As Passed by the House                        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-            9            

            SALERNO-MOTTLEY-KRUPINSKI-GOODMAN-DePIERO              10           


_________________________________________________________________                

                          A   B I L L                                           

             To amend sections 2721.01, 2721.02, 2721.03,          12           

                2721.04, 2721.06, 2721.07, 2721.08, 2721.09,       14           

                2721.10, 2721.11, 2721.12, 2721.13, 2721.14,                    

                2721.15, 2907.36, and 3709.99, to enact new        15           

                section 3929.06 and section 2721.16, and to                     

                repeal section 3929.06 of the Revised Code to      17           

                prohibit an award of attorney's fees under the                  

                Declaratory Judgments Law unless a statute         18           

                expressly authorizes the award in connection with  19           

                a claim for declaratory relief under that Law or   20           

                unless an award of attorney's fees is authorized                

                by the Frivolous Conduct Law, the Civil Rules, or  21           

                an award of punitive or exemplary damages, to      23           

                prohibit injured parties or their legal                         

                representatives from commencing a declaratory      24           

                relief action or another type of civil action      25           

                based on liability insurance coverage against an                

                insurance company until a judgment for damages     26           

                has been awarded against an insured tortfeasor,    27           

                to specify the binding legal effect of a judgment  29           

                rendered in a declaratory relief action between    30           

                an insured and an insurance company relative to                 

                the coverage of a liability insurance policy upon  31           

                the insured's assignees and certain judgment       32           

                creditors, and to permit insurance companies to    33           

                assert against certain judgment creditors                       

                                                          2      


                                                                 
                coverage defenses generally available against      34           

                insureds under liability insurance policies.       35           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        37           

      Section 1.  That sections 2721.01, 2721.02, 2721.03,         39           

2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11,     40           

2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 be        41           

amended and new section 3929.06 and section 2721.16 of the         43           

Revised Code be enacted to read as follows:                                     

      Sec. 2721.01.  As used in sections 2721.01 to 2721.15,       52           

inclusive, of the Revised Code THIS CHAPTER, "person" means any    53           

person, partnership, joint-stock company, unincorporated           55           

association, society, municipal corporation, or other                           

corporation.                                                       56           

      Sec. 2721.02.  Courts (A)  SUBJECT TO DIVISION (B) OF THIS   66           

SECTION, COURTS of record may declare rights, status, and other    67           

legal relations whether or not further relief is or could be       68           

claimed.  No action or proceeding is open to objection on the      69           

ground that a declaratory judgment or decree is prayed for UNDER   70           

THIS CHAPTER.  The declaration may be either affirmative or        71           

negative in form and effect.  Such THE declaration has the effect  72           

of a final judgment or decree.                                     74           

      (B)  A PLAINTIFF WHO IS NOT AN INSURED UNDER A PARTICULAR    77           

POLICY OF LIABILITY INSURANCE MAY NOT COMMENCE AGAINST THE         78           

INSURER THAT ISSUED THE POLICY AN ACTION OR PROCEEDING UNDER THIS  79           

CHAPTER THAT SEEKS A DECLARATORY JUDGMENT OR DECREE AS TO WHETHER  80           

THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, DEATH, OR    81           

LOSS TO PERSON OR PROPERTY THAT A PARTICULAR INSURED UNDER THE     82           

POLICY ALLEGEDLY TORTIOUSLY CAUSED THE PLAINTIFF TO SUSTAIN OR     83           

CAUSED ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL            85           

REPRESENTATIVE TO SUSTAIN, UNTIL A COURT OF RECORD ENTERS IN A     86           

DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE PLAINTIFF AND THAT   87           

INSURED AS A TORTFEASOR A FINAL JUDGMENT AWARDING THE PLAINTIFF    88           

                                                          3      


                                                                 
DAMAGES FOR THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY       89           

INVOLVED.                                                                       

