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             OPINIONS OF THE SUPREME COURT OF OHIO
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Savoie, Admr., Appellant and Cross-Appellee, v. Grange Mutual
Insurance Company, Appellee and Cross-Appellant; Motorists
Mutual Insurance Company, Appellee.
[Cite as Savoie v. Grange Mut. Ins. Co. (1993),    Ohio St.3d
.]
Insurance -- Underinsured motorist coverage -- Wrongful death
     -- Each person entitled to recover under R.C. 2125.02 has
     separate claim subject to any per accident limit --
     Insurers may contractually preclude stacking of
     uninsured/underinsured limits for separate vehicles, when
     -- Underinsurance claim must be paid, when -- Each person
     who is covered by a uninsured/underinsured policy has a
     separate claim subject to a per person policy limit.
1. Each person who is presumed to have been damaged as a result
     of a wrongful death claim may, to the extent of his or her
     damages, collect from the tortfeasor's liability policy up
     to its per person limits subject to any per accident
     limit. Liability policy provisions which purport to
     consolidate wrongful death damages suffered by individuals
     into one "each person" policy limit are unenforceable.
     (State Farm Auto. Ins. v. Rose [1991], 

,
     

, and paragraphs one and two of the syllabus
     of Burris v. Grange Mut. Cos. [1989], 

,
     

, overruled; Wood v. Shepard [1988], 

, 

, applied and followed.)
2. Insurers may contractually preclude intrafamily stacking --
     the stacking of uninsured/underinsured limits of policies
     and coverages purchased by family members living in the
     same household. Insurers may not contractually preclude
     interfamily stacking -- the aggregation of
     uninsured/underinsured limits of policies purchased by two
     or more people who are not members of the same household.
     (Hower v. Motorists Mut. Ins. Co. [1992], 

, 

, overruled; Karabin v. State Auto.
     Mut. Ins. Co. [1984], 

, 10 OBR 497, 

, and paragraph one of the syllabus of Dues v.
     Hodge [1988], 

, 

, limited.)
3. An underinsurance claim must be paid when the individual
     covered by an uninsured/underinsured policy suffers
     damages that exceed those monies available to be paid by
     the tortfeasor's liability carriers. (Hill v. Allstate
     Ins. Co. [1990], 

, 

,
     overruled.)
4. Each person, who is covered by an uninsured/underinsured
     policy and who is presumed to be damaged pursuant to R.C.
     2125.01, has a separate claim subject to a separate per
     person policy limit. (Wood v. Shepard [1988], 

, 

, applied; Paragraph two of the
     syllabus of Dues v. 

 limited.)
 (No. 92-952 -- Submitted March 17, 1983 -- Decided October 1, 19
93.)
     Appeal and Cross-Appeal from the Court of Appeals for
Holmes County, No. CA-450.
     The facts in this case have been stipulated by all the
parties. On September 28, 1989, Christina L. Savoie was killed
in an automobile accident caused by Gary F. Miller, who was
driving the automobile in which Christina was a passenger. The
automobile operated by Gary Miller, a 1982 Honda Accord, was
owned by Earl R. Miller. Earl Miller had given his son, Gary,
permission to operate the automobile. David L. Byland was also
injured in this accident when the car driven by Gary Miller
crashed into his truck. The collision, the instantaneous death
of Christina Savoie, and the injuries to David Byland were all
proximately caused by the negligence of Gary Miller.
     The Honda operated by Gary Miller and owned by Earl Miller
was covered by a Grange Mutual Casualty Company automobile
insurance policy. The limits for liability for this policy were
$100,000 per person and $300,000 per accident.
     There were also in effect two uninsured/underinsured
insurance policies from Motorists Mutual Insurance Company.
Each policy provided coverage in the amount of $100,000 per
person and $300,000 per accident.
     Under the provisions of the first policy with Motorists,
Policy No. 4246-06-200902-07A ("Motorists Policy I"), Donald
Savoie, the decedent's father was the named insured. Mary
Savoie, the decedent's mother, was a listed driver on the
policy.
     Under the second policy with Motorists, No.
4246-04-200901-01D ("Motorists Policy II"), Donald Savoie was
the named insured with Mary Savoie, Christina Savoie and Debbie
Savoie, the sister of the decedent, being listed as drivers.
     Mary Savoie, the duly appointed administrator of her
daughter Christina's estate, filed a wrongful death action
against Gary Miller and Earl Miller for all persons sustaining
loss by the death of Christina. She also sought recovery for
the entire class of injured persons against Motorists'
underinsured coverage. David Byland also made a claim against
Gary and Earl Miller through Grange for the injuries he
incurred as a result of the automobile accident. Mary Savoie
asserts Grange paid David Byland $75,000 in full and final
settlement of his claim.
     On June 26, 1990, Mary Savoie, in her capacity as
administrator, filed a complaint for declaratory judgment in
the Holmes County Court of Common Pleas. In this complaint,
Mary, as administrator, asked that the court determine the
various rights and obligations between herself, as the
decedent's mother, Donald Savoie, as the decedent's father,
Debbie Savoie, as the decedent's sister, Grange, as the
tortfeasor's liability insurer, and Motorists, as the provider
of underinsured coverage to Mary Savoie, Donald Savoie and
Debbie Savoie (collectively, "the Savoies").
     In its initial findings of fact and conclusions of law,
the trial court determined that the Savoies were entitled to
collect up to $300,000 from the tortfeasor's insurer, Grange.
The trial court also found that the limits of the two Motorists
uninsured/underinsured policies in which the Savoies were named
insureds could not be "stacked" or combined. Finally, the
trial court found that the Savoies were not permitted to
collect upon their underinsurance coverage because their own
policy limits were identical to the limits of the tortfeasor's
liability policy.
     On August 22, 1991, the court filed amended findings of
fact and conclusions of law which came to the same ultimate
conclusions as the first entry.
     On October 30, 1991, the trial court filed second amended
findings of fact and conclusions of law. The court, after
citing State Farm Auto. Ins. Co. v. Rose (1991), 

