Dick v. Allstate Ins. Co., C-850694

• Decision Date: 17 September 1986
• Docket Number: No. C-850694,C-850694
• Citation: 516 N.E.2d 1266,31 OBR 143,34 Ohio App.3d 28
• Parties: , 31 O.B.R. 143 DICK, Admx., Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant, et al. *
• Court: Ohio Court of Appeals

Page 28

34 Ohio App.3d 28

516 N.E.2d 1266, 31 O.B.R. 143

DICK, Admx., Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant, et al. ^*

No. C-850694.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 17, 1986.

Syllabus by the Court

1. Although each surviving member of a decedent's immediate family may be entitled to receive damages as a result of the negligence of the underinsured motorist, there is only one cause of action for the recovery of those damages under Ohio's wrongful death statute, R.C. 2125.02.

2. An "each person" limitation set forth in an underinsured motorist section of an automobile insurance policy extending only $100,000 worth of coverage for "all damages arising out of bodily injury to one person in any one motor vehicle accident," will apply to limit the total damages recoverable under the policy due to the wrongful death of the named insured, unless the terms of the policy specifically provide otherwise.

Shea & MacKay and Joseph W. Shea, Cincinnati, for appellee.

Dooley & Heath Co., L.P.A., and James V. Heath, Milford, for appellant.

PER CURIAM.

This cause came on to be heard upon the appeal from the Court of Common Pleas of Hamilton County.

In this appeal, we are concerned with a claim for declaratory judgment that was resolved as a matter of law, pursuant to Civ.R. 56, when a judge of the court of common pleas determined the extent of certain rights and obligations created under the terms of an automobile insurance policy issued by the defendant-appellant, Allstate Insurance Company. The question posed by the only assignment of error given to us for review is whether the judge misconstrued the operative language of the policy in his assessment of the limits of coverage it afforded to the estate of the named insured, James Dick, who had met his death on August 8, 1984, as a result of bodily injuries sustained in an accident caused by the negligence of an underinsured motorist.

Although there were several points in dispute at the outset of the proceedings in the court below, the parties were able, as the litigation progressed, to narrow the focus of the controversy to one pivotal issue. In general terms, what remained to be decided at the time the matter was submitted upon a motion for summary judgment was the total amount of funds available for the benefit of the decedent's wife and three minor children, each of whom was entitled, as a person insured within the plain meaning of the contract, ¹ to recover damages for the wrongful death of James Dick.

According to the record, underinsured motorist coverage was made a part of the Dick policy, in accordance with Ohio law, in limits equal to those extended by Allstate for "Bodily Injury Liability Insurance." The applicable amounts, as they were stated on the declarations page, were $100,000 for each person and $300,000 for each accident. Definitions for the terms "each person" and "each accident" were included in various sections of the policy. Although the most comprehensive set of them appeared within the provisions describing general liability insurance for bodily injuries, there was a separate abbreviated version set forth in the section specifically devoted to underinsured motorists. Regarded below by the parties as the primary stumbling block in their dispute over the limits of Allstate's liability for the satisfaction of claims arising out of James Dick's death, it read, in relevant part, as follows:

"The coverage limit stated on the declarations page for:

"(1) 'each person' is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident.

"(2) 'each accident' is the total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident."

At the heart of the impasse was Allstate's insistence that its obligation to pay damages for the losses occasioned by the negligence of the underinsured motorist was to be measured entirely by application of the "each person" limitations set forth in the policy. This was so, it reasoned, because the wrongful death of James Dick was directly attributable to the bodily injuries he alone had sustained in one motor vehicle accident. From Allstate's point of view, therefore, a total of $100,000 in underinsured motorist coverage was available under the policy, notwithstanding the fact that more than one insured person was claiming an entitlement to damages as a result of Dick's death.

Dick's estate countered by arguing on behalf of the four surviving family members that Allstate's reliance on the $100,000 "each person" limitation was misplaced in view of the specific manner in which the company had chosen to frame its obligations within the policy. Noting that the provisions addressing the limits of liability for underinsured motorists referred simply to "bodily injury" and omitted any reference to death, the estate summarized its position in favor of a greater amount of total available coverage in this way:

"The Allstate insurance policy only limits the amount of recovery to $100,000 when the damage sustained arises out of bodily injury. In this case, it is clear that the damages arise out of death. Therefore, the widow and minor children are [each] entitled to $100,000 per person, for a total not exceeding $300,000 per accident."

After independently reviewing the terms of the policy and considering the arguments advanced by the parties, the judge presiding below resolved the dispute by awarding summary judgment to Dick's estate. In the written decision that accompanied the order from which this appeal is taken, his rationale for interpreting the policy largely in the manner urged by the estate was expressed as follows:

" * * * [The limits of liability as set forth in the underinsured motorists section of the policy] apply only to 'damages arising out of bodily injury.' Plaintiff and her minor children are claiming damages for wrongful death under provision of O.R.C. § 2125.01. Therefore these limits are not applicable in this case. If defendant [Allstate] had wanted these limits to apply to damages from death it could have included terminology similar to that used [in the general] description of the uninsured/underinsured motorists coverage[:] 'damages for bodily injury, sickness, disease or death. ['] While use of bodily injury may be said to include death, without any express language to that effect, any ambiguity in the interpretation of the limitation must be liberally construed in favor of the insured. * * * Thus $100,000 per each person insured should be the amount of coverage available subject to the overall policy limitation of $300,000." (Emphasis added.)

Allstate now asserts in its only assignment of error that the judge missed the mark and ignored the plain meaning of the policy as a whole by determining that there was $100,000 worth of coverage separately available to each of the four surviving members of Dick's family, to the extent that their claims collectively did not exceed the policy's "each accident" limitation of $300,000. As the company sees it, the logic of the argument it advanced below is unassailable from a legal standpoint; because the named insured here died as a result of bodily injuries sustained at the hands of an underinsured motorist in one accident, the contractual limitation extending only $100,000 worth of coverage for "all damages arising out of bodily injury to one person in any one motor vehicle accident" should have been applied with full force to limit the total damages recoverable under the policy due to the wrongful death of the named insured.

In reviewing this claim, we must turn for guidance to the rules of construction applicable to any case in which the meaning of an insurance contract is drawn into question. Our predominant concern is to ascertain the intent of the parties from a reading of the...