      (C)  IN AN ACTION OR PROCEEDING FOR DECLARATORY RELIEF THAT  92           

A JUDGMENT CREDITOR COMMENCES IN ACCORDANCE WITH DIVISIONS (A)     94           

AND (B) OF THIS SECTION AGAINST AN INSURER THAT ISSUED A           96           

PARTICULAR POLICY OF LIABILITY INSURANCE, THE INSURER HAS AND MAY  97           

ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR     98           

ANY COVERAGE DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT  99           

AGAINST THE HOLDER OF THE POLICY IN AN ACTION OR PROCEEDING UNDER  100          

THIS CHAPTER BETWEEN THE HOLDER AND THE INSURER.                   101          

      IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF THE     104          

ACTION OR PROCEEDING FOR DECLARATORY RELIEF, THE HOLDER OF THE     105          

POLICY COMMENCES A SIMILAR ACTION OR PROCEEDING AGAINST THE                     

INSURER FOR A DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE    106          

PROVISIONS EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR       107          

PROPERTY UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE   108          

COURT INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL         109          

JUDGMENT WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF   110          

THAT INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED   111          

TO ALSO HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR   112          

PURPOSES OF THE JUDGMENT CREDITOR'S ACTION OR PROCEEDING FOR       113          

DECLARATORY RELIEF AGAINST THE INSURER.  THIS DIVISION SHALL       114          

APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES    115          

JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL.             116          

      Sec. 2721.03.  Any SUBJECT TO DIVISION (B) OF SECTION        125          

2721.02 OF THE REVISED CODE, ANY person interested under a deed,   127          

will, written contract, or other writing constituting a contract,  128          

or ANY PERSON whose rights, status, or other legal relations are   130          

affected by a constitutional provision, statute, rule as defined                

in section 119.01 of the Revised Code, municipal ordinance,        131          

township resolution, contract, or franchise, may have determined   132          

any question of construction or validity arising under such THE    133          

instrument, constitutional provision, statute, rule, ordinance,    135          

resolution, contract, or franchise and obtain a declaration of     136          

                                                          4      


                                                                 
rights, status, or other legal relations thereunder UNDER IT.      137          

      The testator of a will may have the validity of the will     139          

determined at any time during his THE TESTATOR'S lifetime          140          

pursuant to sections 2107.081 to 2107.085 of the Revised Code.     141          

      Sec. 2721.04.  A SUBJECT TO DIVISION (B) OF SECTION 2721.02  150          

OF THE REVISED CODE, A contract may be construed by a declaratory  151          

judgment OR DECREE either before or after there has been a breach  153          

thereof OF THE CONTRACT.                                                        

      Sec. 2721.06.  Sections 2721.03 to 2721.05, inclusive, of    162          

the Revised Code do not limit or restrict the exercise of the      164          

general powers conferred in BY DIVISION (A) OF section 2721.02 of  166          

the Revised Code in any ACTION OR proceeding where IN WHICH        167          

declaratory relief is sought, UNDER THIS CHAPTER AND in which a    168          

judgment or decree will terminate the controversy or remove an     170          

uncertainty.                                                                    

