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As Passed by the Senate
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 58 |
REPRESENTATIVES WOMERBENJAMIN-TAYLOR-TIBERI-
TERWILLEGER-OLMAN-BUCHY-CALLENDER-WILLAMOWSKI-
SALERNO-MOTTLEY-KRUPINSKI-GOODMAN-DePIERO-
SENATOR SLATTA-WATTS-MUMPER-GARDNER-WHITE-SPADA-NEIN-WACHTMANN
A BILL
To amend sections 2721.01, 2721.02, 2721.03, 2721.04, 2721.06, 2721.07,
2721.08,
2721.09, 2721.10, 2721.11, 2721.12, 2721.13, 2721.14, 2721.15,
2907.36, and 3709.99, to enact new section 3929.06 and section 2721.16, and to
repeal section 3929.06 of the Revised
Code to prohibit an award of attorney's fees under the
Declaratory Judgments Law unless a statute expressly authorizes
the award in connection with a claim for declaratory
relief under that Law or unless an award of attorney's fees is authorized by
the Frivolous Conduct Law, the Civil Rules, or an award of punitive or
exemplary damages,
to prohibit injured parties or their legal representatives
from commencing a declaratory relief action or another type of
civil action based on liability insurance coverage against an
insurance company until a judgment for damages has been awarded
against an insured tortfeasor, to specify the binding legal
effect
of a judgment rendered in a declaratory relief action
between an insured and an insurance company relative to the
coverage of a liability insurance policy upon the insured's assignees and
certain judgment creditors, and to permit
insurance companies to assert against certain judgment creditors
coverage defenses generally available against insureds under
liability insurance policies.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2721.01, 2721.02, 2721.03, 2721.04, 2721.06, 2721.07,
2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 2721.13, 2721.14,
2721.15, 2907.36, and 3709.99 be amended and new section 3929.06 and section
2721.16 of
the Revised Code be enacted to read as follows:
Sec. 2721.01. As used in sections 2721.01 to 2721.15, inclusive, of the
Revised Code THIS CHAPTER, "person" means any person, partnership,
joint-stock company,
unincorporated association, society, municipal corporation, or other
corporation.
Sec. 2721.02. Courts (A) SUBJECT TO DIVISION (B)
OF THIS SECTION, COURTS
of record may declare rights, status, and other legal
relations whether or not further relief is or could be claimed. No action or
proceeding is open to objection on the ground that a declaratory judgment or
decree is prayed for UNDER THIS CHAPTER. The declaration may be either
affirmative or negative
in form and effect. Such THE declaration has the effect of a
final judgment or
decree.
(B) A PLAINTIFF WHO IS
NOT AN INSURED UNDER A PARTICULAR POLICY OF LIABILITY INSURANCE
MAY NOT COMMENCE AGAINST THE INSURER THAT ISSUED THE POLICY AN
ACTION OR PROCEEDING UNDER THIS CHAPTER THAT SEEKS A DECLARATORY
JUDGMENT OR DECREE AS TO WHETHER THE POLICY'S COVERAGE
PROVISIONS EXTEND TO AN INJURY, DEATH, OR LOSS TO PERSON OR
PROPERTY THAT A PARTICULAR INSURED UNDER THE POLICY ALLEGEDLY TORTIOUSLY
CAUSED THE PLAINTIFF TO SUSTAIN OR CAUSED ANOTHER PERSON FOR WHOM THE
PLAINTIFF IS
A LEGAL REPRESENTATIVE TO SUSTAIN, UNTIL A COURT OF RECORD
ENTERS IN A DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE
PLAINTIFF AND THAT INSURED AS A TORTFEASOR A FINAL JUDGMENT AWARDING
THE PLAINTIFF DAMAGES FOR THE INJURY, DEATH, OR LOSS TO PERSON
OR PROPERTY INVOLVED.
