As Passed by the Senate 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- 11
SENATORS LATTA-WATTS-MUMPER-GARDNER-WHITE-SPADA-NEIN-WACHTMANN
_________________________________________________________________ 13
A B I L L
To amend sections 2721.01, 2721.02, 2721.03, 15
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 17
2721.10, 2721.11, 2721.12, 2721.13, 2721.14,
2721.15, 2907.36, and 3709.99, to enact new 18
section 3929.06 and section 2721.16, and to
repeal section 3929.06 of the Revised Code to 20
prohibit an award of attorney's fees under the
Declaratory Judgments Law unless a statute 21
expressly authorizes the award in connection with 22
a claim for declaratory relief under that Law or 23
unless an award of attorney's fees is authorized
by the Frivolous Conduct Law, the Civil Rules, or 24
an award of punitive or exemplary damages, to 26
prohibit injured parties or their legal
representatives from commencing a declaratory 27
relief action or another type of civil action 28
based on liability insurance coverage against an
insurance company until a judgment for damages 29
has been awarded against an insured tortfeasor, 30
to specify the binding legal effect of a judgment 32
rendered in a declaratory relief action between 33
an insured and an insurance company relative to
the coverage of a liability insurance policy upon 34
the insured's assignees and certain judgment 35
creditors, and to permit insurance companies to 36
2
assert against certain judgment creditors
coverage defenses generally available against 37
insureds under liability insurance policies. 38
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 40
Section 1. That sections 2721.01, 2721.02, 2721.03, 42
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 43
2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 be 44
amended and new section 3929.06 and section 2721.16 of the 46
Revised Code be enacted to read as follows:
Sec. 2721.01. As used in sections 2721.01 to 2721.15, 55
inclusive, of the Revised Code THIS CHAPTER, "person" means any 56
person, partnership, joint-stock company, unincorporated 58
association, society, municipal corporation, or other
corporation. 59
Sec. 2721.02. Courts (A) SUBJECT TO DIVISION (B) OF THIS 69
SECTION, COURTS of record may declare rights, status, and other 70
legal relations whether or not further relief is or could be 71
claimed. No action or proceeding is open to objection on the 72
ground that a declaratory judgment or decree is prayed for UNDER 73
THIS CHAPTER. The declaration may be either affirmative or 74
negative in form and effect. Such THE declaration has the effect 75
of a final judgment or decree. 77
(B) A PLAINTIFF WHO IS NOT AN INSURED UNDER A PARTICULAR 80
POLICY OF LIABILITY INSURANCE MAY NOT COMMENCE AGAINST THE 81
INSURER THAT ISSUED THE POLICY AN ACTION OR PROCEEDING UNDER THIS 82
CHAPTER THAT SEEKS A DECLARATORY JUDGMENT OR DECREE AS TO WHETHER 83
THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, DEATH, OR 84
LOSS TO PERSON OR PROPERTY THAT A PARTICULAR INSURED UNDER THE 85
POLICY ALLEGEDLY TORTIOUSLY CAUSED THE PLAINTIFF TO SUSTAIN OR 86
CAUSED ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL 88
REPRESENTATIVE TO SUSTAIN, UNTIL A COURT OF RECORD ENTERS IN A 89
DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE PLAINTIFF AND THAT 90
3
INSURED AS A TORTFEASOR A FINAL JUDGMENT AWARDING THE PLAINTIFF 91
DAMAGES FOR THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 92
INVOLVED.
