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Luckenbill v. Hamilton Mutual Insurance Co.8/31/2001
they will never have to pay an insured, regardless of the number of insureds or their damages. Appellants claim that this practice directly violates R.C. 3901.20. Hamilton objects to consideration of this point, since Appellants did not discuss the issue in the trial court.
R.C. 3901.20 provides that:
o person shall engage in this state in any trade practice which is defined in sections 3901.19 to 3901.23 of the Revised Code as, or determined pursuant to those sections to be, an unfair or deceptive act or practice in the business of insurance.
We have previously held that R.C. Chap. 3901 does not create an implied private right of action. Springfield Impregnators, Inc. v. Ohio State Life Ins. Co. (March 23, 1994), Clark App. No. C.A. 3090, unreported. See also, Strack v. Westfield Companies (1986), 33 Ohio App.3d 336. However, the lack of a private cause of action for damages does not mean that courts are necessarily precluded from considering the content of R.C. Chap. 3901 within the context of a different cause of action. For example, in Dental Care Plus, Inc. v. Sunderland (1999), 135 Ohio App.3d 574, we indicated that:
R.C. 3901.19 et seq. * * * do not deprive persons affected by such acts or practices of their right to an action for damages for defamation or interference with their business activities. Id. at 577-78.
We did note in Dental Care Plus that the doctrine of "primary jurisdiction" may still prevent courts from hearing such an action. Id. at 578. This doctrine:
comes into play if the use of administrative proceedings will contribute to a meaningful resolution of the lawsuit. If it will, the trial court should defer any action until that determination is made by the agency. Id.
Accordingly, the trial court in this case may have been able to consider the impact of statutory violations on the validity of particular insurance policy provisions. However, we need not decide this point, since we agree with Hamilton that Appellants did not properly raise the matter in the trial court. Specifically, the complaint in the present case does not mention any violation of R.C. 3901.20. Instead, Appellants simply raised the constitutionality of restricting the right of recovery for Hilda Luckenbill's death. R.C. 3901.20 was also not addressed in Appellants' summary judgment motion and was not considered by the trial court in ruling on summary judgment.
Although we have discretion to address such error under the plain error rule, we decline to do so, since we think the trial court should have been given a chance to rule on the issue. Moreover, any plain error did not result in a manifest miscarriage of justice. Stiver v. Miami Valley Cable Council (1995),105 Ohio App.3d 313, 318. Specifically, even if this matter had been properly raised, we see no evidence of deceptive acts. Although court decisions may render insurance coverage illusory, that does not mean the insurer acted deceptively when coverage was originally provided. Consequently, the third assignment of error is also overruled.
Based on the preceding discussion, all four assignments of error are overruled and the judgment of the trial court is affirmed.
WOLFF, P.J., and YOUNG, J., concur.
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