As Reported by the Senate Judiciary Committee 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 58 5
1999-2000 6
REPRESENTATIVES WOMER BENJAMIN-TAYLOR-TIBERI- 8
TERWILLEGER-OLMAN-BUCHY-CALLENDER-WILLAMOWSKI- 9
SALERNO-MOTTLEY-KRUPINSKI-GOODMAN-DePIERO 10
_________________________________________________________________ 12
A B I L L
To amend sections 2721.01, 2721.02, 2721.03, 14
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 16
2721.10, 2721.11, 2721.12, 2721.13, 2721.14,
2721.15, 2907.36, and 3709.99, to enact new 17
section 3929.06 and section 2721.16, and to
repeal section 3929.06 of the Revised Code to 19
prohibit an award of attorney's fees under the
Declaratory Judgments Law unless a statute 20
expressly authorizes the award in connection with 21
a claim for declaratory relief under that Law or 22
unless an award of attorney's fees is authorized
by the Frivolous Conduct Law, the Civil Rules, or 23
an award of punitive or exemplary damages, to 25
prohibit injured parties or their legal
representatives from commencing a declaratory 26
relief action or another type of civil action 27
based on liability insurance coverage against an
insurance company until a judgment for damages 28
has been awarded against an insured tortfeasor, 29
to specify the binding legal effect of a judgment 31
rendered in a declaratory relief action between 32
an insured and an insurance company relative to
the coverage of a liability insurance policy upon 33
the insured's assignees and certain judgment 34
creditors, and to permit insurance companies to 35
assert against certain judgment creditors
2
coverage defenses generally available against 36
insureds under liability insurance policies. 37
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 39
Section 1. That sections 2721.01, 2721.02, 2721.03, 41
2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 42
2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 be 43
amended and new section 3929.06 and section 2721.16 of the 45
Revised Code be enacted to read as follows:
Sec. 2721.01. As used in sections 2721.01 to 2721.15, 54
inclusive, of the Revised Code THIS CHAPTER, "person" means any 55
person, partnership, joint-stock company, unincorporated 57
association, society, municipal corporation, or other
corporation. 58
Sec. 2721.02. Courts (A) SUBJECT TO DIVISION (B) OF THIS 68
SECTION, COURTS of record may declare rights, status, and other 69
legal relations whether or not further relief is or could be 70
claimed. No action or proceeding is open to objection on the 71
ground that a declaratory judgment or decree is prayed for UNDER 72
THIS CHAPTER. The declaration may be either affirmative or 73
negative in form and effect. Such THE declaration has the effect 74
of a final judgment or decree. 76
(B) A PLAINTIFF WHO IS NOT AN INSURED UNDER A PARTICULAR 79
POLICY OF LIABILITY INSURANCE MAY NOT COMMENCE AGAINST THE 80
INSURER THAT ISSUED THE POLICY AN ACTION OR PROCEEDING UNDER THIS 81
CHAPTER THAT SEEKS A DECLARATORY JUDGMENT OR DECREE AS TO WHETHER 82
THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, DEATH, OR 83
LOSS TO PERSON OR PROPERTY THAT A PARTICULAR INSURED UNDER THE 84
POLICY ALLEGEDLY TORTIOUSLY CAUSED THE PLAINTIFF TO SUSTAIN OR 85
CAUSED ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL 87
REPRESENTATIVE TO SUSTAIN, UNTIL A COURT OF RECORD ENTERS IN A 88
DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE PLAINTIFF AND THAT 89
INSURED AS A TORTFEASOR A FINAL JUDGMENT AWARDING THE PLAINTIFF 90
3
DAMAGES FOR THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 91
INVOLVED.