(C) IN AN ACTION OR PROCEEDING FOR DECLARATORY RELIEF THAT 95
A JUDGMENT CREDITOR COMMENCES IN ACCORDANCE WITH DIVISIONS (A) 97
AND (B) OF THIS SECTION AGAINST AN INSURER THAT ISSUED A 99
PARTICULAR POLICY OF LIABILITY INSURANCE, THE INSURER HAS AND MAY 100
ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR 101
ANY COVERAGE DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT 102
AGAINST THE HOLDER OF THE POLICY IN AN ACTION OR PROCEEDING UNDER 103
THIS CHAPTER BETWEEN THE HOLDER AND THE INSURER. 104
IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF THE 107
ACTION OR PROCEEDING FOR DECLARATORY RELIEF, THE HOLDER OF THE 108
POLICY COMMENCES A SIMILAR ACTION OR PROCEEDING AGAINST THE
INSURER FOR A DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE 109
PROVISIONS EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR 110
PROPERTY UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE 111
COURT INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL 112
JUDGMENT WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF 113
THAT INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED 114
TO ALSO HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR 115
PURPOSES OF THE JUDGMENT CREDITOR'S ACTION OR PROCEEDING FOR 116
DECLARATORY RELIEF AGAINST THE INSURER. THIS DIVISION SHALL 117
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 118
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 119
Sec. 2721.03. Any SUBJECT TO DIVISION (B) OF SECTION 128
2721.02 OF THE REVISED CODE, ANY person interested under a deed, 130
will, written contract, or other writing constituting a contract, 131
or ANY PERSON whose rights, status, or other legal relations are 133
affected by a constitutional provision, statute, rule as defined
in section 119.01 of the Revised Code, municipal ordinance, 134
township resolution, contract, or franchise, may have determined 135
any question of construction or validity arising under such THE 136
instrument, constitutional provision, statute, rule, ordinance, 138
4
resolution, contract, or franchise and obtain a declaration of 139
rights, status, or other legal relations thereunder UNDER IT. 140
The testator of a will may have the validity of the will 142
determined at any time during his THE TESTATOR'S lifetime 143
pursuant to sections 2107.081 to 2107.085 of the Revised Code. 144
Sec. 2721.04. A SUBJECT TO DIVISION (B) OF SECTION 2721.02 153
OF THE REVISED CODE, A contract may be construed by a declaratory 154
judgment OR DECREE either before or after there has been a breach 156
thereof OF THE CONTRACT.
Sec. 2721.06. Sections 2721.03 to 2721.05, inclusive, of 165
the Revised Code do not limit or restrict the exercise of the 167
general powers conferred in BY DIVISION (A) OF section 2721.02 of 169
the Revised Code in any ACTION OR proceeding where IN WHICH 170
declaratory relief is sought, UNDER THIS CHAPTER AND in which a 171
judgment or decree will terminate the controversy or remove an 173
uncertainty.
Sec. 2721.07. Courts of record may refuse to render or 182
enter a declaratory judgment or decree when such UNDER THIS 183
CHAPTER IF THE judgment or decree would not terminate the 184
uncertainty or controversy giving rise to the ACTION OR 185
proceeding IN WHICH THE DECLARATORY RELIEF IS SOUGHT. 186
Sec. 2721.08. All orders, judgments, and decrees under 195
sections 2721.01 to 2721.15, inclusive, of the Revised Code, THIS 197
CHAPTER may be reviewed ON APPEAL as ARE other orders, judgments, 199
and decrees are reviewed OF THE COURT OF RECORD INVOLVED. 200
Sec. 2721.09. Whenever SUBJECT TO SECTION 2721.16 OF THE 209
REVISED CODE, WHENEVER necessary or proper, A COURT OF RECORD MAY 210
GRANT further relief based on a declaratory judgment or decree 213
previously granted may be given UNDER THIS CHAPTER. The 214
application therefor FOR THE FURTHER RELIEF shall be by petition 215
to A COMPLAINT FILED IN a court having OF RECORD WITH 216
jurisdiction to grant the FURTHER relief. If the application is 218
sufficient, the court shall, on reasonable notice, SHALL require 219
any adverse party, whose rights have been adjudicated by the 220
5
declaratory judgment or decree, to show cause why THE further 222
relief should not be granted forthwith. 224
Sec. 2721.10. When a AN ACTION OR proceeding IN WHICH 233
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 234
inclusive, of the Revised Code, THIS CHAPTER involves the 236
determination of an issue of fact, such THAT issue may be tried 238
and determined in the same manner as issues of fact are tried and 239
determined in other civil actions in the court in which the
ACTION OR proceeding is pending. 240
Sec. 2721.11. In any ACTION OR proceeding IN WHICH 249
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 250
inclusive, of the Revised Code THIS CHAPTER, the court may make 251
such AN award of COURT costs as is equitable and just. 252
Sec. 2721.12. When (A) SUBJECT TO DIVISION (B) OF THIS 262
SECTION, WHEN declaratory relief is sought UNDER THIS CHAPTER IN 263
AN ACTION OR PROCEEDING, all persons shall be made parties who 265
have or claim any interest which THAT would be affected by the 266
declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING. 267
No EXCEPT AS PROVIDED IN DIVISION (B) OF THIS SECTION, A 269
declaration shall NOT prejudice the rights of persons WHO ARE not 271
MADE parties to the ACTION OR proceeding. In any ACTION OR 272
proceeding which THAT involves the validity of a municipal 274
ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or 275
franchise is alleged to be unconstitutional, the attorney general 277
ALSO shall also be served with a copy of the COMPLAINT IN THE 279
ACTION OR proceeding and shall be heard. In any ACTION OR 280
proceeding which THAT involves the validity of a township 281
resolution, the township shall be made a party and shall be 282
heard.
