF THE DATE UPON WHICH A CAUSE OF ACTION ACCRUED THAT 378
PERTAINS TO AN ACTION OR PROCEEDING IN WHICH DECLARATORY RELIEF 379
IS SOUGHT UNDER THIS CHAPTER, AND REGARDLESS OF WHO IS THE 380
PLAINTIFF OR THE DEFENDANT IN AN ACTION OR PROCEEDING IN WHICH 381
DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, DIVISION (A) OF 383
THIS SECTION SHALL APPLY IN CONNECTION WITH BOTH OF THE 384
FOLLOWING:
(1) AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR AFTER 387
THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS DECLARATORY 388
RELIEF UNDER THIS CHAPTER;
(2) AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO 390
THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT OF 392
RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER THIS 393
CHAPTER.
Sec. 2907.36. (A) Without limitation on the persons 402
otherwise entitled to bring an action for a declaratory judgment 403
pursuant to sections 2721.01 to 2721.15 CHAPTER 2721. of the 405
Revised Code, involving the same issue, the following persons 406
8
have standing to bring such an A DECLARATORY JUDGMENT action to 407
determine whether particular materials or performances are 409
obscene or harmful to juveniles:
(1) The chief legal officer of the jurisdiction in which 411
there is reasonable cause to believe that section 2907.31 or 412
2907.32 of the Revised Code is being or is about to be violated; 413
(2) Any person who, pursuant to division (B) of section 415
2907.35 of the Revised Code, has received notice in writing from 416
a chief legal officer stating that particular materials or 417
performances are obscene or harmful to juveniles. 418
(B) Any party to an action for a declaratory judgment 420
pursuant to division (A) of this section is entitled, upon his 421
THE PARTY'S request, to trial on the merits within five days 422
after joinder of the issues, and the court shall render judgment 423
within five days after trial is concluded. 424
(C) An action for a declaratory judgment pursuant to 426
division (A) of this section shall not be brought during the 427
pendency of any civil action or criminal prosecution, when the 428
character of the particular materials or performances involved is 429
at issue in the pending case, and either of the following apply 430
APPLIES: 431
(1) Either of the parties to the action for a declaratory 433
judgment is a party to the pending case;. 434
(2) A judgment in the pending case will necessarily 436
constitute res judicata as to the character of the materials or 437
performances involved. 438
(D) A civil action or criminal prosecution in which the 440
character of particular materials or performances is at issue, 441
brought during the pendency of an action for a declaratory 442
judgment involving the same issue, shall be stayed during the 443
pendency of the action for a declaratory judgment. 444
(E) The fact that a violation of section 2907.31 or 446
2907.32 of the Revised Code occurs prior to a judicial 447
determination of the character of the material or performance 448
9
involved in the violation, does not relieve the offender of 449
criminal liability for the violation, even though prosecution may 450
be stayed pending the judicial determination. 451
Sec. 3709.99. (A) Whoever violates section 3709.20, 460
3709.21, or 3709.22 of the Revised Code or any order or 461
regulation of the board of health of a city or general health 462
district adopted in pursuance of such THOSE sections, or WHOEVER 463
interferes with the execution of such an order or regulation OF 465
THAT NATURE by a member of the board or person authorized by the 467
board, shall be fined not more than one hundred dollars or 468
imprisoned not more than ninety days, or both. No person shall 469
be imprisoned for the first offense, and the prosecution shall 470
always be for a first offense unless the affidavit upon which the 471
prosecution is instituted contains the allegation that the 472
offense is a subsequent offense.
