Hill v. Allstate Insurance

553 N.E.2d 658, 50 Ohio St. 3d 243, 1990 Ohio LEXIS 184

• Court: Ohio Supreme Court
• Decided: April 25, 1990
• Docket: No. 88-1740
• Status: Published

Opinions

Holmes, J.

The only issue presented to this court is whether underinsured motorist coverage is available to an insured’s estate and next of kin on a wrongful death claim, where the insured’s policy limits are identical to those of the tortfeasor. For the reasons which follow, we answer such query in the negative, and affirm the court of appeals.

In order to determine whether or not appellant is entitled to underinsured coverage we must determine whether the accident involved an underinsured vehicle. In mandating underinsured motorist provisions in every automobile insurance policy, R.C. 3937.18(A)(2) states:

“Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured’s uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds • and insurance policies covering persons liable to the insured.”

Simply put, the underinsured motorist statute requires an insurer to provide coverage to its insured when the tortfeasor’s coverage is less than the limits of the insured’s uninsured motorist coverage at the time of the accident.

Appellant asserts that this case is controlled by the recent decision of this court in Wood v. Shepard (1988), 38 Ohio St. 3d 86, 526 N.E. 2d 1089. In Wood this court held that each wrongful death beneficiary has a • separate claim, compensable up to the subject insurance policy’s per occurrence underinsured motorist coverage limits, even though the policy limited recovery for all damages for injury or death of one person to a single limit of liability.

Wood is distinguishable and not applicable to our determination of this case. In Wood the tortfeasor’s liability insurance policy had per person limits of $50,000 and per occurrence limits of $100,000, whereas the plaintiff’s policy in that case had underinsured motorist coverage of $100,000 per person and $300,000 per occurrence.

The facts of Wood are not the facts here. At the time of the accident, the tortfeasor here had bodily injury liability coverage of $50,000 per person and $100,000 per occurrence — the same limits as those of Shaw’s Allstate policy’s underinsurance motorist coverage. Specifically, Shaw’s Allstate policy provided, in part:

“SS UNINSURED MOTORISTS BODILY INJURY $50,000 EACH PERSON - $100,000 EACH ACCIDENT

* *

“An uninsured auto is:

“(5) An underinsured auto which has liability protection in effect and applicable at the time of the accident in an amount equal to or greater than the amounts specified for bodily injury liability by the financial responsibility laws of Ohio, but less than the limits of liability for coverage SS of this policy.” (Emphasis added.)

The decedent’s estate was able to recover the full $50,000 to which it was entitled under the tortfeasor’s policy. Accordingly, pursuant to both the plain meaning of Ohio’s underinsurance motorist statute and the unambiguous terms of the subject Allstate policy, no underinsurance motorist coverage was available to the decedent’s estate here because the “limits of coverage available for payment” to the decedent’s estate were not “less than the limits for” the decedent’s underinsured motorist coverage “at the time of the accident.”² Thus, as shown in the above analysis, unless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured’s policy are identical to the limits set forth in the tortfeasor’s liability insurance coverage.³ See Hagen v. J.C. Penney Cas. Co. (1984), 16 Ohio App. 3d 218, 220, 16 OBR 234, 236, 475 N.E. 2d 177, 179 (In citing Buckeye Union Ins. Co. v. Wallace, supra, fn. 3, the court held that underinsured motorists liability insurance precludes coverage where the limits of liability of the insured’s policy are identical to the limits of the tortfeasor’s policy.); Ohio Cas. Ins. Co. v. Yoby (1985), 23 Ohio App. 3d 51, 54, 23 OBR 96, 98, 491 N.E. 2d 360, 363 (“[I]n case of inadequate insurance, the underinsurance provision would be triggered, but only if the tortfeasor’s coverage is less than the underinsured policy limits. Under-insured motorist coverage is an option by which an insured may voluntarily predetermine the amount of insurance he desires to protect him in the event of injury by a negligent motorist who has liability insurance in an amount less than that predetermined amount.”); Ware v. Nationwide Ins. Co. (1986), 33 Ohio App. 3d 74, 75, 514 N.E. 2d 440, 441 (When the limits of the tortfeasor’s liability insurance coverage and the limits of the injured party’s underinsurance coverage are equal, R.C. 3937.18(A)(2) is not applicable, even though multiple wrongful death claimants are involved.). This is in line with the public policy consideration of assuring that those persons injured by an underinsured motorist would receive at least the same amount of total compensation as they would have received had they been injured by an uninsured motorist. See Ware, supra; James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St. 3d 386, 389, 18 OBR 440, 443, 481 N.E. 2d 272, 275.⁴

We do not agree with appellant’s argument that she would have been in a superior position if the tortfeasor had carried no liability insurance. While Wood, supra, establishes that wrongful death beneficiaries have separate claims, the policy language here applies the single limit ($50,000) to “all damages arising out of” a single bodily injury (no matter how many separate claims may be involved). See Tomlinson v. Skolnik (1989), 44 Ohio St. 3d 11, 540 N.E. 2d 716, paragraph one of the syllabus. The statute clearly permits appellee to contract in this fashion.