(B) A DECLARATORY JUDGMENT OR DECREE THAT A COURT OF 285
RECORD ENTERS IN AN ACTION OR PROCEEDING UNDER THIS CHAPTER 286
BETWEEN AN INSURER AND A HOLDER OF A POLICY OF LIABILITY 287
INSURANCE ISSUED BY THE INSURER AND THAT RESOLVES AN ISSUE AS TO 288
6
WHETHER THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, 289
DEATH, OR LOSS TO PERSON OR PROPERTY THAT AN INSURED UNDER THE 290
POLICY ALLEGEDLY TORTIOUSLY CAUSED SHALL BE DEEMED TO HAVE THE 291
BINDING LEGAL EFFECT DESCRIBED IN DIVISION (C)(2) OF SECTION 293
3929.06 OF THE REVISED CODE AND TO ALSO HAVE BINDING LEGAL EFFECT 296
UPON ANY PERSON WHO SEEKS COVERAGE AS AN ASSIGNEE OF THE 297
INSURED'S RIGHTS UNDER THE POLICY IN RELATION TO THE INJURY, 298
DEATH, OR LOSS INVOLVED. THIS DIVISION APPLIES WHETHER OR NOT AN 299
ASSIGNEE IS MADE A PARTY TO THE ACTION OR PROCEEDING FOR 300
DECLARATORY RELIEF AND NOTWITHSTANDING ANY CONTRARY COMMON LAW 301
PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL 302
ESTOPPEL.
Sec. 2721.13. Sections 2721.01 to 2721.15, inclusive, of 311
the Revised Code THE PROVISIONS OF THIS CHAPTER are remedial, and 313
shall be liberally construed and administered.
Sec. 2721.14. Sections 2721.01 to 2721.15, inclusive, of 322
the Revised Code THE PROVISIONS OF THIS CHAPTER shall be so 323
interpreted and construed as to effectuate their general purpose 324
to make the law of this state uniform with the law of those 325
states which THAT enact similar sections, PROVISIONS and to 327
harmonize, as far INSOFAR as possible, with federal laws and 329
regulations on the subject of declaratory judgments and decrees. 330
Sec. 2721.15. With the exception of sections 2721.02 and 339
2721.03 of the Revised Code, sections 2721.01 to 2721.15, 340
inclusive, of the Revised Code THE PROVISIONS OF THIS CHAPTER are 341
independent and severable, and the invalidity of any part of 342
sections 2721.01 and 2721.04 to 2721.15, inclusive, of the 344
Revised Code THOSE PROVISIONS does not affect or render the 346
remainder of such sections THOSE PROVISIONS invalid or 347
inoperative.
Sec. 2721.16. (A) A COURT OF RECORD SHALL NOT AWARD 350
ATTORNEY'S FEES TO ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF 351
UNDER THIS CHAPTER UNLESS A SECTION OF THE REVISED CODE 354
EXPLICITLY AUTHORIZES A COURT OF RECORD TO AWARD ATTORNEY'S FEES 356
7
ON A CLAIM FOR DECLARATORY RELIEF UNDER THIS CHAPTER OR UNLESS AN 358
AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY SECTION 2323.51 OF THE 359
REVISED CODE, BY THE CIVIL RULES, OR BY AN AWARD OF PUNITIVE OR 360
EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S
FEES. REFERENCES IN ANOTHER SECTION OF THE REVISED CODE TO AN 363
AWARD OF COSTS OR EXPENSES INCURRED IN CONNECTION WITH AN ACTION 364
OR PROCEEDING DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR 365
PURPOSES OF THIS DIVISION. 366
(B) CONSISTENT WITH SECTION 2721.13 OF THE REVISED CODE, 370
THE PROVISIONS OF THIS SECTION ARE REMEDIAL IN NATURE. 371
NOTWITHSTANDING ANY PROVISION OF THE REVISED CODE IN EXISTENCE ON 373
THE DAY IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, 374
NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE 375
DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT NATURE, 377
NOTWITHSTANDING THE HOLDING IN ANY DECISION OF A COURT OF THIS 378
STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S FEES TO A PARTY TO A 379
CIVIL ACTION OR PROCEEDING BASED ON COMMON LAW GROUNDS RATHER 380
THAN A STATUTORY AUTHORIZATION OF THE GENERAL ASSEMBLY, 381
REGARDLESS OF THE DATE UPON WHICH A CAUSE OF ACTION ACCRUED THAT 382
PERTAINS TO AN ACTION OR PROCEEDING IN WHICH DECLARATORY RELIEF 383
IS SOUGHT UNDER THIS CHAPTER, AND REGARDLESS OF WHO IS THE 384
PLAINTIFF OR THE DEFENDANT IN AN ACTION OR PROCEEDING IN WHICH 385
DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, DIVISION (A) OF 387
THIS SECTION SHALL APPLY IN CONNECTION WITH BOTH OF THE 388
FOLLOWING:
(1) AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR AFTER 391
THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS DECLARATORY 392
RELIEF UNDER THIS CHAPTER;
(2) AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO 394
THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT OF 396
RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER THIS 397
CHAPTER.
