Andrew Moore v. Nationwide Mutual Ins. Co.

• Court: Ohio Court of Appeals
• Writing for the Court: MARKUS, Judge.
• Decision Date: 07 January 1988
• Docket Number: 88-LW-0224,53040
• Citation: Andrew Moore v. Nationwide Mutual Ins. Co., 53040, 88-LW-0224 (Ohio App. Jan 07, 1988)
• Parties: Andrew MOORE, Plaintiff-Appellee, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant.

Andrew MOORE, Plaintiff-Appellee, v. NATIONWIDE MUTUAL INSURANCE COMPANY Defendant-Appellant.

No. 53040.

88-LW-0224 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

January 7, 1988

Civil appeal from Common Pleas Court Case No. 110,005

Paul W Newendorp, Norman S. Pomerantz, Pomerantz and Cichocki Co. Cleveland, for plaintiff-appellee.

Timothy D. Johnson, Johnson, Hoffman & Fanos, Cleveland, for defendant-appellant.

JOURNAL ENTRY and OPINION

MARKUS Judge.

The trial court granted the plaintiff-insured a declaratory judgment that the defendant-insurer owes him uninsured motorist coverage for his loss of his wife's consortium. The insurer appeals, arguing that it exhausted its coverage by paying the plaintiff's wife for her injuries. The plaintiff has a statutory right to coverage for his loss, which prevails over any contrary contract language, so we affirm the trial court's judgment.

I

After the plaintiff began this action, both parties filed motions for summary judgment, which agreed upon the significant material facts. An uninsured motorist caused the plaintiff's wife to sustain serious injuries. At that time the defendant-insurer had in full force an automobile insurance policy which designated the plaintiff and his wife as named insureds. The declarations for that policy provided bodily injury liability insurance limits of $100,000 per person injured and $300,000 per occurrence. They likewise provided uninsured motorist insurance limits of $100,000 per person injured and $300,000 per occurrence.

The general "definitions' for the policy stated:

"1. the words "YOU' and "YOUR' mean or refer to the policyholder first named in the attached Declarations, and include that policyholder's spouse if living in the same household.'

Relevant provisions of the uninsured motorist portion of that policy provide:

"Under this coverage, we will pay bodily injury damages that you or your legal representative are legally entitled to recover from the owner or driver of an uninsured motor vehicle. . . .

"* * *

"This coverage also protects others for damages they may be legally entitled to recover because of bodily injury suffered by an insured.

"LIMITS OF PAYMENT

". . .. Our obligation to pay uninsured motorists losses is limited to the amounts per person and per occurrence stated in the attached Declarations. The following conditions apply to these limits:

"1. Limits shown for any one person are for all damage claimed by anyone for bodily injury or loss of services of one person as a result of one occurrence. For each such occurrence, the total limit of our liability shown is for all damages sustained by two or more persons.

"2. The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits. Limits apply to each insured vehicle as stated in the Declarations. . . .'

Pursuant to its uninsured motorist coverage, the insurer paid the plaintiff's wife $100,000 for her damages. It then refused to pay the plaintiff any amount for his damages from the loss of his wife's consortium. It argued that it had exhausted its single limit $100,000 coverage for all claims "for bodily injury or loss of services for one person.'

II

The insurer's sole assigned error contests the trial court's order which granted the plaintiff's motion for summary judgment. In effect, that ruling declared that the insurer's payment to the plaintiff's wife did not reduce its coverage for the plaintiff's own damages. The insurer does not claim that any genuine issue of material fact precluded a summary judgment. Rather, it argues that its insurance policy affords no coverage for the plaintiff's damages, as a matter of law.

The wife's claim for her injuries and her husband's claim for the loss of her consortium are separate and independent causes of action. Clouston v. Remlinger Oldsmobile Caddillac, Inc. (1970), 22 Ohio St. 2d 65 74. Hence, the uninsured motorist coverage of their policy, which insures each of them separately, affords each of them protection for their respective losses. Cf. Auto Owners Mut. Ins. Co. v. Lewis (1984), 10 Ohio St. 3d 156, paragraph two of the syllabus.