(C) IN AN ACTION OR PROCEEDING FOR DECLARATORY RELIEF THAT 94
A JUDGMENT CREDITOR COMMENCES IN ACCORDANCE WITH DIVISIONS (A) 96
AND (B) OF THIS SECTION AGAINST AN INSURER THAT ISSUED A 98
PARTICULAR POLICY OF LIABILITY INSURANCE, THE INSURER HAS AND MAY 99
ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR 100
ANY COVERAGE DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT 101
AGAINST THE HOLDER OF THE POLICY IN AN ACTION OR PROCEEDING UNDER 102
THIS CHAPTER BETWEEN THE HOLDER AND THE INSURER. 103
IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF THE 106
ACTION OR PROCEEDING FOR DECLARATORY RELIEF, THE HOLDER OF THE 107
POLICY COMMENCES A SIMILAR ACTION OR PROCEEDING AGAINST THE
INSURER FOR A DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE 108
PROVISIONS EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR 109
PROPERTY UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE 110
COURT INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL 111
JUDGMENT WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF 112
THAT INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED 113
TO ALSO HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR 114
PURPOSES OF THE JUDGMENT CREDITOR'S ACTION OR PROCEEDING FOR 115
DECLARATORY RELIEF AGAINST THE INSURER. THIS DIVISION SHALL 116
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 117
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 118
Sec. 2721.03. Any SUBJECT TO DIVISION (B) OF SECTION 127
2721.02 OF THE REVISED CODE, ANY person interested under a deed, 129
will, written contract, or other writing constituting a contract, 130
or ANY PERSON whose rights, status, or other legal relations are 132
affected by a constitutional provision, statute, rule as defined
in section 119.01 of the Revised Code, municipal ordinance, 133
township resolution, contract, or franchise, may have determined 134
any question of construction or validity arising under such THE 135
instrument, constitutional provision, statute, rule, ordinance, 137
resolution, contract, or franchise and obtain a declaration of 138
4
rights, status, or other legal relations thereunder UNDER IT. 139
The testator of a will may have the validity of the will 141
determined at any time during his THE TESTATOR'S lifetime 142
pursuant to sections 2107.081 to 2107.085 of the Revised Code. 143
Sec. 2721.04. A SUBJECT TO DIVISION (B) OF SECTION 2721.02 152
OF THE REVISED CODE, A contract may be construed by a declaratory 153
judgment OR DECREE either before or after there has been a breach 155
thereof OF THE CONTRACT.
Sec. 2721.06. Sections 2721.03 to 2721.05, inclusive, of 164
the Revised Code do not limit or restrict the exercise of the 166
general powers conferred in BY DIVISION (A) OF section 2721.02 of 168
the Revised Code in any ACTION OR proceeding where IN WHICH 169
declaratory relief is sought, UNDER THIS CHAPTER AND in which a 170
judgment or decree will terminate the controversy or remove an 172
uncertainty.
Sec. 2721.07. Courts of record may refuse to render or 181
enter a declaratory judgment or decree when such UNDER THIS 182
CHAPTER IF THE judgment or decree would not terminate the 183
uncertainty or controversy giving rise to the ACTION OR 184
proceeding IN WHICH THE DECLARATORY RELIEF IS SOUGHT. 185
Sec. 2721.08. All orders, judgments, and decrees under 194
sections 2721.01 to 2721.15, inclusive, of the Revised Code, THIS 196
CHAPTER may be reviewed ON APPEAL as ARE other orders, judgments, 198
and decrees are reviewed OF THE COURT OF RECORD INVOLVED. 199
Sec. 2721.09. Whenever SUBJECT TO SECTION 2721.16 OF THE 208
REVISED CODE, WHENEVER necessary or proper, A COURT OF RECORD MAY 209
GRANT further relief based on a declaratory judgment or decree 212
previously granted may be given UNDER THIS CHAPTER. The 213
application therefor FOR THE FURTHER RELIEF shall be by petition 214
to A COMPLAINT FILED IN a court having OF RECORD WITH 215
jurisdiction to grant the FURTHER relief. If the application is 217
sufficient, the court shall, on reasonable notice, SHALL require 218
any adverse party, whose rights have been adjudicated by the 219
declaratory judgment or decree, to show cause why THE further 221
5
relief should not be granted forthwith. 223
Sec. 2721.10. When a AN ACTION OR proceeding IN WHICH 232
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 233
inclusive, of the Revised Code, THIS CHAPTER involves the 235
determination of an issue of fact, such THAT issue may be tried 237
and determined in the same manner as issues of fact are tried and 238
determined in other civil actions in the court in which the
ACTION OR proceeding is pending. 239
Sec. 2721.11. In any ACTION OR proceeding IN WHICH 248
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15, 249
inclusive, of the Revised Code THIS CHAPTER, the court may make 250
such AN award of COURT costs as is equitable and just. 251
Sec. 2721.12. When (A) SUBJECT TO DIVISION (B) OF THIS 261
SECTION, WHEN declaratory relief is sought UNDER THIS CHAPTER IN 262
AN ACTION OR PROCEEDING, all persons shall be made parties who 264
have or claim any interest which THAT would be affected by the 265
declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING. 266
No EXCEPT AS PROVIDED IN DIVISION (B) OF THIS SECTION, A 268
declaration shall NOT prejudice the rights of persons WHO ARE not 270
MADE parties to the ACTION OR proceeding. In any ACTION OR 271
proceeding which THAT involves the validity of a municipal 273
ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or 274
franchise is alleged to be unconstitutional, the attorney general 276
ALSO shall also be served with a copy of the COMPLAINT IN THE 278
ACTION OR proceeding and shall be heard. In any ACTION OR 279
proceeding which THAT involves the validity of a township 280
resolution, the township shall be made a party and shall be 281
heard.
