Motorists Mut. Ins. Co. v. Tomanski

• Citation: 27 Ohio St.2d 222,271 N.E.2d 924
• Decision Date: 14 July 1971
• Docket Number: No. 70-306,70-306
• Parties: , 56 O.O.2d 133 MOTORISTS MUTUAL INS. CO., Appellee, v. TOMANSKI et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 222

27 Ohio St.2d 222

271 N.E.2d 924, 56 O.O.2d 133

MOTORISTS MUTUAL INS. CO., Appellee, v. TOMANSKI et al., Appellants.

No. 70-306.

Supreme Court of Ohio.

July 14, 1971.

Syllabus by the Court

Where the occupant of a motor vehicle, covered under an uninsured motorist insurance contract obligating insurer to 'pay all sums which the insured or his legal representative shall be legally entitled to recover from the owner or operator of an uninsured automobile because of bodily injury,' is injured in an accident with an uninsured automobile, his right of recovery under the contract is not eliminated by the presence of an insured motor vehicle in the same accident.

While operating his own automobile, defendant Tomanski and his three minor grandchildren were injured in an accident involving two other vehicles, only one of which was insured. Motorists Mutual Insurance Company had issued a policy of insurance which covers the injured defendants as provided by Ohio's uninsured motorist statute, R.C. § 3937.18. Tomanski sued for damages in tort against both the insured and uninsured drivers. He also commenced arbitration proceedings against Motorists Mutual, the plaintiff in this declaratory judgment action, to stay the arbitration. The trial court sustained defendants' demurrer to the declaratory judgment petition.

The Court of Appeals reversed, holding that no uninsured motorist protection was available so long as there was 'other primary insurance available under the coverage of the insured tortfeasor.' Motorists Mutl. Ins. Co. v. Tomanski (1970), 21 Ohio App.2d 271, 257 N.E.2d 399.

Robison, Curphey & O'Connell and Daniel M. Phillips, Toledo, for appellee.

Manuel H. Ganch, Cubbon & Rice and David R. Goldberg, Toledo, for appellants.

SCHNEIDER, Justice.

The sole question presented is whether the Tomanski claim under the uninsured motorist contract is enforceable; or, stated another way, whether the concurrent negligence of the operator of an insured third vehicle postpones, reduces, or eliminates the contractual rights which would otherwise exist. We hold that the presence of the third vehicle does not alter the contractual obligation under the uninsured motorist provision of the policy of the insurer. Thus, we reverse the judgment of the Court of Appeals.

The rights of the insured are spelled out by R.C. § 3937.18, as being, '* * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury. * * *'

The Tomanski coverage, under a paragraph heading, 'Damages for Bodily Injury Caused by Uninsured Automobiles,' obligates the insurer 'to pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. * * *'

Thus, the wording of the contract, as well as that of the statute, gives to the insured a claim against the insurer where an accident results in liability on the part of an uninsured vehicle because of injury.

The right to recover under an uninsured motorist insurance policy is on the contract, not in tort. Fouquier v Travelers Ins. Co. (La.App.1967), 204 So.2d 400; Hobbs v. Buckeye Union Casualty Co. (D.C.1962), 212 F.Supp. 349.

'It 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.' Horne v. Superior Life Ins. Co. (1962), 203 Va. 282, 123 S.E.2d 401, 404.

'Uninsured motorists' insurance is not liability insurance * * * but resembles limited accident insurance. It * * * insures him against losses occasioned * * * by a limited group of tort-feasors. * * *' Hein v. Nationwide Mutl. Ins. Co. (1965), 106 N.H. 378, 381, 213 A.2d 197, 199.

Although this precise issue, involving an insured and an uninsured vehicle, is one of first impression in Ohio, the authorities in other states have allowed recovery in like circumstances.

In O'Brien v. Aetna Casualty and Surety Co. (1970), 33 A.D.2d 1085, 307 N.Y.S.2d 689, the New York Appellate Division held that the fact that an insured vehicle was involved did not preclude arbitration where a claim was made that the injured parties had also been hit by an uninsured automobile.

Motorists Mutual contends that O'Brien v. Aetna Casualty and Surety Co., supra, is not applicable because the two vehicles might have caused the injuries at separate times. But that argument fails to recognize the New York law cited therein, developed ten years earlier in fact situations involving concurrent negligence of two motor vehicles. See Merchants Mutl. Casualty Co. v. Wildman (1960), 12 A.D.2d 664, 209 N.Y.S.2d 242; Rosenbaum v. American Surety Co. (1961), 12 A.D.2d 886, 209 N.Y.S.2d 994.

In a later New York case, where a covered vehicle was struck by an insured vehicle and an uninsured vehicle, the New York Appellate Division emphasized the availability of relief by saying 'there seems to be no basis for * * * contentions, subsequently raised, * * * that it 'was not the legislative intent, nor was it the intent of the insurance contract to afford protection * * * as long as there was an identified and insured tortfeasor'; as the statute clearly contemplates an independent recovery * * *.' Powers v. Continental Ins. Co. (1968), 29 A.D.2d 1041, 289 N.Y.S.2d 467. See, also, State Farm Mut. Auto Ins. Co. v. Spinola (C.A. 5, 1967), 374 F.2d 873; M. V. A. I. C. v. Eisenberg (1966), 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524; Inter-Insurance Exchange v. Lopez (1965), 238 Cal.App.2d 441, 47 Cal.Rptr. 834; State-Wide Ins. Co. v. Lang (1968), 30 A.D.2d 974, 294 N.Y.S.2d 661.

That position was concisely stated by the Florida Supreme Court, as follows: An 'automobile liability carrier providing coverage against injury by an uninsured motorist in accord with requirements of the statute, after accepting premium for such coverage, may not deny coverage on ground that insured has other similar insurance available to him.' Sellers v. U. S. Fidelity & Guaranty Co. (Fla.1966), 185 So.2d 689; approved in Tuggle v. Government Employees Ins. Co. (Fla.1968), 207 So.2d 674.

In Horne supra (203 Va. 282, 123 S.E.2d 401), recovery on the uninsured motorist coverage was...