Motorists Mut. Ins. Co. v. Howard
| Decision Date | 02 May 1996 |
| Docket Number | No. 1-95-83,1-95-83 |
| Parties | MOTORISTS MUTUAL INSURANCE COMPANY, Appellant, v. HOWARD et al., Appellees. |
| Court | Ohio Court of Appeals |
Betts, Miller & Russo, Stephen C. Betts and Jonathan P. Starn, Findlay, for appellant.
Manahan, Pietrykowski, Bamman & Delaney and Glenn E. Wasielewski, Toledo, for appellees.
This is an appeal by plaintiff-appellant Motorists Mutual Insurance Company ("Motorists") from a declaratory judgment entered by the Court of Common Pleas of Allen County in favor of defendants-appellees James R. Howard and Betty Foust.
On June 23, 1988, Howard was driving his motor vehicle in the no-fault insurance province of Ontario, Canada when he was struck by a vehicle driven by a Canadian citizen. The Canadian citizen was determined to be the tortfeasor. At the time of this accident, Howard had an automobile insurance policy in effect with Motorists that provided coverage for himself and the occupants of his vehicle. Howard and his passenger Foust both sustained injuries in the accident that did not allow them to return to their employment. Commencing on or about September 9, 1988, Motorists, pursuant to its insurance policy with Howard and Ontario's no-fault insurance laws, began to pay both Howard and Foust weekly disability payments. Approximately three years later, in September 1991, Motorists ceased the payments and later notified Howard and Foust that they were terminated because after further review Motorists believed that it was not bound by the provisions of Ontario law requiring such payments. Motorists also requested that Howard and Foust reimburse it for the payments previously made.
On January 14, 1993, Motorists filed a complaint for declaratory judgment against Howard and Foust, seeking a determination whether it was required to resume weekly disability payments. Motorists also sought a declaration that Howard and Foust were required to reimburse the sums previously paid them. Howard and Foust filed their answer, and later an amended counterclaim, seeking the resumption of payments, money damages and asserting a claim of bad faith against Motorists.
Thereafter, both parties filed motions for summary judgment. On March 31, 1994, the trial court entered its judgment declaring that Motorists was required to pay both defendants weekly disability payments. On April 29, 1994, Motorists appealed this judgment to this court. Because there were outstanding claims remaining between the parties, and because the trial court had not determined that there was no just cause for delay pursuant to Civ.R. 54(B), we dismissed the appeal for want of a final appealable order and remanded the cause for further proceedings. See, also, R.C. 2505.02.
On November 22, 1995, the trial court, by agreement of the parties, dismissed all outstanding claims, and on December 8, 1995, Motorists filed the present appeal.
Now on appeal, Motorists asserts one assignment of error:
"The Allen County Court of Common Pleas committed prejudicial error when it ordered that appellant, Motorists Mutual Insurance Company, had an obligation, pursuant to an Ohio contract for insurance, to provide disability benefits to the appellees pursuant to the laws of Ontario, Canada."
Motorists asserts that the trial court erred by determining that it is required to pay Howard and Foust weekly disability benefits. The trial court found that pursuant to Kurent v. Farmers Ins. of Columbus, Inc. (1991), 62 Ohio St.3d 242, 581 N.E.2d 533, Motorists is obligated to pay Howard and Foust these benefits based on the policy of insurance issued to Howard, in accordance with Canadian law as mandated by Kurent, as well as by Motorists' separate agreement with Canada. Motorists urges this court to hold that only the law of Ohio should apply because the insurance policy was executed in Ohio for an Ohio resident with the vehicle in question garaged principally in Ohio. If this view is adopted, Motorists would have no obligation to pay Howard and Foust weekly disability benefits. Motorists also seems to argue, alternatively or otherwise, that Ontario's no-fault insurance laws only require it to provide liability benefits in the event that Howard is deemed liable to another while operating his vehicle in Canada. In any event, Motorists asserts that it is not required to pay weekly disability benefits to Howard and Foust.
In Kurent, at syllabus, it is stated:
"When an Ohio resident is injured in an automobile accident in a no-fault insurance state, by a resident of that state who is insured under that state's no-fault insurance laws, the Ohio resident's legal right to recover from the tortfeasor-motorist must be determined with reference to the no-fault state's laws." See, also, Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339, 15 OBR 463, 474 N.E.2d 286.
In applying Michigan's no-fault insurance laws instead of Ohio's insurance law, the Ohio Supreme Court stated:
Kurent, 62 Ohio St.3d at 246, 581 N.E.2d at 536.
In Kurent, Ohio residents injured in an accident in Michigan, by a Michigan resident determined to be the tortfeasor, attempted to recover uninsured motorist benefits pursuant to Ohio law and their insurance policy with Farmers. While the Kurents had a right to pursue uninsured benefits as provided for within their insurance policy with Farmers, the Ohio Supreme Court stated that the ultimate issue of whether they could recover such benefits could be determined only by the application of Michigan's no-fault insurance laws. Although Kurent involved the no-fault insurance state of Michigan, we believe that its rationale is equally applicable to the case at bar involving the no-fault insurance province of Canada.
Hence, we believe, as the trial court did, that pursuant to Kurent the issue of whether Motorists is obligated to pay Howard and Foust weekly disability benefits must be determined by the insurance policy issued by Motorists to Howard in accordance with the application of Ontario's no-fault insurance laws.
We first note that the policy specifically states that Canada is part of the policy territory, see "Part F--General Provisions," and the...
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