Brady v. Universal Underwriters Ins. Group

• Decision Date: 19 June 1973
• Citation: 66 O.O.2d 198,307 N.E.2d 548,37 Ohio App.2d 107
• Parties: , 66 O.O.2d 198 BRADY, Admx., Appellant, v. UNIVERSAL UNDERWRITERS INS. GROUP, Appellee.
• Court: Ohio Court of Appeals

Page 107

37 Ohio App.2d 107

307 N.E.2d 548, 66 O.O.2d 198

BRADY, Admx., Appellant, v. UNIVERSAL UNDERWRITERS INS. GROUP, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 19, 1973.

Syllabus by the Court

Where a purchaser of motor vehicle liability insurance signs a provision, located at the bottom of the application form, which states that a request is made that 'uninsured motorists coverage' not be added to the liability policy and that in consideration of such request no added premium charge would be made, and the purchaser also signs on a separate line, as an applicant for the liability insurance, in the absence of a showing that the signatures were the result of duress, fraud, or misunderstanding, uninsured motorist coverage has been rejected by the purchaser, pursuant to R.C. 3937.18, as a matter of law.

Federico, Myers, Giovanetti & Enz, Columbus, for appellant.

Williams, Murray, Deeg & Ketcham, Columbus and James D. Booker, Columbus, of counsel, for appellee.

HOLMES, Judge.

This matter is an appeal of a judgment of the Common Pleas Court of Franklin County sustaining the defendant's motion to dismiss the complaint. Such motion to dismiss was treated as a motion for summary judgment.

The action in the common pleas court was one for a declaratory judgment and was based upon a claim for recovery on a policy of insurance as issued by this defendant. Recovery was sought by the plaintiff-administratrix for injuries received by the deceased in an accident with an uninsured motorist.

The facts, in brief, are that one James E. Smith purchased a motorcycle from a dealer in London, Ohio. On the day of purchase, Mr. Smith signed an application for liability insurance coverage with the defendant insurance company, the appellee herein. At the bottom of such application form was found the following:

'In consideration of the issuance of this policy without an additional premium charge, I hereby request that Uninsured Motorists Coverage not be added to my liability policy.'

Such statement was signed thereafter by James E. Smith upon a separate line from that which he had signed as an applicant for the insurance policy.

Mr. Smith permitted his motorcycle to be used by James Brady, a friend, and the latter was involved in a serious accident with an uninsured motorist. Subsequently, Mr. Brady died of the injuries received.

The administratrix of the deceased's estate brought this action against this defendant insurance company, claiming that coverage should be afforded in that the insurer had improperly offered uninsured motorists coverage to its insured and, in the alternative, that if such coverage in fact was offered that such was not offered in a way that the insured knew of the availability of such coverage, and that such waiver of coverage was not effective.

The trial court dismissed the complaint upon the basis that Smith could read and write and had signed such rejection, and therefore there had been an effective waiver of such uninsured motorists coverage. The court relied upon the case of Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, 258 N.E.2d 429, in rendering its decision.

The appellant sets forth the singular assignment of error to the effect that the trial court erred in granting the appellee's motion to dismiss.

The basic argument as propounded by the appellant in support of such assignment of error is that the defendant-appellee, in providing for uninsured motorists coverage in the manner as established within this matter, was not in compliance with R.C. 3937.18, which is the section of law providing for uninsured motorists coverage.

R.C. 3937.18, in pertinent part, is as follows:

'(A) 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.'

The syllabus in Abate, supra, is as follows:

'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.'

The facts of Abate, in brief, are that the insured, Mr. Joseph Abate, had purchased a policy of insurance in which there was an uninsured motorists provision. There was no rejection clause to be found in such policy, and the findings of fact set forth that Mr. Abate '* * * was not given the opportunity to reject and has not in fact rejected uninsured motorist coverage as provided in O.R.C. Section 3937.18.'

The Supreme Court noted that there was some doubt as to whether Mr. Abate, in fact, paid an additional premium for such uninsured motorists coverage, but held it made no difference in such case. It stated, at page 165, 258 N.E.2d at page 432 of the opinion:

'* * * Under the mandatory provision of R.C. 3937.18, uninsured motorist coverage was a part of that contract of insurance, the named insured not having expressly rejected such coverage. * * *'

The appellant argues that the trial court had improperly interpreted Abate, supra, and that the import of such case was to the effect that it must be shown that the insured realized that uninsured motorists coverage was available, and understood what he was rejecting.

Further, the plaintiff argues that the alleged rejection of the additional coverage by the insured, in light of the affidavit as filed by the insured, raised an issue to be decided by the trier of the fact, but only after a full presentation of the evidence on such issue.

The defendant insurance company submitted an affidavit to the court signed by Mr. James T. Martin, the motorcycle dealer who sold the cycle to Mr. Smith. The affidavit, in part, is as follows:

'Affiant further states that on May 2, 1969, a Mr. James E. Smith bought a 1968 Honda, serial number CB350100346 from him for $630.00 including tax and title. Mr. James E. Smith also wanted to finance this motorcycle so Affiant made the necessary arrangements with City Loan, Main Street, London, Ohio. In order for James E. Smith to finance said motorcycle it was required that he obtain motorcycle insurance, and accordingly affiant acquired an application for such insurance from the Laird Agency, London,...