Cincinnati Insurance v. Estate of McClain 98 Ohio St. 3d 492

{¶ 1} On motion for summary reversal. Appellant’s motion for summary reversal is granted. This cause is remanded to the trial court to consider whether the insurer was prejudiced under Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and O’Connor, JJ., concur.

Lundberg Stratton, J., dissents.

Cook, J., not participating.

Lundberg Stratton, J.,

dissenting.

{¶ 2} I respectfully dissent from the majority’s decision to remand this case for an analysis of prejudice under Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927. I dissented from paragraph two of the Ferrando syllabus, in which the court merely presumed the prejudicial effect of an insured’s breach of a subrogation provision in an insurance policy. Id. at ¶ 105. I believe that an insured’s breach of a subrogation-related provision of an insurance policy is per se prejudicial. There is no need for the additional *493time and expense of a factual inquiry into the issue. This is particularly so in a Scott-Pontzer case, in which a party may be asserting an extremely stale claim or one in which the possibility of collection from the tortfeasor never existed and therefore the usual issues of the insurer’s refusal to defend or participate never arose. See Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 710 N.E.2d 1116.

Freund, Freeze & Arnold, Stephen C. Findley, Shaun A. Roberts and Richard C. Brooks Jr., for appellee.

Maney & Brookes and Mark C. Brookes, for appellant.

Boyk & Crossmock, L.L.C., and Steven L. Crossmock, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.

{¶ 3} As I explained in Ferrando, the rights of the insurer are actually prejudiced by the breach of a consent-to-settle or subrogation provision of an insurance policy. Since the tortfeasor has been released from further liability, it is my opinion that any inquiry is a useless exercise that merely prolongs the tortuous routes created by Scott-Pontzer.

{¶ 4} Therefore, for the foregoing reasons, I respectfully dissent.