Katz v. Ohio Ins. Guar. Assn.
| Decision Date | 22 November 2002 |
| Docket Number | No. L-02-1014.,L-02-1014. |
| Citation | 780 N.E.2d 624,2002 Ohio 6357,150 Ohio App.3d 262 |
| Parties | KATZ et al., Appellees, v. OHIO INSURANCE GUARANTY ASSOCIATION, Appellant. |
| Court | Ohio Court of Appeals |
Teresa L. Grigsby and James R. Jeffery, Toledo, for appellee Gordon L. Katz, D.O.; J. Tracy Sniderhan, Toledo, for appellee Susan Robinson.
F. James Foley, Columbus and Julie M. Larson, for appellant.
{¶ 1} In this appeal from a judgment of the Lucas County Court of Common Pleas, we must determine whether the trial court erred in granting summary judgment to plaintiffs-appellees, Gordon L. Katz, D.O., and Susan Robinson, administrator of the estate of Teri Sue Robinson. For the following reasons, we affirm the judgment of the trial court.
{¶ 2} After the death of her daughter, Teri Sue Robinson, Susan Robinson, in her capacity as the administrator of her daughter's estate, filed a wrongful death and survival action against Dr. Donald Stepniewski and Dr. Katz. The lawsuit is based upon the doctors' alleged medical malpractice in timely failing to diagnose and treat Teri Sue Robinson's cancer. The wrongful death cause of action is brought on behalf of the decedent's mother, father, and brother. Dr. Katz denied any liability.
{¶ 3} During the relevant period, Dr. Katz was an insured under both primary and excess medical liability policies issued by P.I.E. Mutual Insurance Company ("PIE"). The primary insurance policy provides liability coverage of $200,000 for "each claim," with an aggregate limit of $600,000. The excess insurance policy provides additional liability coverage if a claim exceeds the $200,000 limit of the primary policy up to an aggregate limit of $1 million.
{¶ 4} Dr. Katz was initially represented in the wrongful death and survival action by PIE. However, when PIE became insolvent, claims for which PIE provided coverage were then subject to the Ohio Insurance Guarantee Association Act, R.C. Chapter 3955. Thus, the determination of whether Dr. Katz had a single "covered claim" or multiple "covered claims" within the meaning of his PIE primary and excess medical liability insurance policies fell to the nonprofit unincorporated association known as the Ohio Insurance Guaranty Association ("OIGA"). See R.C. 3955.06 and 3955.08.
{¶ 5} Despite Dr. Katz's request to the contrary, OIGA decided that it was "statutorily limited to pay a single claim at a maximum payment of $300,000 in the event that a judgment is entered against Dr. Katz for that amount or more." Accordingly, Dr. Katz commenced the instant declaratory judgment action seeking an order declaring that OIGA has a duty to provide him coverage in the statutory claim limit for each of the separate claims asserted in the wrongful death and survival action. Specifically, he asked the court to find that he has coverage for each claim of the three beneficiaries of the decedent's estate and for the survival claim.
{¶ 6} Susan Robinson was later joined as a party to this cause as an intervening plaintiff. All parties filed motions for summary judgment. Dr. Katz and Robinson argued that coverage for multiple claims existed under both the primary and excess PIE medical liability policies. On the other hand, OIGA, citing the limiting language of the PIE insurance policy and statutory law, maintained that Dr. Katz had a single claim for $200,000 under the PIE primary policy and an additional $100,000 under the PIE excess policy.
{¶ 7} On December 20, 2001, the trial court granted appellees' motions for summary judgment. Relying on Ohio cases involving the number of claims allowed in wrongful death actions, the court found that there were four separate "covered claims" under the primary policy, each with a coverage of $200,000 and an aggregate limit of $600,000. Further, the court held that "if any claim under the primary policy * * * exceeds $200,000, that claimant is entitled to an additional claim under the excess policy, with a total aggregate amount of $1 million * * *."
{¶ 8} OIGA disagrees with the common pleas court's judgment and asserts the following assignments of error:
{¶ 9} "The trial court erred when it held that a medical malpractice lawsuit alleging physical injury to one person constitutes four separate covered claims against OIGA, when appellee's insurance policy defined all losses from physical injury to one person as a single claim subject to the single claim limit of liability.