      Sec. 2721.07.  Courts of record may refuse to render or      179          

enter a declaratory judgment or decree when such UNDER THIS        180          

CHAPTER IF THE judgment or decree would not terminate the          181          

uncertainty or controversy giving rise to the ACTION OR            182          

proceeding IN WHICH THE DECLARATORY RELIEF IS SOUGHT.              183          

      Sec. 2721.08.  All orders, judgments, and decrees under      192          

sections 2721.01 to 2721.15, inclusive, of the Revised Code, THIS  194          

CHAPTER may be reviewed ON APPEAL as ARE other orders, judgments,  196          

and decrees are reviewed OF THE COURT OF RECORD INVOLVED.          197          

      Sec. 2721.09.  Whenever SUBJECT TO SECTION 2721.16 OF THE    206          

REVISED CODE, WHENEVER necessary or proper, A COURT OF RECORD MAY  207          

GRANT further relief based on a declaratory judgment or decree     210          

previously granted may be given UNDER THIS CHAPTER.  The           211          

application therefor FOR THE FURTHER RELIEF shall be by petition   212          

to A COMPLAINT FILED IN a court having OF RECORD WITH              213          

jurisdiction to grant the FURTHER relief.  If the application is   215          

sufficient, the court shall, on reasonable notice, SHALL require   216          

any adverse party, whose rights have been adjudicated by the       217          

declaratory judgment or decree, to show cause why THE further      219          

                                                          5      


                                                                 
relief should not be granted forthwith.                            221          

      Sec. 2721.10.  When a AN ACTION OR proceeding IN WHICH       230          

DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,    231          

inclusive, of the Revised Code, THIS CHAPTER involves the          233          

determination of an issue of fact, such THAT issue may be tried    235          

and determined in the same manner as issues of fact are tried and  236          

determined in other civil actions in the court in which the                     

ACTION OR proceeding is pending.                                   237          

      Sec. 2721.11.  In any ACTION OR proceeding IN WHICH          246          

DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,    247          

inclusive, of the Revised Code THIS CHAPTER, the court may make    248          

such AN award of COURT costs as is equitable and just.             249          

      Sec. 2721.12.  When (A)  SUBJECT TO DIVISION (B) OF THIS     259          

SECTION, WHEN declaratory relief is sought UNDER THIS CHAPTER IN   260          

AN ACTION OR PROCEEDING, all persons shall be made parties who     262          

have or claim any interest which THAT would be affected by the     263          

declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING.     264          

No EXCEPT AS PROVIDED IN DIVISION (B) OF THIS SECTION, A           266          

declaration shall NOT prejudice the rights of persons WHO ARE not  268          

MADE parties to the ACTION OR proceeding.  In any ACTION OR        269          

proceeding which THAT involves the validity of a municipal         271          

ordinance or franchise, the municipal corporation shall be made a               

party and shall be heard, and, if any statute or the ordinance or  272          

franchise is alleged to be unconstitutional, the attorney general  274          

ALSO shall also be served with a copy of the COMPLAINT IN THE      276          

ACTION OR proceeding and shall be heard.  In any ACTION OR         277          

proceeding which THAT involves the validity of a township          278          

resolution, the township shall be made a party and shall be        279          

heard.                                                                          

      (B)  A DECLARATORY JUDGMENT OR DECREE THAT A COURT OF        282          

RECORD ENTERS IN AN ACTION OR PROCEEDING UNDER THIS CHAPTER        283          

BETWEEN AN INSURER AND A HOLDER OF A POLICY OF LIABILITY           284          

INSURANCE ISSUED BY THE INSURER AND THAT RESOLVES AN ISSUE AS TO   285          

WHETHER THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY,      286          

                                                          6      


                                                                 
DEATH, OR LOSS TO PERSON OR PROPERTY THAT AN INSURED UNDER THE     287          

POLICY ALLEGEDLY TORTIOUSLY CAUSED SHALL BE DEEMED TO HAVE THE     288          

BINDING LEGAL EFFECT DESCRIBED IN DIVISION (C)(2) OF SECTION       290          

3929.06 OF THE REVISED CODE AND TO ALSO HAVE BINDING LEGAL EFFECT  293          

UPON ANY PERSON WHO SEEKS COVERAGE AS AN ASSIGNEE OF THE           294          

INSURED'S RIGHTS UNDER THE POLICY IN RELATION TO THE INJURY,       295          

DEATH, OR LOSS INVOLVED.  THIS DIVISION APPLIES WHETHER OR NOT AN  296          

ASSIGNEE IS MADE A PARTY TO THE ACTION OR PROCEEDING FOR           297          

DECLARATORY RELIEF AND NOTWITHSTANDING ANY CONTRARY COMMON LAW     298          

PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL     299          

ESTOPPEL.                                                                       

      Sec. 2721.13.  Sections 2721.01 to 2721.15, inclusive, of    308          

the Revised Code THE PROVISIONS OF THIS CHAPTER are remedial, and  310          

shall be liberally construed and administered.                                  

