[Cite as Estate of Heintzelman v. Air Experts, Inc., 126 Ohio St.3d 138, 2010-Ohio-3264.]




      ESTATE OF HEINTZELMAN, APPELLEE, ET AL., v. AIR EXPERTS, INC.;
             AMERICAN FAMILY INSURANCE COMPANY, APPELLANT.
                  [Cite as Estate of Heintzelman v. Air Experts, Inc.,
                        126 Ohio St.3d 138, 2010-Ohio-3264.]
R.C. 3929.06 — Postjudgment supplemental complaint brought by successful
        plaintiff against tortfeasor’s insurer — Previous declaratory judgment
        obtained by insurer declaring that insurer has no duty to indemnify
        insured is binding on plaintiff only if declaratory judgment action was
        initiated by insured or if plaintiff participated in declaratory judgment
        action.
   (No. 2008-2173 — Submitted September 2, 2009 — Decided July 15, 2010.)
  APPEAL from the Court of Appeals for Delaware County, No. 07CAE090045,
                                     2008-Ohio-4883.
                                  __________________
        PFEIFER, J.
        {¶ 1} In this case, we are asked to determine whether a declaratory
judgment obtained in an action initiated by an insurer, holding that the insurer has
no duty to indemnify its insured for injuries caused to a third party, is binding
upon that third party in a separate action brought against the insurer pursuant to
R.C. 3929.06. We hold that the declaratory judgment between the insured and
insurer is binding upon the plaintiff in an R.C. 3929.06 action only if the
declaratory judgment action was initiated by the insured or if the plaintiff
participated in the declaratory judgment action.
                        Factual and Procedural Background
        {¶ 2} According to the complaint, Jeffrey and Margaret Heintzelman
hired Martel Heating & Cooling (“Martel”) to install an attic air conditioner in
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their home in August 1999. The air conditioner malfunctioned; Martel returned to
the home several times to attempt to address problems, but was unsuccessful in
resolving them. In 2001, having learned that Martel was no longer in business,
the Heintzelmans hired Air Experts, Inc., to repair the air conditioner, but the
problems continued. On July 15, 2002, Jeffrey entered the attic to assess the
damage caused by water leaking from the air conditioner. He was electrocuted
when he came into contact with an unprotected electrical outlet Martel had
installed.
        {¶ 3} Litigation ensued. On December 10, 2002, Jeffrey’s estate and
Margaret Heintzelman (collectively, “the Heintzelmans”) filed a complaint
against Martel and Air Experts, alleging wrongful death and negligent infliction
of emotional distress. When the air conditioner was originally installed, Thomas
Martel, d.b.a. Martel Heating & Cooling, was a named insured under a
commercial insurance policy issued by appellant, American Family Insurance
Company (“American Family”). American Family retained counsel to defend
Martel in the Heintzelman case.
        {¶ 4} On December 4, 2003, while the Heintzelman case was pending,
American Family filed a separate declaratory judgment action against Martel,
seeking a declaration that it had no duty to provide coverage for Martel for any
award in the Heintzelman case.      The declaratory judgment action was not
assigned to the same judge hearing the Heintzelman case.
        {¶ 5} Martel never filed an answer in the declaratory judgment suit,
because, Thomas Martel claims, American Family advised against it. American
Family did not join the Heintzelmans as parties, nor did the Heintzelmans seek to
intervene.   Indeed, the Heintzelmans claim that they were unaware that the
American Family suit had even been filed until well after it was resolved.
American Family obtained a default judgment against Martel on March 10, 2004.