, 

, concluded the Savoie claimants
collectively were limited to the "$100,000 each person" limit
in the tortfeasor's insurance policy with Grange. The court
reiterated its holding regarding the uninsured/underinsured
policy with Motorists.
     Mary Savoie, as administrator, appealed the trial court's
decision. On April 17, 1992, the Court of Appeals for Holmes
County determined that the trial court had erred when it held
that the Savoies were collectively restricted to the "$100,000
each person" language in the tortfeasor's liability policy with
Grange. Instead, the court of Appeals held that the Savoie
claimants were collectively subject to the "$300,000 each
accident" limit. The court of appeals affirmed the trial
court's treatment of the Savoies' underinsurance policies.
     The cause is before this court pursuant to the allowance
of a motion and cross-motion to certify the record.

     Frase, Weir, Baker & McCullough and Robert E. Weir; and
Norman S. Davitt, for appellant and cross-appellee.
     Reynolds & Reynolds and Craig R. Reynolds for appellee and
cross-appellant.
     Baker, Meekison & Dublikar, Gregory A. Beck, Carol A.
Costa and Rosemarie A. Hall, for appellee Motorists Mutual
Insurance Company.
     Scanlon & Henretta Co., L.P.A., J. Thomas Henretta and Ann
Marie O'Brien, for amicus Ohio Academy of Trial Lawyers.

     Pfeifer, J.     Mary Savoie, as administrator, raises
three questions of automobile insurance law, which have been
the subject of continued redefinition and controversy within
this court: What are the effects of "per person" limits in
liability policies on multiple wrongful death claimants? When
is it permissible to combine or stack uninsured/underinsured
motorists policies? To what extent do underinsurance policies
provide coverage to their own named insureds facing inadequate
compensation from a tortfeasor's liability insurer?
                               I
     Mary Savoie, administrator, contends that the decedents'
parents and sister are each entitled to recover up to $100,000
under the tortfeasor's "per person" limitations in his
liability policy and are collectively subject to the $300,000
per occurrence limit. Grange argues that the multiple
claimants must be merged under the wrongful death statute into
a single cause of action brought by the administrator and are,
therefore, confined to a single combined "per person" recovery
limit.
     In a refreshing moment of candor, Motorists' attorney in
oral argument urged this court to:
     "***use the statute in a wrongful death [claim] to get to
a position where all the insurance companies know that when
there is a death claim, no matter what the policy says, we have
in fact a full policy exposed. That would reduce so much
litigation. It would reduce so much complexity. It would allow
us in the insurance industry to at least focus on what the
claim is and then we would know. That's the posture that
Motorists Mutual would like to present to the court in this
case, and if the court takes that posture, then, certainly
Grange Mutual owes $225,000."
     The liability policy issued by Grange provides:
     "The limit of liability shown in the Declarations for
'each person' for Bodily Injury Liability is our maximum limit
of liability for all damages, including damages for care, loss
of services or death, arising out of bodily injury sustained by
any one person in any one auto accident. Subject to this limit
for 'each person', the limit of liability shown in the
Declarations for 'each accident' for Bodily Injury Liability is
our maximum limit of liability for all damages for bodily
injury resulting from any one accident. ***This is the most we
will pay regardless of the number of
     "1. Insureds;
     "2. Claims made;
     "3. Vehicles or premiums shown in the Declarations; or
     "4. Vehicles involved in the accident."
     In an attempt to narrowly interpret its own insurance
policy provision, Grange ignores the elevated status of
wrongful death claims in Ohio.
     To manage the presentment of wrongful death claims the
General Assembly enacted R.C. 2125.02, which charges the
estate's administrator with the responsibility of consolidating
the wrongful death damages of all claimants into one action.
The statute also provides that "the surviving spouse, the
children, and the parents of the decedent" all "are rebuttably
presumed to have suffered damages" resulting from wrongful
death. R.C. 2125.02(A)(1).
     Previously, in Wood v. Shepard (1988), 

