Shelby Mut. Ins. Co. v. Smith

• Decision Date: 28 January 1976
• Docket Number: No. 75-215,75-215
• Citation: 45 Ohio St.2d 66,341 N.E.2d 597
• Parties: , 74 O.O.2d 118 SHELBY MUTUAL INSURANCE CO., Appellee, v. SMITH et al., Appellants.
• Court: Ohio Supreme Court

Page 66

45 Ohio St.2d 66

341 N.E.2d 597, 74 O.O.2d 118

SHELBY MUTUAL INSURANCE CO., Appellee, v. SMITH et al., Appellants.

No. 75-215.

Supreme Court of Ohio.

Jan. 28, 1976.

Syllabus by the Court

The term 'uninsured motor vehicle,' as used in R.C. 3937.18, does not include those motor vehicles for which the applicable liability insurance coverage carried by the tortfeasor owner or operator meets or exceeds the limits set by R.C. 4509.20.

This is a declaratory judgment action submitted to the Court of Common Pleas upon the following stipulated facts:

'1. That on September 25, 1970, there was in existence and full force and effect, a certain policy of automobile insurance, being policy No. 34-0355F3051859, issued to William Smith by plaintiff, Shelby Mutual Insurance Company (herein called 'Shelby') insuring his Chevrolet automobile. Said policy of insurance contained, among other things, the uninsured motorists coverage prescribed by Ohio Revised Code Section 3937.18.

'2. The defendant, Letha I. Smith, is the wife of William Smith and was an 'insured' person under the terms of said policy.

'3. On September 25, 1970, an automobile driven by Carl Eugene Couch collided with the Chevrolet automobile being operated by William Smith in which Letha I. Smith was riding as a passenger. Said collision was directly caused by the sole negligence of Carl Eugene Couch.

'4. As a direct and proximate result of the negligence of Carl Eugene Couch, Letha I. Smith and several other persons sustained personal injuries and damages.

'5. At the time of the accident of September 25, 1970, Carl Eugene Couch, and the automobile he was operating was insured under a policy of automobile liability insurance issued by Nationwide Insurance Companies, the limits of said policy of automobile insurance were twelve thousand five hundred dollars ($12,500.00) per person and twenty-five thousand dollars ($25,000.00) per accident.

'6. Nationwide Insurance Companies have paid to several of the persons injured by the negligence of Carl Eugene Couch, its policy limits of twenty-five thousand dollars ($25,000.00) and because the policy limits were exhausted no payments have been made to the defendant, Letha I. Smith.

'7. Since the Nationwide insurance covering the automobile Carl Eugene Couch was driving was exhausted through settlement agreements with the other injured parties, defendant, Letha I. Smith, made demand on plaintiff, Shelby, to compensate her for her injuries and damages under the uninsured motorists coverage provided by the policy of insurance issued by Shelby to William Smith and has filed proceedings with the American Arbitration Association * * *.'

The court found that the vehicle Carl Couch was driving was uninsured, within the meaning of R.C. 3937.18, as to Letha Smith, and allowed her to recover under the uninsured motorist coverage of the Shelby insurance policy.

The Court of Appeals reversed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Buckingham, Doolittle & Burroughs and Timothy F. Scanlon, Akron, for appellee.

Raymond J. McGowan, Akron, for appellants.

C. WILLIAM O'NEILL, Chief Justice.

The sole question to be determined in this cause is whether Letha Smith may recover for her injuries and damages under the Shelby uninsured motorist coverage.

At the outset, it should be noted that the language of the Shelby insurance policy does not aid appellants In the family protection coverage clause of the Shelby policy, the following definition is found:

"Uninsured automobile' includes * * *:

'(a) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile * * *.'

Since Carl Couch, the operator of the vehicle, was insured by Nationwide Insurance Company to the extent of $25,000 for bodily injuries caused by his negligence, the vehicle was not an 'uninsured automobile' under the terms of the Shelby policy.

It is necessary for this court to consider whether the provisions of the Shelby policy are inconsistent with the public policy behind R.C. 3937.18 that requires mandatory offering of uninsured motorist coverage. See Buckeye Union Ins. Co. v. Steiner (1974), 37 Uohio St.2d 113, 308 N.E.2d 460; Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50, 294 N.E.2d 665; and Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, 258 N.E.2d 429.

R.C. 3937.18 States, in pertinent part:

'(A) 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 vehicl shall be delivered or...