(C) IN AN ACTION OR
PROCEEDING FOR DECLARATORY RELIEF THAT A JUDGMENT CREDITOR
COMMENCES IN ACCORDANCE WITH DIVISIONS
(A) AND
(B) OF THIS SECTION AGAINST AN
INSURER THAT ISSUED A PARTICULAR POLICY OF LIABILITY INSURANCE,
THE INSURER HAS AND MAY ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST
THE JUDGMENT CREDITOR ANY COVERAGE DEFENSES THAT THE INSURER
POSSESSES AND COULD ASSERT AGAINST THE HOLDER OF THE POLICY IN
AN ACTION OR PROCEEDING UNDER THIS CHAPTER BETWEEN THE HOLDER
AND THE INSURER.
IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF
THE ACTION OR PROCEEDING FOR DECLARATORY RELIEF, THE HOLDER OF
THE POLICY COMMENCES A SIMILAR ACTION OR PROCEEDING AGAINST THE
INSURER FOR A DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE
PROVISIONS EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR
PROPERTY UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE
COURT INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL
JUDGMENT WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF
THAT INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED
TO ALSO HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR
PURPOSES OF THE JUDGMENT CREDITOR'S ACTION OR PROCEEDING FOR
DECLARATORY RELIEF AGAINST THE INSURER. THIS DIVISION SHALL
APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW PRINCIPLES OF RES
JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL ESTOPPEL.
Sec. 2721.03. Any SUBJECT TO DIVISION (B) OF SECTION
2721.02 of the Revised Code, ANY person interested under a
deed, will, written contract, or
other writing constituting a contract, or ANY PERSON whose
rights, status, or other legal
relations are affected by a constitutional provision, statute, rule as defined
in section 119.01 of the Revised Code, municipal ordinance, township
resolution, contract, or franchise, may have determined any question of
construction or validity arising under such THE instrument,
constitutional
provision, statute, rule, ordinance, resolution, contract, or franchise and
obtain a declaration of rights, status, or other legal relations
thereunder UNDER IT.
The testator of a will may have the validity of the will determined at any
time during his THE TESTATOR'S lifetime pursuant to sections
2107.081 to 2107.085 of the Revised Code.
Sec. 2721.04. A SUBJECT TO DIVISION (B) OF SECTION 2721.02
of the Revised Code, A contract may be construed by a declaratory judgment OR
DECREE either
before or after there has been a breach thereof OF THE CONTRACT.
Sec. 2721.06. Sections 2721.03 to 2721.05, inclusive, of the Revised
Code do
not limit or restrict the exercise of the general powers conferred in
BY DIVISION (A) OF section
2721.02 of the Revised Code in any ACTION OR proceeding where
IN WHICH declaratory relief is
sought, UNDER THIS CHAPTER AND in which a judgment or decree
will terminate the controversy or remove
an uncertainty.
Sec. 2721.07. Courts of record may refuse to render or enter a declaratory
judgment or decree when such UNDER THIS CHAPTER IF THE judgment
or decree would not terminate the
uncertainty or controversy giving rise to the ACTION OR proceeding
IN WHICH THE DECLARATORY RELIEF IS SOUGHT.
Sec. 2721.08. All orders, judgments, and decrees under
sections 2721.01 to
2721.15, inclusive, of the Revised Code, THIS CHAPTER may be
reviewed ON APPEAL as ARE other orders,
judgments, and decrees are reviewed OF THE COURT OF RECORD
INVOLVED.
Sec. 2721.09. Whenever SUBJECT TO SECTION 2721.16 of the Revised Code,
WHENEVER necessary or proper, A COURT OF RECORD MAY GRANT further
relief based on a
declaratory
judgment or decree previously granted may be given UNDER THIS
CHAPTER. The application therefor FOR THE FURTHER RELIEF
shall be by petition to A COMPLAINT FILED IN a court
having OF RECORD WITH jurisdiction to grant the FURTHER
relief. If
the application is sufficient, the court shall, on reasonable notice,
SHALL require
any adverse party, whose rights have been adjudicated by the
declaratory
judgment or decree, to show cause why THE further relief should
not be granted
forthwith.
