Grange Mut. Cas. Co. v. Volkmann

• Decision Date: 19 April 1978
• Docket Number: No. 77-692,77-692
• Citation: 54 Ohio St.2d 58,374 N.E.2d 1258,8 O.O.3d 70
• Parties: , 8 O.O.3d 70 GRANGE MUTUAL CASUALTY CO., Appellant, v. VOLKMANN et al., Appellees.
• Court: Ohio Supreme Court

Page 58

54 Ohio St.2d 58

374 N.E.2d 1258, 8 O.O.3d 70

GRANGE MUTUAL CASUALTY CO., Appellant, v. VOLKMANN et al., Appellees.

No. 77-692.

Supreme Court of Ohio.

April 19, 1978.

Syllabus by the Court

1. R.C. 3937.18 requires that every automobile liability insurance policy issued in this state provide uninsured motorist protection, and such coverage can be eliminated from a policy of insurance only by the insured's express rejection thereof.

2. Where an insured owns three automobiles and has obtained uninsured motorist coverage for each vehicle by purchasing three separate but identical policies of insurance from a single insurer that insurer may not avoid indemnification of its insured under two of those coverages by including in each insurance contract an "other owned vehicle" exclusion. Under the foregoing circumstances such an exclusion is repugnant to the public policy expressed in R.C. 3937.18.

On May 8, 1969, appellee Carl Volkmann's two daughters, Marsha Brett and Donna Miller (also appellees herein), sustained bodily injuries when the 1965 Chevrolet in which they were riding collided with an automobile being operated by an uninsured motorist. At the time of this accident Volkmann owned the 1965 Chevrolet and two other vehicles, all of which were insured by appellant, Grange Mutual Casualty Company (Grange), under separate but identical policies. Each policy contained uninsured motorist coverage in the sums of $10,000 for injury to one person and $20,000 for each accident or occurrence.

After the accident Grange acknowledged that uninsured motorist coverage would be available to the injured appellees pursuant to the terms of the one policy which described the 1965 Chevrolet as the "insured automobile." However, because the two women were "insured(s)" under the terms of all three policies ¹, appellees filed a demand for arbitration, urging that their damages should be indemnified by aggregating, or "stacking," the $10,000 per person coverage afforded in each of the three policies.

Grange refused to allow stacking of coverages, basing its position primarily upon the following policy provision:

"Exclusions: This policy does not apply under Part IV (Protection Against Uninsured Motorists):

"(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile."

This case originated in the Court of Common Pleas of Summit County when appellant filed an action in declaratory judgment against appellees seeking a determination as to whether appellees could require accumulation of the $10,000 per person coverage in the separate policies, thereby attaining coverage in excess of the individual policy limits. The Court of Common Pleas found in appellant's favor, holding that Grange had provided, under the policy describing the 1965 Chevrolet, the minimum uninsured motorist coverage than permissible under R.C. 3937.18. ² In addition, the court stated that the language of the pertinent exclusion was so definite that the insureds, appellees herein, were duly notified that their coverage would not exceed the statutory requirements.

On appeal, the Court of Appeals found the disputed exclusion to be repugnant to the intent and spirit of R.C. 3937.18 and accordingly reversed the judgment below. The appellate court concluded that, to the extent of their actual losses, appellees were entitled to stack the uninsured motorist coverage since a separate premium had been paid therefor under separate policies of insurance.

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

Buckingham, Doolittle & Burroughs and Donald A. Powell, Akron, for appellant.

Blakemore, Rosen & Norris Co., L. P. A., A. William Zavarello and Jeffrey T. Heintz, Akron, for appellees.

CELEBREZZE, Justice.

The sole issue presented by the instant appeal is whether it is permissible for an insurer, which is providing uninsured motorist coverage to its insured's three vehicles under individual policies of insurance, to avoid liability under all but one of those coverages by inserting in each insurance contract the "other owned vehicle" exclusion set out above. ³ Appellant insurer would have this court enforce such contractual provisions in the policies covering the two uninvolved Volkmann automobiles since the insureds (i. e., Volkmann's two daughters) have sustained bodily injuries while occupying an automobile which is owned by the named insured, Volkmann, but which is not an "insured automobile" under the terms of those policies which specifically describe the two uninvolved vehicles.

Appellant urges that this court be mindful of the familiar observation made in John Hancock Mutual Life Ins. Co. v. Hicks (1931), 43 Ohio App. 242, at page 247, 183 N.E. 93, 95:

"A policy of insurance is a voluntary contract, and may be made upon such terms and conditions as are agreed upon by the parties thereto so long as they are not in conflict with public policy."

This court, in Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, 165, 258 N.E.2d 429, 432, has described the public policy behind the statutorily-required offering of uninsured motorist coverage, as follows:

"Uninsured motorist coverage * * * is designed to protect persons injured in automobile accidents from losses which, because of the tortfeasor's lack of liability coverage, would otherwise go uncompensated."

In Curran v. State Automobile Mutl. Ins. Co. (1971), 25 Ohio St.2d 33, 266 N.E.2d 566, this court struck down a standard "other insurance" clause designed to relieve the insurer from liability in a situation where an insured passenger had other uninsured motorist coverage available to him, even though that other coverage was insufficient to indemnify the insured to the full extent of his loss. We held such a clause to be repugnant to R.C. 3937.18. The insured was therefore permitted to share in the vehicle owner's primary coverage and, if not indemnified to the full extent of his injury, to recover under his own uninsured motorist coverage.

In Weemhoff v. Cincinnati Ins. Co. (1975), 41 Ohio St.2d 231, 325 N.E.2d 239, this court reviewed a lower court decision which had disallowed stacking of uninsured motorist coverages by an insured who paid separate premiums for coverage of two vehicles under one policy of insurance. The insurance policy at issue in Weemhoff contained a provision which informed the insured that "(t)he limit of liability * * * stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages * * * because of bodily injury sustained by one person as the result of any one accident * * *." In affirming the appellate court judgment we found that although the insured had paid two separate premiums to secure uninsured motorist coverage for his two vehicles, the dictates of R.C. 3937.18, and public policy, were satisfied when the minimum statutory limits were available under the one policy which the insured had purchased. The insured could therefore not require that separate coverages within one policy of insurance be aggregated. ⁴

Upon analysis of the holdings in the above-cited cases we perceive no difference in principle between the "other insurance" clause...