Sec. 2907.36. (A) Without limitation on the persons 406
otherwise entitled to bring an action for a declaratory judgment 407
8
pursuant to sections 2721.01 to 2721.15 CHAPTER 2721. of the 409
Revised Code, involving the same issue, the following persons 410
have standing to bring such an A DECLARATORY JUDGMENT action to 411
determine whether particular materials or performances are 413
obscene or harmful to juveniles:
(1) The chief legal officer of the jurisdiction in which 415
there is reasonable cause to believe that section 2907.31 or 416
2907.32 of the Revised Code is being or is about to be violated; 417
(2) Any person who, pursuant to division (B) of section 419
2907.35 of the Revised Code, has received notice in writing from 420
a chief legal officer stating that particular materials or 421
performances are obscene or harmful to juveniles. 422
(B) Any party to an action for a declaratory judgment 424
pursuant to division (A) of this section is entitled, upon his 425
THE PARTY'S request, to trial on the merits within five days 426
after joinder of the issues, and the court shall render judgment 427
within five days after trial is concluded. 428
(C) An action for a declaratory judgment pursuant to 430
division (A) of this section shall not be brought during the 431
pendency of any civil action or criminal prosecution, when the 432
character of the particular materials or performances involved is 433
at issue in the pending case, and either of the following apply 434
APPLIES: 435
(1) Either of the parties to the action for a declaratory 437
judgment is a party to the pending case;. 438
(2) A judgment in the pending case will necessarily 440
constitute res judicata as to the character of the materials or 441
performances involved. 442
(D) A civil action or criminal prosecution in which the 444
character of particular materials or performances is at issue, 445
brought during the pendency of an action for a declaratory 446
judgment involving the same issue, shall be stayed during the 447
pendency of the action for a declaratory judgment. 448
(E) The fact that a violation of section 2907.31 or 450
9
2907.32 of the Revised Code occurs prior to a judicial 451
determination of the character of the material or performance 452
involved in the violation, does not relieve the offender of 453
criminal liability for the violation, even though prosecution may 454
be stayed pending the judicial determination. 455
Sec. 3709.99. (A) Whoever violates section 3709.20, 464
3709.21, or 3709.22 of the Revised Code or any order or 465
regulation of the board of health of a city or general health 466
district adopted in pursuance of such THOSE sections, or WHOEVER 467
interferes with the execution of such an order or regulation OF 469
THAT NATURE by a member of the board or person authorized by the 471
board, shall be fined not more than one hundred dollars or 472
imprisoned not more than ninety days, or both. No person shall 473
be imprisoned for the first offense, and the prosecution shall 474
always be for a first offense unless the affidavit upon which the 475
prosecution is instituted contains the allegation that the 476
offense is a subsequent offense.