      Sec. 2721.14.  Sections 2721.01 to 2721.15, inclusive, of    319          

the Revised Code THE PROVISIONS OF THIS CHAPTER shall be so        320          

interpreted and construed as to effectuate their general purpose   321          

to make the law of this state uniform with the law of those        322          

states which THAT enact similar sections, PROVISIONS and to        324          

harmonize, as far INSOFAR as possible, with federal laws and       326          

regulations on the subject of declaratory judgments and decrees.   327          

      Sec. 2721.15.  With the exception of sections 2721.02 and    336          

2721.03 of the Revised Code, sections 2721.01 to 2721.15,          337          

inclusive, of the Revised Code THE PROVISIONS OF THIS CHAPTER are  338          

independent and severable, and the invalidity of any part of       339          

sections 2721.01 and 2721.04 to 2721.15, inclusive, of the         341          

Revised Code THOSE PROVISIONS does not affect or render the        343          

remainder of such sections THOSE PROVISIONS invalid or             344          

inoperative.                                                                    

      Sec. 2721.16.  (A)  A COURT OF RECORD SHALL NOT AWARD        347          

ATTORNEY'S FEES TO ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF     348          

UNDER THIS CHAPTER UNLESS A SECTION OF THE REVISED CODE            351          

EXPLICITLY AUTHORIZES A COURT OF RECORD TO AWARD ATTORNEY'S FEES   353          

ON A CLAIM FOR DECLARATORY RELIEF UNDER THIS CHAPTER OR UNLESS AN  355          

                                                          7      


                                                                 
AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY SECTION 2323.51 OF THE   356          

REVISED CODE, BY THE CIVIL RULES, OR BY AN AWARD OF PUNITIVE OR    357          

EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S                   

FEES.  REFERENCES IN ANOTHER SECTION OF THE REVISED CODE TO AN     360          

AWARD OF COSTS OR EXPENSES INCURRED IN CONNECTION WITH AN ACTION   361          

OR PROCEEDING DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR   362          

PURPOSES OF THIS DIVISION.                                         363          

      (B)  CONSISTENT WITH SECTION 2721.13 OF THE REVISED CODE,    367          

THE PROVISIONS OF THIS SECTION ARE REMEDIAL IN NATURE.             368          

NOTWITHSTANDING ANY PROVISION OF THE REVISED CODE IN EXISTENCE ON  370          

THE DAY IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION,   371          

NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE   372          

DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT NATURE,      374          

NOTWITHSTANDING THE HOLDING IN ANY DECISION OF A COURT OF THIS     375          

STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S FEES TO A PARTY TO A  376          

CIVIL ACTION OR PROCEEDING BASED ON COMMON LAW GROUNDS RATHER      377          

THAN A STATUTORY AUTHORIZATION OF THE GENERAL ASSEMBLY,            378          

REGARDLESS OF THE DATE UPON WHICH A CAUSE OF ACTION ACCRUED THAT   379          

PERTAINS TO AN ACTION OR PROCEEDING IN WHICH DECLARATORY RELIEF    380          

IS SOUGHT UNDER THIS CHAPTER, AND REGARDLESS OF WHO IS THE         381          

PLAINTIFF OR THE DEFENDANT IN AN ACTION OR PROCEEDING IN WHICH     382          

DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, DIVISION (A) OF   384          

THIS SECTION SHALL APPLY IN CONNECTION WITH BOTH OF THE            385          

FOLLOWING:                                                                      

      (1)  AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR AFTER   388          

THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS DECLARATORY      389          

RELIEF UNDER THIS CHAPTER;                                                      

      (2)  AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO     391          

THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT OF  393          

RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER THIS  394          

CHAPTER.                                                                        

      Sec. 2907.36.  (A)  Without limitation on the persons        403          

otherwise entitled to bring an action for a declaratory judgment   404          

pursuant to sections 2721.01 to 2721.15 CHAPTER 2721. of the       406          

                                                          8      


                                                                 
Revised Code, involving the same issue, the following persons      407          

have standing to bring such an A DECLARATORY JUDGMENT action to    408          

determine whether particular materials or performances are         410          

obscene or harmful to juveniles:                                                

