Curran v. State Auto. Mut. Ins. Co.
| Decision Date | 03 February 1971 |
| Docket Number | Nos. 70-23,70-63,s. 70-23 |
| Citation | 266 N.E.2d 566,25 Ohio St.2d 33,54 O.O.2d 166 |
| Parties | , 54 O.O.2d 166 CURRAN, Appellee, v. STATE AUTOMOBILE MUTUAL INS. CO., Appellant. MOUNTEL et al., Appellees, v. HARDWARE DEALERS MUTUAL FIRE INS. CO., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Where an insurer provides uninsured motorist protection, as required by R.C. 3937.18, it may not avoid indemnification of its insured under that coverage by including in the insurance contract an 'other insurance' clause, which, if applied, would relieve the insurer from liability in circumstances where the insured has other similar insurance available to him from which he could be indemnified. Such an uninsured motorist coverage limitation is repugnant to the statute.
2. Where an insured has uninsured motorist coverage available to him under two policies of insurance and has collected a portion of his damages from the primary insurer, but has not been indemnified to the full extent of his injury, he may collect for the balance of his damages, to the extent of its policy limits, from the secondary insurer.
These two appeals, cases Nos. 70-23 and 70-63, raise identical legal issues and will be considered together, for purposes of both discussion and decision.
In case No. 70-23, plaintiff-appellee, Mary Diana Curran, sustained personal injuries when the car in which she was riding as a passenger was involved in a collision resulting from the negligent operation of another car by one Pitts, an uninsured motorist.
The owner of the car in which plaintiff was riding was insured under a policy of insurance issued by Western Casualty & Surety Company, which provided uninsured motorist coverage in the sums of $10,000 for injury to one person and $20,000 for injuries to two or more persons injured in the same accident.
In the collision, one passenger was killed and four others, including plaintiff, were injured. Western agreed to pay $20,000, the limits of its uninsured motorist coverage, to those injured passengers.
At the time of the collision, plaintiff had in force an auto insurance policy issued by defendant-appellant, State Automobile Mutual Insurance Company, which provided uninsured motorist coverage to plaintiff in the same amounts as the Western policy.
Plaintiff filed an action in declaratory judgment against defendant seeking a determination whether she was entitled to collect from defendant under the uninsured motorist clause of the policy issued to her.
The Court of Common Pleas found in plaintiff's favor, holding that she was entitled to collect from defendant 'an amount that constitutes the difference between her full damages or $10,000, whichever is smaller, and the amount received from or awarded against Western Casualty and Surety Company * * *.'
The Court of Appeals affirmed.
In case No. 70-63, plaintiff-appellee, Eleanor Kathleen Mountel, sustained personal injuries when the car in which she was riding as a passenger collided with a car operated by one Allen, an uninsured motorist. Plaintiff-wife's injuries were such that she obtained a judgment for $25,000 against the uninsured motorist.
The car in which plaintiff-wife was riding was insured under a policy issued by Nationwide Insurance Company, which policy contained an uninsured motorist clause under which Nationwide paid to plaintiff-wife $10,000, the limit of its coverage.
Plaintiff-wife and her husband instituted an action in declaratory judgment against defendant-appellant. Hardware Dealers Mutual Fire Insurance Company, seeking a declaration that the uninsured motorist clause of a policy issued by Hardware to the husband provided coverage.
The Court of Common Pleas granted summary judgment in favor of defendant, Hardware Dealers. Upon appeal, the Court of Appeals reversed the judgment.
The causes are now before this court pursuant to the allowance of motions to certify the records.
Beirne, Wirthlin & Manley and Robert E. Manley, Cincinnati, for Mary Diana Curran.
Rendigs, Fry, Kiely & Dennis, and Ralph F. Mitchell, Cincinnati, for State Automobile Mutual Ins. Co.
Keating, Muething & Klekamp, and Michael J. Burke, Cincinnati, for Eleanor Kathleen Mountel and others.
McIntosh & McIntosh, Cincinnati, for Hardware Dealers Mutual Ins. Co.
As pertinent to determination of the issue presented in these appeals, 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 * * *.'
The issue to be resolved is whether an insurer, providing uninsured motorist coverage to its insured in compliance with the mandate of R.C. 3937.18, may avoid liability under that coverage for the reason that, under the circumstances giving rise to the claim, the insured has other similar insurance available to him from which he can be indemnified.
In these appeals, the insurers disclaim liability by virtue of the 'other insurance' provisions of their policies. Those provisions state that, in the event injury is sustained while the insured is occupying an automobile not owned by him, the coverage under their uninsured motorist clauses 'shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.'
The dispositive question is whether those 'other insurance' clauses are to be given effect.
An examination of cases from other jurisdictions discloses that there is a lack of uniformity in the...
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