(B) A DECLARATORY JUDGMENT OR DECREE THAT A COURT OF 284
RECORD ENTERS IN AN ACTION OR PROCEEDING UNDER THIS CHAPTER 285
BETWEEN AN INSURER AND A HOLDER OF A POLICY OF LIABILITY 286
INSURANCE ISSUED BY THE INSURER AND THAT RESOLVES AN ISSUE AS TO 287
WHETHER THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY, 288
6
DEATH, OR LOSS TO PERSON OR PROPERTY THAT AN INSURED UNDER THE 289
POLICY ALLEGEDLY TORTIOUSLY CAUSED SHALL BE DEEMED TO HAVE THE 290
BINDING LEGAL EFFECT DESCRIBED IN DIVISION (C)(2) OF SECTION 292
3929.06 OF THE REVISED CODE AND TO ALSO HAVE BINDING LEGAL EFFECT 295
UPON ANY PERSON WHO SEEKS COVERAGE AS AN ASSIGNEE OF THE 296
INSURED'S RIGHTS UNDER THE POLICY IN RELATION TO THE INJURY, 297
DEATH, OR LOSS INVOLVED. THIS DIVISION APPLIES WHETHER OR NOT AN 298
ASSIGNEE IS MADE A PARTY TO THE ACTION OR PROCEEDING FOR 299
DECLARATORY RELIEF AND NOTWITHSTANDING ANY CONTRARY COMMON LAW 300
PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL 301
ESTOPPEL.
Sec. 2721.13. Sections 2721.01 to 2721.15, inclusive, of 310
the Revised Code THE PROVISIONS OF THIS CHAPTER are remedial, and 312
shall be liberally construed and administered.
Sec. 2721.14. Sections 2721.01 to 2721.15, inclusive, of 321
the Revised Code THE PROVISIONS OF THIS CHAPTER shall be so 322
interpreted and construed as to effectuate their general purpose 323
to make the law of this state uniform with the law of those 324
states which THAT enact similar sections, PROVISIONS and to 326
harmonize, as far INSOFAR as possible, with federal laws and 328
regulations on the subject of declaratory judgments and decrees. 329
Sec. 2721.15. With the exception of sections 2721.02 and 338
2721.03 of the Revised Code, sections 2721.01 to 2721.15, 339
inclusive, of the Revised Code THE PROVISIONS OF THIS CHAPTER are 340
independent and severable, and the invalidity of any part of 341
sections 2721.01 and 2721.04 to 2721.15, inclusive, of the 343
Revised Code THOSE PROVISIONS does not affect or render the 345
remainder of such sections THOSE PROVISIONS invalid or 346
inoperative.
Sec. 2721.16. (A) A COURT OF RECORD SHALL NOT AWARD 349
ATTORNEY'S FEES TO ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF 350
UNDER THIS CHAPTER UNLESS A SECTION OF THE REVISED CODE 353
EXPLICITLY AUTHORIZES A COURT OF RECORD TO AWARD ATTORNEY'S FEES 355
ON A CLAIM FOR DECLARATORY RELIEF UNDER THIS CHAPTER OR UNLESS AN 357
7
AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY SECTION 2323.51 OF THE 358
REVISED CODE, BY THE CIVIL RULES, OR BY AN AWARD OF PUNITIVE OR 359
EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S
FEES. REFERENCES IN ANOTHER SECTION OF THE REVISED CODE TO AN 362
AWARD OF COSTS OR EXPENSES INCURRED IN CONNECTION WITH AN ACTION 363
OR PROCEEDING DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR 364
PURPOSES OF THIS DIVISION. 365
(B) CONSISTENT WITH SECTION 2721.13 OF THE REVISED CODE, 369
THE PROVISIONS OF THIS SECTION ARE REMEDIAL IN NATURE. 370
NOTWITHSTANDING ANY PROVISION OF THE REVISED CODE IN EXISTENCE ON 372
THE DAY IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, 373
NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE 374
DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT NATURE, 376
NOTWITHSTANDING THE HOLDING IN ANY DECISION OF A COURT OF THIS 377
STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S FEES TO A PARTY TO A 378
CIVIL ACTION OR PROCEEDING BASED ON COMMON LAW GROUNDS RATHER 379
THAN A STATUTORY AUTHORIZATION OF THE GENERAL ASSEMBLY, 380
REGARDLESS OF THE DATE UPON WHICH A CAUSE OF ACTION ACCRUED THAT 381
PERTAINS TO AN ACTION OR PROCEEDING IN WHICH DECLARATORY RELIEF 382
IS SOUGHT UNDER THIS CHAPTER, AND REGARDLESS OF WHO IS THE 383
PLAINTIFF OR THE DEFENDANT IN AN ACTION OR PROCEEDING IN WHICH 384
DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, DIVISION (A) OF 386
THIS SECTION SHALL APPLY IN CONNECTION WITH BOTH OF THE 387
FOLLOWING:
(1) AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR AFTER 390
THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS DECLARATORY 391
RELIEF UNDER THIS CHAPTER;
(2) AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO 393
THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT OF 395
RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER THIS 396
CHAPTER.
