CLARK, ADMR., APPELLANT, ET AL., v. SCARPELLI ET AL.; MID-CENTURY INSURANCE COMPANY, APPELLEE.
Nos. 00-206 and 00-374
Supreme Court of Ohio
Decided April 11, 2001.
91 Ohio St.3d 271 | 2001-Ohio-39
Submitted November 29, 2000
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County, No. 17883.
SYLLABUS OF THE COURT
For the purpose of setoff, the “amounts available for payment” language in
DOUGLAS, J.
{¶ 1} On October 16, 1996, Shane T. Parker died as a result of injuries sustained in a one-car collision in Montgomery County, Ohio. The automobile in which Shane was an occupant was owned by his mother, appellant, Cheryl Clark. At the time of the accident, appellant was insured through a policy of automobile liability insurance issued by appellee, Mid-Century Insurance Company. Appellant’s policy with Mid-Century included an uninsured and underinsured motorist coverage provision with limits of $100,000 for each person and $300,000 for each occurrence.
{¶ 2} On January 24, 1997, in the Court of Common Pleas of Montgomery County, appellant filed a cause of action individually and as administrator of her son’s estate.1 In the complaint, appellant sought wrongful death damages pursuant to
{¶ 3} On December 23, 1998, the trial court entered its decision granting in part and denying in part appellee’s motion for summary judgment. The trial court found that reasonable minds could only conclude that James Scarpelli, the alleged tortfeasor, was the driver of the vehicle at the time of the accident. The tortfeasor’s liability carrier subsequently settled with appellant for the $100,000 per person limit and appellant dismissed all claims against tortfeasor Scarpelli. Relevant to the matters before this court, the trial court held that appellant and the other wrongful death beneficiaries were not entitled to underinsured motorist benefits because a provision of the Mid-Century policy unambiguously reduced all claims arising out of the death of one person to the single, “each person” policy limit of $100,000. The trial court therefore held that since the each-person policy limit of the Mid-Century policy matched the per-person limit of the tortfeasor’s automobile liability policy, underinsured motorist benefits were not available.
{¶ 4} Appellant appealed the trial court’s judgment to the Montgomery County Court of Appeals. The court of appeals primarily focused on two specific issues raised by the parties. The first issue concerned the parties’ conflicting interpretations of the setoff language in
{¶ 5} In regard to the first issue, the court of appeals decided in favor of appellant and held, in effect, that if the actual amount available under the tortfeasor’s liability policy to each insured is less than the Mid-Century underinsured motorist coverage limit, the insureds should recover the difference up to the total of the appropriate limit of coverage. The court of appeals noted that comparing the amount actually received from the tortfeasor with the limits of the insureds’ underinsured motorist coverage, instead of a limits-to-limits comparison, is “the only interpretation of
{¶ 6} On the second question, the court of appeals considered whether each wrongful death beneficiary was entitled to recover for his or her individual claims under the separate, each-person limit of the Mid-Century policy up to the maximum $300,000 each-occurrence limit, or whether all claims were restricted to the $100,000 each person limit. An aggregate total of $100,000 had been received and distributed among the four wrongful death beneficiaries, each receiving less than the each-person underinsured motorist coverage limit. In resolving this issue, the court of appeals found that the language of the Mid-Century policy clearly and unambiguously restricted all wrongful death claims to the single each-person limit. Thus, the amount recovered from the tortfeasor’s liability carrier, $100,000, was set off against the each-person limit of underinsured motorist coverage of the Mid-Century policy, $100,000,
{¶ 7} Thereafter, appellant filed a motion requesting the court of appeals to certify its decision as in conflict with the Fifth District Court of Appeals’ decision in Farmers Ins. of Columbus, Inc. v. Atkinson (Oct. 29, 1992), Stark App. No. CA-8931, unreported, 1992 WL 318886. The court of appeals agreed and entered an order certifying a conflict.
{¶ 8} This cause is now before this court upon our determination that a conflict exists (case No. 00-374) and upon the allowance of a discretionary appeal (case No. 00-206).