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According to Thomas Martel, American Family told him that the default
judgment would have no effect on him.
       {¶ 6} The Heintzelmans’ case proceeded to trial, and on March 7, 2005,
the jury returned a verdict against Martel and in favor of the estate on its
wrongful-death claim for $1,014,186 and in favor of Margaret Heintzelman for
$2,650,000 on her emotional-distress claim.         The award to Margaret was
eventually overturned on a separate appeal; the award to the estate was sustained.
Estate of Heintzelman v. Air Experts, Inc., Delaware App. No. 2005-CAPE-08-
0054, 2006-Ohio-4832.
       {¶ 7} On May 10, 2005, pursuant to R.C. 3929.06, which allows
successful plaintiffs to file postjudgment suits against a tortfeasor’s insurer, the
Heintzelmans filed a supplemental complaint against American Family, alleging
that Martel’s policy provided coverage for their injuries. On October 6, 2005,
American Family filed a motion for summary judgment, arguing that the
Heintzelmans were bound by the default judgment rendered in the declaratory
judgment action between American Family and Martel. On August 6, 2007, the
trial court granted American Family’s summary judgment motion, holding that
pursuant to R.C. 3929.06, the Heintzelmans were bound by the declaratory
judgment even though they were not parties to the action.
       {¶ 8} The Heintzelmans appealed.           On September 24, 2008, the
Delaware County Court of Appeals reversed the judgment of the trial court.
Estate of Heintzelman v. Air Experts, Inc., App. No. 07CAE090045, 2008-Ohio-
4883. It held that under R.C. 2721.12(B), 2721.02(C), and 3929.06(C)(2), a
declaratory judgment relating to insurance coverage is binding upon an insured’s
judgment creditor only if the insured initiated the declaratory judgment action.
Since American Family initiated the declaratory judgment action, the court held
that the judgment was not binding on the Heintzelmans.




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       {¶ 9} American Family appealed. The cause is before this court upon
the acceptance of a discretionary appeal.
                                 Law and Analysis
       {¶ 10} Together, R.C. 2721.02, 2721.12, and 3929.06 establish the rules
for insurance-coverage declaratory judgment actions involving injured parties,
tortfeasors, and tortfeasors’ insurers. Those statutes set forth who may bring an
action, when it may be brought, and what effect prior judgments between a
tortfeasor and his or her insurer have on plaintiffs.
                                    R.C. 3929.06
       {¶ 11} The Heintzelmans filed their supplemental complaint pursuant to
R.C. 3929.06, which allows plaintiffs who are awarded damages at trial to file a
posttrial, supplemental complaint against the judgment debtor’s insurer to recover
damages covered under the judgment debtor’s insurance policy.                R.C.
3929.06(A)(1) establishes that the plaintiff “is entitled as judgment creditor to
have an amount up to the remaining limit of liability coverage provided in the
judgment debtor's policy of liability insurance applied to the satisfaction of the
final judgment.” Pursuant to R.C. 3929.06(A)(2), if the judgment debtor’s insurer
has not paid the judgment creditor within 30 days of the entry of final judgment,
“the judgment creditor may file in the court that entered the final judgment a
supplemental complaint against the insurer seeking the entry of a judgment
ordering the insurer to pay the judgment creditor the requisite amount.” R.C.
3929.06(C)(1) allows the insurer to assert against the judgment creditor any
coverage defenses it could assert in a declaratory judgment action between the
insured and the insurer. Thus, if there is no coverage under the terms of the
policy for the judgment debtor’s liability, the insurer can raise those defenses
against the judgment creditor.
       {¶ 12} This case specifically involves R.C. 3929.06(C)(2), which
addresses the effect of a declaratory judgment on a supplemental complaint filed