Alternatively, appellant maintains that under this court’s prior holding in Wood, each wrongful death beneficiary has a separate underinsured claim regardless of whether the insured’s policy limits are equal to the tortfeasor’s policy limits. Specifically, appellant proposes that “[t]he coverage mandated by R.C. 3937.18(A)(2) does not depend solely upon a comparison between the single person liability policy limits of the tortfeasor and the single person uninsured policy limits of the insured party * * *. Rather, that coverage is determined by a comparison between the portion of the tortfeasor’s limits ‘available for payment to the insured’ and the limits of the uninsured coverage available to the separate claims of all those who are insureds under the uninsured/underinsured motorist provision of the applicable policy.” We disagree. In effect, what appellant asks this court to fashion is an excess accident insurance provision by judicial fiat. Here, Allstate offered no such provision nor did Shaw contract in reliance on such a provision. Shaw contracted for coverage in the event the tortfeasor’s liability insurance coverage failed to fully compensate his injuries, so long as the tortfeasor’s limits were below the limits of his own policy. In the case sub judice the limits are equal and thus appellant has received precisely what Shaw contracted for. Moreover, as noted earlier, Wood does not apply where, as a threshold matter, the tortfeasor’s liability coverage limits are identical to the insured’s underinsured motorist coverage limits.⁵ Here, the threshold requirement was not met. Consequently, each wrongful death beneficiary was not entitled to a separate limit of recovery, up to Shaw’s policy’s per occurrence limit for underinsured motorist coverage.

Finally, even if we were to assume arguendo that the wrongful death beneficiaries here had separate viable claims under the Wood rationale, they would still be precluded from recovery under the Allstate policy, since their separate claims, if any, should have been filed against Western Reserve, the tortfeasor’s insurer. It is of no consequence that the Western Reserve policy limits may have been reached, since there was no underinsurance available to these beneficiaries under the unambiguous terms of the Allstate policy and R.C. 3937.18(A)(2).

Therefore, for the foregoing reasons the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Wright and H. Brown, JJ., concur. Sweeney, Douglas and Resnick, JJ., dissent.

2 This same result was reached by a unanimous panel in Buckeye Union Ins. Co. v. Wallace (Mar. 27, 1981), Lucas App. No. L-80-146, unreported, motion to certify overruled (July 1, 1981), case No. 81-778, where the court construed a similar situation to the one before us in examining an insured’s policy with identical liability limits to the tortfeasor’s policy, and the insured’s damages exceeded the limit on the tortfeasor’s policy. The court denied the insured’s claim, stating: “The literal terms of the clause state that, for a vehicle to be underinsured, it must carry a lesser limit than the limit imposed by the terms of the policy under which recovery is alleged. In this case the limits on the tortfeasor’s policy were not less than, but equal to, the limit on the appellant’s policy. Thus, by a plain reading of the statute, incorporated into the endorsement, the appellant may not recover under the policy for the tortfeasor’s underinsurance, because, although the tortfeasor may be underinsured in relation to the appellant’s damages, he is not underinsured for the purposes of the statute and policy endorsement. We find the contract clause and statute on this point to be a clear unambiguous statement of the law.” Id. at 5.

3 Therefore, under both the Ohio underinsured motorist statute and the relevant Allstate policy, there plainly can be no underinsured motorist coverage unless, at the time of the accident, the underinsured motorist limits of liability contained in the insured’s policy are greater than the liability coverage limits of the tortfeasor’s policy. Here, that was simply not the case.

4 A motor vehicle insurance policy could conceivably provide more benefits than those required to be offered by R.C. 3737.18(A)(2); that is, not require that the limits of coverage available from the underinsured motorist be less than those available to the insured under his underinsured coverage. However, in this case Shaw’s Allstate policy defines “underinsurance coverage” as one where the available bodily injury liability coverage is less than the limits of the underinsured coverage. Thus, this policy does not provide benefits which are greater than those required to be offered under the statute.

5 See, e.g., Roeser v. Westfield Cos. (June 5, 1986), Cuyahoga App. No. 50661, unreported, motion to certify overruled (Sept. 3,1986), case No. 86-1110 (where an insured’s wife attempted to recover separate underinsured motorist benefits under the insured’s policy for her own injuries resulting from the insured’s accident with an alleged underinsured motorist who had identical coverage to that of the insured, the court held: “The issue of whether or not a derivative action exists is irrelevant based upon our reliance on Hagen, supra. Básed upon the finding that the limits of the two policies are identical, appellants have failed to satisfy the threshold requirement of their policy’s underinsured provision.” Id. at 8.).