(B) Except in case of an emergency endangering the public 478
health caused by an epidemic, an infectious or a communicable 479
disease, or a disaster emergency condition or event, no 480
prosecution for A violation of any regulation or order adopted 481
pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised 482
Code shall take place until twenty days after such THE board of 483
health OF A CITY OR GENERAL HEALTH DISTRICT has notified the 484
person subject to such THE regulation or order of the specific 487
violation alleged. Any person notified by the board of a 488
violation of any such regulation or order OF THAT NATURE may file 489
an action for declaratory judgment pursuant to sections 2721.01 490
to 2721.15, inclusive, CHAPTER 2721. of the Revised Code, to have 492
determined whether such THE regulation or order is unreasonable 493
or unlawful. No such prosecution OF THAT NATURE shall be 495
commenced when, within such THE twenty-day period DESCRIBED IN 497
THIS DIVISION, the violation has been corrected. No such 498
prosecution OF THAT NATURE shall be commenced until such a 499
10
declaratory judgment OF THAT NATURE has been given. 500
Sec. 3929.06. (A)(1) IF A COURT IN A CIVIL ACTION ENTERS 503
A FINAL JUDGMENT THAT AWARDS DAMAGES TO A PLAINTIFF FOR INJURY, 504
DEATH, OR LOSS TO THE PERSON OR PROPERTY OF THE PLAINTIFF OR 505
ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL REPRESENTATIVE 506
AND IF, AT THE TIME THAT THE CAUSE OF ACTION ACCRUED AGAINST THE 507
JUDGMENT DEBTOR, THE JUDGMENT DEBTOR WAS INSURED AGAINST 508
LIABILITY FOR THAT INJURY, DEATH, OR LOSS, THE PLAINTIFF OR THE 509
PLAINTIFF'S SUCCESSOR IN INTEREST IS ENTITLED AS JUDGMENT 510
CREDITOR TO HAVE AN AMOUNT UP TO THE REMAINING LIMIT OF LIABILITY 511
COVERAGE PROVIDED IN THE JUDGMENT DEBTOR'S POLICY OF LIABILITY 512
INSURANCE APPLIED TO THE SATISFACTION OF THE FINAL JUDGMENT. 513
(2) IF, WITHIN THIRTY DAYS AFTER THE ENTRY OF THE FINAL 515
JUDGMENT REFERRED TO IN DIVISION (A)(1) OF THIS SECTION, THE 517
INSURER THAT ISSUED THE POLICY OF LIABILITY INSURANCE HAS NOT 518
PAID THE JUDGMENT CREDITOR AN AMOUNT EQUAL TO THE REMAINING LIMIT 520
OF LIABILITY COVERAGE PROVIDED IN THAT POLICY, THE JUDGMENT 521
CREDITOR MAY FILE IN THE COURT THAT ENTERED THE FINAL JUDGMENT A 522
SUPPLEMENTAL COMPLAINT AGAINST THE INSURER SEEKING THE ENTRY OF A 523
JUDGMENT ORDERING THE INSURER TO PAY THE JUDGMENT CREDITOR THE 524
REQUISITE AMOUNT. SUBJECT TO DIVISION (C) OF THIS SECTION, THE 525
CIVIL ACTION BASED ON THE SUPPLEMENTAL COMPLAINT SHALL PROCEED 526
AGAINST THE INSURER IN THE SAME MANNER AS THE ORIGINAL CIVIL 527
ACTION AGAINST THE JUDGMENT DEBTOR. 528
(B) DIVISION (A)(2) OF THIS SECTION DOES NOT AUTHORIZE THE 532
COMMENCEMENT OF A CIVIL ACTION AGAINST AN INSURER UNTIL A COURT 533
ENTERS THE FINAL JUDGMENT DESCRIBED IN DIVISION (A)(1) OF THIS 534
SECTION IN THE DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE 535
PLAINTIFF AND AN INSURED TORTFEASOR AND UNTIL THE EXPIRATION OF 536
THE THIRTY-DAY PERIOD REFERRED TO IN DIVISION (A)(2) OF THIS 538
SECTION.
