Shearer v. Motorists Mut. Ins. Co., 77-3

• Decision Date: 04 January 1978
• Docket Number: No. 77-3,77-3
• Citation: 53 Ohio St.2d 1,371 N.E.2d 210,7 O.O.3d 1
• Parties: , 7 O.O.3d 1 SHEARER et al., Appellees, v. MOTORISTS MUTUAL INSURANCE CO., Appellant.
• Court: Ohio Supreme Court

Page 1

53 Ohio St.2d 1

371 N.E.2d 210, 7 O.O.3d 1

SHEARER et al., Appellees, v. MOTORISTS MUTUAL INSURANCE CO., Appellant.

No. 77-3.

Supreme Court of Ohio.

Jan. 4, 1978.

Syllabus by the Court

The uninsured motorist coverage required to be offered by R.C. 3937.18 in all automobile or vehicle liability policies issued in the state of Ohio cannot be diluted or diminished by payments made to the insured pursuant to the medical payment provision of the same contract of insurance. A contract condition providing for a deduction for medical payments paid under another portion of the insurance contract is in derogation of the public policy and purpose underlying R.C. 3937.18.

In each of the cases consolidated for appeal herein the plaintiff-appellee was involved in a collision with an uninsured motorist. Each plaintiff made a claim against the defendant, Motorists Mutual Insurance Company, under plaintiff's policy which contained an uninsured motorist protection clause pursuant to R.C. 3937.18. ¹

All insurance policies in question included coverage for medical expenses. The uninsured motorist protection agreement contained the following condition:

"d. The company shall not be obligated to pay under this coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under coverage C."

There was no provision for subrogation under coverage C. Plaintiff Barbara Shearer incurred $500 in medical expenses, plaintiff Leslie Horne incurred $1,000 in medical expenses, and plaintiff James Bright incurred $560.15 in medical expenses.

Pursuant to arbitration, awards were made to the respective plaintiffs. Only in the case of Bright was the maximum amount available under the uninsured motorist provision awarded. The defendant deducted from the uninsured motorist arbitration awards the amounts paid under the medical payments coverage.

Suits were thereafter instituted in the Court of Common Pleas of Cuyahoga County by the various plaintiffs. Although different trial procedures were utilized, each case was submitted on motion for summary judgment. The trial court in each instance granted plaintiff's motion for summary judgment.

On appeal, the Court of Appeals affirmed the trial court in each case, and stated as follows:

"We hold that where an insurer provides uninsured motorist protection, as required by R.C. 3937.18, it may not avoid indemnification of its insured under that coverage by including in the insurance contract a provision which authorizes deduction for medical payments made under another portion of the insurance contract."

The cause as consolidated is before this court pursuant to the allowance of appellant's motion to certify the record.

Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L.P.A., Thomas Mester and Harlan M. Gordon, Cleveland, for appellee Shearer.

Guth & Sirvaitis and Milton J. Guth, Cleveland, for appellee Horne.

Dworken & Bernstein Co., L.P.A., and Melvyn E. Resnick, Cleveland, for appellee Bright.

Weston, Hurd, Fallon, Paisley & Howley, John M. Baker and Barbara J. Smith, Cleveland, for appellant.

POTTER, Justice.

The appellant's sole proposition of law is as follows:

"Insurance contract provisions which reduce the amount of recovery of damages under the uninsured motorist protection clause therein by the amount of expenses for medical services (paid or payable under the medical payments portion of said policy) are valid, enforceable contractual provisions which may be properly invoked by the insurer. The trial court erred by overruling defendant's motion for summary judgment and in granting plaintiffs' motion(s) for summary judgment."

The basic question presented by this appeal and as presented to the Court of Common Pleas and Court of Appeals is whether the uninsured motorist coverage afforded in the policy issued by the appellant to the respective appellees-policyholders met the requirements of R.C. 3937.18 or whether the proposed setoff for medical services is in derogation of the public policy and purpose underlying R.C. 3937.18. Both coverages, uninsured motorist and medical payments, were optional and a separate premium was paid for each.

