Estate of Nord v. Motorists Mutual Insurance Company, 105 Ohio St. 3d 366, 2005-Ohio-2165 - Ownership, Maintenance, or use of an Uninsured Motor Vehicle

Plaintiff’s decedent was being transported to a hospital in an ambulance when an EMT dropped a syringe, injuring his eye.  Plaintiff’s decedent subsequently died due to an unrelated cause.  The ambulance was operated by the City of Cleveland, and accordingly there was immunity under R.C. 2744.02.  Instead, plaintiff made a UM claim, based upon the fact the injury occurred in a motor vehicle, while the motor vehicle was being used for transportation purposes.  The policy required any liability of a supposed tortfeasor to arise out of the ownership, maintenance, or use of an uninsured motor vehicle.  The Supreme Court unanimously concluded any negligence on the part of the EMT was unrelated to the ownership, maintenance, or use of the motor vehicle and there was no causal link, therefore there was no UM coverage available.

Sarmiento v. Grange Mutual Casualty Company, 106 Ohio St. 3d 403, 2005-Ohio-5410 - Statute of Limitations and Minors’ Claims

Plaintiffs were injured in an accident in New Mexico, caused by an uninsured driver.  They made a UM claim to Grange.  The Grange policy had a two year limitation period for the filing of suit.  Some of the plaintiffs were minors.  Under New Mexico law there was a three year statute of limitations for filing suit.  Within that period plaintiffs sued the uninsured driver, thereby protecting Grange’s subrogation rights.  Approximately three years after the accident plaintiffs filed suit against Grange, in Ohio, for their UM claim. 

Grange moved for summary judgment on the basis the lawsuit was filed outside of the two year limitation period imposed by their policy.  Plaintiffs argued they should be entitled to the three year period allowed under New Mexico law, and/or the claims of the minors should be tolled until the minors reached age eighteen.

The Supreme Court ruled in favor of Grange holding the two year limitation period was enforceable, regardless of what the statute of limitations was under New Mexico law.  The court determined Grange had a right to impose a shorter limitation period, so long as it was reasonable.  The Supreme Court also held that R.C. 2305.16, which ordinarily tolls a statute of limitations for claims involving minors, did not apply to contractually imposed limitations periods, and instead merely applied if the limitations period in question was imposed by statute, and not contract.  As a result, the policy’s limitation period pertained to all plaintiffs, regardless of age. 

Fazio v. Hamilton Mutual Insurance Company, 106 Ohio St. 3d 327, 2005-Ohio-5126 - Coverage for Accidents in other Countries

Plaintiff was injured when she was struck by a dune buggy while walking on a beach in Mexico.  She made a UM claim under her personal policy.  Her insurer contested the claim based upon a provision in the policy limiting coverage to accidents occurring in the U.S. and Canada.  Plaintiff contended such an exclusion violated R.C. 3937.18.  The Supreme Court disagreed and held this geographic restriction on coverage to be valid.

Ponser v. St. Paul Fire & Marine Ins. Co., 104 Ohio St.3d 621, 2004-Ohio- 7104 - "Legally Entitled to Recover" Requirement

Plaintiffs sued their UM insurers less than 2 years after the accident, but failed to sue the uninsured tortfeasor within the statute of limitations.  The insurers contended plaintiffs were thus no longer legally entitled to recover damages from the tortfeasor and could not assert a UM claim.  A surprisingly unanimous Supreme Court disagreed, holding since the policies did not expressly impose a specific requirement for the insureds to file suit against the tortfeasor, the failure to file suit could not bar a UM claim.  Had there been a specific requirement in the policy to do so, a different result might have been rendered.

Gilchrist v. Gonsor, 104 Ohio St.3d 599, 2004-Ohio-7103 - "Fronting" Policies

Plaintiff was injured while acting in the course and scope of his employment.  He made a UIM claim under his employer's policy with U.S.F. & G.  The policy's deductible  matched the liability limits.  The employer and the insurer contended the employer was in essence self-insured and that there was no UIM coverage.  Plaintiff contended the coverage existed by operation of law.  The Court applied an earlier version of R.C. 3937.18, and held UIM coverage existed by operation of law as there had been no prior offering of coverage as required by statute.

Hollon v. Clary, 104 Ohio St. 3d 526, 2004-Ohio-6772 - Rejection of Coverage

Plaintiff was injured in an auto accident while acting in the course and scope of his employment. He tried to make a UIM claim under his employer’s policy. The employer contended the rejected UIM coverage, but the rejection form did not contain all of the requirements set forth in the Linko decision. Specifically, the rejection form did not spell out what the premiums would be for the coverage. The insurer submitted an affidavit of its named insureds indicating prior to rejecting coverage he was informed by an agent that coverage was available, the amount of the premium that would be charged if he just purchased the coverage, the coverage was explained to him, and he still chose to reject the coverage in its entirety. The Supreme Court drew a distinction from Linko, noting the H.B. 361 version of R.C. 3937.18 applied, and the Supreme Court specifically held extrinsic evidence could be used to satisfy the offering requirements imposed upon an insurer.