Sec. 2721.10. When a AN ACTION OR proceeding IN WHICH
DECLARATORY RELIEF IS SOUGHT under sections 2721.01 to 2721.15,
inclusive,
of the Revised Code, THIS CHAPTER involves the determination of an
issue of fact, such THAT
issue may be tried and determined in the same manner as issues of fact are
tried and determined in other civil actions in the court in which the
ACTION OR proceeding is pending.
Sec. 2721.11. In any ACTION OR proceeding IN WHICH DECLARATORY
RELIEF IS SOUGHT under sections 2721.01 to 2721.15, inclusive,
of the Revised Code THIS CHAPTER, the court may make such
AN award of COURT costs as is equitable and just.
Sec. 2721.12. When (A) SUBJECT TO DIVISION (B)
OF THIS SECTION, WHEN declaratory relief is sought UNDER THIS CHAPTER
IN AN
ACTION OR PROCEEDING, all persons shall be made
parties who have or claim any interest which THAT would be
affected by the
declaration SHALL BE MADE PARTIES TO THE ACTION OR PROCEEDING.
No EXCEPT AS PROVIDED IN DIVISION (B) OF THIS SECTION,
A
declaration shall NOT prejudice the rights of persons WHO ARE
not MADE parties
to the ACTION OR proceeding. In any ACTION OR proceeding
which THAT involves the validity of a
municipal ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or
franchise is
alleged to be unconstitutional, the attorney general ALSO shall
also be served with
a copy of the COMPLAINT IN THE ACTION OR proceeding and shall be heard.
In any ACTION OR proceeding which THAT involves
the validity of a township resolution, the township shall be made a party and
shall be heard.
(B) A DECLARATORY
JUDGMENT OR DECREE THAT A COURT OF RECORD ENTERS IN AN ACTION OR
PROCEEDING UNDER THIS CHAPTER BETWEEN AN INSURER AND A HOLDER OF
A POLICY OF LIABILITY INSURANCE ISSUED BY THE INSURER AND THAT RESOLVES AN
ISSUE AS TO
WHETHER THE POLICY'S COVERAGE PROVISIONS EXTEND TO AN INJURY,
DEATH, OR LOSS TO PERSON OR PROPERTY THAT AN INSURED UNDER THE
POLICY ALLEGEDLY TORTIOUSLY CAUSED SHALL BE DEEMED TO HAVE THE
BINDING LEGAL EFFECT DESCRIBED IN DIVISION
(C)(2) OF SECTION 3929.06 OF
THE REVISED
CODE AND TO ALSO HAVE BINDING
LEGAL EFFECT UPON ANY PERSON WHO SEEKS COVERAGE AS AN ASSIGNEE
OF THE INSURED'S RIGHTS UNDER THE POLICY IN RELATION TO THE
INJURY, DEATH, OR LOSS INVOLVED. THIS DIVISION APPLIES WHETHER
OR NOT AN ASSIGNEE IS MADE A PARTY TO THE ACTION OR PROCEEDING
FOR DECLARATORY RELIEF AND NOTWITHSTANDING ANY CONTRARY COMMON
LAW PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF
COLLATERAL ESTOPPEL.
Sec. 2721.13. Sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER are
remedial, and shall be liberally construed and administered.
Sec. 2721.14. Sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER shall be so interpreted and
construed as to effectuate their general purpose to
make the law of this state uniform with the law of those states which
THAT enact
similar sections, PROVISIONS and to harmonize, as far
INSOFAR as possible, with federal laws
and
regulations on the subject of declaratory judgments and decrees.
Sec. 2721.15. With the exception of sections 2721.02 and 2721.03 of the
Revised Code, sections 2721.01 to 2721.15, inclusive, of the Revised
Code THE PROVISIONS OF THIS CHAPTER are
independent and severable, and the invalidity of any part of sections
2721.01
and 2721.04 to 2721.15, inclusive, of the Revised Code THOSE
PROVISIONS does not affect or
render the remainder of such sections THOSE PROVISIONS invalid
or inoperative.