For the reasons hereinafter set forth we hold appellant's proposition of law not well taken.

Decisions in other jurisdictions relative to the deduction of medical payments from uninsured motorist awards have not been consistent or uniform. ² Appellant urges the reversal of the appellate court's judgment herein, and contends that the insurance clause in question contained in a voluntary contract is not contrary to the public policy of the state, and that the public policy of the state disapproves double recovery.

Appellees, in essence, maintain that appellant's proposal permits a double premium but only a single recovery. Each views the suggestion of the other with disfavor and as being contrary to law.

Although a tortfeasor may not benefit from insurance carried by the injured party, in the instant cause the collateral source doctrine is not relevant. The insurer is not in the position of a tortfeasor, the parties being in the contractual relationship of insured and insurer. See Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235; Koeper v. Farmers Ins. Co. (E.D.Mo.1972), 354 F.Supp. 93. Governing this contractual relation is the public policy of the state of Ohio as established by the uninsured motorist statute, R.C. 3937.18. In delineating this public policy Justice Herbert in Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50, stated the following at pages 52 and 53, 294 N.E.2d 665, at page 666:

"The basic purpose of R.C. § 3937.18 is clear. It '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.' Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, 165, 258 N.E.2d 429, 432; Curran v. State Automobile Mutl. Ins. Co. (1971), 25 Ohio St.2d 33, 266 N.E.2d 566; see, also, Note 1, 20, Cleve.L.Rev. 10 (1971). In other words, the legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policyholder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance."

"As suggested by Abate and Curran, supra, R.C. § 3937.18, ab initio, enunciated a public policy in this state. Private parties are without power to insert enforceable provisions in their contracts of insurance which would restrict coverage in a manner contrary to the intent of the statute."

Bartlett, supra, dealt with the deduction of workmen's compensation payments from an uninsured motorist award; here, we are concerned with deductions for medical payments. Giving a liberal construction to effectuate the intent of the General Assembly that coverage be afforded to persons injured through the acts of uninsured motorists (see Curran v. State Automobile Mutl. Ins. Co. (1971), 25 Ohio St.2d 33, 38, 266 N.E.2d 566), we hold that the rationale of this court in Bartlett, supra, supplies to the proposed deduction of medical payments, and the policyholder may recover, subject to his policy limits, to the same extent he would be entitled to recover from his tortfeasor.

Similar holdings may be found in other states. See, e.g., Bacchus v. Farmers Ins. Group Exchange (1970), 106 Ariz. 280, 282-283, 475 P.2d 264, 266-267, which states as follows:

"Permitting offsets of any type would allow insurers, by contract, to alter the provisions of the statute and to escape all or part of the liability which the Legislature intended they should provide. The medical payment coverage part of the policy is independent of the uninsured motorist coverage and should be treated the same as if it were carried with a different company. * * *

" * * * The fact that the motorist sees fit to clothe himself with other insurance protection and pays a premium therefor such as medical payments cannot alter the mandatory safeguards that the Legislature considers necessary for the well being of the citizen drivers of our state. More particularly, a policy provision which the insured considers to be additional protection and for which he pays a premium with such extra protection in mind cannot be transposed by the insurer into a reduction of the mandatory minimum coverage.

"It is our opinion that in enacting § 20-259.01 A.R.S. it was the intent of the Legislature that each insured who availed himself of uninsured motorist coverage would have available not less than $10,000 per person and $20,000 per occurrence. Any attempt, by contract or otherwise, to reduce any part of this amount is violative of the statute." See, also, Tulley v. State Farm Mut. Auto. Ins. Co. (S.D.W.Va.1972), 345 F.Supp. 1123; Tuggle v. Government Employees Ins. Co. (Fla.1968), 207 So.2d 674.

The uninsured motorist coverage required to be offered by R.C. 3937.18 in all automobile or vehicle liability policies issued in the state of Ohio cannot be diluted or diminished by payments made to the insured pursuant to the medical payment provision of the same contract of insurance. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and HERBERT, CELEBREZZE, WILLIAM B. BROWN, PAUL W. BROWN and SWEENEY, JJ.,...