,

, this court held that an underinsured motorists
policy could not consolidate all the wrongful death claims of
those presumed to have suffered damages under R.C. 2125.02 and
subject them to a single per person limit in that policy .
     The General Assembly and this court have expressed the
view that damages for wrongful death claims should not be
limited. Even the Ohio Constitution in its Bill of Rights
provides:
     "The amount of damages recoverable by civil action in the
courts for death caused by the wrongful act, neglect, or
default of another, shall not be limited by law." Section 19a,
Article I, Constitution of Ohio.
     Consistent with this view, each person who is presumed to
have been damaged as a result of a wrongful death, to the
extent of his or her damages, may collect from the tortfeasor's
liability policy up to its per person limits subject to any per
accident limit. Liability policy provisions which purport to
consolidate wrongful death damages suffered by individuals are
unenforceable because they directly violate the policy
expressed by the General Assembly and this court.
     Because this court in State Farm Auto. Ins. v. Rose
(1991), 

, 

, and in paragraphs
one and two of the syllabus of Burris v Grange Mut. Cos.
(1989), 

, 

, has misinterpreted the
legislative status of wrongful death claims in Ohio, these
cases are overruled accordingly.
     By applying our analysis to the facts in the case before
us, we find the mother, father and the sister of the decedent
are individually entitled to recover, to the extent they prove
damages, a maximum of $100,000 each up to $225,000 which is the
balance of the Grange liability policy limits available to the
Savoie claimants. On this issue, the holding of the court of
appeals is affirmed.
                                II
     The Savoies ask this court to declare that antistacking
clauses contained in two separate uninsured/underinsurance
policies are both unenforceable. Motorists, the insurer under
both of these policies, urges that the clauses be enforced.
The antistacking provisions in both policies are identical.
They provide:
     "OTHER INSURANCE
     "If there is other applicable similar insurance available
under more than one policy or provision of coverage
     "1. Any recovery for damages for bodily injury sustained
by an insured may equal but not exceed the higher of the
applicable limit for any one vehicle under this insurance or
any other insurance
     "2. Any insurance we provide with respect to a vehicle you
do not own shall be excess over any other collectible insurance.
     "3. We will pay only our share of the loss. Our share is
the proportion that our limit of liability bears to the total
of all applicable limits."
     The Motorists policy also attempts to prohibit the
stacking of multiple uninsured/underinsured policy limits which
have been purchased by the same family.
     "Two or More Auto Policies
     "If this policy and any other auto insurance policy issued
to you by us apply to the same accident, the maximum limit of
our liability under all the policies shall not exceed the
highest applicable limit of liability under any one policy."
     This antistacking language in the policies passes the
"unambiguous," "clear" and "conspicuous" test as delineated in
Dues v. Hodge (1988), 

, 

,
paragraph one of the syllabus.
     However, we no longer support the analysis of antistacking
language used in Dues v. Hodge. Our discomfort is rooted in a
concern that liability insurers are collecting multiple
premiums for multiple policies, while limiting recovery by
antistacking language -- the import of which is not known or
understood by the insured consumer until tragedy strikes.
     Dues v. Hodge and its progeny broadly contravened the line
of cases which was developing prior to the enactment of R.C.
3937.18(E), now 3937.18(G), in 1980. In Curran v. State Auto.
Mut. Ins. Co. (1971), 

, 

, 

, this court in an unanimous decision announced that
antistacking provisions were "repugnant" to the purpose of the
uninsured/underinsured motorists statute when they are used by
an insurer to deny coverage to an insured because other
uninsured coverage is available to the insured under a
different policy from a different insurer. In Grange Mut. Cas.
Co. v. Volkmann (1978), 

, 

, 

, this court again unanimously held antistacking
provisions in an uninsured policy to be unenforceable when
separate coverages were available from separate policies
covering different vehicles. Time after time, this court held
antistacking provisions to be in contravention of R.C. 3937.18.
     The General Assembly responded to this developed line of
cases by adding the following provision to the statute:
     "Any automobile liability or motor vehicle liability
policy of insurance that includes uninsured motorist coverage
may include terms and conditions that preclude stacking of
uninsured motor vehicle coverages." 138 Ohio Laws, Part I,
1458, 1459.
     This court, in Karabin v. State Auto. Mut. Ins. Co.
(1984), 

, 10 OBR 497, 

, held
that this amendment was "unambiguous," and expressed the will
of the General Assembly to permit insurers to preclude stacking
in all circumstances. In later cases the court held that R.C.
3937.18(G) gives insurance companies a license to contractually
preclude the stacking of separate uninsured/underinsured
coverages, irrespective of the number of policies involved, the
number of premiums paid, or the number of vehicles covered,
provided that the antistacking language is "unambiguous,"
"clear," and "conspicuous." Dues v. 