(B) Except in case of an emergency endangering the public 474
health caused by an epidemic, an infectious or a communicable 475
disease, or a disaster emergency condition or event, no 476
prosecution for A violation of any regulation or order adopted 477
pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised 478
Code shall take place until twenty days after such THE board of 479
health OF A CITY OR GENERAL HEALTH DISTRICT has notified the 480
person subject to such THE regulation or order of the specific 483
violation alleged. Any person notified by the board of a 484
violation of any such regulation or order OF THAT NATURE may file 485
an action for declaratory judgment pursuant to sections 2721.01 486
to 2721.15, inclusive, CHAPTER 2721. of the Revised Code, to have 488
determined whether such THE regulation or order is unreasonable 489
or unlawful. No such prosecution OF THAT NATURE shall be 491
commenced when, within such THE twenty-day period DESCRIBED IN 493
THIS DIVISION, the violation has been corrected. No such 494
prosecution OF THAT NATURE shall be commenced until such a 495
declaratory judgment OF THAT NATURE has been given. 496
Sec. 3929.06. (A)(1) IF A COURT IN A CIVIL ACTION ENTERS 499
10
A FINAL JUDGMENT THAT AWARDS DAMAGES TO A PLAINTIFF FOR INJURY, 500
DEATH, OR LOSS TO THE PERSON OR PROPERTY OF THE PLAINTIFF OR 501
ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL REPRESENTATIVE 502
AND IF, AT THE TIME THAT THE CAUSE OF ACTION ACCRUED AGAINST THE 503
JUDGMENT DEBTOR, THE JUDGMENT DEBTOR WAS INSURED AGAINST 504
LIABILITY FOR THAT INJURY, DEATH, OR LOSS, THE PLAINTIFF OR THE 505
PLAINTIFF'S SUCCESSOR IN INTEREST IS ENTITLED AS JUDGMENT 506
CREDITOR TO HAVE AN AMOUNT UP TO THE REMAINING LIMIT OF LIABILITY 507
COVERAGE PROVIDED IN THE JUDGMENT DEBTOR'S POLICY OF LIABILITY 508
INSURANCE APPLIED TO THE SATISFACTION OF THE FINAL JUDGMENT. 509
(2) IF, WITHIN THIRTY DAYS AFTER THE ENTRY OF THE FINAL 511
JUDGMENT REFERRED TO IN DIVISION (A)(1) OF THIS SECTION, THE 513
INSURER THAT ISSUED THE POLICY OF LIABILITY INSURANCE HAS NOT 514
PAID THE JUDGMENT CREDITOR AN AMOUNT EQUAL TO THE REMAINING LIMIT 516
OF LIABILITY COVERAGE PROVIDED IN THAT POLICY, THE JUDGMENT 517
CREDITOR MAY FILE IN THE COURT THAT ENTERED THE FINAL JUDGMENT A 518
SUPPLEMENTAL COMPLAINT AGAINST THE INSURER SEEKING THE ENTRY OF A 519
JUDGMENT ORDERING THE INSURER TO PAY THE JUDGMENT CREDITOR THE 520
REQUISITE AMOUNT. SUBJECT TO DIVISION (C) OF THIS SECTION, THE 521
CIVIL ACTION BASED ON THE SUPPLEMENTAL COMPLAINT SHALL PROCEED 522
AGAINST THE INSURER IN THE SAME MANNER AS THE ORIGINAL CIVIL 523
ACTION AGAINST THE JUDGMENT DEBTOR. 524
(B) DIVISION (A)(2) OF THIS SECTION DOES NOT AUTHORIZE THE 528
COMMENCEMENT OF A CIVIL ACTION AGAINST AN INSURER UNTIL A COURT 529
ENTERS THE FINAL JUDGMENT DESCRIBED IN DIVISION (A)(1) OF THIS 530
SECTION IN THE DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE 531
PLAINTIFF AND AN INSURED TORTFEASOR AND UNTIL THE EXPIRATION OF 532
THE THIRTY-DAY PERIOD REFERRED TO IN DIVISION (A)(2) OF THIS 534
SECTION.
