Burris v. Grange Mut. Companies

• Decision Date: 18 October 1989
• Docket Number: No. 88-1036,88-1036
• Citation: 545 N.E.2d 83,46 Ohio St.3d 84
• Parties: BURRIS, Appellant, v. GRANGE MUTUAL COMPANIES et al., Appellees. BURRIS, Appellant, v. POLLACK, Appellee. BURRIS, Appellant, v. ESTATE OF BURRIS et al., Appellees.
• Court: Ohio Supreme Court

Page 84

46 Ohio St.3d 84

545 N.E.2d 83

BURRIS, Appellant, v. GRANGE MUTUAL COMPANIES et al., Appellees.

BURRIS, Appellant, v. POLLACK, Appellee.

BURRIS, Appellant, v. ESTATE OF BURRIS et al., Appellees.

No. 88-1036.

Supreme Court of Ohio.

Submitted April 27, 1989.

Decided Oct. 18, 1989.

Syllabus by the Court

1. An automobile liability insurance provision that limits coverage for all damages arising out of bodily injury, including death, sustained by one person to a single limit of liability is a valid restriction. (Wood v. Shepard [1988], 38 Ohio St.3d 86, 526 N.E.2d 1089, distinguished.)

2. The limits of liability coverage in an automobile liability insurance policy that provides for "each person" a maximum limit of coverage for all damages for bodily injury, including death, sustained by one person as the result of any one occurrence, are determined by the number of persons injured or killed in any one accident, not by the number of persons incurring damages as a result of the injuries or death to the persons actually in the accident.

3. A complaint which avers only that a mother developed serious emotional and physical injuries as a proximate result of being informed of the death of her son in an automobile accident but fails to aver that she was in the vicinity of the accident, saw the accident, or otherwise sensorially perceived the accident fails to state a claim for negligent infliction of emotional distress upon which relief can be granted.

4. A probate court exercising jurisdiction granted by R.C. 2125.02(C) to approve a wrongful death settlement by the personal representative of the decedent has limited plenary jurisdiction under R.C. 2101.24 to construe a policy of liability insurance for the purpose of determining the amount of insurance coverage available to settle the wrongful death claim.

On November 15, 1985, Sanford Burris, Sr., the sole occupant of a 1970 Chevrolet pickup truck, was traveling west on State Route 113, a two-lane highway, in Erie County, Ohio. At the same time, Annette Pollack was driving a 1977 Ford Mustang heading east on State Route 113. Pollack pulled out of her lane to pass another vehicle, lost control of her automobile, and collided with Burris' vehicle. As a result of Pollack's negligence, Burris died. Burris was survived by his son, Sanford Burris, Jr., who was appointed administrator of the estate ("administrator"), his mother, Ada Burris ("appellant"), and eight adult siblings.

The administrator entered into negotiations with Pollack's insurance carrier, Grange Mutual Casualty Company ("Grange"), to settle the wrongful death claim which the administrator could maintain against Pollack, pursuant to R.C. Chapter 2125. The Grange policy provided coverage of up to $100,000 per person and up to $300,000 per occurrence. A tentative settlement of $90,000 was reached and, on August 25, 1986, the administrator filed the proposed settlement in the Court of Common Pleas of Erie County, Probate Division ("probate court"), for approval pursuant to R.C. 2125.02(C).

On September 8, 1986, appellant filed an objection to the proposed settlement and, on October 9, 1986, moved to have Sanford Burris, Jr. removed as the administrator of the estate. Appellant also filed a complaint in the Court of Common Pleas of Erie County on September 24, 1986, seeking a declaratory judgment as to, inter alia, whether the $100,000 policy limit or the $300,000 policy limit applied to all the claims against Pollack. On October 3, 1986, the administrator moved to dismiss the declaratory judgment action.

The probate court, on November 4, 1986, continued the settlement proceeding until the court of common pleas ruled on the declaratory judgment action. On December 24, 1986, appellant filed a motion in the probate court requesting that court to order the administrator to withdraw his motion to dismiss the declaratory judgment action and, further, to order the administrator to join appellant in pursuing the declaratory judgment action. The court of common pleas dismissed the declaratory judgment action on December 31, 1986; however, it vacated that judgment on January 28, 1987, and stayed proceedings pending the probate court's determination of appellant's December 24, 1986 motion.

