[Cite as Kemper v. Michigan Millers Mut. Ins. Co., 98 Ohio St.3d 162, 2002-Ohio-7101.]




 KEMPER ET AL. v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY ET AL.
 [Cite as Kemper v. Michigan Millers Mut. Ins. Co., 98 Ohio St.3d 162, 2002-
                                       Ohio-7101.]
Insurance — Automobile liability — UM/UIM coverage — Applicability of
        Linko requirements — Declination of UM/UIM coverage effected, when.
  (No. 2001-1709 — Submitted September 17, 2002 — Decided December 24,
                                          2002.)
ON ORDER from the United States District Court for the Northern District of Ohio,
     Western Division, Certifying Questions of State Law, No. 3:00CV07799.
                                 __________________
        {¶1}    The following questions have been certified to us by the United
States District Court for the Northern District of Ohio, Western Division, pursuant
to S.Ct.Prac.R. XVIII:
        {¶2}    “(1) Are the requirements of Linko v. Indemnity Ins. Co. [2000], 90
Ohio St.3d [445, 739 N.E.2d 338], relative to an offer of UM/UIM coverage,
applicable to a policy of insurance written after enactment of [1997] HB 261 and
before [2001] SB 97?
        {¶3}    “(2) If the Linko requirements are applicable, does, under [1997]
HB 261, a signed rejection act as an effective declination of UM/UIM coverage,
where there is no other evidence, oral or documentary, of an offer of coverage?”
        {¶4}    We answer certified question No. 1 in the affirmative and certified
question No. 2 in the negative.
        DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., and LUNDBERG STRATTON, J., dissent.
        COOK, J., not participating.
                                 __________________
                             SUPREME COURT OF OHIO




       MOYER, C.J., dissenting.
       {¶5}    I respectfully dissent from the majority’s conclusion that the
requirements of Linko v. Indemn. Ins. Co. (2000), 90 Ohio St.3d 445, 739 N.E.2d
338, are applicable to an insurance policy written after the enactment of 1997
H.B. 261 and before 2001 S.B. 97. As a preliminary matter, I note that although I
dissented in part in Linko, I acknowledge its holding as controlling precedent for
insurance policies issued prior to the enactment of H.B. 261. Nevertheless, R.C.
3937.18, as amended by H.B. 261, sets forth new requirements for a valid offer
and rejection of UM/UIM motorist coverage. Accordingly, we are not bound by
Linko in determining whether extrastatutory requirements should be imposed on
insurers after the effective date of H.B. 261.
       {¶6}    By its holding today, the majority requires insurers to “inform the
insured of the availability of UM/UIM coverage, set forth the premium for
UM/UIM coverage, include a brief description of the coverage, and expressly
state the UM/UIM coverage limits in its offer” even after the adoption of H.B.
261. Linko, 90 Ohio St.3d at 447-448, 739 N.E.2d 338. The majority not only
imposes these requirements without any statutory basis or legal analysis, but it
also ignores the fact that R.C. 3937.18, as amended by H.B. 261, unlike the
former statute, speaks directly to the requirements that are necessary for a valid
offer and rejection of UM/UIM coverage. In view of these amendments and the
absence of any statutory support to impose the Linko requirements, I would
conclude that such requirements are inapplicable to insurance policies written
after the effective date of H.B. 261.
       {¶7}    Because I would answer certified question No. 1 in the negative, I
would conclude that question No. 2 is moot.
       {¶8}    For the foregoing reasons, I respectfully dissent.
       LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
                               __________________




                                          2
                               January Term, 2002




       Elk & Elk Co., L.P.A., David J. Elk and Todd O. Rosenberg, for
petitioners Sherrie L. Kemper et al.
       Gallagher, Sharp, Fulton & Norman, Alton L. Stephens, James T.
Tyminski Jr. and D. John Travis, for respondent Michigan Millers Mut. Ins. Co.
       Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., and James R. Gallagher,
for amicus curiae Ohio Association of Civil Trial Attorneys.
       Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Michael L. Close
and Samuel M. Pipino, for amicus curiae American International Companies.
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