Schumacher v. Kreiner

725 N.E.2d 1138, 88 Ohio St. 3d 358

Opinions

Pfeifer, J.

The principal issue in this case is whether the insurance policy-covering Schumacher’s truck contained UM coverage by operation of law pursuant to R.C. 3937.18. For the reasons that follow, we conclude that Motorists provided automobile insurance to Relay Express without offering UM coverage, that Relay Express did not expressly reject UM coverage, and, therefore, that the policy covering Schumacher’s truck contained UM coverage by operation of law. Accordingly, we conclude that summary judgment was improperly granted.

R.C. 3937.18(A) provides that “[n]o automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following coverages are offered to persons insured under the policy for loss due to bodily injury or death suffered by such insureds: (1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage * * *. (2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage * *

R.C. 3937.18(C) provides that “[a] named insured or applicant may reject or accept both coverages as offered under division (A) of this section * * *. A named insured’s or applicant’s rejection of both coverages as offered under division (A) of this section, or a named insured’s or applicant’s selection of such coverages in accordance with the schedule of limits approved by the superintendent, shall be in writing and shall be signed by the named insured or applicant. A named insured’s or applicant’s written, signed rejection of both coverages as offered under division (A) of this section, or a named insured’s or applicant’s written, signed selection of such coverages in accordance with the schedule of limits approved by the superintendent, shall be effective on the day signed, shall create a presumption of an offer of coverages consistent with division (A) of this section, and shall be binding on all other named insureds, insureds, or applicants.”

R.C. 3937.18 requires insurers to offer UM coverage in the same amount as any liability coverage provided. When UM coverage is not part of a policy, such coverage is created by operation of law unless the insurer expressly offers it in writing and the insured expressly rejects it in writing before the time that the coverage begins. R.C. 3937.18; Gyori v. Johnston Coca-Cola Bottling Group, Inc. (1996), 76 Ohio St.3d 565, 669 N.E.2d 824. The insurer bears the burden to show timely express written offer and rejection, and it makes no difference whether the parties contemplated such coverage. Id.

There is no evidence in the record of a timely express written offer and rejection of UM coverage.

Schumacher was injured in an accident while driving a vehicle covered by a liability insurance policy issued by Motorists. To contend, as Motorists did at oral argument, that virtually anyone else driving his vehicle would have standing, but that Schumacher, the owner of the vehicle the insurance was specifically intended to cover and an injured party, does not have standing makes a mockery of Section 16, Article I of the Ohio Constitution and the obvious legislative intent of R.C. 3937.18.

Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

Douglas, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.