Kish v. Central Nat. Ins. Group of Omaha

• Decision Date: 01 July 1981
• Docket Number: No. 80-1097,80-1097
• Parties: , 21 O.O.3d 26 KISH, Admx., Appellant, v. CENTRAL NATIONAL INSURANCE GROUP OF OMAHA et al., Appellee.
• Court: Ohio Supreme Court

Page 41

67 Ohio St.2d 41

424 N.E.2d 288, 21 O.O.3d 26

KISH, Admx., Appellant, v. CENTRAL NATIONAL INSURANCE GROUP OF OMAHA et al., Appellee.

No. 80-1097.

Supreme Court of Ohio.

July 1, 1981.

Syllabus by the Court

Ned L. Mann, Cleveland, for appellant.

Calfee, Halter & Griswold, David J. Demars and William T. Smith, Cleveland, for appellee Central Nat. Ins. Group of Omaha.

Arter & Hadden and Ed E. Duncan, Cleveland, for appellee Nationwide Mut. Ins. Co.

SWEENEY, Justice.

Appellants' propositions of law present three issues for decision. The first question concerns the scope of uninsured motorists coverage. Specifically, we must determine whether the scope of an insurer's liability under the uninsured motorist provisions differs from the scope of liability under provisions that indemnify an insured for damages arising from the insured's own tortious conduct. The second question, which relates to whether a particular occurrence is to be considered an accident, is whether the accidentalness of a particular injury causing occurrence for purposes of recovery under policies of insurance is to be determined from the perspective of the injured insured, or from the perspective of the tortfeasor who caused the injury. The final question is one of contract construction. Upon finding that the occurrence giving rise to the claim is an accident, it must then be determined whether that accident is covered by the terms of the insurance contracts at issue.

I.

Appellant contends that uninsured motorist insurance provides an insured with additional coverage that protects against a wide range of tortiously inflicted injuries, including intentionally inflicted vehicular-related injuries. In her first proposition of law, which states that "(t)he liability of an insurer which arises out of contract is entirely different from that which arises out of an indemnity contract," appellant seeks to distinguish the scope of an insurer's liability under uninsured motorist provisions from the scope of liability under indemnity agreements. She relies on Motorists Mutl. Ins. Co. v. Tomanski (1971), 27 Ohio St.2d 222, 271 N.E.2d 924, to support the distinctions between the two types of coverage. The precise question in Tomanski was "whether the concurrent negligence of the operator of an insured third vehicle postpones, reduces, or eliminates the contractual rights which would otherwise exist." Id. at 223, 271 N.E.2d 924. We held that the presence of the insured third vehicle had no effect on the insurer's obligations under the uninsured motorist provision of the policy. The rationale for the Tomanski holding was that " '(i)t is not the purpose of the uninsured motorist law to provide coverage for the uninsured vehicle, but its object is to afford the insured additional protection in the event of an accident.' " Id. at 224, 271 N.E.2d 924, quoting Horne v. Superior Life Ins. Co. (1962), 203 Va. 282, 123 S.E.2d 401, 404. We stated further that " ' "(u)ninsured motorists" ' insurance is not liability insurance * * * but resembles limited accident insurance. It * * * insures him against loses occasioned * * * "by a limited group of tortfeasors.' " Id., quoting Hein v. Nationwide Mutl. Ins. Co. (1965), 106 N.H. 378, 381, 213 A.2d 197.

The Tomanski view that the purpose of uninsured motorist coverage is to provide additional protection comports with R.C. 3937.18, which requires the mandatory offering of uninsured motorist coverage. R.C. 3937.18(A) states that uninsured motorist coverage is designed "for the protection of persons insured * * * who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom." The statute focuses on a particular class tort-feasors "owners and operators of uninsured vehicles;" it does not speak to the insurability of the tortious conduct that gives rise to the insured's claim. Thus Tomanski and R.C. 3937.18(A) appear to support the proposition that the scope of an insurer's liability under an uninsured motorist policy is broader than the scope of liability under a policy of indemnity. We could accept the aforestated proposition without further discussion were it not for apparently inconsistent language in some of our other cases that suggests that the scope of uninsured motorist protection is coextensive with the scope of liability insurance.