     The current version of the statute provides:
     "(G) Any automobile liability or motor vehicle liability
policy of insurance that includes coverages offered under
division (A) of this section [uninsured and underinsured
coverages] may include terms and conditions that preclude
stacking of such coverages." 139 Ohio Laws, Part II, 2936, 2938.
     The present statute permits insurance companies to
contractually preclude the stacking of coverages in "any ***
liability policy." We find this provision to be ambiguous. It
is unclear whether R.C. 3937.18(G) is intended to allow the
contractual preclusion of intra-family stacking, inter-family
stacking, or both.
     "Intrafamily" stacking occurs when an individual or an
entire family is insured by several separate
uninsured/underinsured policies insuring different vehicles.
When the individual or a family member is injured by an
uninsured or underinsured motorist, he or she will try to
combine, or stack, each of the policies' underinsurance limits
to compensate the injured individual.
     "Interfamily" stacking occurs when an individual has paid
a premium for an uninsured/underinsured motorists policy and is
riding in an automobile, which is owned by someone other than a
family member living in the same household and is insured by a
separate uninsured/underinsured motorists policy. When the
individual is injured by an uninsured or underinsured motorist
while riding in this automobile, he will seek to recover
compensation from the policy insuring the automobile in which
he was riding and his own uninsured/underinsured motorists
policy for which he has paid a premium.
     In light of the disfavor which antistacking provisions
have received by this court in cases such as 

 and

 we conclude that R.C. 3937.18(G) should be
narrowly construed. Insurers may contractually preclude,
intrafamily stacking -- the stacking of uninsured/underinsured
limits of policies and coverages purchased by family members in
the same household. Insurers may not contractually preclude
interfamily stacking -- the aggregation of
uninsured/underinsured limits of policies purchased by two or
more people who are not members of the same household.
     In intrafamily stacking situations, insurers can provide
reduced premiums for clients who purchase multiple
uninsured/underinsured policies for separate vehicles. If the
premium has been reduced, it logically follows that benefits
can be restricted. However, the injured individual in an
interfamily stacking scenario seeks to combine the limits of
two policies for which premiums have not been reduced because
of their mutual existence. Because insurers are attempting to
prevent the full payment of two policy limits resulting from
the full, unadjusted premium payment of two unrelated insurance
policies, the contractual preclusion of interfamily stacking is
unconscionable. We do not believe that the legislature
intended to sanction such a practice.
     With this reading of R.C. 3937.18's scope, the cases
decided prior to the 1980 enactment of division (E) breathe
renewed life to the extent they apply to interfamily stacking.
Because Hower v. Motorists Mut. Ins. Co. (1992), 

, 

, involves interfamily stacking, it is
overruled. The case of 

 and the first syllabus
paragraph of Dues v. 

 are limited to apply to
intrafamily stacking only.
     This interpretation of R.C. 3937.18(G) is consistent with
the concerted effort of the General Assembly to force all
motorists to maintain liability insurance coverage on motor
vehicles being operated within the State of Ohio. The
Financial Responsibility Act requires that all motorists have
the "ability to respond in damages for liability," and provides
severe penalties for failure to comply. R.C. 4509.01(K).
     Regrettably, the General Assembly has not succeeded in its
effort to force every motorist to maintain liability insurance
coverage. While it is impossible to accurately measure the
number, the best insurance industry estimate would indicate
that fifteen to twenty-five percent of Ohio motorists are
driving without any liability insurance coverage. New York
Times, September 3, 1990, A-10. The purchase of full
uninsured/underinsured coverage is the only possible means for
responsible motorists to protect themselves and their families.
     By applying the above holding to the facts in this case,
we conclude that Mary and Donald, because they are members of
the same household, may not stack the limits of their two
uninsured/underinsured policies with Motorists. Because Debbie
Savoie is only an insured in one of these policies, she does
not qualify to stack the limits.
     The holding of the court of appeals on the issue of
stacking is affirmed.
                              III
     Finally, this court considers how the money paid by the
tortfeasor's liability insurer affects the Savoies' ability to
collect from their underinsurance carrier. In Part I of this
opinion, we held that the Savoies were entitled to collect up
to $225,000 from the tortfeasor's liability carrier, Grange.
     The Savoies are insureds in two uninsured/underinsurance
policies with Motorists, each having limits of $100,000 per
person, $300,000 per accident limits. As a result of their
wrongful death claims, the Savoies seek to recover from these
policies.
     Motorists argues that it is not liable to the Savoies at
all because the $100,000 per person, $300,000 per occurrence
limits of its underinsurance policy are identical to the limits
of the tortfeasor's liability policy, and hence the tortfeasor
was not underinsured. Hill v. Allstate Ins. Co. (1990), 

, 

.
     In order to arrive at the proper conclusion in this case,
it is critical to review the purpose of R.C. 3937.18, which
explains how monies received from a tortfeasor's liability
insurer reduce, or do not reduce, the limits of an
underinsurance policy.   An individual covered by an
underinsurance policy is entitled to receive compensation in an
amount no less than what he would receive if he had been
injured by an uninsured motorist. James v. Michigan Mut. Ins.
Co. (1985), 