The Lewis case held that an uninsured motorist policy which insures both a father and his son provides separate coverage for (a) the claim by the father as the son's guardian for the son's injuries, and (b) the father's derivative claim for his loss of his son's services. It applied R.C. 3937.18(A)(1) which requires uninsured motorist coverage "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.'

The situation here differs from cases in which multiple beneficiaries seek separate uninsured motorist coverage for their respective interests in a single wrongful death claim. E.g., Dick v. Allstate Ins. Co. (1986), 31 OBR 143; Wood v. The Professionals Ins. Co. (Dec. 22, 1986), Montgomery App. No. 9891, unreported. Ordinarily, the various beneficiaries of a wrongful death claim have no independent cause of action for their respective losses. A husband has an independent cause of action for the loss of his wife's consortium.

This insurer agrees that it provided uninsured motorist coverage for the plaintiff's loss of his wife's consortium, as well as for his wife's bodily injuries. However, it contends that its policy established a single aggregate limit for its coverage of the total losses by both insureds. It asserts that its payment to the plaintiff's wife exhausted that aggregate limit.

R.C. 3937.18(A)(1) requires liability insurance policies to include uninsured motorist coverage, with limits "equivalent' to their liability insurance limits, unless the policyholder rejects that coverage. The insurer argues that its single aggregate limit for uninsured motorist coverage satisfies R.C. 3937.18 because it mirrors a similar restriction on its liability insurance coverage. Its liability insurance limit for one person also defines its coverage "for all damages claimed by anyone for bodily injury or loss of services of one person as a result of one occurrence.'

That analysis is illusory. Liability insurance provides third party protection, which indemnifies the insured against claims by others. R.C. 4509.51 requires liability policies to provide at least the stated minimum protection for the insured. It allows the insurer to sell any greater protection which the insured choses to buy. This policy satisifies R.C. 4509.51. It provides the insured with greater liability protection than the statute requires, even if one claimant can exhaust that protection while others remain unsatisfied.

By contrast, uninsured motorist insurance provides first party protection. It indemnifies the insured for the insured's own damages, which the insured cannot effectively recover from an uninsured tortfeasor. See Lewis, supra, at 158; Ady v. West American Ins. Co. (1982), 69 Ohio St. 2d 593, 596. However, this policy denies the insured any protection when it allows another insured to exhaust a single limit coverage by collecting first. Therefore, it does not satisfy R.C. 3937.18(A)(1), which mandates "protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.' See Lewis, supra, at 160-161.

Nothing in R.C. 3937.18 authorizes an insurer to deny all uninsured motorist protection for its insured, by permitting another insured to exhaust that coverage. Cf. Dorn v. Liberty Mutual Fire Ins. Co. (Minn. 1987), 401 N.W.2d 662. In this case, the two insured spouses might be able to share their total recovery from the single limit coverage equitably. However, a single limit uninsured motorist coverage could deny reimbursement for one divorced spouse because the other divorced spouse collected first. Likewise, it could deny reimbursement for one passenger in the insured car because another passenger collected first.

The insurer argues that the anti-stacking provision of R.C. 3937.18(G) authorizes single limit uninsured motorist coverage. However, these claimants do not seek to "stack' their recoveries for the same loss, as insureds under different policies or different portions of the same policy. Instead, they seek payment for different losses, as separate insureds under the same part of the same policy. The provisions of R.C. 3937.18(G) have no relevance here. See Karabin v. State Automobile Ins. Co. (1984), 10 Ohio St. 3d 163, 166 ("stacking' defined). Indeed, this policy seeks the inverse of "stacking' by dividing a single limit among multiple independent claims.

Absent legislative authority for single limit uninsured motorist coverage, which potentially denies an insured any protection, R.C. 3937.18(A)(1) determines the applicable coverage. Ady v. West American Ins. Co., supra. The policy provides $100,000 liability insurance limits for damage to any one person, so it provides the same limits for uninsured motorist coverage. It cannot restrict that uninsured motorist coverage to a single limit for bodily injury and independent derivative claims arising from the same person's injury.

Consequently, we overrule the insurer's single assignment of error and affirm the trial court's judgment.

McMANAMON, P.J., concurs. KRUPANSKY, J., dissents (See attached Dissenting Opinion).

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of...