In re Estate of Reeck

488 N.E.2d 195, 21 Ohio St. 3d 126, 21 Ohio B. 429, 1986 Ohio LEXIS 541

• Court: Ohio Supreme Court
• Decided: January 22, 1986
• Docket: No. 85-407
• Status: Published

Opinions

Wright, J.

Before we address the merits of this case, we must first inquire as to whether the court of appeals abused its discretion in denying appellant’s motion to supplement the record. The court of appeals refused to consider appellant’s assignment of error challenging the distribution of the insurance proceeds because the record did not contain Reeck’s insurance contract.

App. R. 9(E) grants an appellate court the power to conform the record so that material inadvertently omitted is included. The rule is to be construed liberally. As this court stated in DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St. 2d 189, at 192 [23 O.O.3d 210], and recently reaffirmed in Reichert v. Ingersoll (1985), 18 Ohio St. 3d 220, at 222: “* * * [I]t is a fundamental tenet of judicial review in Ohio that court's should decide cases on the merits. * * * Judicial discretion must be carefully — and cautiously — exercised before this court will uphold an outright dismissal of a case on purely procedural grounds.”

The explicit finding by the court “* * * that the proceeds * * * are being paid under the terms and conditions of the * * * State Farm Mutual Automobile Insurance Company policy, according to its terms and conditions * * *,” and the court’s reference to the insurance policy by number in its judgment entry compels us to assume the policy was before the trial court when it decided the case. We believe the omission of the policy in the record on appeal was inadvertent.

Supplementing the record has been permitted to add unreported matters where it was deemed necessary to make the record conform to the truth. See Gibson v. Southern Pacific Co. (1955), 137 Cal. App. 2d 337, 162 Cal. Rptr. 177, 290 P. 2d 347; People v. Brooks (1980), 26 Cal. 3d 471, 162 Cal. Rptr. 177, 605 P. 2d 1306. There is simply no dispute as to the terms of the insurance policy in question. Thus, based upon the facts and circumstances of the instant case we hold that supplementing the record with the insurance policy is appropriate.

This case raises the issue of whether a settlement recovered pursuant to the uninsured motorist provision of an insurance policy is to be considered the proceeds of an insurance contract payable to the deceased insured’s estate or as damages distributable under the Wrongful Death Act. Implicit in the decision reached herein is the premise that an insurer issuing a policy providing coverage for injuries caused by uninsured motorists is liable under this type of coverage for damages recoverable for the wrongful death of the insured. The question remains as to whom payment of loss under such a policy may properly be made if the insured is deceased. This is a case of first impression in the state of Ohio.

Having carefully considered the uninsured motorist statute, the language of the insurance policy and the case law in this and other jurisdictions, we find that the proceeds of a settlement agreement reached pursuant to the uninsured motorist provision of the policy represent damages caused by a negligent and uninsured motorist. In the case of the death of an insured, the settlement proceeds under an uninsured motorist provision are to be distributed among those persons who are entitled by statute to bring a wrongful death action.

According to the language of the uninsured motorist statute, this mandated coverage is “* * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” R.C. 3937.18(A)(1). (Emphasis added.) Therefore, it is clear that it was the intention of the General Assembly in requiring insurance companies to provide uninsured motorist coverage that recovery be had for wrongful death.

We have consistently held that the purpose of uninsured motorist coverage is to provide coverage for bodily injuries or death caused by another who is at fault. Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St. 2d 161, 165 [51 O.O.2d 229]; Curran v. State Automobile Mut. Ins. Co. (1971), 25 Ohio St. 2d 33, 38 [54 O.O.2d 166]; Bartlett v. Nationwide Mut. Ins. Co. (1973), 33 Ohio St. 2d 50, 52 [62 O.O.2d 406].

The great weight of authority in other jurisdictions supports the proposition that in the case of death of an insured as a consequence of the negligence of an uninsured driver, those parties who are by statute entitled to bring a wrongful death action may recover under the uninsured motorist provision of the decedent’s automobile insurance policy without regard to whether the coverage is mandated by statute or provided by voluntary contract. M.F.A. Mut. Ins. Co. v. Lovins (D. Ark. 1965), 248 F. Supp. 108 (applying Arkansas law); Lopez v. State Farm Fire & Cas. Co. (1967), 250 Cal. App. 2d 210, 58 Cal. Rptr. 243; Zeagler v. Commercial Union Ins. Co. (Fla. App. 1964), 166 So. 2d 616, writ of certiorari discharged (1965), 172 So. 2d 450; Davis v. United States Fid. & Guar. Co. (Fla. App. 1965), 172 So. 2d 485; Netherlands Ins. Co. v. Moore (Fla. App. 1966), 190 So. 2d 191, 24 A.L.R. 3d 1316; Sterns v. M.F.A. Mut. Ins. Co. (Mo. App. 1966), 401 S.W. 2d 510.

In view of the foregoing, it is clear that Betty Hill was entitled to recover damages from the uninsured motorist for the death of her father. The uninsured motor vehicle section of the policy includes in its definition of “insured,” “any person entitled to recover damages because of bodily injury to an insured * * *.” Because Betty Hill would, under R.C. 2125.02, be “entitled” to maintain a wrongful death action for the death of her insured father, we hold that she too is an “insured” within the meaning of the State Farm policy.

The settlement proceeds received by Blanche Reeck, as executrix of Donald Reeck’s estate, are damages suffered by and distributable among those entitled to maintain a wrongful death action. Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings in accordance with this opinion.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney, Locher, C. Brown and Douglas, JJ., concur. Holmes, J., dissents.