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pursuant to R.C. 3929.06(A)(2). R.C. 3929.06(C)(2) states that if prior to the
judgment creditor’s filing of a supplemental complaint, the insured commences a
declaratory judgment action to determine whether the policy covers the injuries
suffered by the judgment creditor and caused by the insured, the final judgment as
to the coverage issue is binding upon the judgment creditor. The statute reads:
       {¶ 13} “If, prior to the judgment creditor's commencement of the civil
action against the insurer in accordance with divisions (A)(2) and (B) of this
section, the holder of the policy commences a declaratory judgment action or
proceeding under Chapter 2721 of the Revised Code against the insurer for a
determination as to whether the policy's coverage provisions extend to the injury,
death, or loss to person or property underlying the judgment creditor's judgment,
and if the court involved in that action or proceeding enters a final judgment with
respect to the policy's coverage or noncoverage of that injury, death, or loss, that
final judgment shall be deemed to have binding legal effect upon the judgment
creditor for purposes of the judgment creditor's civil action against the insurer
under divisions (A)(2) and (B) of this section.         This division shall apply
notwithstanding any contrary common law principles of res judicata or adjunct
principles of collateral estoppel.” (Emphasis added.)
       {¶ 14} American Family argues that the default judgment it won in the
declaratory judgment action it filed against Martel should be binding against the
Heintzelmans.     However, R.C. 3929.06(C)(2) unequivocally states that the
declaratory judgment is binding on a judgment creditor when the judgment
derives from an action that “the holder of the policy commences * * * against the
insurer.” The statute notably does not refer to an action “between” the insured
and insurer; instead, it refers only to an action commenced by the holder of the
policy against the insurer.
       {¶ 15} Our first duty in statutory interpretation is to determine whether the
statute is clear and unambiguous. Sherwin-Williams Co. v. Dayton Freight Lines,



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Inc., 112 Ohio St.3d 52, 2006-Ohio-6498, 858 N.E.2d 324, ¶ 15. “ ‘[W]here the
language of a statute is clear and unambiguous, it is the duty of the court to
enforce the statute as written, making neither additions to the statute nor
subtractions therefrom.’ ” Id. at ¶ 14, quoting Hubbard v. Canton City School Bd.
of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 14.
       {¶ 16} R.C. 3929.06(C)(2) unambiguously limits the binding effect of a
declaratory judgment action between an insured and an insurer to those instances
in which the declaratory judgment action was filed by the policyholder. To
expand that binding effect to judgments from actions initiated by insurers would
require us to add language to R.C. 3929.06(C). That we cannot do.
       {¶ 17} Since R.C. 3929.06 is unambiguous, “we need not interpret it; we
must simply apply it.” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804
N.E.2d 471, ¶ 13. Applying the statute to this case, we find that the declaratory
judgment granted in American Family’s action against its insured, Martel, has no
preclusive effect on the Heintzelmans.
                               R.C. Chapter 2721
       {¶ 18} An analysis under R.C. Chapter 2721, which establishes Ohio’s
declaratory judgment scheme, yields the same result. R.C. 2721.02(B) and (C)
reiterate much of what is contained in R.C. 3929.06.           Pursuant to R.C.
2721.02(B), a plaintiff may not file a declaratory judgment action against a
tortfeasor’s insurer until there is a final judgment in the separate action
establishing the tortfeasor’s liability. The first paragraph of R.C. 2721.02(C)
virtually mirrors R.C. 3929.06(C)(1), establishing that when a judgment creditor
files a declaratory judgment action against a judgment debtor’s insurer, “the
insurer has and may assert as an affirmative defense against the judgment creditor
any coverage defenses that the insurer possesses and could assert against the
holder of the policy in an action or proceeding under this chapter between the