, 18 OBR 440, 

.
Thus, underinsured motorists who suffer from injuries caused by
an automobile accident are entitled to collect up to the full
limits of their underinsurance policy to the extent that their
damages exceed the amounts which the tortfeasor's insurer has
already paid to them. The Savoies may collect up to the limits
of their policy with Motorists to the extent that their damages
exceed the $225,000 which they are entitled to receive from
Grange.
     In Hill v. Allstate Ins. Co., supra, a majority of this
court held without elaboration that an underinsurance carrier
avoids responsibility to its insureds when the limits of its
policy are identical to the limits of the tortfeasor's
liability policy. This decision incorrectly construes R.C.
3937.18, and is now expressly overruled.
     In Part I of this opinion, we concluded that the claim of
each of the Savoies is a separate claim and is entitled to its
own per person policy limit under the terms of the tortfeasor's
liability policy. We have not addressed whether each of the
Savoies, who are also insureds in an underinsured policy, is
entitled to a separate per person limit or whether all claims
must be consolidated into one per person policy limit.
     This court's holding in Wood v. 

 is
completely dispositive of this issue. According to Wood, each
insured, who under an underinsured motorists policy has the
right to have a wrongful death action brought in his or her
name pursuant to R.C. 2125.01, has a separate wrongful death
claim subject to a separate per person policy limit. See,
also, Motorists Mut. Ins. Co. v. Andrews (1992), 

, 

.
     Despite previous attempts by this court to restrict the
application of Wood, we hold today that it remains good law in
Ohio. Each person, who is covered by an uninsured/underinsured
policy and who is presumed to be damaged pursuant to R.C.
2125.01, has a separate claim subject to a separate per person
policy limit.
     Two cases, Burris v. Grange Mut. Co., supra, and State
Farm Auto. Ins. Co. v. 

 narrow the holding in
Wood. To the extent they do so, they are overruled. Paragraph
two of the syllabus of Dues v. 

 is limited to
apply only to cases involving a single bodily injury which has
not resulted in wrongful death.
     By applying the holding in Wood v. 

 to the
facts in this case, we conclude that Mary, Donald, and Debbie
Savoie are each entitled to recover up to the $100,000 "per
person" policy limits in the Motorists underinsurance policy,
to the extent that each family member's damages exceed the
payments which each has received from Grange; however, in no
event should Motorists be obligated to pay more than a total of
$300,000. The holding of the court of appeals addressing the
extent that underinsured motorists coverage is set off by the
tortfeasor's liability coverage is reversed.
                                 Judgment affirmed in part
                                 and reversed in part
     A.W. Sweeney, Douglas, Resnick and F.E. Sweeney, JJ.,
concur.
     Moyer, C.J., and Wright, J., dissent.
     Douglas, J., concurring.     For far too long now various
majorities of this court have been attempting, in interpreting
liability, uninsured and underinsured automobile insurance
policies, to place square legal pegs in round legal holes.
Because of this, the law in this area has become increasingly
confused. Today, despite caustic dissents, Justice Pfeifer has
attempted to bring some semblance of order to what most
reasonable persons with knowledge and interest in the field
concede is an area of the law that badly needs clarification.
Justice Pfeifer inherited this problem -- he was not a part of
creating the admitted confusion. While not all of us in the
majority agree with every detail in Justice Pfeifer's opinion,1
his valiant effort will be of immeasurable help.
     It is important to now recognize that this court has been
attempting to apply the same law to differing fact patterns and
that the approach has not, cannot and will not work. We should
recognize, and Justice Pfeifer's opinion does so, that
uninsured-motorist cases are different from
underinsured-motorist cases; that multiple-claimant cases are
different from single-claimant cases; that cases involving
wrongful death are different from those where death is not
involved; and that cases where there is a tortfeasor liability
policy are different from those where there is no liability
policy.
     Thus, we have cases (1) where the tortfeasor is insured
and there is only one injured claimant; (2) where the
tortfeasor is insured and there is more than one injured
claimant; (3) where the tortfeasor is insured and there is a
single wrongful death; (4) where the tortfeasor is insured and
there are injured claimants and a wrongful death claimant or
claimants; (5) where a tortfeasor is uninsured and there are
single or multiple injured claimants and single or multiple
wrongful death claimants and any or all of such claimants have
uninsured-motorist coverage and underinsured-motorist
coverage. While this list is not exhaustive, it makes the
point that given different fact patterns, the law, as applied
to cases with differing facts, will also be different when all
of the language of R.C. 3937.18 is considered and when R.C.
2125.01 and 2125.02 are factored into the equation.
     While there are many examples of how this court, in this
field, has taken the law applying to one fact pattern and
forced that law onto another differing fact pattern in order to
reach a desired result, one such example will suffice.
     Wood v. Shepard (1988), 

, 

,
was a case where (1) the tortfeasor was insured; (2) one victim
was killed; (3) three victims were injured; and (4) the killed
and injured parties had an underinsured-automobile insurance
policy which was the subject of the action. State Farm Auto.
Ins. Co. v. Rose (1991), 

