Westfield National Ins. v. Farmers Ins.

{¶ 28} I respectfully disagree with the majority's reliance on a public policy rationale of encouraging settlements as the primary basis of interpreting specific documentary language, information, and events in the record indicating knowledge of the relevant circumstances in this case. In addition, I do not agree with the conclusion of Westfield and the majority that Farm Bur. Mut. Ins. Co. v. Buckeye UnionCos. Co. (1946), 147 Ohio St. 79, 33 O.O. 259,67 N.E.2d 906; Landmark Ins. Co. v. Cincinnati Ins. Co. (Oct. 12, 2001), 11th Dist. No. 2000-P-0093, 2001 WL 1216986; andIns. Co. of N. Am. v. Travelers Ins. Co. (1997),118 Ohio App.3d 302, 692 N.E.2d 1028, which were relied upon by the trial court in its decision, can be distinguished factually from the situation in this case. On the contrary, I concur with the trial court's findings that this case is not materially distinguishable from those decisions in which courts found an insurer to be a volunteer in settling a claim. Furthermore, I believe that Farm Bur. still provides the controlling case law on this issue, and therefore, I would argue that this court should follow the law as established by the Supreme Court of Ohio. Landmark, 11th Dist. No. 2000-P-0093.

{¶ 29} In sum, I would hold that Westfield was a volunteer in this instance. Prior to any settlement, Westfield was clearly aware that there was other potential insurance coverage involved; and in fact, Westfield obtained an order requiring Troy to produce the other insurance policy on the same day that it proceeded with settlement rather than waiting for information regarding the other insurance carrier — information that Westfield clearly knew could affect the extent of its own proportionate share. Finally, although executed after the settlement, the release from Troy to Westfield specifically named Farmers Insurance Company. Under these circumstances, it is my conclusion that Westfield chose to assume the responsibility for the settlement before identifying Farmers and thus paid an amount that it was not necessarily obligated to pay.

{¶ 30} As a result, I would conclude that Westfield is not entitled to contribution from Farmers, and accordingly, I would affirm the judgment of the trial court.