Bartlett v. Nationwide Mut. Ins. Co.

• Decision Date: 28 March 1973
• Docket Number: No. 72-390,72-390
• Citation: 33 Ohio St.2d 50,294 N.E.2d 665
• Parties: , 62 O.O.2d 406 BARTLETT, Appellee, v. NATIONWIDE MUTUAL INS. CO., Appellant.
• Court: Ohio Supreme Court

Page 50

33 Ohio St.2d 50

294 N.E.2d 665, 62 O.O.2d 406

BARTLETT, Appellee, v. NATIONWIDE MUTUAL INS. CO., Appellant.

No. 72-390.

Supreme Court of Ohio.

March 28, 1973.

Syllabus by the Court

As of September 15, 1965, R.C. § 3937.18 established that all persons contracting for uninsured motorist protection are entitled to recover from their insurer, within the applicable limits of the contract of insurance, all damages which they would have been otherwise entitled to recover from an uninsured motorist, and insurance contract provisions entered into on or after that date which purport to reduce the amount of such recovery are unenforceable as against public policy.

This appeal arises out of a declaratory judgment action instituted by plaintiff-appellee, seeking a determination that the provision of his uninsured motorist coverage, in his automobile liability insurance policy, allowing a deduction by his insurer, appellant herein, of amounts paid to plaintiff pursuant to a workmen's compensation claim is 'illegal, against public policy, void and unenforceable.'

The policy was in effect on August 3, 1966, when Bartlett was struck by an automobile being driven by an uninsured motorist. A provision of the policy reads:

'6. Limits of liability * * *

'(A) Any amount payable under the terms of this endorsement because of bodily injuries sustained in an accident by a person who is an insured under this coverage shall be reduced by * * *

'* * *

'(2) The amount paid and the present value of all amounts payable on account of such bodily injury under any workmen's compensation law, disability benefits law or any similar law * * *.'

Following the accident, appellee submitted a claim to the Ohio Industrial Commission and was awarded compensation.

The Court of Common Pleas sustained Nationwide's equivalent to a motion for summary judgment. The Court of Appeals reversed that judgment and declared the setoff provision of the policy invalid upon the basis that 'the effect * * * is to reduce the uninsured motor vehicle coverage provided by the policy * * * (below that) coverage required by R.C. 3937.18.'

The cause is before this court pursuant to the allowance of a motion to certify the record.

Robert H. Farber, Jr., and Josiah H. Blackmore, II, Columbus, for appellee.

Crabbe, Brown, Jones, Potts & Schmidt, William H. Allyn, Jr., and Wilbur W. Jones, Columbus, for appellant.

HERBERT, Justice.

The question presented by this appeal is whether the coverage afforded by the policy issued by appellant to appellee met the requirements of R.C. § 3937.18.

R.C. § 3937.18 provides:

'No automobile * * * policy of insurance * * * shall be * * * issued * * * unless coverage is provided therein * * * 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 * * * (victims of uninsured motorists).'

Section 4509.20, as in effect at the time of the collision, read:

'(A) A policy * * * does not comply with * * * (Financial Responsibility Act coverage requirements) unless * * * such policy * * * is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interests and costs, of not less than ten thousand dollars * * *.'

The basic purpose of R.C. § 3937.18 is clear. It 'is designed to protect persons injured in automobile accidents from losses which, because of the tort-feasor's lack of liability coverage, would otherwise go uncompensated.' Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, 165, 258 N.E.2d 429, 432; Curran v. State Automobile Mutl. Ins. Co. (1971), 25 Ohio St.2d 33, 266 N.E.2d 566; see, also, Note 1, 20 Cleve.L.Rev. 10 (1971). In other words, the legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policyholder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance.

If the motorist who injured appellee had been insured, the size of appellee's recovery would not have been reduced by the amount of any workmen's compensation benefits received by the appellee. Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235. Thus, the Court of Appeals, 30 Ohio App.2d 145, 283 N.E.2d 658, 660 found:

'The provision of the policy providing for reduction in the amount payable under the uninsured motor vehicle coverage because of receipt of workmen's compensation benefits affords to the insured a lesser amount of damages under the coverage than he would be legally entitled to recover from the operator of the uninsured motor vehicle * * *.'