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holder and the insurer.” That is, exclusions under the policy between the insurer
and insured would also apply against a judgment creditor.
       {¶ 19} The second paragraph of R.C. 2721.02(C) echoes R.C.
3929.06(C)(2), stating that if the “holder of the policy” commences a declaratory
judgment action before the judgment creditor, “a final judgment with respect to
the policy’s coverage or noncoverage of [the] injury, death, or loss * * * shall be
deemed to also have binding legal effect upon the judgment creditor for purposes
of the judgment creditor’s action or proceeding for declaratory relief against the
insurer.” Again, as in R.C. 3929.06(C)(2), the judgment is binding only if the
policyholder brings the suit.
       {¶ 20} R.C. 2721.12(A) discusses necessary parties in declaratory
judgment actions. It states that every person who has or claims to have an interest
affected by the declaratory judgment action must be made a party to the
declaratory judgment action and that “a declaration shall not prejudice the rights
of persons who are not made parties to the action or proceeding.” Under that
language, a plaintiff with a claim against an insured would seem to be a necessary
party in a declaratory judgment action in which the insurer denies coverage.
However, R.C. 2721.12(B) excepts certain judgment creditors from the purview
of R.C. 2721.12(A).
       {¶ 21} Pursuant to R.C. 2721.12(B), a declaratory judgment in an action
between an insurer and an insured will have “the binding legal effect described in
division (C)(2) of section 3929.06 of the Revised Code.” As we have already
concluded, that “binding legal effect” applies to declaratory judgments brought by
a policyholder, not by an insurer.
       {¶ 22} R.C. 2721.12(B) also excepts from the protection of R.C.
2721.12(A) assignees seeking rights under an insured’s policy. There is a notable
difference between R.C. 2721.12(B)’s treatment of assignees and its treatment of
judgment creditors. In removing assignees seeking rights under an insured’s



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policy from the protection of division (A), R.C. 2721.12(B) does not refer to R.C.
3929.06(C). Instead, R.C. 2721.12(B) states that the judgment resulting from an
action between an insurer and insured has a “binding legal effect upon any person
who seeks coverage as an assignee of the insured’s rights under the policy in
relation to the injury, death, or loss involved. This division applies whether or not
an assignee is made a party to the action or proceeding for declaratory relief and
notwithstanding any contrary common law principles of res judicata or adjunct
principles of collateral estoppel.”
       {¶ 23} For assignees, the judgment in a case between an insured and
insurer is binding regardless of whether the action was filed by an insured or an
insurer. For a judgment creditor, however, the judgment is binding only if it
comports with R.C. 3929.06(C). That is, the judgment would be binding if the
policyholder brought the claim.
       {¶ 24} Of course, pursuant to R.C. 2721.12(A), if the judgment creditor
had been made a party to the action between the insurer and insured, that action
would be binding on the judgment creditor. Although R.C. 3929.06 and 2721.02
prevent a plaintiff from filing a claim against a defendant’s insurer until after the
plaintiff successfully prosecutes its claim against the defendant, there is no such
restriction on insurers joining potential judgment creditors.
       {¶ 25} Since American Family initiated the declaratory judgment action
and did not include the Heintzelmans as parties, neither R.C. 2721.02 nor 2721.12
precludes the Heintzelmans from filing their supplemental complaint in this case.
                                      Conclusion
       {¶ 26} Pursuant to the statutory scheme set forth in R.C. 3929.06,
2721.02, and 2721.12, a declaratory judgment action between an insured and
insurer seeking a declaration on the applicability of coverage for injuries to a
plaintiff caused by the insured is binding upon that plaintiff only if the declaratory
judgment action is initiated by the insured or if the plaintiff is joined as a party in




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the declaratory judgment action.      Here, American Family did not join the
Heintzelmans as parties in its declaratory judgment action.          Therefore, that
judgment is not binding upon the Heintzelmans. Pursuant to R.C. 2721.02(C) and
3929.06(C)(1), American Family may still assert against the Heintzelmans any
coverage defenses that arise from the terms of Martel’s policy.
       {¶ 27} Accordingly, we affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
       LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and CUPP,
JJ., concur.
       BROWN, C.J., not participating.
                              __________________
       Cooper & Elliott, L.L.C., Charles Cooper Jr., and Rex H. Elliott, for
appellee.
       Curry, Roby & Mulvey Co., L.L.C., and Bruce A. Curry, for appellant.
       Freund, Freeze & Arnold and Shawn M. Blatt, urging reversal for amicus
curiae Ohio Association of Civil Trial Attorneys.
       Law Offices of Daniel R. Mordarski, L.L.C., and Daniel R. Mordarski,
urging affirmance for amicus curiae Thomas Martel.
       Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association of Justice.
                           ______________________




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