      (1)  The chief legal officer of the jurisdiction in which    412          

there is reasonable cause to believe that section 2907.31 or       413          

2907.32 of the Revised Code is being or is about to be violated;   414          

      (2)  Any person who, pursuant to division (B) of section     416          

2907.35 of the Revised Code, has received notice in writing from   417          

a chief legal officer stating that particular materials or         418          

performances are obscene or harmful to juveniles.                  419          

      (B)  Any party to an action for a declaratory judgment       421          

pursuant to division (A) of this section is entitled, upon his     422          

THE PARTY'S request, to trial on the merits within five days       423          

after joinder of the issues, and the court shall render judgment   424          

within five days after trial is concluded.                         425          

      (C)  An action for a declaratory judgment pursuant to        427          

division (A) of this section shall not be brought during the       428          

pendency of any civil action or criminal prosecution, when the     429          

character of the particular materials or performances involved is  430          

at issue in the pending case, and either of the following apply    431          

APPLIES:                                                           432          

      (1)  Either of the parties to the action for a declaratory   434          

judgment is a party to the pending case;.                          435          

      (2)  A judgment in the pending case will necessarily         437          

constitute res judicata as to the character of the materials or    438          

performances involved.                                             439          

      (D)  A civil action or criminal prosecution in which the     441          

character of particular materials or performances is at issue,     442          

brought during the pendency of an action for a declaratory         443          

judgment involving the same issue, shall be stayed during the      444          

pendency of the action for a declaratory judgment.                 445          

      (E)  The fact that a violation of section 2907.31 or         447          

2907.32 of the Revised Code occurs prior to a judicial             448          

                                                          9      


                                                                 
determination of the character of the material or performance      449          

involved in the violation, does not relieve the offender of        450          

criminal liability for the violation, even though prosecution may  451          

be stayed pending the judicial determination.                      452          

      Sec. 3709.99.  (A)  Whoever violates section 3709.20,        461          

3709.21, or 3709.22 of the Revised Code or any order or            462          

regulation of the board of health of a city or general health      463          

district adopted in pursuance of such THOSE sections, or WHOEVER   464          

interferes with the execution of such an order or regulation OF    466          

THAT NATURE by a member of the board or person authorized by the   468          

board, shall be fined not more than one hundred dollars or         469          

imprisoned not more than ninety days, or both.  No person shall    470          

be imprisoned for the first offense, and the prosecution shall     471          

always be for a first offense unless the affidavit upon which the  472          

prosecution is instituted contains the allegation that the         473          

offense is a subsequent offense.                                                

