Wood v. Shepard, 87-265

• Decision Date: 03 August 1988
• Docket Number: No. 87-265,87-265
• Citation: 38 Ohio St.3d 86,526 N.E.2d 1089
• Parties: WOOD, Admr., et al., Appellants, v. SHEPARD; the Professionals Insurance Company, Appellee.
• Court: Ohio Supreme Court

Page 86

38 Ohio St.3d 86

526 N.E.2d 1089

WOOD, Admr., et al., Appellants, v. SHEPARD; the Professionals Insurance Company, Appellee.

No. 87-265.

Supreme Court of Ohio.

Submitted April 19, 1988.

Decided Aug. 3, 1988.

Syllabus by the Court

Each person entitled to recover damages pursuant to R.C. 2125.02 for wrongful death, and who is an insured under an underinsured motorist provision in an insurance policy, has a separate claim and such separate claims may not be made subject to the single person limit of liability in the underinsured motorist provision. (R.C. 2125.02 and 3937.18[A], construed and applied.)

The following facts as recited by appellants are undisputed. On September 8, 1984, plaintiff-appellant James Wood, his wife Gina Wood, and their two minor children, Jessica Wood and Carrie Wood, were traveling west in their Ford Ranger pickup truck on S.R. 49 in Montgomery County, Ohio. At the same time, Craig Shepard was driving a Pontiac Firebird and traveling north on Gordon-Landis Road.

Shepard failed to obey a stop sign at the intersection of S.R. 49 and Gordon-Landis Road. His car collided with the Woods' truck, causing the truck to roll over several times. Gina Wood was thrown from the truck and died several days later from resulting injuries. James, Jessica and Carrie Wood were also injured in the accident.

Shepard had an automobile insurance policy with State Farm Mutual Automobile Insurance Company ("State Farm") that provided liability coverage with limits of $50,000 per person and $100,000 per accident. James Wood and Gina Wood had an automobile insurance policy with the defendant-appellee, The Professionals Insurance Company ("Professionals"), that provided uninsured and underinsured motorist coverage with liability limits of $100,000 per person and $300,000 per accident. The Professionals policy covered the Ford truck and the Woods' Subaru station wagon.

On February 26, 1985, James Wood, individually and in his capacities as administrator of Gina Wood's estate and guardian of Jessica and Carrie Wood, filed a complaint in the Court of Common Pleas of Montgomery County against Shepard and Professionals. Wood's complaint sought: (1) recovery of damages from Shepard for the injuries and wrongful death of Gina Wood and for the injuries sustained by James, Jessica and Carrie Wood; and (2) a declaratory judgment construing the Professionals policy as to the underinsured motorist provision. Specifically, Wood sought declarations that the Woods be allowed to stack the underinsured motorist coverages of the Ford truck and the Subaru station wagon, that any payment of damages received by the Woods from Shepard or State Farm be set off against the total damages suffered by the Woods rather than against the liability limits of the Professionals policy, and that each of the Woods be entitled to assert separate claims against the underinsured motorist coverage because of their status under R.C. Chapter 2125 as the beneficiaries of the action for the wrongful death of Gina Wood.

The Woods reached a settlement with Shepard. The Woods apparently received the $100,000 policy limit of Shepard's insurance policy with State Farm. ¹

Professionals filed a motion for summary judgment, which the trial court granted on April 28, 1986. The trial court found that the policy provisions combining uninsured and underinsured motorist coverages were clear and unambiguous and prohibited stacking the underinsured motorist coverages for the two vehicles. The trial court also held that the policy entitled Professionals to set off any payments received by the Woods from Shepard or State Farm against the policy's limits of liability for underinsured motorist coverage rather than the Woods' total damages. Finally, the trial court rejected Wood's contention that he and his daughters had separate and independent causes of action under R.C. Chapter 2125 for the wrongful death of Gina Wood. The court ruled that R.C. 2125.01 created only a single cause of action for wrongful death, and therefore only one claim could be submitted against the underinsured motorist coverage for Gina Wood's death.

The Court of Appeals for Montgomery County affirmed the trial court's decision in all respects. The court of appeals, however, found its judgment as to the existence of a single cause of action under R.C. 2125.01 to be in conflict with the judgment of the Court of Appeals for Delaware County in Gordon v. Nationwide Mut. Ins. Co. (June 5, 1986), Delaware App. No. 86-CA-2, unreported, and certified the record of the case to this court for review and final determination.

Allbery, Cross & Turner, Gerald L. Turner and John M. Ruffolo, Dayton, for appellants.

Jenks, Surdyk & Gibson Co., L.P.A., Robert F. Cowdrey and Christopher F. Johnson, Dayton, for appellee.

DOUGLAS, Justice.

The case before this court presents three issues. The first two involve the enforceability of setoff and anti-stacking provisions under the underinsured motorist coverage. For these provisions to be enforced, they must be clear, conspicuous and unambiguous. See Karabin v. State Automobile Mut. Ins. Co. (1984), 10 Ohio St.3d 163, 10 OBR 497, 462 N.E.2d 403. While reasonable minds might differ on whether the setoff and anti-stacking language in the Woods' policy is clear and unambiguous, ^{2 2} we nevertheless affirm, without further comment, the judgments of the court of appeals and trial court on these questions.

The additional difficult issue before this court is whether the survivors of an insured decedent have one collective claim for wrongful death or whether each such survivor has a separate claim. We hold that each survivor has a separate claim and that all the separate claims may not be combined and limited to the single person limit of liability in the insured's underinsured motorist provision.

Any discussion of whether survivors of an insured have separate claims against the decedent's insurer for wrongful death must refer to R.C. 2125.01 and 2125.02, as well as R.C. 3937.18.

R.C. 2125.01 provides in pertinent part: "When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *."

R.C. 2125.02(A)(1) mandates that "[a]n action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent."

R.C. 3937.18 provides in relevant 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 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 both of the following are provided:

"(1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury or death 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;

"(2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.

"(B) Coverages offered under division (A) of this section shall be written for the same limits of liability. No change shall be made in the limits of one of these coverages without an equivalent change in the limits of the other coverage."

It is clear from the provisions of R.C. 2125.02, quoted supra, that in a wrongful death action, the surviving spouse and the children of the decedent have the right to recover damages suffered by reason of the wrongful death, even though the action must be brought in the name of the personal representative of the decedent. This court, through Justice Wright writing for the majority, has held that "[a]ccording to the language of the uninsured motorist statute, this mandated coverage is ' * * * 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.' R.C. 3937.18(A)(1). (Emphasis added.) Therefore, it is clear that it was the intention of the General Assembly in requiring insurance companies to provide uninsured coverage that recovery be had for wrongful death." In re Estate of Reeck (1986), 21 Ohio St.3d 126, 128, 21 OBR 429, 431, 488 N.E.2d 195, 197. Of course, this same reasoning also applies to underinsured motorist coverage.

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