(C)(1) IN A CIVIL ACTION THAT A JUDGMENT CREDITOR 537
COMMENCES IN ACCORDANCE WITH DIVISIONS (A)(2) AND (B) OF THIS 539
SECTION AGAINST AN INSURER THAT ISSUED A PARTICULAR POLICY OF 540
LIABILITY INSURANCE, THE INSURER HAS AND MAY ASSERT AS AN 541
AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR ANY COVERAGE 542
11
DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT AGAINST THE 543
HOLDER OF THE POLICY IN A DECLARATORY JUDGMENT ACTION OR 544
PROCEEDING UNDER CHAPTER 2721. OF THE REVISED CODE BETWEEN THE 547
HOLDER AND THE INSURER. 548
(2) IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF 550
THE CIVIL ACTION AGAINST THE INSURER IN ACCORDANCE WITH DIVISIONS 552
(A)(2) AND (B) OF THIS SECTION, THE HOLDER OF THE POLICY 554
COMMENCES A DECLARATORY JUDGMENT ACTION OR PROCEEDING UNDER 555
CHAPTER 2721. OF THE REVISED CODE AGAINST THE INSURER FOR A 557
DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE PROVISIONS 558
EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 559
UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE COURT 560
INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL JUDGMENT 561
WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF THAT 562
INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED TO 563
HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR PURPOSES 565
OF THE JUDGMENT CREDITOR'S CIVIL ACTION AGAINST THE INSURER UNDER 566
DIVISIONS (A)(2) AND (B) OF THIS SECTION. THIS DIVISION SHALL 568
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 569
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 570
Section 2. That existing sections 2721.01, 2721.02, 572
2721.03, 2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 573
2721.11, 2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 574
and section 3929.06 of the Revised Code are hereby repealed. 575
Section 3. The General Assembly hereby declares that, in 577
enacting section 2721.16 of the Revised Code in this act and in 578
making conforming amendments to sections 2721.01, 2721.02, 579
2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 580
2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised 581
Code in this act, it is the intent of the General Assembly to do 582
all of the following: 583
(A) To supersede the effect of the holding in Motorists 585
Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157, and in 588
its progeny, including Landis v. Grange Mut. Ins. Co. (1998), 82 589
12
Ohio St. 3d 339, 342-343, that the "whenever necessary or proper" 591
and "further relief" language in section 2721.09 of the Revised 592
Code, as it existed prior to the effective date of this act, 593
reflected the General Assembly's conferral of authority upon an 594
Ohio trial court to award "attorney's fees based on a declaratory 595
judgment issued by the court";
(B) To recognize the dissent's accurate construction in 597
Brandenburg of the "whenever necessary or proper" and "further 599
relief" language in section 2721.09 of the Revised Code, as it 600
existed prior to the effective date of this act;
(C) To recognize the holding of the Ohio Supreme Court in 602
Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, and its progeny 604
that Ohio follows the "American Rule" under which an award of 605
attorney's fees to a prevailing party in a civil action or 606
proceeding generally must be based on an express authorization of 607
the General Assembly;
(D) To recognize, consistent with the "American Rule," 609
that authority to grant an award of attorney's fees in connection 610
with an action or proceeding in which declaratory relief is 611
sought under Chapter 2721. of the Revised Code must be expressly 612
conferred by the General Assembly upon the courts of this state 613
and has not been so conferred prior to the effective date of this 615
act.
Section 4. The General Assembly declares that, in enacting 617
divisions (A) and (B) of new section 3929.06 and new division (B) 619
of section 2721.02 of the Revised Code in this act, in outright 620
repealing existing section 3929.06 of the Revised Code in this 621
act, and in making conforming amendments to sections 2721.03 and 622
2721.04 of the Revised Code in this act, it is the intent of the 623
General Assembly to supersede the effect of the holding of the 624
Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins. 625
Co. (1993), 66 Ohio St. 3d 15, Broz v. Winland (1994), 68 Ohio 626
St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio St. 628
3d 304, 308, that existing section 3929.06 of the Revised Code 629
13
does not preclude the commencement of a civil action under that 630
section or a declaratory judgment action or proceeding under 631
Chapter 2721. of the Revised Code against an insurer that issued 632
a policy of liability insurance until a court of record enters in 633
a distinct civil action for damages between the plaintiff and an 634
insured tortfeasor a final judgment awarding the plaintiff 635
damages for the injury, death, or loss to person or property 636
involved.
Section 5. The General Assembly declares that, in enacting 638
new division (C) of section 2721.02, new division (B) of section 639
2721.12, and division (C) of new section 3929.06 of the Revised 640
Code in this act and in making conforming amendments to division 641
(A) of section 2721.12 of the Revised Code in this act, it is the 642
intent of the General Assembly to supersede the effect of the 643
holding of the Ohio Supreme Court in Broz v. Winland (1994), 68 645
Ohio St. 3d 521, and its progeny relative to the lack of binding 646
legal effect of a judgment or decree upon certain persons who 647
were not parties to a declaratory judgment action or proceeding 648
between the holder of a policy of liability insurance and the 649
insurer that issued the policy. 650