Kyle v. Buckeye Union Insurance Company, 103 Ohio St. 3d 170, 2004-Ohio-4885 - Definition of Uninsured Motor Vehicle

This decision resolved interpretation of an earlier version of R.C. 3937.18(J) and (K). One sister was injured while riding as a passenger in a car negligently driven by another sister. The car was insured by Buckeye Union. Buckeye Union’s liability coverage excluded coverage for injuries sustained by resident family members. The plaintiffs did not challenge that exclusion, but instead argued they were then entitled to make UM claim. The statutory versions in question were in effect from September 3, 1997 through October 31, 2001. The Supreme Court held these statutory subsections did not contradict one another and therefore the plaintiffs were not able to recover under the policies liability or UM coverage. This decision has limited impact as the subsequent changes to the statute now allow for a UM claim to be pursued.

Saunders v. Mortensen, 101 Ohio St. 3d 86, 2004-Ohio-24 - Coverage for Derivative Claims.

This case involves an endorsement unique to Nationwide policies. The Nationwide UM coverage had limits of $100,000.00/$300,000.00. Following a bodily injury to a child, the child and parents made claims under the policy, contending they were entitled to recover $100,000.00 each. Nationwide contended $100,000.00 in total was the maximum amount recoverable. The Supreme Court declined to find the endorsement ambiguous and held all claims were limited to the single per person limits as opposed to the total per occurrence.

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003 - Ohio – 5849 – Reversal of Scott-Pontzer

In Galatis, the Supreme Court emphatically rejected its 1999 decision in Scott Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999 - Ohio - 292. Scott Pontzer and its progeny had previously allowed employees (or their family members) to assert UM/UIM claims under their employers’ policies for injuries sustained in motor vehicle accidents, even if the injured person was not acting within the course and scope of their employment or operating a company vehicle. Galatis squarely addressed Scott Pontzer and deemed it incorrectly decided. Galatis held an employee can only make a UM/UIM claim under their employer’s policy (and subject to the terms and conditions of the policy) if the employee was acting within the course and scope of their employment at the time of the accident. The Supreme Court altogether abolished the right of non-employee family members to make a claim under an employer’s policy. Obviously, this decision has had a propound effect on the thousands of Scott Pontzer claims working their way through the various stages of Ohio’s legal system. This decision is retrospective in its application, thereby rendering all Scott Pontzer claims moot where the plaintiff was not in the course and scope of their employment.

Rogers v. Owners Insurance Company, 2005-Ohio-3514 - Late Notice

Plaintiff’s decedent was killed in a one vehicle accident in 1994.  Within a year of the accident plaintiff filed separate suits for UM coverage and medical malpractice.  The UM suit settled, and the malpractice suit was ultimately abandoned.  Eight and a half years after the accident plaintiff contacted Owners, her UM insurer, and gave them their first notice of both the accident and her intent to make a UM claim.  Owners denied the claim based upon late notice and plaintiff’s failure to protect its right of subrogation.  Plaintiff contended the insurer was not prejudiced as the driver (a close relative of both plaintiff and her decedent) was uncollectible.  Owners contended it was prejudiced from conducting its own investigation into such issues as drunk driving, negligent entrustment, and vehicle defects.  The Court of Appeals concluded plaintiff’s delay was unreasonable in that plaintiff failed to rebut the presumption of prejudice on these other sources of subrogation recovery.  This case is an excellent example of how insurers can use the Ferrando decision to their advantage in cases of late notice or an uncollectible at-fault driver.  The insurer was successful due to the thoroughness and creativity in exploring all possible avenues of recovery. 

Westfield Insurance Company v. Russo, 2005-Ohio-5942 - Late Notice

Plaintiff tried to make a UIM claim eight years after her accident.  The policy she was claiming under had a prompt notice requirement.  The appellate court upheld summary judgment in favor of the insurer, finding plaintiff did not rebut the presumption of prejudice in favor of the insurer.  In particular the court noted the delay prevented the insurer from meaningfully investigating the alleged injuries.

Burgio v. Allstate Insurance Company, 2005-Ohio-387 - Limitations Period

Plaintiff was injured by an uninsured motorist in 2000.  He sued his UM insurer in 2003.  The policy contained a two year limitations period.  Plaintiff argued the insurer waived the limitations period by continuing to communicate with him on his claim after the two year period ran, thanking him for his continued cooperation.  The Court of Appeals disagreed and enforced the two year period, finding there was no waiver or estoppel. 