, 

,
involved (1) an insured tortfeasor with a liability policy; and
(2) one victim of wrongful death. The issue involved the
extent of the coverage available under the tortfeasor's
liability policy -- and had nothing to do with
underinsured-motorist coverage, the question presented by Wood.
     Notwithstanding this, the majority in Rose, in its zeal to
weaken, in some way, the holding in Wood, said, at 532, 

, that "* * * we further limit the holding in Wood
v. 

 and find it applicable only to those
instances where the policy limitations in uninsured or
underinsured motorist provisions do not track the corresponding
limitation on liability coverage, and are ambiguous on their
face," -- whatever that means. The majority clearly took
apples and compared them with oranges, thereby bringing about
the exact result predicted by Justice Asher Sweeney in his
dissenting opinion in Rose, wherein he said that "[b]y further
'limiting' the well-reasoned decision in Wood v. Shepard * * *,
the members of the present majority create more uncertainty in
this area of law at the expense of the policyholders who will
receive less than Ohio law entitles them to in their policies
of automobile insurance." 

,

 (Sweeney, J., dissenting).
     At the very least, the majority opinion is returning us to
square one, whence we can move step-by-step in a logical,
properly reasoned and statutorily based manner. Justice
Pfeifer's contribution to this salutary goal should be
applauded -- not maligned.
     I concur.
     F.E. Sweeney, J., concurs in the foregoing concurring
opinion.
FOOTNOTE:
1    As an example, I do not agree with the citation, as used,
to Section 19a, Article I of the Ohio Constitution.

     Moyer, C.J., dissenting.    I respectfully dissent from
Part II of the majority's opinion because I believe it
contradicts the clear intent of the General Assembly and
overrules recent, well-reasoned decisions of this court
recognizing that intent. In cases preceding 1980, this court
held that provisions barring the stacking of uninsured and
underinsured coverages violated public policy and were thus
unenforceable. Grange Mut. Cas. Co. v. Volkmann (1978), 

, 

, 

; Curran v. State
Auto. Mut. Ins. Co. (1971), 

, 

,

. In 1980, the General Assembly enacted what is
now R.C. 3937.18(G), which provides:
     "Any automobile liability or motor vehicle liability
policy of insurance *** may include terms and conditions that
preclude stacking of [uninsured and underinsured] coverages."
     This court correctly and unanimously interpreted this
statute as a legislative countermand of Volkmann and Curran.
Karabin v. State Auto. Mut. Ins. Co. (1984), 

,
10 OBR 497, 

. In Karabin, Dues v. Hodge (1988),

, 

, and most recently in Hower v.
Motorists Mut. Ins. Co. (1992), 

, 

, we held that such clauses were enforceable when clear,
conspicuous, and unambiguous.
     Now, a majority of this court holds that such clauses are
unenforceable to preclude "interfamily" stacking of coverages
in separate policies. The action of the majority defies not
only logic and sound jurisprudence but also, more importantly,
the General Assembly.
     The majority no longer supports the reasoning of Dues
because it is concerned that insurers are taking advantage of
insureds who purchase insurance policies without knowing the
import of the antistacking language they contain. Yet the very
purpose of the standard we enunciated in the first paragraph of
the syllabus of Dues, that these provisions must be
"unambiguous," "clear," and "conspicuous," was to ensure that
those who purchased policies did understand the import of the
antistacking language. The majority even admits that the
language in the Motorists policies satisfies the Dues test.
Although the majority properly holds that appellant may not
stack coverages in this case, it does not adequately explain
why Dues does not protect all insureds. Even in an interfamily
situation, the policy language cannot simultaneously be clear,
unambiguous, and conspicuous on one hand, but on the other be
so confusing that insureds do not understand its import.
     The majority further asserts that Dues "broadly
contravened the line of cases which was developing prior to the
enactment of R.C. 3937.18(E), now 3937.18(G) in 1980." This is
simply not so. Rather, the General Assembly in enacting R.C.
3937.18(E) countermanded those cases. Karabin and Dues merely
recognized that fact.
     The distinction is pivotal. When the General Assembly
enacts a valid, constitutional law that reverses or alters law
that this court has announced, this court is bound to follow
that law. To do otherwise violates the fundamental principle
of separation of powers.
     The majority admits that the enactment of R.C. 3937.18(G)
was a "response" to our pre-1980 cases holding antistacking
provisions unenforceable. It further admits that this court,
in 