{¶ 9} On October 20, 1994, the General Assembly enacted Am.Sub.S.B. No. 20 (“S.B. 20”), which effectuated changes to
“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, suffered by any person insured under the policy, 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. Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverages, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured’s uninsured
motorist coverage if the person or persons liable were uninsured at the time of the accident. The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.” (Emphasis added.) 145 Ohio Laws, Part I, 210-211.
{¶ 10} The first issue that we must address involves the practical application of the setoff provision regarding underinsured motorist coverage in
{¶ 11} We begin, as we do in all cases involving statutory construction, by ascertaining the intent of the General Assembly in enacting a statute and giving effect to that intent. Cochrel v. Robinson (1925), 113 Ohio St. 526, 149 N.E. 871, paragraph four of the syllabus. “If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463, 465. In order to determine the intent of the General Assembly in enacting legislation the court must give effect to the words used in the statute. Bernardini v. Conneaut Area City School Dist. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 3, 387 N.E.2d 1222, 1224. However, where the words of the statute are ambiguous, a court is charged with construing the language in a manner that reflects the intent of the General Assembly. Cochrel, 113 Ohio St. 526, 149 N.E. 871, paragraph four of the syllabus.
{¶ 12} A statute is ambiguous when its language is subject to more than one reasonable interpretation. State v. Jordan (2000), 89 Ohio St.3d 488, 492, 733 N.E.2d 601, 605. Initially, we note that the phrase “amounts available for payment” is not defined in
{¶ 13} Accordingly, we must now look beyond the words of the statute and construe
{¶ 14} In James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 18 OBR 440, 481 N.E.2d 272, disapproved on other grounds in Cole v. Holland (1996), 76 Ohio St.3d 220, 667 N.E.2d 353, the court discussed the motivation behind the General Assembly’s adoption of mandatory underinsured motorist
{¶ 15} We reiterated that position regarding underinsured and uninsured motorist coverage in Cincinnati Ins. Co. v. Phillips (1990), 52 Ohio St.3d 162, 165, 556 N.E.2d 1150, 1153, when we concluded that “it would make no sense for this court to reach the absurd result that an injured party is better off when struck by an uninsured tortfeasor than by a person who possesses liability insurance.” Finally, in Motorists Mut. Ins. Co. v. Andrews (1992), 65 Ohio St.3d 362, 365, 604 N.E.2d 142, 145, construing former
{¶ 16} It is clear that underinsured motorist coverage, as described in
{¶ 17} As can be gleaned from the public policy behind the enactment of the underinsured motorist statute, as well as the statutory language, the purpose of underinsured (and uninsured) motorist coverage is to treat injured automobile liability policyholders the same whether a tortfeasor is underinsured or uninsured. It is apparent from the foregoing that the General Assembly intended that when a person carries automobile liability insurance and that person is injured in an accident by an uninsured or underinsured tortfeasor, the insured policyholder may be compensated up to the limits of his or her applicable uninsured/underinsured motorist coverage for any losses sustained.
{¶ 18} Based on this premise, we construe the “amounts available for payment” language in
{¶ 19} In 1992, this court decided the case of Motorists Mut. Ins. Co. v. Andrews, 65 Ohio St.3d 362, 604 N.E.2d 142. In Andrews, the court considered the application of underinsured motorist coverage in a situation similar to the case at bar, involving multiple claimants. In Andrews, the question before the court was “whether underinsured motorist coverage is available to an insured where the tortfeasor’s policy limit is greater than the insured’s policy limits but the claims of multiple claimants have resulted in undercompensation of the insured’s injuries.” Id. at 364, 604 N.E.2d at 144. We held in Andrews that “[w]hen determining whether a motorist is underinsured within the meaning of [former]
{¶ 20} In Andrews we rejected a comparison-of-the-limits approach where “the claims of multiple claimants result in reduction of the amount available for payment to the insured below the underinsured motorist limits.” (Emphasis sic.) Id. at 365-366, 604 N.E.2d at 145. In so doing, the court determined that “the clear language of [former]
{¶ 21} The court, in applying the above rationale to the facts of Andrews, concluded that the Andrewses were entitled to underinsured motorist benefits. The court reached this result by first determining the amount available for payment, i.e., the amount that was actually available, and could in fact be paid, to the Andrewses from the tortfeasor’s automobile liability policy. The court then compared that amount, which was zero dollars after the exhaustion of the tortfeasor’s liability limits by payments made to one injured claimant, to the underinsured motorist coverage limits of the Andrewses’ policy. Id. at 364 and 367, 604 N.E.2d at 144 and 146.
