Hill v. Allstate Ins. Co.

• Decision Date: 25 April 1990
• Docket Number: No. 88-1740,88-1740
• Citation: 50 Ohio St.3d 243,553 N.E.2d 658
• Parties: HILL, Executrix of the Estate of Shaw, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: Ohio Supreme Court

Page 243

50 Ohio St.3d 243

553 N.E.2d 658

HILL, Executrix of the Estate of Shaw, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 88-1740.

Supreme Court of Ohio.

Submitted Nov. 14, 1989.

Decided April 25, 1990.

Syllabus by the Court

Unless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured's policy are identical to the limits of liability set forth in the tortfeasor's liability insurance coverage. (R.C. 3937.18[A], construed and applied; Wood v. Shepard [1988], 38 Ohio St.3d 86, 526 N.E.2d 1089, distinguished and explained.)

On January 19, 1985, Haywood Shaw was a passenger in a motor vehicle owned and operated by Ervin Heugatter when the vehicle was involved in a collision with a train. As a result of the injuries they incurred in the accident both Shaw and Heugatter died along with another passenger, Daniel Roberts. It was agreed that the collision and deaths were caused by the negligence of Heugatter.

Heugatter was insured under the terms of an automobile liability insurance policy issued to him by Western Reserve Mutual Casualty Company ("Western Reserve"). The policy provided liability coverage to Heugatter, with maximum limits of $50,000 for one person injured in any one accident and $100,000 per occurrence. Western Reserve settled with the estates of both Shaw and Roberts in the amount of $50,000 each. ¹

At the time of the accident, Shaw was insured pursuant to the terms of an automobile insurance policy issued to him by Allstate Insurance Company ("Allstate"). The policy provided, inter alia, Shaw with uninsured/underinsured motorist coverage limits of $50,000 per person injured and $100,000 per occurrence.

Shaw was survived by his daughter, plaintiff-appellant, Linda J. Hill, his son, and his father. Hill was also appointed executrix of the Shaw estate. As executrix of Shaw's estate and on behalf of his next of kin, Hill filed a claim with Allstate in order to participate in Shaw's underinsured motorist coverage. The claim was premised on the wrongful death of Shaw. Allstate denied the claim, because Heugatter's policy with Western Reserve had identical bodily injury coverage limitations to Shaw's policy for underinsured motorist coverage.

Hill brought a declaratory judgment action in the common pleas court, seeking a declaration that each of Shaw's wrongful death claimants was entitled to a separate per person underinsured motorist limit recovery, up to the $100,000 per occurrence limits of Shaw's Allstate policy. The trial court denied Hill's motion for summary judgment, and granted Allstate's motion for judgment on the pleadings. The court of appeals affirmed, rejecting Hill's argument that underinsured coverage was available. The court reasoned, inter alia, that because the limits of the tortfeasor's policy were identical to the limits contained in Shaw's policy with Allstate, there was no underinsurance. Essentially, the court compared the two policies and held that because both contained identical limits, as a threshold matter, the tortfeasor was not underinsured.

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

St. Marie, St. Marie, Noll & Couch Co., L.P.A., and Carl F. Noll, Lorain, for appellant.

Miraldi & Barrett Co., L.P.A., David P. Miraldi, Lorain, Sonnenschein, Carlin, Nath & Rosenthal, William T. Barker and Steven M. Levy, Chicago, Ill., for appellee.

Keating, Ritchie & Norwine and Kevin L. Swick, Cincinnati, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

HOLMES, Justice.

The only issue presented to this court is whether underinsured motorist coverage is available to an insured's estate and next of kin on a wrongful death claim, where the insured's policy limits are identical to those of the tortfeasor. For the reasons which follow, we answer such query in the negative, and affirm the court of appeals.

In order to determine whether or not appellant is entitled to underinsured coverage we must determine whether the accident involved an underinsured vehicle. In mandating underinsured motorist provisions in every automobile insurance policy, R.C. 3937.18(A)(2) states:

"Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured."

Simply put, the underinsured motorist statute requires an insurer to provide coverage to its insured when the tortfeasor's coverage is less than the limits of the insured's uninsured motorist coverage at the time of the accident.