Sec. 2721.16. (A) A
COURT OF RECORD SHALL NOT AWARD ATTORNEY'S FEES TO
ANY PARTY ON A CLAIM FOR DECLARATORY RELIEF
UNDER THIS CHAPTER UNLESS A SECTION OF
THE REVISED
CODE
EXPLICITLY AUTHORIZES A COURT OF
RECORD TO AWARD ATTORNEY'S FEES
ON A CLAIM FOR DECLARATORY RELIEF
UNDER THIS CHAPTER OR UNLESS AN AWARD OF ATTORNEY'S FEES IS AUTHORIZED BY
SECTION 2323.51 of the Revised Code, BY THE CIVIL RULES, OR BY AN AWARD OF
PUNITIVE OR EXEMPLARY DAMAGES AGAINST THE PARTY ORDERED TO PAY ATTORNEY'S
FEES. REFERENCES IN ANOTHER
SECTION OF THE REVISED
CODE TO AN AWARD OF COSTS OR
EXPENSES INCURRED IN CONNECTION WITH AN ACTION OR PROCEEDING
DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S FEES FOR PURPOSES OF
THIS DIVISION.
(B) CONSISTENT WITH
SECTION 2721.13 OF THE REVISED
CODE, THE PROVISIONS OF THIS
SECTION ARE REMEDIAL IN NATURE. NOTWITHSTANDING
ANY PROVISION OF THE REVISED
CODE IN EXISTENCE ON THE DAY
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS SECTION,
NOTWITHSTANDING ANY JUDICIAL CONSTRUCTION PRIOR TO THE EFFECTIVE
DATE OF THIS SECTION OF A STATUTORY PROVISION OF THAT
NATURE, NOTWITHSTANDING THE HOLDING IN ANY DECISION
OF A COURT OF THIS STATE THAT AUTHORIZED AN AWARD OF ATTORNEY'S
FEES TO A PARTY TO A CIVIL ACTION OR PROCEEDING BASED ON COMMON
LAW GROUNDS RATHER THAN A STATUTORY AUTHORIZATION OF THE GENERAL
ASSEMBLY, REGARDLESS OF THE DATE UPON WHICH A CAUSE
OF ACTION ACCRUED THAT PERTAINS TO AN ACTION OR PROCEEDING IN
WHICH DECLARATORY RELIEF IS SOUGHT UNDER THIS CHAPTER, AND
REGARDLESS OF WHO IS THE PLAINTIFF OR THE DEFENDANT IN AN ACTION
OR PROCEEDING IN WHICH DECLARATORY RELIEF IS SOUGHT UNDER THIS
CHAPTER, DIVISION
(A) OF THIS SECTION SHALL APPLY
IN CONNECTION WITH BOTH OF THE FOLLOWING:
(1) AN ACTION OR PROCEEDING THAT IS COMMENCED ON OR
AFTER THE EFFECTIVE DATE OF THIS SECTION AND THAT SEEKS
DECLARATORY RELIEF UNDER THIS CHAPTER;
(2) AN ACTION OR PROCEEDING THAT WAS COMMENCED PRIOR TO
THE EFFECTIVE DATE OF THIS SECTION, THAT IS PENDING IN A COURT
OF RECORD ON THAT DATE, AND THAT SEEKS DECLARATORY RELIEF UNDER
THIS CHAPTER.
Sec. 2907.36. (A) Without limitation on the persons
otherwise entitled to bring an action for a declaratory judgment
pursuant to sections 2721.01 to 2721.15 CHAPTER
2721. of the Revised Code,
involving the same issue, the following persons have standing to
bring such an A DECLARATORY JUDGMENT action to determine whether
particular materials or
performances are obscene or harmful to juveniles:
(1) The chief legal officer of the jurisdiction in which
there is reasonable cause to believe that section 2907.31 or
2907.32 of the Revised Code is being or is about to be violated;
(2) Any person who, pursuant to division (B) of section
2907.35 of the Revised Code, has received notice in writing from
a chief legal officer stating that particular materials or
performances are obscene or harmful to juveniles.