{¶ 22} We realize that the court in Andrews did not focus its attention on the question of setoff and instead limited its analysis to certain, specific language in
{¶ 23} It is presumed that the General Assembly is fully aware of any prior judicial interpretation of an existing statute when enacting an amendment. State ex rel. Huron Cty. Bd. of Edn. v. Howard (1957), 167 Ohio St. 93, 96, 4 O.O.2d 83, 84, 146 N.E.2d 604, 607. In enacting S.B. 20, the General Assembly chose to adopt the language “amounts available for payment,” a phrase that is repeated throughout Andrews and interpreted in our decision to mean those amounts actually accessible to and recoverable by the claimant from the tortfeasor’s liability policy. Thus, we conclude that the General Assembly was fully advised when the Senators and Representatives chose the language “amounts available for payment.”
{¶ 24} Further, if we were to adopt a strict “policy-limits-to-policy-limits” comparison approach we would be creating the potential for the law to treat uninsured and underinsured motorist claimants differently. Had the General Assembly intended such a result there would be no need for the “amounts available for payment” language. The General Assembly could have simply chosen other language, such as “the policy limits of the underinsured motorist coverage shall be reduced by the policy limits under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.” Of course such an approach would be inequitable and would defeat, rather than advance, the public policy reasons, set forth by the General Assembly in the statute itself, for adopting mandatory underinsured motorist coverage.
{¶ 25} The argument might be made that our resolution of Andrews was in error. Despite our holding in Andrews, some may contend that, through the plain language of
{¶ 26} Our decision in Andrews completely and properly resolves the issue in this matter. The court in Andrews noted that a limits-to-limits comparison
{¶ 27} Furthermore, the enactment of S.B. 20 had no effect whatsoever on the validity of our holding in Andrews. We find it significant that nowhere in the S.B. 20 amendments to
{¶ 28} Of course, and in any event, in construing statutory language, we must proceed under a presumption that, in enacting a statute, the General Assembly intended a “just and reasonable result.”
{¶ 29} Accordingly, we hold that for the purpose of setoff, the “amounts available for payment” language in
{¶ 30} A final issue remains for our consideration: the court of appeals’ certification, and our determination, of the existence of a conflict between two appellate districts. We now proceed to answer the certified question.
{¶ 31} The question that has been certified for our consideration is:
“Does the [policy language quoted below] unambiguously limit [uninsured motorist/underinsured motorist] coverage to a single per-person limit for all wrongful death claims derived from one deceased insured?”
{¶ 32} The insurance policy at issue provides the following with regard to underinsured motorist coverage:
“The limits of liability shown in the Declarations apply subject to the following:
“1. The limit for ‘each person’ is the maximum for bodily injury sustained by any person in any one accident. Any claim for loss of consortium or injury to the relationship arising from this injury shall be included in this limit.
“2. Subject to the limit for ‘each person,’ the limit for ‘each accident’ is the maximum for bodily injury sustained by two or more persons in any one accident.
“3. Subject to the law of the state of the occurrence, we will pay no more than these maximums regardless of the number of vehicles insured, insured persons, claims, claimants, policies, or vehicles involved in the accident.” (Boldface omitted.)
{¶ 33} Mid-Century concedes that appellant and the other statutory wrongful death beneficiaries of decedent Shane Parker are all insureds pursuant to the Mid-Century policy. Mid-Century also acknowledges, in its brief before this court (although appellee’s attorney at oral argument seemed to assume a different posture), that pursuant to applicable law each wrongful death beneficiary has a separate, individual claim for uninsured/underinsured motorist coverage.