 a unanimous decision, recognized this
statute to be a declaration permitting antistacking
provisions. The majority then concludes, however, that R.C.
3937.18(G) is somehow ambiguous and in need of judicial
construction. Specifically, the majority contends that the
words "any *** liability policy" are "unclear" and "not
clarified anywhere in the statute." What is there to clarify?
The word "any" is defined as: "concerning a being or thing of
the sort named, without limitation as to which, and thus
constructively of every one of them, since every one may in
turn be taken as a representative ***." (Emphasis added.) 1
Oxford English Dictionary (2 Ed. 1989) 539. Nevertheless, the
majority finds "any *** liability policy" to be ambiguous and
uses this perceived ambiguity to conclude that the phrase
refers, not to any liability policy without restriction, but
only to those liability policies held within a single family.
In creating this distinction, the majority's muse outshines
even that of appellant's counsel, who never argued or briefed
it at any stage in this proceeding. Furthermore, we rejected a
similar distinction, between interpolicy and intrapolicy
stacking, in Karabin. There is likewise scant justification
for the majority's distinction between interfamily and
intrafamily stacking.
     By its tortured reading of R.C. 3937.18(G) and its
resurrection of reasoning similar to that rejected in Karabin,
the majority "breathe[s] renewed life" into the pre-1980 cases
that held antistacking clauses unenforceable. In resuscitating
these cases, however, the majority reads the statute partially
out of existence. R.C. 3937.18(G) traveled through two
committees, the House of Representatives, the Senate, and
across the Governor's desk before it became law. It should
take more than a simple majority of the members of this court
to unmake it.
     In addition to the disrespect that the majority shows for
stare decisis, its rulings violate an even more fundamental
tenet of our system of government -- that of separation of
powers.
     The framers of the federal Constitution well understood
the importance of the separation of powers. The issue was a
central concern in the constitutional debates, and received
significant attention in The Federalist Papers. James Madison,
according to one commentator, advocated the independence of
each branch of government as a counterpoise against any one
branch imposing its will on that of the others. White,
Philosophy, The Federalist, and the Constitution (1987) 161.
     Madison's own words confirm this view: "The accumulation
of all powers legislative, executive, and judiciary in the same
hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very
definition of tyranny." The Federalist (1788), No. 47. And
further, "[i]n framing a government which is to be administered
by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the
next place, oblige it to control itself. The Federalist
(1788), No. 51.
     Maintaining separation of powers concerned Alexander
Hamilton as well. He wrote in The Federalist (1787), No. 9,
"[t]he regular distribution of power into distinct departments;
the introduction of legislative balances and checks *** are
means, and powerful means, by which the excellences of
republican government may be retained and its imperfections
lessened or avoided." In The Federalist (1788), No. 71,
Hamilton wrote, "[t]he same rule, which teaches the propriety
of a partition between the various branches of power, teaches
us likewise that this partition ought to be so contrived as to
render the one independent of the other."
     The Supreme Court of the United States has emphasized the
necessity of maintaining separation of powers. It has stated
that it is "essential to the successful working of this system"
to prevent the encroachment of one branch upon the powers of
another. Kilbourn v. Thompson (1881), 

, 

. In Myers v. United States (1926), 

,

, 

, Justice Brandeis, in dissent, wrote
that although friction between the branches of government is
inevitable, this friction has the salutory effect of precluding
any one branch from exercising arbitrary power over any other.
Id. at 293, 

, 

, (Brandeis, J.,
dissenting.) And Justice Sutherland stated the following in
Humphrey's Executor v. United States (1935), 

, 

, 

, 1620: "The
fundamental necessity of maintaining each of the three general
departments of government entirely free from the control or
coercive influence, direct or indirect, or either of the others
*** is hardly open to serious question. So much is implied in
the very fact of the separation of the powers of these
departments by the Constitution, and in the rule which
recognizes their essential co-equality."
     The Supreme Court of Ohio has stated that although Ohio
has no specific constitutional provision embodying the concept
of separation of powers, the doctrine is implicit in the entire
framework of the Constitution. South Euclid v. Jemison (1986),

, 28 OBR 250, 

. This court has
long recognized the importance of the principle of separation
of powers between the legislative and judicial branches of
government. In 1919, this court stated, "[p]robably our chief
contribution to the science of government is the principle of
the complete separation of the three departments of government,
executive, legislative and judicial. No feature of the
American system has excited greater admiration." State ex rel.
Greenlund v. Fulton (1919), 

, 187, 

,
177.
     This court has considered the argument that the common law
could limit or supersede validly enacted statutes. In Leis v.
Cleveland Ry. Co. (1920), 

, 

, a
party asserted that two city ordinances were invalid because
they created a degree of care greater than that which existed
at common law. This court rejected the argument, reasoning
that "there is no guaranteed right in the rules of the common
law as guides of conduct and they may be added to or repealed
by legislative authority ***. 'The law itself, as a rule of
conduct, may be changed at the will *** of the legislature,
unless prevented by constitutional limitations. Indeed, the
great office of statutes is to remedy defects in the common law
as they are developed, and to adapt it to the changes of time
and circumstances.'" 

