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