McClure v. West American Insurance Company, 161 Ohio App. 3d 187, 2005-Ohio-2747 - Available Coverage

Plaintiff’s son was killed in an accident caused by an underinsured motorist.  Plaintiff was a West American insured.  The West American policy had UM/UIM coverage.  The declarations page stated the UM coverage had limits of $100,000.00/$300,000.00.  While the declarations page indicated the policy also included UIM coverage, it did not state an amount for such coverage.  West American paid to its insured $75,000.00 (the underinsured motorist had $25,000.00 limits).  Plaintiff contended the West American policy was ambiguous since it did not state a specific amount for UIM coverage, and therefore the limits had to be more than $100,000.00/$300,000.00.  The Court of Appeals disagreed and held the policy was not ambiguous.  The court held the definitions section of the policy made it clear that the policy’s UIM coverage amounts would track the UM coverage amounts. 

Tenhundfeld v. State Farm Mutual Automobile Insurance Company, 2005-Ohio-1874 - Stacking of Policies

Plaintiff claimed her son was killed due to the negligence of two other drivers.  Plaintiff was the named insured under two separate policies issued to her by State Farm.  Both policies contained UM coverage.  State Farm paid her the UM policy limits for one policy, and denied coverage under the other policy based upon their anti-stacking language.  Although plaintiff was the named insured under both policies, she contends the second policy was actually for her son and his car, but simply listed as the named insured as her son was a minor at the time she purchased the policy.  The appellate court rejected this argument as the policies were clear and unambiguous in designating her as the sole named insured. 

Each policy had a UM limit of $250,000.00/$500,000.00.  Plaintiff claimed she should be allowed to recover up to the per accident limit since the accident was allegedly caused by the negligence of more than one tortfeasor.  The appellate court also rejected this argument, noting at issue was only one injury and one accident. 

Dolis v. C&A Insurance Company, 2005-Ohio-157 - Using a Motor Vehicle

Plaintiff was a salt truck driver for a city.  He was instructed by his supervisor to park and position his truck so that its lights illuminated a salt spill from another truck.  After he positioned his truck he began directing traffic and he was ultimately struck by another vehicle and injured.  He made a UM claim to the city’s insurer and they denied his claim on the basis that he was not using an insured vehicle at the time he was injured.  This particular policy had a requirement of using the vehicle as opposed to occupying it.  The Court of Appeals held he was not entitled to coverage as his conduct was not foreseeably identifiable with the normal use of the vehicle. 

Williams v. Safe Auto Insurance Company, 2004-Ohio-3741 - Occupying Requirement

Plaintiff was injured while standing next to her car, while the engine was running. She made a UM claim to Safe Auto. Safe Auto contended she was not occupying the vehicle, and therefore not entitled to coverage. Noting plaintiff was in close physical proximity to her car and had left the engine running, the Court determined that the policy’s occupying requirement had been satisfied, and that therefore there was coverage.

Safe Auto Insurance Company v. Corson, 2004-Ohio-249 - Effect of Self-Insured Tortfeasor

Safe Auto’s insured was injured in an accident with a City of Cincinnati vehicle. The City of Cincinnati was self-insured for motor vehicle liability. The City contended since it had no insurance it was uninsured, and therefore the injured party’s only recourse was to make a UM claim under its policy with Safe Auto. The court of appeals rejected this argument, noting the statutory definition of an uninsured motorist did not include self-insured or municipal entities. Accordingly no UM coverage was owed, and the injured person was allowed to proceed directly against the City of Cincinnati.

Rucker, et al. v. Davis, et al., 2003 - Ohio – 3191 - Self-Insured

A man was seriously hurt and his wife died as a result of injuries sustained in an automobile accident. The man, individually, and as the administrator of the estate of his wife, sought UM coverage from Travelers based upon a CGL policy issued to the husband’s employer. The court held the policy was converted into a motor vehicle liability policy because it included coverage for “parking an auto” that is not owned by, rented or loaned to the insured. The court found this term to be slightly ambiguous. However, Travelers asserted it was not required to offer UM/UIM coverage because the policy was a form of self-insurance. The court found that the employer was self-insured in the practical sense and therefore there was no duty to offer UM/UIM coverage for this policy. The court also noted other courts had come to a different view and recommended the Ohio Supreme Court certify a conflict.

Caton v. Muskingum Cty. Board of Commissioners, 2003-Ohio-2292 - Self-Insured

The County Risk Sharing Authority (CORSA), a statutory self-insurance pool under R.C. §2744.081, is not subject to R.C. §3937.18 even when it provides UM/UIM coverage by contract.

Disbennet v. Utica National Insurance Group, et al., 2003-Ohio-2013 - Proximity to Vehicle

A man performing surveying work for his company was struck by an automobile with the point of accident approximately eighty feet from the deceased’s vehicle. The court held the decedent was within a reasonable geographic distance to the insured vehicle and that he was engaged in an activity that was foreseeably identifiable with the use of that vehicle. The court found the geographical distance was only one factor to be considered and the court held the determination was based upon the activity and relation of the performance to the vehicle. The court also held that although the insurer was entitled to a set off for the policy limits of the tortfeasor, it was not entitled to a set off for settlement proceeds paid by the decedent’s personal underinsured motorist carrier even though it provided primary coverage. Finally, the court held that pre-judgment interest running from the date of the accident was not an abuse of discretion by the trial judge.