Motorists Mut. Ins. Co. v. Tomanski

• Decision Date: 25 March 1970
• Citation: 257 N.E.2d 399,21 Ohio App.2d 271
• Parties: , 50 O.O.2d 501 MOTORISTS MUTUAL INS. CO., Appellant, v. TOMANSKI et al., Appellees.
• Court: Ohio Court of Appeals

Page 271

21 Ohio App.2d 271

257 N.E.2d 399, 50 O.O.2d 501

MOTORISTS MUTUAL INS. CO., Appellant, v. TOMANSKI et al., Appellees.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 25, 1970.

Syllabus by the Court

1. Uninsured motorist coverage under Section 3937.18, Revised Code, is not intended to provide liability insurance for the uninsured motorist, and the obligation of the insurer to its insured under uninsured motorist coverage does not arise out of tort.

2. The obligation of an insurer to its insured under uninsured motorist coverage is a contractual liability which arises only upon the contingency of an uninsured motorist tort liability.

3. Where there are two joint tort-feasors-one insured and one uninsured-the primary liability to the injured insured person carrying uninsured motorist coverage is from the joint tortfeasors, and, therefore, the primary liability to the injured insured person is from the insurance carrier for the insured tortfeasor.

4. Where there are two joint tort-feasors-one insured and one uninsured-the injured insured person does not have a claim, under Section 3937.18, Revised Code, that entitles him to arbitration with his insurance carrier under his uninsured motorist coverage so long as there is other primary insurance available under the policy of the insured tortfeasor.

5. Where there are two joint tort-feasors-one insured and one uninsured-in the event the insured tortfeasor is not liable for the accident or that the insurance coverage of the insured tortfeasor becomes unavailable to the injured insured person, the injured insured has a claim that entitles him to arbitration with his own insurance carrier under his uninsured motorist coverage.

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

Manuel H. Ganch and David R. Goldberg, Toledo, for appellees.

STRAUB, Judge.

This appeal arises out of an automobile accident involving three automobiles. The details and facts of the accident are not necessary or essential to a determination of this review. This cause is a declaratory judgment action filed by Motorists Mutual naming as codefendants Walter Tomanski and three minor children, Mark, John and Linda Cisek.

In the petition for declaratory judgment Motorists Mutual sets forth the following pertinent allegations: That on November 30, 1966, the date of the accident, Tomanski had a policy of liability insurance issued by Motorists Mutual, which policy provided uninsured motorist coverage for himself and the passengers in his insured automobile and that, at that time, Tomanski and the Cisek children were insureds under the policy; that as a result of an accident on November 30, 1966, Tomanski and the Cisek children all claim injuries as the direct and proximate result of the concurrent negligence of Lois Malone and Susan Jones, the operators of the other two automobiles involved in the collision; that Tomanski has filed suit against Malone and Jones jointly alleging that their concurrent negligence proximately caused the injuries and damages; that Tomanski and the Cisek children have filed demands for arbitration against Motorists Mutual; that Tomanski and the Cisek children claim that Lois Malone, one of the motorists in the accident, was uninsured; that the other motorist in the accident, Susan Jones, was insured; and that the provision of Tomanski's policy, under which the demands for arbitration were made, is as follows:

'To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident, and arising out of the ownership, maintenance or use of such uninsured automobile; provided for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative and the company or if they fail to agree, by arbitration.'

In the petition for declaratory judgment Motorists Mutual alleges that, since Susan Jones is an insured motorist from whom Tomanski and the Cisek children claim they are legally entitled to recover, Tomanski and the Cisek children are not entitled to recover under the uninsured motorist provision of Tomanski's policy with Motorists Mutual. The prayer of the petition is that the court decree that the defendants, Tomanski and the Cisek children, do not have a claim against an uninsured motorist, which entitles them to arbitration with Motorists Mutual at this time. Attached to the petition for declaratory judgment as an exhibit is a copy of the petition filed in the case of Tomanski v. Malone and Jones. Also attached to the petition as exhibits are copies of the demands for arbitration filed by Tomanski, and the three Cisek children.

To this petition for declaratory judgment filed by Motorists Mutual, the codefendants, Tomanski and the Cisek children, filed a demurrer on the grounds that the petition does not state facts on which a cause of action can be based and that the petition does not set forth a justiciable controversy.

The trial court sustained the demurrer on the ground that the petition failed to state a cause of action against the defendants and dismissed the petition. The plaintiff, Motorists Mutual, perfected this appeal from that judgment.

Section 3937.18, Revised Code, known as the uninsured motorist statute, was enacted by the Legislature and became effective in Ohio September 15, 1965 and is as follows:

'No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 4509.20 of the Revised Code, under provisions approved by the superintendent of insurance, 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, sickness, or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.'

That section seeks to compel the acceptance of uninsured motorist coverage in all automobile liability policies issued by insurance carriers. At the time of the accident, the limits of coverage specified for uninsured motorist protection were as set forth in Section 4509.20, Revised Code, and were not less than $10,000 for one person in one accident and not less than $20,000 for two or more persons in one accident. ^*

For purposes of this appeal it is the contention of Motorists Mutual that since there are two joint tortfeasors, one of whom is insured and is jointly and severally liable with the uninsured tortfeasor, Tomanski and the Cisek children have no claim at this time which entitles them to arbitration.

The phrase 'at this time' is very significant and meaningful in the determination of this appeal. The petition prays that the court decree that the defendants have no claim that entitles them to arbitration at this time. By sustaining the demurrer, the trial court made a finding to the effect that Tomanski and the Cisek children do have a claim against an uninsured motorist that entitles them to arbitration with Motorists Mutual at this time. It is conceded by Motorists Mutual that, to the facts well pleaded in the petition, Tomanski and the Cisek children could, in the future, have a claim which would entitle them to arbitration. The following is quoted from the reply brief of Motorists Mutual filed in this appeal:

'At no time has the plaintiff in this case asked this court or any other court to preclude the defendant's right to proceed against this plaintiff-insurer in the event that

'(1) Susan L. Jones is found not liable for this accident, or

'(2) In the event that her insurer should be unable to pay, or

'(3) In the event it should have some policy defense which would in effect make Susan L. Jones uninsured for the purposes of this action.

'The prayer of the original petition simply asked the court to declare that the defendants do not have a claim against an uninsured motorist which entitles them to arbitration at this time. We do not wish to preclude the right of the defendants to proceed at a later time in the event Susan L. Jones is found not liable.'

Counsel for the defendants, Tomanski and the Cisek children, argue that they have a claim against two joint tortfeasors and they have the right under the law of Ohio to proceed...