      (B)  Except in case of an emergency endangering the public   475          

health caused by an epidemic, an infectious or a communicable      476          

disease, or a disaster emergency condition or event, no            477          

prosecution for A violation of any regulation or order adopted     478          

pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised    479          

Code shall take place until twenty days after such THE board of    480          

health OF A CITY OR GENERAL HEALTH DISTRICT has notified the       481          

person subject to such THE regulation or order of the specific     484          

violation alleged.  Any person notified by the board of a          485          

violation of any such regulation or order OF THAT NATURE may file  486          

an action for declaratory judgment pursuant to sections 2721.01    487          

to 2721.15, inclusive, CHAPTER 2721. of the Revised Code, to have  489          

determined whether such THE regulation or order is unreasonable    490          

or unlawful.  No such prosecution OF THAT NATURE shall be          492          

commenced when, within such THE twenty-day period DESCRIBED IN     494          

THIS DIVISION, the violation has been corrected.  No such          495          

prosecution OF THAT NATURE shall be commenced until such a         496          

declaratory judgment OF THAT NATURE has been given.                497          

                                                          10     


                                                                 
      Sec. 3929.06.  (A)(1)  IF A COURT IN A CIVIL ACTION ENTERS   500          

A FINAL JUDGMENT THAT AWARDS DAMAGES TO A PLAINTIFF FOR INJURY,    501          

DEATH, OR LOSS TO THE PERSON OR PROPERTY OF THE PLAINTIFF OR       502          

ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL REPRESENTATIVE    503          

AND IF, AT THE TIME THAT THE CAUSE OF ACTION ACCRUED AGAINST THE   504          

JUDGMENT DEBTOR, THE JUDGMENT DEBTOR WAS INSURED AGAINST           505          

LIABILITY FOR THAT INJURY, DEATH, OR LOSS, THE PLAINTIFF OR THE    506          

PLAINTIFF'S SUCCESSOR IN INTEREST IS ENTITLED AS JUDGMENT          507          

CREDITOR TO HAVE AN AMOUNT UP TO THE REMAINING LIMIT OF LIABILITY  508          

COVERAGE PROVIDED IN THE JUDGMENT DEBTOR'S POLICY OF LIABILITY     509          

INSURANCE APPLIED TO THE SATISFACTION OF THE FINAL JUDGMENT.       510          

      (2)  IF, WITHIN THIRTY DAYS AFTER THE ENTRY OF THE FINAL     512          

JUDGMENT REFERRED TO IN DIVISION (A)(1) OF THIS SECTION, THE       514          

INSURER THAT ISSUED THE POLICY OF LIABILITY INSURANCE HAS NOT      515          

PAID THE JUDGMENT CREDITOR AN AMOUNT EQUAL TO THE REMAINING LIMIT  517          

OF LIABILITY COVERAGE PROVIDED IN THAT POLICY, THE JUDGMENT        518          

CREDITOR MAY FILE IN THE COURT THAT ENTERED THE FINAL JUDGMENT A   519          

SUPPLEMENTAL COMPLAINT AGAINST THE INSURER SEEKING THE ENTRY OF A  520          

JUDGMENT ORDERING THE INSURER TO PAY THE JUDGMENT CREDITOR THE     521          

REQUISITE AMOUNT.  SUBJECT TO DIVISION (C) OF THIS SECTION, THE    522          

CIVIL ACTION BASED ON THE SUPPLEMENTAL COMPLAINT SHALL PROCEED     523          

AGAINST THE INSURER IN THE SAME MANNER AS THE ORIGINAL CIVIL       524          

ACTION AGAINST THE JUDGMENT DEBTOR.                                525          

      (B)  DIVISION (A)(2) OF THIS SECTION DOES NOT AUTHORIZE THE  529          

COMMENCEMENT OF A CIVIL ACTION AGAINST AN INSURER UNTIL A COURT    530          

ENTERS THE FINAL JUDGMENT DESCRIBED IN DIVISION (A)(1) OF THIS     531          

SECTION IN THE DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE       532          

PLAINTIFF AND AN INSURED TORTFEASOR AND UNTIL THE EXPIRATION OF    533          

THE THIRTY-DAY PERIOD REFERRED TO IN DIVISION (A)(2) OF THIS       535          

SECTION.                                                                        