(B) Any party to an action for a declaratory judgment
pursuant to division (A) of this section is entitled, upon his THE
PARTY'S request, to trial on the merits within five days after joinder of
the issues, and the court shall render judgment within five days
after trial is concluded.
(C) An action for a declaratory judgment pursuant to
division (A) of this section shall not be brought during the
pendency of any civil action or criminal prosecution, when the
character of the particular materials or performances involved is
at issue in the pending case, and either of the following apply
APPLIES:
(1) Either of the parties to the action for a declaratory
judgment is a party to the pending case;.
(2) A judgment in the pending case will necessarily
constitute res judicata as to the character of the materials or
performances involved.
(D) A civil action or criminal prosecution in which the
character of particular materials or performances is at issue,
brought during the pendency of an action for a declaratory
judgment involving the same issue, shall be stayed during the
pendency of the action for a declaratory judgment.
(E) The fact that a violation of section 2907.31 or
2907.32 of the Revised Code occurs prior to a judicial
determination of the character of the material or performance
involved in the violation, does not relieve the offender of
criminal liability for the violation, even though prosecution may
be stayed pending the judicial determination.
Sec. 3709.99. (A) Whoever violates section 3709.20, 3709.21,
or 3709.22 of the Revised Code or any order or regulation of the
board of health of a city or general health district adopted in
pursuance of such THOSE sections, or WHOEVER interferes
with the execution of
such an order or regulation OF THAT NATURE by a member of the
board or person
authorized by the board, shall be fined not more than one hundred
dollars or imprisoned not more than ninety days, or both. No
person shall be imprisoned for the first offense, and the
prosecution shall always be for a first offense unless the
affidavit upon which the prosecution is instituted contains the
allegation that the offense is a subsequent offense.
(B) Except in case of an emergency endangering the public
health caused by an epidemic, an infectious or a communicable
disease, or a disaster emergency condition or event, no
prosecution for A violation of any regulation or order adopted
pursuant to section 3709.20, 3709.21, or 3709.22 of the Revised
Code shall take place until twenty days after such THE board of
health OF A CITY OR GENERAL HEALTH DISTRICT has notified the person
subject to
such THE regulation or
order of the specific violation alleged. Any person notified by
the board of a violation of any such regulation or order OF THAT
NATURE may file
an action for declaratory judgment pursuant to sections 2721.01
to 2721.15, inclusive, CHAPTER 2721. of the
Revised Code, to have determined
whether such THE regulation or order is unreasonable or
unlawful. No
such prosecution OF THAT NATURE shall be commenced when, within
such THE twenty-day
period DESCRIBED IN THIS DIVISION, the violation has been corrected.
No such prosecution OF THAT NATURE
shall be commenced until such a declaratory judgment OF THAT
NATURE has been given.
Sec. 3929.06. (A)(1) IF
A COURT IN A CIVIL ACTION ENTERS A FINAL JUDGMENT THAT AWARDS
DAMAGES TO A PLAINTIFF FOR INJURY, DEATH, OR LOSS TO THE PERSON
OR PROPERTY OF THE PLAINTIFF OR ANOTHER PERSON FOR WHOM THE
PLAINTIFF IS A LEGAL REPRESENTATIVE AND IF, AT THE TIME THAT THE
CAUSE OF ACTION ACCRUED AGAINST THE JUDGMENT DEBTOR, THE
JUDGMENT DEBTOR WAS INSURED AGAINST LIABILITY FOR THAT INJURY,
DEATH, OR LOSS, THE PLAINTIFF OR THE PLAINTIFF'S SUCCESSOR IN
INTEREST IS ENTITLED AS JUDGMENT CREDITOR TO HAVE AN AMOUNT UP
TO THE REMAINING LIMIT OF LIABILITY COVERAGE PROVIDED IN THE
JUDGMENT DEBTOR'S POLICY OF LIABILITY INSURANCE APPLIED TO THE
SATISFACTION OF THE FINAL JUDGMENT.