{¶ 10} "The trial court erred when it held that the use of a primary and an excess insurance policy, to provide coverage for different layers of a medical malpractice claim, transforms that claim into two separate covered claims and entitles the claimant to recover up to twice the statutory maximum amount from OIGA if the insurer becomes insolvent."
{¶ 11} The standard applicable to OIGA's assignments of error is found in Civ.R. 56(C), which provides that summary judgment is appropriate only where no genuine issue of material fact remains to be litigated, the moving party is entitled to judgment as a matter of law, and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. See, also, Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66, 8 O.O.3d 73, 375 N.E.2d 46.
{¶ 12} In its first assignment of error, OIGA presents two reasons why the trial court erred in finding that Dr. Katz had more that one claim under the PIE primary and excess insurance policies.
{¶ 13} OIGA initially points to Part V of the PIE primary insurance policy, which reads in part:
{¶ 14} "The Limits of Liability of [PIE] are as follows:
{¶ 15} "A. AS TO EACH CLAIM
{¶ 16} "The Limit of Liability stated in the General Declarations, as to `each claim,' is the limit of [PIE's] liability for all damages because of any one claim or suit or all claims or suits first made during the policy period because of injury to or death of any one person * i." The coverage in the excess policy is provided "in accordance with the applicable provisions of the underlying insurance."
{¶ 17} OIGA argues that these provisions are valid and enforceable and that the trial court erred in applying Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, in order to circumvent the cited limiting language.
{¶ 18} In its judgment, the trial court noted that the statute, R.C. 3937.44, permitting an insurer to limit its liability to a single claim in wrongful death actions was not effective until October 20, 1994. The lower court determined that the PIE insurance policies in this cause were entered into on July 1, 1994. Finding that the statutory law in effect at the time of contracting or renewal defines the scope of a liability insurance policy, see Ross v. Farmers Ins. Group of Cos. (1998), 82 Ohio St.3d 281, 287-288, 695 N.E.2d 732, the court below held that R.C. 3937.44 was inapplicable in this instance. Therefore, and lacking any case law specifically addressing the number of covered claims in a wrongful death action based upon the death of one person allegedly due to medical malpractice, the trial court turned to the first paragraph of the syllabus in Savoie, a wrongful death action involving limits on liability in a motor vehicle policy.
{¶ 19} We concur with the trial court in finding that R.C. 3937.44 cannot be applied to this cause. See R.C. 1.48 () and Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus. The legislature did not express any intent that R.C. 3937.44 is to be applied retrospectively. Accord Jones v. U.S.A.A Ins. Co. (Mar. 31, 2000), Lake App. No. 98-L-253, 2000 WL 522292. Consequently, the question then becomes whether the court erred as a matter of law in applying the rule set forth in Savoie.
{¶ 20} The first paragraph in the syllabus of Savoie reads:
{¶ 21}
{¶ 22} As noted by the trial court, the language in this paragraph is sufficiently broad to encompass all forms of insurance. Appellant asserts, however, that the trial court was incorrect because the first paragraph of the Savoie syllabus (1) applies and follows Wood v. Shepard, a case which held that an automobile insurance policy limiting all claims in a wrongful death action was unenforceable because it violates R.C. 3937.18, the statute requiring an insurer to offer uninsured and underinsured motorist coverage; and (2) relies upon "each person" limits of liability, a provision that is unique to motor vehicle insurance policies. We disagree with these contentions.
{¶ 23} First, the central issue in Wood v. Shepard was whether each person entitled to damages in a wrongful death action brought pursuant to R.C. 2125.02 has a separate claim under the provisions of an insurance policy and whether the insurer could make such separate claims subject to the single-person limit of liability in the policy. The Supreme Court of Ohio found that each party damaged did have a separate claim and that the attempt to limit those claims to the single-person limit in the policy was invalid and unenforceable. Id. at the...
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Reliance Insurance Company v. Plum Creek Timber Company, L.P., C.A. No. 99C-11-263 MMJ (Del. Super 4/15/2004)
...each of the 4 surviving children were proper claimants for purposes of limitation of $300,000 per claimant); Katz v. Ohio Ins. Guar. Ass'n, 780 N.E.2d 624, 630 (Ohio Ct. App. 2002)(trial court did not err in declaring that there was a total of four "covered claims" under the primary policy,......