, 128 N.E. at 74.
     This court has also considered, and consistently rejected,
the argument that a particular Act of the General Assembly
should not be enforced because it was unwise or unreasonable.
In Pohl v. State (1921), 

, 475, 

,
21, reversed on other grounds, 

, 

, 

, for example, a party challenged a statute that
prohibited certain types of instruction in public and parochial
schools. This court stated:
     "Courts do not sit to review the wisdom of legislative
acts, nor do they possess such power. On the contrary, the
policy, the advisability, and the wisdom of all legislation,
subject to the veto of the governor and the referendum of the
people, are subjects for legislative determination
exclusively. The inexpediency, injustice or impropriety of a
legislative act is not a ground upon which the court may
declare the act void. The remedy for such evils must be sought
by an appeal to the justice and patriotism of the legislature
itself."
     The legislature is the primary judge of the needs of
public welfare, and this court will not nullify the decision of
the legislature except in the case of a clear violation of a
state or federal constitutional provision. Williams v. Scudder
(1921), 

, 

, paragraphs three and
four of the syllabus.
     For its own part, this court has been fervent in
protecting its own branch from encroachment by the
legislature. Accordingly, this court has invalidated numerous
enactments of the General Assembly that intrude into the
exclusive powers of this court. Relying specifically on the
doctrine of separation of powers, this court invalidated R.C.
4509.101 to the extent that it permitted an appeal from a
decision of a trial court to the Registrar of Motor Vehicles.
South Euclid v. 

 at paragraph one of the
syllabus. See, also, Cincinnati Polyclinic v. Balch (1915), 

, 

, paragraph two of the syllabus
(invalidating a portion of a statute to the extent that it
purported to limit the appellate jurisdiction of the court of
appeals); Schario v. State (1922), 

, 

, paragraph four of the syllabus (invalidating an Act
purporting to establish a time limit within which a court of
appeals had to perform a judicial function); Rockey v. 84
Lumber Co. (1993), 

, 

(invalidating R.C. 2309.01 as in conflict with Civ.R. 8[A]).
In a case following the holding of 

 this court,
in an opinion written by a member of the majority in the
instant case, reaffirmed its "great respect for the General
Assembly and *** great deference to its enactments ***." In re
Coy (1993), 

,     N.E.2d    ,     .
     Conversely, this court has not been unaware of the
limitations upon its own power to create or alter certain
rules, even those that directly affect the judicial system.
Thus we held that the court lacked power to alter a statute
concerning the physician-patient privilege. We reasoned that
we must defer to the legislature when the rule involves a
substantive, and not procedural, right. State v. Smorgala
(1990), 

, 

, paragraph two of the
syllabus.
     The teaching of these cases is that for generations this
court has recognized the distinction between the roles of the
legislative and judicial branches. It has enforced this
distinction both against itself and against Acts of the General
Assembly. Having steadfastly protected the judicial branch
from encroachment by the legislature, this court should now
reciprocate and refrain from judicially limiting legislation
whose result it simply does not like.
     I dissent also from paragraphs one, three and four of the
syllabus. My primary objection to these holdings, which
overrule three recent decisions and limit another, is this
court's continued disrespect for stare decisis. I wrote to
oppose this trend in another recent case, Gallimore v.
Children's Hospital (1993),     Ohio St.3d     ,    N.E.2d
(Moyer, C.J., dissenting), and those principles apply equally
here. There has always been tension between certainty and
stability in the law and the drive to satisfy a judge's
individual desire to "do justice." I am concerned, however,
with that aspect of justice that requires that the same fact
pattern be treated in a similar manner. To do otherwise is to
abandon "justice" completely. This rule applies with special
force in cases of statutory interpretation, where the
legislature is the appropriate body to make any needed
corrections.
     In Burris v. Grange Mut. Cos. (1989), 

,

, and State Farm Auto. Ins. Co. v. Rose (1991), 

, 

, this court considered arguments
similar to those raised here but refused to extend Wood v.
Shepard (1988), 

, 

, to apply to
liability coverage. The majority overrules these cases,
asserting that the framers of the Ohio Constitution, the
General Assembly and this court have all indicated that
"damages for wrongful death claims should not be limited."
Section 19a, Article I of the Ohio Constitution, however,
states only that wrongful death damages shall not be limited
"by law." (Emphasis added.) This means that there may be no
artifically imposed cap, by statute or judicial decision, on
total damages recoverable for wrongful death. See Kennedy v.
Byers (1923), 

, 96, 

, 632-633. It
does not mean, nor does any pronouncement by this court or the
General Assembly mean, that no insurance policy -- a contract
between the insured and the insurer for which the insured has
paid a premium for certain levels of coverage -- may limit a
provider's liability if that policy clearly and unambiguously
so provides. Indeed, if a provider's liability cannot be
limited by contract, might one argue that the $300,000 per
accident limits of the Grange and Motorists policies are
unenforceable "limitations" of wrongful death damages? Even
the majority does not contend that to be the case. To do so
would eviscerate the insurance law of Ohio created by the
General Assembly.
     Citizens, whose conduct is bound by it, expect the law to
be certain, speedy and relatively inexpensive. We frustrate
this goal by creating a climate in which it is impossible to
predict what this court will do next.
     Wright, J., concurs in the foregoing dissenting opinion.
     Wright, J., dissenting. I admire the measured tone
adopted by the Chief Justice in his incisive and compelling
dissent, and certainly concur in same. I would not and could
not have been so restrained in addressing the majority's lack
of deference to the clear will of the General Assembly and
disregard for the doctrine of stare decisis.