Abate v. Pioneer Mut. Cas. Co., 69-372

• Decision Date: 13 May 1970
• Docket Number: No. 69-372,69-372
• Parties: , 51 O.O.2d 229 ABATE et al., Appellees, v. The PIONEER MUTUAL CASUALTY CO., Appellant.
• Court: Ohio Supreme Court

Page 161

22 Ohio St.2d 161

258 N.E.2d 429, 51 O.O.2d 229

ABATE et al., Appellees, v. The PIONEER MUTUAL CASUALTY CO., Appellant.

No. 69-372.

Supreme Court of Ohio.

May 13, 1970.

Syllabus by the Court

1. R.C. 3937.18 requires automobile liability insurance policies issued in this state to contain an 'uninsured motorist' provision which protects the insured from losses occasioned through the fault of uninsured motorists, and such provision can be eliminated from such a policy of insurance only by the express rejection of that provision by the insured.

2. Where a policy of automobile insurance contains an 'uninsured motorist' provision, and there has been no express rejection of that provision by the insured, the coverage afforded by the 'uninsured motorist' provision is provided to the insured by operation of law.

This appeal arises out of a declaratory judgment action instituted by plaintiffs, husband and wife, appellees herein, seeking a determination that uninsured motorist coverage was in effect as a result of an automobile liability insurance policy purchased by plaintiff Joseph Abate from defendant, The Pioneer Mutual Casualty Company.

The policy was renewed on January 26, 1966, and was in effect on April 29, 1966. On April 29, 1966, plaintiff Mary Abate was involved in an automobile accident with an automobile driven by an uninsured motorist. A provision of the policy reads as follows:

'Part IV-Protection Against Uninsured Motorists Coverage J-Uninsured Motorists (damages for bodily injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured of such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured of such representative and the company or, if they fail to agree, by arbitration.'

Following the accident, appellees made demand for payment of medical expenses, which was refused by appellant. Arbitration was then demanded, and refused.

The Court of Common Pleas concluded that R.C. 3937.18 created uninsured motorist coverage in the insurance policy in question by operation of law. The judgment of the trial court was affirmed by the Court of Appeals.

Lawrence J. Damore, Youngstown, for appellees.

Clyde H. Collins, Columbus, for appellant.

CORRIGAN, Justice.

Appellant seeks to support is appeal with two propositions of law, the first of which is that R.C. 3937.18 is a regulatory statute requiring insurance companies to offer uninsured motorist coverage with automobile liability policies and that this statute does not make uninsured motorist coverage compulsory and does not create uninsured motorist coverage by operation of law.

R.C. 3937.18 provides:

'No 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 coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 4509.20 of the Revised Code, under provisions approved by the superintendent of insurance, 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; provided, that the named insured shall have the right to reject such coverage; and provided further that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.' (Emphasis added.)

Appellant's contention that this section is a mere regulatory statute requiring appellant, as an insurance company, to offer uninsured motorist coverage with automobile liability policies is clearly not borne out by the terminology of the statute.

The language of the statute makes the uninsured motorist coverage imperative in that it requires the insurer, as a condition to the issuance of a policy, to provide that coverage in the policy. However, the statute does not require the insured to accept that coverage. The statute does not employ to word 'offer,' but it does provide 'that the named insured shall have the right to reject such coverage.' Thus, the only way in which the coverage...