Schulz v. Allstate Ins. Co.

• Decision Date: 15 February 1968
• Docket Number: No. 230325,230325
• Citation: 244 N.E.2d 546,17 Ohio Misc. 83
• Parties: , 46 O.O.2d 109 SCHULZ v. ALLSTATE INSURANCE COMPANY.
• Court: Ohio Court of Common Pleas

Page 83

17 Ohio Misc. 83

244 N.E.2d 546, 46 O.O.2d 109

SCHULZ v. ALLSTATE INSURANCE COMPANY.

No. 230325.

Court of Common Pleas of Ohio, Franklin County.

Feb. 15, 1968.

Tyack & Scott, Columbus, for plaintiff.

Crabbe, Newlon, Bilger, Brown & Jones, Columbus, for defendant.

LEACH, Judge.

This case is before the court on the demurrer of the defendant to plaintiff's amended petition on the basis of the claim by the defendant that this action was not brought within the time limited for the commencement of such action.

It appears from the amended petition that plaintiff sustained personal injuries on October 30, 1963, resulting from the negligence of one Jess M. Allen in the operation of a motor vehicle. The tortfeasor,

Mr. Allen, at the time of such accident was not covered by bodily injury liability insurance. This action involves a suit against Allstate Insurance Company under the terms of a contract of insurance providing that:

'Allstate will 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, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile.'

Such contract of insurance further provides:

'The determination as to whether the insured shall be legally entitled to recover damages, and if so entitled the amount thereof, shall be made by agreement between the insured and Allstate.

'In the event of disagreement and upon written demand of the insured, the matter or matters upon which the insured and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association * * *.'

Here the amended petition alleges that on or about March 29, 1967, after being unable to agree with defendant as to the amount of damages which the plaintiff was entitled to recover, a demand from arbitration was filed.

The demurrer of the defendant is predicated on the assertion that plaintiff's action, seeking to compel arbitration, is barred by Section 2305.10, Revised Code, which reads:

'An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.'

To accept this assertion one must conclude that this is an action 'for bodily injury' within the purview of Section 2305.10, Revised Code, that 'the cause (of action) thereof arose' as against Allstate on October 30, 1963, and that the request for arbitration, first made on March 29, 1967, and first denied thereafter, would be tantamount to beginning an action 'for bodily injury' within the purview of such statute of limitations.

In support of this position counsel for defendant relies in large part on the holding of the Ohio Supreme Court in Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549, that an action for injury to the person predicated not on negligence but instead of breach of an 'implied contract of safe carriage' is governed by the two-year statute of limitations.

In Andrianos it had been asserted that the two-year statute of limitations was limited in its application to actions in tort and was inapplicable to any action in 'contract, express or implied.' Under the facts of that case it was held that such two-year statute prohibited a fare paying passenger who sustained bodily injuries during his transportation by a common-carrier of passengers from instituting suit more than two years thereafter on the theory of an 'implied contract of safe carriage.' There, as obviously distinguished from the instant case, the actions of the defendant caused injury to the plaintiff. Here, by virtue of Allstate's contract, it has obligated itself to pay an amount equivalent to that which could be recovered in a negligence action, but we think it clear that the 'cause of action' is not one for 'bodily injury' within the purview of Section 2305.10, Revised Code.

In our opinion that statute is limited to cases where the party defendant has breached some duty and thereby caused personal injury or property damage to the person seeking recovery.

In cases where the 'fault' of the party defendant caused personal injury to a party plaintiff, it would make no difference whether such 'fault' or 'breach of duty' arose from a duty imposed by 'contract' or a duty imposed by law in the field of torts. In either event the action would be one against the defendant for causing such personal injury, and in such event under the rationalization of Andrianos the two-year statute of limitations would be applicable.

In this connection reference might be made to the detailed discussion as to what constitutes a 'cause of action' contained in the recent opinion of the Ohio Supreme Court in Henderson v. Ryan, 13 Ohio St.2d 31, 233 N.E.2d 506 (January 22, 1968, Ohio Bar).

Reference might also be made to the fact that in Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103 and Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 218 N.E.2d 185, the Supreme Court has pointed out that in considering the question of personal injury resulting from 'breach of warranty' from a historical standpoint, such 'warranties' involve a duty of care, comparable in many respects to the duty of care involved in the field of torts.

In our opinion therefore Andrianos does not require a holding that the two-year statute is applicable to all actions on contract in which the measure of recovery is based on personal injury. While in the instant case the method of computation of damages, up to policy limits, would be the same as that employed in an action for bodily injury, such clearly is an action to enforce the terms of a contractual obligation and thus not barred by the two-year statute of limitations. While not involving an uninsured motorist provision of an insurance contract, the cases of Ohio Casualty Insurance Co. v. Capolino, 44 Ohio Law Abst. 564, 65 N.E.2d 287 and American Insurance Group v. McCowin, 7 Ohio App.2d 62, 218 N.E.2d 746, support this rationalization. In these cases an insuredsubrogee of an employer had settled the action of an injured person against the employer, based on the doctrine of respondeat superior, which injury was caused by the negligent act of an employee while in the scope of his employment, and the insuredsubrogee's action against the employee was held not to be barred by the two-year statute of limitations. In these cases the court reasoned that the insurance company became subrogated to the rights of the employer and since the right of the employer against his employee was based upon contract, it was held that the actions by the insurance company to recover from the employee did not sonstitute actions 'for bodily injury' but instead constituted actions in contract to recover based on an implied contract of faithful performance entered into on the part of the employee with his employer.

This conclusion is also fortified by the holding of the Court of Appeals of Lucas County in Cartage Company v. Fought, 111 Ohio App. 230, 171 N.E.2d 369. The instant case in our opinion is...