[Cite as Stoner v. Allstate Ins. Co., 116 Ohio St.3d 1217, 2007-Ohio-6669.]




     STONER, APPELLEE, v. ALLSTATE INSURANCE COMPANY, APPELLANT.
  [Cite as Stoner v. Allstate Ins. Co., 116 Ohio St.3d 1217, 2007-Ohio-6669.]
Appeal dismissed as improvidently accepted.
 (No. 2006-1749 — Submitted October 9, 2007 — Decided December 19, 2007.)
               APPEAL from the Court of Appeals for Morrow County,
                             No. 05 CA 16, 2006-Ohio-3998.
                                  __________________
        {¶ 1} The cause is dismissed, sua sponte, as having been improvidently
accepted.
        MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR, and CUPP,
JJ., concur.
        O’DONNELL, J., dissents with opinion.
        LANZINGER, J., dissents.
                                  __________________
        O’DONNELL, J., dissenting.
        {¶ 2} I respectfully dissent from the court’s order dismissing this case as
having been improvidently accepted. In this case, the court of appeals, following
this court’s decision in Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339,
695 N.E.2d 1140, determined that “[u]ninsured/underinsured motorist insurance
claims are contract claims, and therefore R.C. 1343.03(A) allows prejudgment
interest for the insured under such provisions.” Stoner v. Allstate Ins. Co., 05 CA
0016, 2006-Ohio-3998, ¶ 10.
        {¶ 3} In my view, the four-to-three majority in Landis misconstrued R.C.
1343.03(A) and (C). Without question, subsection (C) provides that it pertains to
a civil action that is “based on tortious conduct,” while subsection (A) provides
that “when money becomes due and payable upon * * * a contract * * *, the
                              SUPREME COURT OF OHIO




creditor is entitled to interest at the rate per annum determined pursuant to section
5703.47 of the Revised Code, unless a written contract provides a different rate of
interest.”
        {¶ 4} In dissent, Justice Cook tellingly pointed out, “[S]upport for
treating uninsured/underinsured motorist claims under rules of tort rather than
contract can actually be found in the language of the statute.” (Emphasis sic.)
Landis, 82 Ohio St.3d at 345, 695 N.E.2d 1140 (Cook, J., dissenting). She further
highlighted that the phrase “civil action based on tortious conduct” is far more
expansive than the simple phrase “tort action.” Id. In my view, Justice Cook’s
analysis is exacting and correct. I would therefore hold that R.C. 1343.03(C)
applies to civil actions based on tortious conduct, and I would overrule Landis on
that basis.
        {¶ 5} In Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, this court announced a three-pronged test for overruling
precedent. We stated that prior decisions of this court “may be overruled where
(1) the decision was wrongly decided at that time, or changes in circumstances no
longer justify continued adherence to the decision, (2) the decision defies practical
workability, and (3) abandoning the precedent would not create an undue hardship
for those who have relied upon it.” Id. at paragraph one of the syllabus. In my
view, Landis meets this high standard.
        {¶ 6} With respect the first prong of the test, Landis determined that R.C.
1343.03(A) applied to uninsured-motorist (“UM”) claims because such claims are
contractual in nature. While the relationship between the parties arises out of
contract, the nature of the claim does not. Plainly, it arises out of a civil action
based on tortious conduct. The decision in Landis was therefore wrong, and the
first prong of the Galatis test is met.
        {¶ 7} Next, I contend that the application of Landis defies practical
workability.   R.C. 1343.03(A) provides that “when money becomes due and




                                          2
                                January Term, 2007




payable upon any bond, bill, note, or other instrument of writing * * * , the
creditor is entitled to interest.” (Emphasis added.) Our decision in Landis gave
trial courts the discretion to determine when interest begins to accrue. In the case
before us, the trial court determined the due and payable date for a portion of the
judgment to be the day of the automobile accident. Here, the carrier could not
have known the amount it owed to Stoner pursuant to the UM obligation until the
claim for injury arising out of tortious conduct had been determined. This is
substantially different from a contractual obligation arising out of a note or a bond
or a sum certain in a written contract. Thus, the application of R.C. 1343.03(A) to
this kind of claim is unworkable, as exhibited by the trial court’s effort to award
interest on parts of the judgment but not the entire award. This case pointedly
suggests the impracticability of assessing prejudgment interest on this kind of
claim.
         {¶ 8} Finally, Landis has not engendered such reliance in litigants that it
would disrupt the prosecution of claims. As we stated in Galatis, “there is no
individual or societal reliance upon Scott-Pontzer outside of the courtroom.”
(Emphasis added.) Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d
1256, ¶ 59. An award of prejudgment interest, which occurs after a claimant
receives a final judgment on a claim, does not affect strategy or procedure prior to
the final judgment. Overruling Landis, therefore, would not cause “ ‘practical
real-world dislocations.’ ” Id. at ¶ 58, quoting Robinson v. Detroit (2000), 462
Mich. 439, 466, 613 N.W.2d 307.
         {¶ 9} For these reasons, I would overrule our judgment in Landis to the
extent that it provided for a determination of prejudgment interest to be made in
this kind of case pursuant to R.C. 1343.03(A) and would submit that they are
more properly considered pursuant to R.C. 1343.03(C). Accordingly, I would
reverse the decision of the Morrow County Court of Appeals, determine that R.C.
1343.03(C) governs motions for prejudgment interest in UM cases, and remand




                                          3
                            SUPREME COURT OF OHIO




this matter to the trial court for application of that subsection of the statute to
these facts.
                              __________________
        Wagner Law Firm, P.L.L., and Jay D. Wagner, for appellee.
        Kennedy, Purdy, Hoeffel & Gernert, L.L.C., and Paul E. Hoeffel, for
appellant.
                           ______________________




                                        4