Sec. 2907.36. (A) Without limitation on the persons 405
otherwise entitled to bring an action for a declaratory judgment 406
pursuant to sections 2721.01 to 2721.15 CHAPTER 2721. of the 408
8
Revised Code, involving the same issue, the following persons 409
have standing to bring such an A DECLARATORY JUDGMENT action to 410
determine whether particular materials or performances are 412
obscene or harmful to juveniles:
(1) The chief legal officer of the jurisdiction in which 414
there is reasonable cause to believe that section 2907.31 or 415
2907.32 of the Revised Code is being or is about to be violated; 416
(2) Any person who, pursuant to division (B) of section 418
2907.35 of the Revised Code, has received notice in writing from 419
a chief legal officer stating that particular materials or 420
performances are obscene or harmful to juveniles. 421
(B) Any party to an action for a declaratory judgment 423
pursuant to division (A) of this section is entitled, upon his 424
THE PARTY'S request, to trial on the merits within five days 425
after joinder of the issues, and the court shall render judgment 426
within five days after trial is concluded. 427
(C) An action for a declaratory judgment pursuant to 429
division (A) of this section shall not be brought during the 430
pendency of any civil action or criminal prosecution, when the 431
character of the particular materials or performances involved is 432
at issue in the pending case, and either of the following apply 433
APPLIES: 434
(1) Either of the parties to the action for a declaratory 436
judgment is a party to the pending case;. 437
(2) A judgment in the pending case will necessarily 439
constitute res judicata as to the character of the materials or 440
performances involved. 441
(D) A civil action or criminal prosecution in which the 443
character of particular materials or performances is at issue, 444
brought during the pendency of an action for a declaratory 445
judgment involving the same issue, shall be stayed during the 446
pendency of the action for a declaratory judgment. 447
(E) The fact that a violation of section 2907.31 or 449
2907.32 of the Revised Code occurs prior to a judicial 450
9
determination of the character of the material or performance 451
involved in the violation, does not relieve the offender of 452
criminal liability for the violation, even though prosecution may 453
be stayed pending the judicial determination. 454
Sec. 3709.99. (A) Whoever violates section 3709.20, 463
3709.21, or 3709.22 of the Revised Code or any order or 464
regulation of the board of health of a city or general health 465
district adopted in pursuance of such THOSE sections, or WHOEVER 466
interferes with the execution of such an order or regulation OF 468
THAT NATURE by a member of the board or person authorized by the 470
board, shall be fined not more than one hundred dollars or 471
imprisoned not more than ninety days, or both. No person shall 472
be imprisoned for the first offense, and the prosecution shall 473
always be for a first offense unless the affidavit upon which the 474
prosecution is instituted contains the allegation that the 475
offense is a subsequent offense.