(C)(1) IN A CIVIL ACTION THAT A JUDGMENT CREDITOR 541
COMMENCES IN ACCORDANCE WITH DIVISIONS (A)(2) AND (B) OF THIS 543
SECTION AGAINST AN INSURER THAT ISSUED A PARTICULAR POLICY OF 544
11
LIABILITY INSURANCE, THE INSURER HAS AND MAY ASSERT AS AN 545
AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR ANY COVERAGE 546
DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT AGAINST THE 547
HOLDER OF THE POLICY IN A DECLARATORY JUDGMENT ACTION OR 548
PROCEEDING UNDER CHAPTER 2721. OF THE REVISED CODE BETWEEN THE 551
HOLDER AND THE INSURER. 552
(2) IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF 554
THE CIVIL ACTION AGAINST THE INSURER IN ACCORDANCE WITH DIVISIONS 556
(A)(2) AND (B) OF THIS SECTION, THE HOLDER OF THE POLICY 558
COMMENCES A DECLARATORY JUDGMENT ACTION OR PROCEEDING UNDER 559
CHAPTER 2721. OF THE REVISED CODE AGAINST THE INSURER FOR A 561
DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE PROVISIONS 562
EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 563
UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE COURT 564
INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL JUDGMENT 565
WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF THAT 566
INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED TO 567
HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR PURPOSES 569
OF THE JUDGMENT CREDITOR'S CIVIL ACTION AGAINST THE INSURER UNDER 570
DIVISIONS (A)(2) AND (B) OF THIS SECTION. THIS DIVISION SHALL 572
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 573
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 574
Section 2. That existing sections 2721.01, 2721.02, 576
2721.03, 2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 577
2721.11, 2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 578
and section 3929.06 of the Revised Code are hereby repealed. 579
Section 3. The General Assembly hereby declares that, in 581
enacting section 2721.16 of the Revised Code in this act and in 582
making conforming amendments to sections 2721.01, 2721.02, 583
2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 584
2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised 585
Code in this act, it is the intent of the General Assembly to do 586
all of the following: 587
(A) To supersede the effect of the holding in Motorists 589
12
Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157, and in 592
its progeny, including Landis v. Grange Mut. Ins. Co. (1998), 82 593
Ohio St. 3d 339, 342-343, that the "whenever necessary or proper" 595
and "further relief" language in section 2721.09 of the Revised 596
Code, as it existed prior to the effective date of this act, 597
reflected the General Assembly's conferral of authority upon an 598
Ohio trial court to award "attorney's fees based on a declaratory 599
judgment issued by the court";
(B) To recognize the dissent's accurate construction in 601
Brandenburg of the "whenever necessary or proper" and "further 603
relief" language in section 2721.09 of the Revised Code, as it 604
existed prior to the effective date of this act;
(C) To recognize the holding of the Ohio Supreme Court in 606
Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, and its progeny 608
that Ohio follows the "American Rule" under which an award of 609
attorney's fees to a prevailing party in a civil action or 610
proceeding generally must be based on an express authorization of 611
the General Assembly;
(D) To recognize, consistent with the "American Rule," 613
that authority to grant an award of attorney's fees in connection 614
with an action or proceeding in which declaratory relief is 615
sought under Chapter 2721. of the Revised Code must be expressly 616
conferred by the General Assembly upon the courts of this state 617
and has not been so conferred prior to the effective date of this 619
act.
Section 4. The General Assembly declares that, in enacting 621
divisions (A) and (B) of new section 3929.06 and new division (B) 623
of section 2721.02 of the Revised Code in this act, in outright 624
repealing existing section 3929.06 of the Revised Code in this 625
act, and in making conforming amendments to sections 2721.03 and 626
2721.04 of the Revised Code in this act, it is the intent of the 627
General Assembly to supersede the effect of the holding of the 628
Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins. 629
Co. (1993), 66 Ohio St. 3d 15, Broz v. Winland (1994), 68 Ohio 630
13
St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio St. 632
3d 304, 308, that existing section 3929.06 of the Revised Code 633
does not preclude the commencement of a civil action under that 634
section or a declaratory judgment action or proceeding under 635
Chapter 2721. of the Revised Code against an insurer that issued 636
a policy of liability insurance until a court of record enters in 637
a distinct civil action for damages between the plaintiff and an 638
insured tortfeasor a final judgment awarding the plaintiff 639
damages for the injury, death, or loss to person or property 640
involved.
Section 5. The General Assembly declares that, in enacting 642
new division (C) of section 2721.02, new division (B) of section 643
2721.12, and division (C) of new section 3929.06 of the Revised 644
Code in this act and in making conforming amendments to division 645
(A) of section 2721.12 of the Revised Code in this act, it is the 646
intent of the General Assembly to supersede the effect of the 647
holding of the Ohio Supreme Court in Broz v. Winland (1994), 68 649
Ohio St. 3d 521, and its progeny relative to the lack of binding 650
legal effect of a judgment or decree upon certain persons who 651
were not parties to a declaratory judgment action or proceeding 652
between the holder of a policy of liability insurance and the 653
insurer that issued the policy. 654