Appellant asserts that this case is controlled by the recent decision of this court in Wood v. Shepard (1988), 38 Ohio St.3d 86, 526 N.E.2d 1089. In Wood this court held that each wrongful death beneficiary has a separate claim, compensable up to the subject insurance policy's per occurrence underinsured motorist coverage limits, even though the policy limited recovery for all damages for injury or death of one person to a single limit of liability.

Wood is distinguishable and not applicable to our determination of this case. In Wood the tortfeasor's liability insurance policy had per person limits of $50,000 and per occurrence limits of $100,000, whereas the plaintiff's policy in that case had underinsured motorist coverage of $100,000 per person and $300,000 per occurrence.

The facts of Wood are not the facts here. At the time of the accident, the tortfeasor here had bodily injury liability coverage of $50,000 per person and $100,000 per occurrence--the same limits as those of Shaw's Allstate policy's underinsurance motorist coverage. Specifically, Shaw's Allstate policy provided, in part:

"SS UNINSURED MOTORISTS BODILY INJURY $50,000 EACH PERSON--$100,000 EACH ACCIDENT

"* * * * * *

"An uninsured auto is:

"* * * * * *

"(5) An underinsured auto which has liability protection in effect and applicable at the time of the accident in an amount equal to or greater than the amounts specified for bodily injury liability by the financial responsibility laws of Ohio, but less than the limits of liability for coverage SS of this policy." (Emphasis added.)

The decedent's estate was able to recover the full $50,000 to which it was entitled under the tortfeasor's policy. Accordingly, pursuant to both the plain meaning of Ohio's underinsurance motorist statute and the unambiguous terms of the subject Allstate policy, no underinsurance motorist coverage was available to the decedent's estate here because the "limits of coverage available for payment" to the decedent's estate were not "less than the limits for" the decedent's underinsured motorist coverage "at the time of the accident." ² Thus, as shown in the above analysis, unless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured's policy are identical to the limits set forth in the tortfeasor's liability insurance coverage. ³ See Hagen v. J.C. Penney Cas. Co. (1984), 16 Ohio App.3d 218, 220, 16 OBR 234, 236, 475 N.E.2d 177, 179 (In citing Buckeye Union Ins. Co. v. Wallace, supra, fn. 3, the court held that underinsured motorists liability insurance precludes coverage where the limits of liability of the insured's policy are identical to the limits of the tortfeasor's policy.); Ohio Cas. Ins. Co. v. Yoby (1985), 23 Ohio App.3d 51, 54, 23 OBR 96, 98, 491 N.E.2d 360, 363 ("[I]n case of inadequate insurance, the underinsurance provision would be triggered, but only if the tortfeasor's coverage is less than the underinsured policy limits. Underinsured motorist coverage is an option by which an insured may voluntarily predetermine the amount of insurance he desires to protect him in the event of injury by a negligent motorist who has liability insurance in an amount less than that predetermined amount."); Ware v. Nationwide Ins. Co. (1986), 33 Ohio App.3d 74, 75, 514 N.E.2d 440, 441 (When the limits of the tortfeasor's liability insurance coverage and the limits of the injured party's underinsurance coverage are equal, R.C. 3937.18(A)(2) is not applicable, even though multiple wrongful death claimants are involved.) This is in line with the public policy consideration of assuring that those persons injured by an underinsured motorist would receive at least the same amount of total compensation as they would have received had they been injured by an uninsured motorist. See Ware, supra; James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 389, 18 OBR 440, 443, 481 N.E.2d 272, 275. ⁴

We do not agree with appellant's argument that she would have been in a superior position if the tortfeasor had carried no liability insurance. While Wood, supra, establishes that wrongful death beneficiaries have separate claims, the policy language here applies the single limit ($50,000) to "all damages arising out of" a single bodily injury (no matter how many separate claims may be involved). See Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 540 N.E.2d 716, paragraph one of the syllabus. The statute clearly permits appellee to contract in this fashion.

Alternatively, appellant maintains that under this court's prior holding in Wood, each wrongful...