Syllabus by the Court
1. Where the amount of automobile liability insurance coverage provided by an insurer is less than that required by R.C. 4509.20, such insurer has denied coverage within the meaning of R.C. 3937.18 (uninsured motorist insurance).
2. Where the amount of automobile liability insurance coverage provided by a company is less than that required by R.C. 4509.20, an accident victim's insurer, compensating him under an uninsured motorist provision, may not deduct amounts paid to such victim by the liability insurer.
3. Where an uninsured motorist provision of an insurance policy allows the company a credit, against uninsured motorist payments to be made to an insured, for medical payments paid under another provision of the policy, but fails to provide a subrogation clause for such medical payments, it is invalid.
McCORMAC, Judge.
Plaintiffs filed suit against Vigilant Insurance Company claiming that they were entitled to damages from an uninsured motorists' clause contained in a
policy covering the vehicle in which they were riding. Defendant, the appellee herein, answered admitting that the automobile was insured by it and also set forth a denial and affirmative defenses.
Defendant moved the court for a summary judgment pursuant to Civ.R. 56 and for an order determining and declaring (1) that the maximum amount of coverage provided under the uninsured motorists' provisions of defendant's policy is $5,000 and (2) that defendant is entitled to a credit against such $5,000 coverage for payments made under the expenses for medical services provisions of its policy.
The parties agreed that there was no genuine issue as to any material fact and submitted a stipulation of facts as follows:
"(1) Kenneth A. Willison, was operating a 1973 Ford Pinto in a northerly direction on U.S. Route 66 in Sangamon County, Illinois. Said highway is a four-lane divided highway. The titled owner of said Ford Pinto was Graham Leasing Corporation of Columbus, Ohio, and said vehicle was leased to said Kenneth A. Willison. Said vehicle was registered in the State of Ohio. Jeffrey B. Wolverton, Frances W. Willison and Paige A. Wolverton were riding in said vehicle. All said persons were residents of 1820 Guilford Road, Columbus, Ohio. The trip during which said collision occurred originated in Columbus, Ohio. The destination was in Michigan. The trip was to finally terminate back in Columbus, Ohio.
"(2) Larry L. Baker, was operating a 1970 Gremlin in a southerly direction on said U.S. Route 66. At the intersection of U.S. Route 66 with County Road No. 10N, said Larry L. Baker made a left turn and drove said 1970 Gremlin into the path of said 1973 Pinto. Said vehicles then collided. Larry L. Baker was a resident of Lincoln, Illinois. All persons riding in the 1973 Ford Pinto suffered bodily injuries.
"(3) Dairyland Insurance Company had in full force and effect a policy of automobile liability insurance, Policy No. 11-0133497, which provided liability coverage for said 1970 Gremlin and said Larry L. Baker. Said policy provided
coverage for bodily injury in the amount of $10,000 for one person and $20,000 per accident. A copy of the facsimile of said policy, consisting of ten pages, is attached hereto marked 'Exhibit A' and incorporated herein.
"(4) Vigilant Insurance Company had in full force and effect a policy of automobile liability insurance, Policy No. AU 1516 03 42, which provided coverage for said 1973 Ford Pinto. Kenneth A. Willison and Frances W. Willison are the named insureds in said policy. A copy of said policy, consisting of eleven pages, is attached hereto marked 'Exhibit B' and incorporated herein.
"(5) Within a year after said collision, Jeffrey B. Wolverton, Paige A. Wolverton, Frances W. Willison and Kenneth A. Willison commenced an action against said Larry L. Baker, being Case No. S-CIV-74-3, in the United States District Court for the Southern District of Illinois. That case was settled and dismissed with prejudice on November 5, 1974.
"(6) In accordance with the terms of said settlement and pursuant to its obligations under its contract with Larry L. Baker, Dairyland Insurance Company paid the total amount of.$19,000 to Jeffrey B. Wolverton, Paige A. Wolverton, Frances W. Willison and Kenneth A. Willison under the bodily injury provisions of said policy and $1,000 for damages to personal property under the property damage provision of said policy in exchange for a covenant not to sue. A copy of said covenant, consisting of two pages, is attached hereto marked 'Exhibit C' and incorporated herein. The amount of $9,000 was paid on the claim of Jeffrey B. Wolverton. The amount of $750 was paid on the claim of Paige A. Wolverton. The amount of $8,500 was paid on the claim of Frances W. Willison. The amount of $750 was paid on the claim of Kenneth A. Willison.
"(7) Dairyland Insurance Company also paid or reserved the amount of $1,000 under the bodily injury provisions of its policy for payment on the bodily injury claims of six persons who were riding in the 1970 Gremlin driven by Larry L. Baker.
"(8) Subsequent to the accident, Vigilant Insurance Company has made payments to or on behalf of the occupants
of the 1973 Ford Pinto under the medical payments provisions of its policy as follows:
"$2,000 for medical expenses of Jeffrey B. Wolverton; $143.74 for medical expenses of Paige A. Wolverton; $287.86 for medical expenses of Frances W. Willison; and $161.59 for medical expenses of Kenneth A. Willison."
The trial court sustained the defendant's motion for a summary judgment and entered the following order:
"It is therefore ordered, adjudged and decreed
"1. That the maximum amount of coverage available to plaintiffs under the uninsured provisions of defendant's policy is $2,500.00 for one person with a total of $5,000.00 for the accident out of which plaintiffs' claims arose.
"2. That defendant is entitled to a credit in the amount of $2,593.19 against such $5,000.00 total coverage for payments made by defendant under the expenses for medical services provisions of its policy.
"It is further ordered, adjudged and decreed that, since defendant's policy requires arbitration of the right of plaintiffs to recover and, if so, the amount, this action be and the same hereby is dismissed without prejudice at plaintiffs' costs."
From the judgment of the trial court, plaintiffs have filed a timely notice of appeal setting forth the following assignments of error:
"1. The trial court erred in sustaining defendant's motion to dismiss plaintiffs' complaint on the grounds that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law as shown by the pleadings and the stipulation of facts.
"2. The trial court erred in sustaining defendant's motion for an order determining and declaring that the maximum amount of coverage provided under the uninsured motorists provisions of defendant's policy is $5,000.00.
"3. The trial court erred in sustaining defendant's motion for an order determining and declaring that defendant is entitled to a credit against such $5,000.00 coverage for the payments made under the expenses for medical services provisions of its policy."
The first issue in this case is whether Baker's automobile
was an "uninsured" automobile so that plaintiffs are able to collect under the uninsured motorists' coverage provided in defendant's policy. Actually, by Ohio standards, Baker was not uninsured but was under-insured, as the Dairyland Insurance Company policy provided coverage less than the minimum specified in Ohio, such coverage being $10,000 per person and $20,000 per accident for bodily injury, in contrast with the minimum required by R.C. 4509.20 for an automobile insured in Ohio $12,500 per person, and $25,000 per accident.
Plaintiffs' contention is that the accident was caused by an uninsured motorist; hence, they are entitled to the uninsured motorists' coverage, and, in addition, are entitled to recover from Baker's insurance policy to the extent of that coverage. Defendant contends that its uninsured...