(2) IF, WITHIN THIRTY DAYS AFTER THE ENTRY OF THE FINAL
JUDGMENT REFERRED TO IN DIVISION
(A)(1) OF THIS SECTION, THE
INSURER THAT ISSUED THE POLICY OF LIABILITY INSURANCE HAS NOT
PAID THE JUDGMENT CREDITOR AN AMOUNT EQUAL TO THE REMAINING
LIMIT OF LIABILITY COVERAGE PROVIDED IN THAT POLICY, THE
JUDGMENT CREDITOR MAY FILE IN THE COURT THAT ENTERED THE FINAL
JUDGMENT A SUPPLEMENTAL COMPLAINT AGAINST THE INSURER SEEKING
THE ENTRY OF A JUDGMENT ORDERING THE INSURER TO PAY THE JUDGMENT
CREDITOR THE REQUISITE AMOUNT. SUBJECT TO DIVISION
(C) OF THIS SECTION, THE CIVIL
ACTION BASED ON THE SUPPLEMENTAL COMPLAINT SHALL PROCEED AGAINST
THE INSURER IN THE SAME MANNER AS THE ORIGINAL CIVIL ACTION
AGAINST THE JUDGMENT DEBTOR.
(B) DIVISION
(A)(2) OF THIS SECTION DOES NOT
AUTHORIZE THE COMMENCEMENT OF A CIVIL ACTION AGAINST AN INSURER
UNTIL A COURT ENTERS THE FINAL JUDGMENT DESCRIBED IN DIVISION
(A)(1) OF THIS SECTION IN THE
DISTINCT CIVIL ACTION FOR DAMAGES BETWEEN THE PLAINTIFF AND AN
INSURED TORTFEASOR AND UNTIL THE EXPIRATION OF THE THIRTY-DAY
PERIOD REFERRED TO IN DIVISION
(A)(2) OF THIS SECTION.
(C)(1) IN A CIVIL ACTION
THAT A JUDGMENT CREDITOR COMMENCES IN ACCORDANCE WITH DIVISIONS
(A)(2) AND
(B) OF THIS SECTION AGAINST AN
INSURER THAT ISSUED A PARTICULAR POLICY OF LIABILITY INSURANCE,
THE INSURER HAS AND MAY ASSERT AS AN AFFIRMATIVE DEFENSE AGAINST
THE JUDGMENT CREDITOR ANY COVERAGE DEFENSES THAT THE INSURER
POSSESSES AND COULD ASSERT AGAINST THE HOLDER OF THE POLICY IN A
DECLARATORY JUDGMENT ACTION OR PROCEEDING UNDER
CHAPTER 2721. OF THE
REVISED
CODE BETWEEN THE HOLDER AND THE
INSURER.
(2) IF, PRIOR TO THE JUDGMENT CREDITOR'S COMMENCEMENT OF
THE CIVIL ACTION AGAINST THE INSURER IN ACCORDANCE WITH
DIVISIONS (A)(2) AND
(B) OF THIS SECTION, THE HOLDER
OF THE POLICY COMMENCES A DECLARATORY JUDGMENT ACTION OR
PROCEEDING UNDER CHAPTER 2721.
OF THE REVISED
CODE AGAINST THE INSURER FOR A
DETERMINATION AS TO WHETHER THE POLICY'S COVERAGE PROVISIONS
EXTEND TO THE INJURY, DEATH, OR LOSS TO PERSON OR PROPERTY
UNDERLYING THE JUDGMENT CREDITOR'S JUDGMENT, AND IF THE COURT
INVOLVED IN THAT ACTION OR PROCEEDING ENTERS A FINAL JUDGMENT
WITH RESPECT TO THE POLICY'S COVERAGE OR NONCOVERAGE OF THAT
INJURY, DEATH, OR LOSS, THAT FINAL JUDGMENT SHALL BE DEEMED TO
HAVE BINDING LEGAL EFFECT UPON THE JUDGMENT CREDITOR FOR
PURPOSES OF THE JUDGMENT CREDITOR'S CIVIL ACTION AGAINST THE
INSURER UNDER DIVISIONS (A)(2)
AND (B) OF THIS SECTION. THIS
DIVISION SHALL APPLY NOTWITHSTANDING ANY CONTRARY COMMON LAW
PRINCIPLES OF RES JUDICATA OR ADJUNCT PRINCIPLES OF COLLATERAL
ESTOPPEL.
