98 Ohio St. 3d 492 | Ohio | 2003
Dissenting Opinion
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
{¶ 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.
Lead Opinion
{¶ 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.