On February 10, 1987, the probate court denied that motion as well as appellant's motion to remove Sanford Burris, Jr. as the administrator. In the same entry, the probate court allowed the parties thirty days to submit additional memoranda concerning the issue of whether the $90,000 settlement offer was fair. In a judgment entry filed on March 31, 1987, the court of common pleas reinstated its December 31, 1986 judgment dismissing appellant's declaratory judgment action. On the same date, the probate court filed an entry which, inter alia, authorized the administrator to settle the wrongful death claim for $90,000. Appellant timely filed notices of appeal from both of these judgments. ¹

Prior thereto, on March 23, 1987, appellant filed a complaint in the court of common pleas asserting a claim for negligent infliction of emotional distress against Pollack. Appellant averred that since being told of her son's death, she had "symptoms of depression, anxiety, loss of muscular control and digestive upsets and was required to be hospitalized." Appellant sought damages of $200,000. Pollack filed a Civ.R. 12(B)(6) motion to dismiss which the court of common pleas granted on June 1, 1987. Appellant timely filed a notice of appeal from that judgment.

The court of appeals consolidated the three appeals and affirmed all the judgments of the courts below. With respect to the claim for negligent infliction of emotional distress, the court of appeals held that appellant was not a bystander to the accident, as set forth in Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, and, thus, could not maintain such an action. The court of appeals next held that the probate court had jurisdiction over the issue which was the subject matter of the declaratory judgment action and that the court of common pleas had properly dismissed the case.

The court then determined that there was only one claim in a wrongful death action, relying primarily upon Dick v. Allstate Ins. Co. (1986), 34 Ohio App.3d 28, 516 N.E.2d 1266, unrelated appeal reversed (1988), 40 Ohio St.3d 80, 531 N.E.2d 718. The court concluded that stacking of wrongful death claims was improper in this case and that only $100,000 of coverage was available. The court further noted that the decision not to remove Sanford Burris as the administrator was not timely appealed and, hence, there was no jurisdiction as to that issue.

This cause is now before this court upon the allowance of a motion to certify the record.

Murray & Murray Co., L.P.A., and James T. Murray, Sandusky, for appellant.

White & White and Phillip M. White, Jr., Norwalk, for appellee Sanford J. Burris, Jr., Admr.

Buckingham, Holzapfel, Zeiher, Waldock & Schell Co., L.P.A., and M.L. McDermond, Jr., Sandusky, for appellees Grange Mut. Companies and Annette Pollack.

STEPHENSON, EARL E., Judge.

Appellant urges in her first proposition of law that the Grange policy should be interpreted to provide $300,000 of liability coverage. The policy's declarations page provides liability coverage for bodily injury in the amount of "100,000 EA. PERSON," and "300,000 EA. OCCURRENCE."

Under "Part 1-LIABILITY" the policy reads, in part, as follows:

"Coverage A--Bodily Injury Liability and Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

"A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by any person;

" * * *

"arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile * * *

" * * *

"Limits of Liability: The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to 'each occurrence' is, subject to the above provision respecting each person, the total limit of the company's liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence."

Alternative arguments are advanced in support of the interpretation of the policy as urged by appellant. Principal reliance is placed upon Wood v. Shepard (1988), 38 Ohio St.3d 86, 526 N.E.2d 1089, the syllabus of which reads as follows:

"Each person entitled to recover damages pursuant to R.C. 2125.02 for wrongful death, and who is an insured under an underinsured motorist provision in an insurance policy, has a separate claim and such separate claims may not be made subject to the single person limit of liability in the underinsured motorist provision. (R.C. 2125.02 and 3937.18[A], construed and applied.)"

Appellant argues that since she is within the class of beneficiaries enumerated in R.C. 2125.02(A)(1), as are Sanford J. Burris, Jr. and the siblings, each has a claim of recovery under Wood, supra, and the $300,000 per occurrence limitation rather than $100,000 each person limitation applies. ² It is claimed that any other interpretation would create an anomaly, in that such limitation would be inapplicable with respect to uninsured motorist coverage but valid under a general liability policy. It is then argued that it is manifestly unfair to require uninsured and underinsured insurance policies to provide greater coverage than general liability policies.

The purported anomaly is illusory. It is manifest that the Wood holding as to the invalidity of such policy provisions rests upon the...