(B) Except in case of an emergency endangering the public 477
health caused by an epidemic, an infectious or a communicable 478
disease, or a disaster emergency condition or event, no 479
prosecution for A violation of any regulation or order adopted 480
pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised 481
Code shall take place until twenty days after such THE board of 482
health OF A CITY OR GENERAL HEALTH DISTRICT has notified the 483
person subject to such THE regulation or order of the specific 486
violation alleged. Any person notified by the board of a 487
violation of any such regulation or order OF THAT NATURE may file 488
an action for declaratory judgment pursuant to sections 2721.01 489
to 2721.15, inclusive, CHAPTER 2721. of the Revised Code, to have 491
determined whether such THE regulation or order is unreasonable 492
or unlawful. No such prosecution OF THAT NATURE shall be 494
commenced when, within such THE twenty-day period DESCRIBED IN 496
THIS DIVISION, the violation has been corrected. No such 497
prosecution OF THAT NATURE shall be commenced until such a 498
declaratory judgment OF THAT NATURE has been given. 499
10
Sec. 3929.06. (A)(1) IF A COURT IN A CIVIL ACTION ENTERS 502
A FINAL JUDGMENT THAT AWARDS DAMAGES TO A PLAINTIFF FOR INJURY, 503
DEATH, OR LOSS TO THE PERSON OR PROPERTY OF THE PLAINTIFF OR 504
ANOTHER PERSON FOR WHOM THE PLAINTIFF IS A LEGAL REPRESENTATIVE 505
AND IF, AT THE TIME THAT THE CAUSE OF ACTION ACCRUED AGAINST THE 506
JUDGMENT DEBTOR, THE JUDGMENT DEBTOR WAS INSURED AGAINST 507
LIABILITY FOR THAT INJURY, DEATH, OR LOSS, THE PLAINTIFF OR THE 508
PLAINTIFF'S SUCCESSOR IN INTEREST IS ENTITLED AS JUDGMENT 509
CREDITOR TO HAVE AN AMOUNT UP TO THE REMAINING LIMIT OF LIABILITY 510
COVERAGE PROVIDED IN THE JUDGMENT DEBTOR'S POLICY OF LIABILITY 511
INSURANCE APPLIED TO THE SATISFACTION OF THE FINAL JUDGMENT. 512
(2) IF, WITHIN THIRTY DAYS AFTER THE ENTRY OF THE FINAL 514
JUDGMENT REFERRED TO IN DIVISION (A)(1) OF THIS SECTION, THE 516
INSURER THAT ISSUED THE POLICY OF LIABILITY INSURANCE HAS NOT 517
PAID THE JUDGMENT CREDITOR AN AMOUNT EQUAL TO THE REMAINING LIMIT 519
OF LIABILITY COVERAGE PROVIDED IN THAT POLICY, THE JUDGMENT 520
CREDITOR MAY FILE IN THE COURT THAT ENTERED THE FINAL JUDGMENT A 521
SUPPLEMENTAL COMPLAINT AGAINST THE INSURER SEEKING THE ENTRY OF A 522
JUDGMENT ORDERING THE INSURER TO PAY THE JUDGMENT CREDITOR THE 523
REQUISITE AMOUNT. SUBJECT TO DIVISION (C) OF THIS SECTION, THE 524
CIVIL ACTION BASED ON THE SUPPLEMENTAL COMPLAINT SHALL PROCEED 525
AGAINST THE INSURER IN THE SAME MANNER AS THE ORIGINAL CIVIL 526
ACTION AGAINST THE JUDGMENT DEBTOR. 527
(B) DIVISION (A)(2) OF THIS SECTION DOES NOT AUTHORIZE THE 531
COMMENCEMENT OF A CIVIL ACTION AGAINST AN INSURER UNTIL A COURT 532
ENTERS THE FINAL JUDGMENT DESCRIBED IN DIVISION (A)(1) OF THIS 533
SECTION IN THE DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE 534
PLAINTIFF AND AN INSURED TORTFEASOR AND UNTIL THE EXPIRATION OF 535
THE THIRTY-DAY PERIOD REFERRED TO IN DIVISION (A)(2) OF THIS 537
SECTION.