In Abate v. Pioneer Mutl. Cas. Co. (1970), 22 Ohio St.2d 161, 165, 258 N.E.2d 429, we stated that "(u)ninsured motorist coverage * * * is designed to protect persons injured in automobile accidents from losses which, because of the tort-feasor's lack of liability coverage, would otherwise go uncompensated." (Emphasis added.) We took the same view and indeed used the same Abate language in Curran v. State Auto. Mutl. Ins. Co. (1971), 25 Ohio St.2d 33, 38, 266 N.E.2d 566. The phrase, "because of the tortfeasor's lack of liability coverage" was repeated in Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50, 52, 294 N.E.2d 665, where we went on to say that "the legislative purpose in creating compulsary uninsured motorist coverage was to place the injured policy holder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance." The passage from Bartlett reappears in Shearer v. Motorists Mutl. Ins. Co. (1978), 53 Ohio St.2d 1, 6-7, 371 N.E.2d 210. ³ See, also, Grange Mutl. Cas. Co. v. Volkmann (1978), 54 Ohio St.2d 58, 374 N.E.2d 1258.

Nevertheless, none of the cases cited in the above paragraph specifically considered whether the scope of uninsured motorist coverage is broad enough to permit recovery when an insured's injuries result from an uninsured motorist's intentional tort. There is only one reported Ohio case, Celina Mutl. Ins. Co. v. Saylor (1973), 35 Ohio Misc. 81, 301 N.E.2d 721, in which an insured made a claim against her insurer for injuries arising from an uninsured motorist's deliberate act. In Saylor the insured sustained injuries when she was intentionally struck by a vehicle driven by an uninsured motorist. The court adopted the additional protection view of uninsured motorist coverage and permitted recovery even though the act that caused the injury, a criminal assault, would not have been covered by liability insurance even if the tortfeasor had carried such insurance. ⁴

The Saylor court's broad conceptualization of uninsured motorist coverage is consistent with previous statements of this court to the effect that the uninsured motorist statute is to be liberally construed. In Curran, supra, 25 Ohio St. at page 38, 266 N.E.2d 566, we stated that "the uninsured motorist statute should be construed liberally in order to effectuate the purpose that coverage be provided to persons injured through the acts of uninsured motorists." See, also, Shearer, supra, 53 Ohio St. at 7, 371 N.E.2d 210.

We conclude that uninsured motorist coverage provides additional protection to an insured. The relevant inquiry under the provisions of an uninsured motorist policy is not whether the third-party tortfeasor could have made a successful claim against his own liability insurer if he had been insured. Instead, the question is to be framed in the language of the statute: whether the insured is "legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom." The insurability vel non of the tortfeasor's conduct is immaterial if the injuries caused by the tortfeasor otherwise fall within the statutory definition. Thus, we adopt the rationale of Saylor and hold that the claim of an insured under the uninsured motorist provisions of an insurance policy may not be denied solely on the basis that the injury sustained by the insured was intentionally inflicted by another.

II.

The issue presented by appellant's second proposition of law is whether the accidentalness of a particular injury causing occurrence that gives rise to an insurance claim is to be determined from the perspective of the insured or from the perspective of the tortfeasor whose act caused the injury. Appellant contends that her husband's death was accidental. Appellees contend that it was not.

To support their position appellees rely heavily on Commonwealth Cas. Co. v. Headers (1928), 118 Ohio St. 429, 161 N.E. 278, and Rothman v. Metropolitan Cas. Ins. Co. (1938), 134 Ohio St. 241, 16 N.E.2d 417. In Headers, an insured sought to recover on his indemnity policy the expenses he had incurred in defending an assault and battery action that arose when one of the insured's employees allegedly assaulted one of the insured's customers. This court held, 118 Ohio St. at pages 432-433, 161 N.E. 278, that the insurer was not obligated to pay the insured's legal expenses in the assault and battery case because by the terms of the policy the insurer was only required to defend actions arising out of the insured's negligence. The court went on to state that "an injury or death does not occur by accident when it results from willful, intentional, personal violence inflicted by another."

In Rothman the issue was "whether there is a liability of the insurance company under the terms of its policy for damages in consequence of an accident resulting from wanton misconduct." Id., at 243, 16 N.E.2d 417. The plaintiff in Rothman had recovered a judgment against the insured and then sought to collect the judgment from the insurer. The insurer denied liability on the grounds that the policy did not cover acts of wanton misconduct just as it would not have covered injuries intentionally inflicted. The court, however, found the insurer liable, stating that "(w)antonness does not include intent to injure." Id. at 245, 16 N.E.2d 417. The rule of Rothman is stated in paragraph two of the syllabus:

"The state of...