      (C)(1)  IN A CIVIL ACTION THAT A JUDGMENT CREDITOR           538          

COMMENCES IN ACCORDANCE WITH DIVISIONS (A)(2) AND (B) OF THIS      540          

SECTION AGAINST AN INSURER THAT ISSUED A PARTICULAR POLICY OF      541          

LIABILITY INSURANCE, THE INSURER HAS AND MAY ASSERT AS AN          542          

                                                          11     


                                                                 
AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR ANY COVERAGE     543          

DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT AGAINST THE   544          

HOLDER OF THE POLICY IN A DECLARATORY JUDGMENT ACTION OR           545          

PROCEEDING UNDER CHAPTER 2721. OF THE REVISED CODE BETWEEN THE     548          

HOLDER AND THE INSURER.                                            549          

      (2)  IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF    551          

THE CIVIL ACTION AGAINST THE INSURER IN ACCORDANCE WITH DIVISIONS  553          

(A)(2) AND (B) OF THIS SECTION, THE HOLDER OF THE POLICY           555          

COMMENCES A DECLARATORY JUDGMENT ACTION OR PROCEEDING UNDER        556          

CHAPTER 2721. OF THE REVISED CODE AGAINST THE INSURER FOR A        558          

DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE PROVISIONS       559          

EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY         560          

UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE COURT      561          

INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL JUDGMENT      562          

WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF THAT       563          

INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED TO     564          

HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR PURPOSES  566          

OF THE JUDGMENT CREDITOR'S CIVIL ACTION AGAINST THE INSURER UNDER  567          

DIVISIONS (A)(2) AND (B) OF THIS SECTION.  THIS DIVISION SHALL     569          

APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES    570          

JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL.             571          

      Section 2.  That existing sections 2721.01, 2721.02,         573          

2721.03, 2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10,     574          

2721.11, 2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99  575          

and section 3929.06 of the Revised Code are hereby repealed.       576          

      Section 3.  The General Assembly hereby declares that, in    578          

enacting section 2721.16 of the Revised Code in this act and in    579          

making conforming amendments to sections 2721.01, 2721.02,         580          

2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12,     581          

2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised     582          

Code in this act, it is the intent of the General Assembly to do   583          

all of the following:                                              584          

      (A)  To supersede the effect of the holding in Motorists     586          

Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157, and in    589          

                                                          12     


                                                                 
its progeny, including Landis v. Grange Mut. Ins. Co. (1998), 82   590          

Ohio St. 3d 339, 342-343, that the "whenever necessary or proper"  592          

and "further relief" language in section 2721.09 of the Revised    593          

Code, as it existed prior to the effective date of this act,       594          

reflected the General Assembly's conferral of authority upon an    595          

Ohio trial court to award "attorney's fees based on a declaratory  596          

judgment issued by the court";                                                  

      (B)  To recognize the dissent's accurate construction in     598          

Brandenburg of the "whenever necessary or proper" and "further     600          

relief" language in section 2721.09 of the Revised Code, as it     601          

existed prior to the effective date of this act;                                

      (C)  To recognize the holding of the Ohio Supreme Court in   603          

Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, and its progeny   605          

that Ohio follows the "American Rule" under which an award of      606          

attorney's fees to a prevailing party in a civil action or         607          

proceeding generally must be based on an express authorization of  608          

the General Assembly;                                                           

      (D)  To recognize, consistent with the "American Rule,"      610          

that authority to grant an award of attorney's fees in connection  611          

with an action or proceeding in which declaratory relief is        612          

sought under Chapter 2721. of the Revised Code must be expressly   613          

conferred by the General Assembly upon the courts of this state    614          

and has not been so conferred prior to the effective date of this  616          

act.                                                                            

      Section 4.  The General Assembly declares that, in enacting  618          

divisions (A) and (B) of new section 3929.06 and new division (B)  620          

of section 2721.02 of the Revised Code in this act, in outright    621          

repealing existing section 3929.06 of the Revised Code in this     622          

act, and in making conforming amendments to sections 2721.03 and   623          

2721.04 of the Revised Code in this act, it is the intent of the   624          

General Assembly to supersede the effect of the holding of the     625          

Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins.     626          

Co. (1993), 66 Ohio St. 3d 15, Broz v. Winland (1994), 68 Ohio     627          

St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio St.  629          

                                                          13     


                                                                 
3d 304, 308, that existing section 3929.06 of the Revised Code     630          

does not preclude the commencement of a civil action under that    631          

section or a declaratory judgment action or proceeding under       632          

Chapter 2721. of the Revised Code against an insurer that issued   633          

a policy of liability insurance until a court of record enters in  634          

a distinct civil action for damages between the plaintiff and an   635          

insured tortfeasor a final judgment awarding the plaintiff         636          

damages for the injury, death, or loss to person or property       637          

involved.                                                                       

      Section 5.  The General Assembly declares that, in enacting  639          

new division (C) of section 2721.02, new division (B) of section   640          

2721.12, and division (C) of new section 3929.06 of the Revised    641          

Code in this act and in making conforming amendments to division   642          

(A) of section 2721.12 of the Revised Code in this act, it is the  643          

intent of the General Assembly to supersede the effect of the      644          

holding of the Ohio Supreme Court in Broz v. Winland (1994), 68    646          

Ohio St. 3d 521, and its progeny relative to the lack of binding   647          

legal effect of a judgment or decree upon certain persons who      648          

were not parties to a declaratory judgment action or proceeding    649          

between the holder of a policy of liability insurance and the      650          

insurer that issued the policy.                                    651