(C)(1) IN A CIVIL ACTION THAT A JUDGMENT CREDITOR 540
COMMENCES IN ACCORDANCE WITH DIVISIONS (A)(2) AND (B) OF THIS 542
SECTION AGAINST AN INSURER THAT ISSUED A PARTICULAR POLICY OF 543
LIABILITY INSURANCE, THE INSURER HAS AND MAY ASSERT AS AN 544
11
AFFIRMATIVE DEFENSE AGAINST THE JUDGMENT CREDITOR ANY COVERAGE 545
DEFENSES THAT THE INSURER POSSESSES AND COULD ASSERT AGAINST THE 546
HOLDER OF THE POLICY IN A DECLARATORY JUDGMENT ACTION OR 547
PROCEEDING UNDER CHAPTER 2721. OF THE REVISED CODE BETWEEN THE 550
HOLDER AND THE INSURER. 551
(2) IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF 553
THE CIVIL ACTION AGAINST THE INSURER IN ACCORDANCE WITH DIVISIONS 555
(A)(2) AND (B) OF THIS SECTION, THE HOLDER OF THE POLICY 557
COMMENCES A DECLARATORY JUDGMENT ACTION OR PROCEEDING UNDER 558
CHAPTER 2721. OF THE REVISED CODE AGAINST THE INSURER FOR A 560
DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE PROVISIONS 561
EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY 562
UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE COURT 563
INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL JUDGMENT 564
WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF THAT 565
INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED TO 566
HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR PURPOSES 568
OF THE JUDGMENT CREDITOR'S CIVIL ACTION AGAINST THE INSURER UNDER 569
DIVISIONS (A)(2) AND (B) OF THIS SECTION. THIS DIVISION SHALL 571
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES 572
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL. 573
Section 2. That existing sections 2721.01, 2721.02, 575
2721.03, 2721.04, 2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 576
2721.11, 2721.12, 2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 577
and section 3929.06 of the Revised Code are hereby repealed. 578
Section 3. The General Assembly hereby declares that, in 580
enacting section 2721.16 of the Revised Code in this act and in 581
making conforming amendments to sections 2721.01, 2721.02, 582
2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 583
2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised 584
Code in this act, it is the intent of the General Assembly to do 585
all of the following: 586
(A) To supersede the effect of the holding in Motorists 588
Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157, and in 591
12
its progeny, including Landis v. Grange Mut. Ins. Co. (1998), 82 592
Ohio St. 3d 339, 342-343, that the "whenever necessary or proper" 594
and "further relief" language in section 2721.09 of the Revised 595
Code, as it existed prior to the effective date of this act, 596
reflected the General Assembly's conferral of authority upon an 597
Ohio trial court to award "attorney's fees based on a declaratory 598
judgment issued by the court";
(B) To recognize the dissent's accurate construction in 600
Brandenburg of the "whenever necessary or proper" and "further 602
relief" language in section 2721.09 of the Revised Code, as it 603
existed prior to the effective date of this act;
(C) To recognize the holding of the Ohio Supreme Court in 605
Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, and its progeny 607
that Ohio follows the "American Rule" under which an award of 608
attorney's fees to a prevailing party in a civil action or 609
proceeding generally must be based on an express authorization of 610
the General Assembly;
(D) To recognize, consistent with the "American Rule," 612
that authority to grant an award of attorney's fees in connection 613
with an action or proceeding in which declaratory relief is 614
sought under Chapter 2721. of the Revised Code must be expressly 615
conferred by the General Assembly upon the courts of this state 616
and has not been so conferred prior to the effective date of this 618
act.
Section 4. The General Assembly declares that, in enacting 620
divisions (A) and (B) of new section 3929.06 and new division (B) 622
of section 2721.02 of the Revised Code in this act, in outright 623
repealing existing section 3929.06 of the Revised Code in this 624
act, and in making conforming amendments to sections 2721.03 and 625
2721.04 of the Revised Code in this act, it is the intent of the 626
General Assembly to supersede the effect of the holding of the 627
Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins. 628
Co. (1993), 66 Ohio St. 3d 15, Broz v. Winland (1994), 68 Ohio 629
St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio St. 631
13
3d 304, 308, that existing section 3929.06 of the Revised Code 632
does not preclude the commencement of a civil action under that 633
section or a declaratory judgment action or proceeding under 634
Chapter 2721. of the Revised Code against an insurer that issued 635
a policy of liability insurance until a court of record enters in 636
a distinct civil action for damages between the plaintiff and an 637
insured tortfeasor a final judgment awarding the plaintiff 638
damages for the injury, death, or loss to person or property 639
involved.
Section 5. The General Assembly declares that, in enacting 641
new division (C) of section 2721.02, new division (B) of section 642
2721.12, and division (C) of new section 3929.06 of the Revised 643
Code in this act and in making conforming amendments to division 644
(A) of section 2721.12 of the Revised Code in this act, it is the 645
intent of the General Assembly to supersede the effect of the 646
holding of the Ohio Supreme Court in Broz v. Winland (1994), 68 648
Ohio St. 3d 521, and its progeny relative to the lack of binding 649
legal effect of a judgment or decree upon certain persons who 650
were not parties to a declaratory judgment action or proceeding 651
between the holder of a policy of liability insurance and the 652
insurer that issued the policy. 653