The Court of Appeals also correctly concluded that 'R.C. § 3937.18 requires coverage affording to the insured payment thereunder in an amount equal to the amount of damages he would legally be entitled to recover from the owner or operator of an uninsured motor vehicle within limits as set forth in R.C. 4509.20. Accordingly, the policy provision for deduction of the workmen's compensation benefits received is invalid because it does not provide the coverage required by R.C. § 3937.18.'

Although there is no Ohio authority directly in point, other jurisdictions have reached the same result. Sullivan v. Doe (Mont.1972), 495 P.2d 193; Williams v. Buckelew (La.App.1971), 246 So.2d 58; Booth v. Seaboard Fire & Marine Ins. Co. (8 Cir., 1970), 431 F.2d 212; Aldcroft v. Fidelity & Cas. Co. (1969), 106 R.I. 311, 259 A.2d 408; Carter v. St. Paul Fire and Marine Ins. Co. (1968), 283 F.Supp. 384; Standard Accident Ins. Co. v. Gavin (Fla.App.1966), 184 So.2d 229; Peterson v. State Farm Mutual Auto Ins. Co. (1964), 238 Or. 106, 393 P.2d 651.

We are aware of the contrary authorities. ¹ In some instances the controlling laws are either different from our Ohio statutes or a different construction has been placed upon them. But, as the Florida court stated in Standard Accident Insurance Co. v. Gavin, supra, at page 231 of 184 So.2d: 'This Court is not bound to follow the dicisions of a Court of * * * (any) foreign jurisdiction when on established principles to which this Court * * * subscribe(s), it is unable to agree with the result of the decision of the foreign jurisdiction.'

As suggested by Abate and Curran, supra, R.C. § 3937.18, ab initio, enunciated a public policy in this state. Private parties are without power to insert enforceable provisions in their contracts of insurance which would restrict coverage in a manner contrary to the intent of the statute. ²

On October 1, 1970, R.C. § 3937.18 was amended to additionally provide:

'(D) The coverage required by this section shall not be made subject to an exclusion or reduction in amount because of any workmen's compensation benefits payable as a result of the same injury or death.'

Although both parties concede that the amendment has no direct application in the instant case, appellant argues that since the General Assembly specifically prohibited the setoff of workmen's compensation benefits by the 1970 amendment, the converse must have been true prior thereto. While we agree that every amendment to a statute is made to effect some purpose, Canton Malleable Iron Co. v. Porterfield (1972),30 Ohio St.2d 163, 175, 283 N.E.2d 434, it is equally well established that '(t)hat purpose may be either to add new provisions and conditions to the section as it then stands, or for the purpose of making plain the meaning and intent thereof.' (Emphasis added.) Lytle v. Baldinger (1911), 84 Ohio St. 1, 8, 95 N.E. 389, 390.

In our opinion, the October 1, 1970, amendment to R.C. § 3937.18, adding subparagraph (D), represents a legislative intention to clarify, rather than alter, existing law. In this connection, we note that Abate, supra, was decided prior to the amendment and that the General Assembly is presumed to have been aware of that decision when the amendment was enacted.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and CORRIGAN, STERN and CELEBREZZE, JJ., concur.

WILLIAM B. BROWN, J., dissents.

PAUL W. BROWN, J., not participating.

WILLIAM B. BROWN, Justice (dissenting).

I dissent from the syllabus and from the judgment.

The case is essentially concerned with the construction of R.C. § 3937.18, as it read in 1966 when the injuries involved here were sustained. The statute is written in specific and unambiguous terms. It provides:

'No automobile * * * policy of insurance * * * shall be * * * issued * * * unless coverage is provided therein * * * 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 * * * (victims of uninsured motorists).'

Section 4509.20, as in effect at the time of the collision, read:

'(A) A policy * * * does not comply with * * * (Financial Responsibility Act coverage requirements) unless * * * such policy * * * is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interests and costs, of not less than ten thousand dollars * * *.' Furthermore the policy issued by the appellant to the...