Section 2. That existing sections 2721.01, 2721.02, 2721.03, 2721.04, 2721.06,
2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12, 2721.13,
2721.14, 2721.15, 2907.36, and 3709.99 and section 3929.06 of the Revised Code
are hereby repealed.
Section 3. The General Assembly hereby declares that, in
enacting section 2721.16 of the Revised Code in this act and in
making conforming amendments to sections 2721.01, 2721.02,
2721.06, 2721.07, 2721.08, 2721.09, 2721.10, 2721.11, 2721.12,
2721.13, 2721.14, 2721.15, 2907.36, and 3709.99 of the Revised
Code in this act, it is the intent of the General Assembly to do
all of the following:
(A) To supersede the effect of the holding in Motorists
Mut. Ins. Co. v. Brandenburg
(1995), 72 Ohio St. 3d 157,
and in its progeny, including Landis v. Grange
Mut. Ins. Co. (1998), 82 Ohio St. 3d 339, 342-343,
that the "whenever necessary or
proper" and "further relief" language in section 2721.09 of the
Revised Code, as it existed prior to the effective date of this
act, reflected the General Assembly's conferral of authority
upon an Ohio trial court to award "attorney's fees based on a
declaratory judgment issued by the court";
(B) To recognize the dissent's accurate construction in
Brandenburg of the "whenever necessary or proper" and
"further relief" language in section 2721.09 of the Revised
Code, as it existed prior to the effective date of this act;
(C) To recognize the holding of the Ohio Supreme Court in
Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d
177, and its progeny that Ohio follows the "American Rule" under
which an award of attorney's fees to a prevailing party in a
civil action or proceeding generally must be based on an express
authorization of the General Assembly;
(D) To recognize, consistent with the "American Rule," that
authority to grant an award of attorney's fees in connection
with an action or proceeding in which declaratory relief is
sought under Chapter 2721. of the Revised Code must be expressly
conferred by the General Assembly upon the courts of this state
and has not been so conferred prior to the effective date of
this act.
Section 4. The General Assembly declares that, in enacting
divisions (A) and (B) of new section 3929.06 and new division
(B) of section 2721.02 of the Revised Code in this act, in
outright repealing existing section 3929.06 of the Revised Code
in this act, and in making conforming amendments to sections
2721.03 and 2721.04 of the Revised Code in this act, it is the
intent of the General Assembly to supersede the effect of the
holding of the Ohio Supreme Court in Krejci v.
Prudential Prop. and Cas. Ins. Co. (1993), 66 Ohio St. 3d
15, Broz v. Winland (1994), 68 Ohio St. 3d
521, 524-525, and Mezerkor v. Mezerkor
(1994), 70 Ohio St. 3d 304, 308, that existing section 3929.06
of the Revised Code does not preclude the commencement of a
civil action under that section or a declaratory judgment action
or proceeding under Chapter 2721. of the Revised Code against an
insurer that issued a policy of liability insurance until a
court of record enters in a distinct civil action for damages
between the plaintiff and an insured tortfeasor a final judgment
awarding the plaintiff damages for the injury, death, or loss to
person or property involved.
Section 5. The General Assembly declares that, in enacting new division
(C) of section 2721.02, new division (B) of section 2721.12, and
division (C) of new section 3929.06 of the Revised Code in this
act and in making conforming amendments to division (A) of
section 2721.12 of the Revised Code in this act, it is the
intent of the General Assembly to supersede the effect of the
holding of the Ohio Supreme Court in Broz v.
Winland (1994), 68 Ohio St. 3d 521, and its progeny
relative to the lack of binding legal effect of a judgment or
decree upon certain persons who were not parties to a
declaratory judgment action or proceeding between the holder of
a policy of liability insurance and the insurer that issued the
policy.
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