State ex rel. Solomon v. Board of Trustees of the Police & Firemen's Disability & Pension Fund

647 N.E.2d 486, 72 Ohio St. 3d 62
CourtOhio Supreme Court
DecidedApril 19, 1995
DocketNo. 94-2217
StatusPublished
Cited by104 cases

This text of 647 N.E.2d 486 (State ex rel. Solomon v. Board of Trustees of the Police & Firemen's Disability & Pension Fund) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Solomon v. Board of Trustees of the Police & Firemen's Disability & Pension Fund, 647 N.E.2d 486, 72 Ohio St. 3d 62 (Ohio 1995).

Opinion

Per Curiam.

Mrs. Solomon asserts in her first proposition of law that when a retiree reselects a joint and survivor annuity plan and the election is filed with the board, the reselection is not voided by the death of the retiree before payments under the new plan commence, and the surviving spouse is entitled to receive benefits. In order to be entitled to a writ of mandamus, Mrs. Solomon must establish (1) that she has a clear legal right to accumulated and continuing joint and survivor retirement benefits, (2) that the board has a corresponding clear legal duty to provide these benefits, and (3) that she possesses no adequate remedy in the ordinary course of law. State ex rel. Shimola v. Cleveland (1994), 70 Ohio St.3d 110, 112, 637 N.E.2d 325, 326. On appeal, we review the judgment of the court of appeals to determine if it abused its discretion in denying the requested writ of mandamus. State ex rel. Hipp v. N. Canton (1994), 70 Ohio St.3d 102, 103, 637 N.E.2d 317, 318. An abuse of discretion connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable. State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 97, 637 N.E.2d 311, 314.

The Police and Firemen’s Disability and Pension Fund (“fund”) is an organization created by R.C. 742.02 to provide disability benefits and pensions to members of the fund and their surviving spouses, children, and dependent parents. Police & Fire Retirees of Ohio, Inc. v. Police & Firemen’s Disability & Pension Fund (1985), 18 Ohio St.3d 231, 18 OBR 289, 480 N.E.2d 482. The administration, control, and management of the fund is vested in the board. R.C. 742.03(B). R.C. 742.3711(A) provides that upon application for retirement, “a member of the fund may elect to receive a retirement allowance payable throughout his life, or he may elect, on a form provided by the board, to receive the actuarial equivalent of his retirement allowance in a lesser amount payable for his life and continuing after his death to a surviving designated beneficiary” under one of the specified optional plans. Mr. Solomon, widowed at the time of his retirement, elected to receive a single annuity retirement allowance under R.C. 742.3711(A) rather than a lesser amount so that a surviving beneficiary could receive benefits following his death.

R.C. 742.3711(C) provides:

“Following marriage or remarriage, a member of the fund may elect a new optional plan of payment based on the actuarial equivalent of his single lifetime benefit as determined by the board. The plan shall become effective the first day of the month following an application of a form approved by the board.” (Emphasis added.)

[65]*65In construing a statute, a court’s paramount concern is the legislative intent. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. “In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished.” Id. at 594-595, 589 N.E.2d at 1323. Words used in a statute must be taken in their usual, normal or customary meaning. R.C. 1.42.

R.C. 742.3711(C) specifies that the reselected plan becomes “effective the first day of the month following an application of a form approved by the board.” The first day of the month in which the board receives the election is the date on which the new plan takes effect or becomes operative. See Black’s Law Dictionary (6 Ed.1990) 515, defining “effective date.” The new plan encompasses the designation of a beneficiary as well as the reduction of the monthly benefit amount.

Mrs. Solomon contends that R.C. 742.3711(C) provides that the post-retirement reselection is effective when received by the board and that only the effectiveness of the payment under the new plan is delayed until the first day of the month following receipt by the board of the reselection. Mrs. Solomon thus concludes that although her husband died prior to the first day of the month following receipt of his reselection application, the new plan, with the sole exception of the payment provision, was effective immediately upon receipt by the board. However, Mrs. Solomon’s interpretation of R.C. 742.3711(C) contravenes its plain language that the “plan” and not merely payment under the plan is ineffective until the first day of the following month. It is the duty of the court to give effect to the words used and not to insert words not used. State ex rel. Richard v. Bd. of Trustees of the Police & Firemen’s Disability & Pension Fund (1994), 69 Ohio St.3d 409, 412, 632 N.E.2d 1292, 1295.

As the court of appeals held in its opinion:

“Relator’s contentions directly contradict the language of the applicable statute and rule. According to those provisions, the application is not effective when received; it is effective on the first day of the month following the application. Because Mr. Solomon died prior to the effective date of his application requesting a change from the single annuity benefits to a joint and survivor payment plan, his single annuity plan remained in effect at the time of his death. * * * Mr. Solomon having no right to receive funds at the time his application for [a] joint and survivor payment plan became effective, the request under that plan lapsed. Thus, relator is not entitled to benefits under the application filed August 2, 1991.”

Ambiguous statutory provisions must be construed liberally in favor of the interests of the public employees and their dependents that the pension statutes were designed to protect. State ex rel. Teamsters Local Union 377 v. Youngs[66]*66town (1977), 50 Ohio St.2d 200, 205, 4 O.O.3d 387, 390, 364 N.E.2d 18, 21. While Mrs. Solomon contends that liberal construction of R.C. 742.3711(C) supports her assertion that her husband’s death did not vitiate the effectiveness of the reselected retirement plan, “[tjhere is no need to liberally construe a statute whose meaning is unequivocal and definite.” Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn. (1994), 69 Ohio St.3d 521, 525, 634 N.E.2d 611, 614. As the court of appeals concluded, the meaning of R.C. 742.3711(C) is unambiguous.

Ohio Adm.Code 742-3-07 provides:

“(B) The selection of an optional plan of payment and nomination of a beneficiary must be on a form approved by the board of trustees. Prior to the effective date, an unmarried member is entitled only to payment of a single life annuity. * * *
“Upon the effective date, the choice of a plan of payment and a beneficiary are [sic ] irrevocable, and may be changed only for the conditions stated in law and described below.
“(C) The selection of an optional plan of payment and the nomination of a beneficiary become effective:

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Bluebook (online)
647 N.E.2d 486, 72 Ohio St. 3d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-solomon-v-board-of-trustees-of-the-police-firemens-ohio-1995.