{¶ 34} Pursuant to
{¶ 35}
“Any automobile liability or motor vehicle liability policy of insurance that includes coverages offered under division (A) of this section or selected in accordance with division (C) of this section and that provides a limit of coverage for payment for damages for bodily injury, including death, sustained by any one person in any one automobile accident, may, notwithstanding
Chapter 2125. of the Revised Code , include terms and conditions to the effect that all claims resulting from or arising out of any one person’s bodily injury, including death, shall collectively be subject to the limit of the policy applicable to bodily injury, including death, sustained by one person, and, for the purpose of such policy limitshall constitute a single claim. Any such policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the declarations or policy, or vehicles involved in the accident.”
{¶ 36} As set forth above,
{¶ 37} Appellant contends in regard to the certified question that ambiguity exists in at least two respects. First, appellant urges us to find that the terms “loss of consortium” and “injury to the relationship” as used in the Mid-Century policy are ambiguous. Second, appellant contends that the Mid-Century policy language does not unambiguously consolidate all damages arising out of one person’s death to a single per-person limit but, instead, consolidates only loss-of-consortium claims and injury-to-the-relationship claims into a single claim.
{¶ 38} In attempting to limit wrongful death damages, insurers are not required to use the exact wording set forth in
{¶ 39} The Mid-Century policy provides in “Part II—Uninsured Motorist, Coverage C,”4 that the insurer “will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person.” (Boldface omitted.) “Bodily injury” is defined in the Mid-Century policy as “bodily injury to or sickness, disease or death of any person.” According to the Mid-Century policy’s uninsured/underinsured motorist provision, an “[i]nsured person” means “[a]ny person for damages that person is entitled to recover because of bodily injury to you, a family member, or another occupant of your insured car.” (Boldface omitted.)
{¶ 40} As set forth in these sections of the Mid-Century policy, appellee has selected specific language that clearly allows for recovery of uninsured and underinsured motorist benefits for qualifying statutory wrongful death beneficiaries. The Mid-Century policy language provides that appellee “will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person.” (Emphasis added and boldface omitted.) Further, “insured person” is defined as “any person for damages that person is entitled to recover because of bodily injury to you, a family member, or another occupant of your insured car.” (Emphasis added and boldface omitted.)
{¶ 41} The question, however, remains whether the Mid-Century policy clearly and unambiguously limited all losses that resulted from the death of Shane
“The limits of liability shown in the Declarations apply subject to the following:
“1. The limit for ‘each person’ is the maximum for bodily injury sustained by any person in any one accident. Any claim for loss of consortium or injury to the relationship arising from this injury shall be included in this limit.”
{¶ 42} We do not agree with appellant that the phrases “loss of consortium” and “injury to the relationship” are ambiguous. The term “consortium” has long been part of English and American jurisprudence. Moreover, in Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052, at paragraphs one and two of the syllabus, we interpreted “consortium” to include services, society, companionship, comfort, love, solace, affection, guidance, and counsel. Thus, we reject appellant’s contention that this term is “so broad as to be meaningless.”
{¶ 43} Furthermore, while we agree with appellant that a “loss of consortium” action is different from a wrongful death action, we find that the phrase “injury to the relationship” is a clear reference to claims for wrongful death as contemplated by the Mid-Century policy. In reaching its resolution on this issue, the Montgomery County Court of Appeals noted that “an action for wrongful death arises out of the relationship between the decedent and his or her relatives [and thus] it is an injury to the relationship as defined by the policy.”
{¶ 44} In an action for wrongful death pursuant to
{¶ 45} The remainder of paragraph one of the “Limits of Liability” section is also clear. In construing this remaining policy language, we find that the Mid-Century policy does clearly and unambiguously restrict all wrongful death claims to a single per-person policy limit. This section provides that the “each person” limit of $100,000, as shown on the declarations page of the policy, is the maximum amount available for bodily injury sustained by any person in any one accident. Only one person, Shane Parker, sustained bodily injury. The “bodily injury” sustained by Parker was his death. Bodily injury is defined in the Mid-Century policy as including death. Because we have concluded that the phrase “injury to the relationship” encompasses wrongful death claims, any claim arising from the wrongful death of Shane Parker is included in the single each-person policy limit.
{¶ 46} Therefore, we hold that the language of the Mid-Century policy restricting all wrongful death claims to the single each-person policy limit is clear and unambiguous.
{¶ 47} Accordingly, the judgment of the court of appeals is affirmed in all respects.
Judgment affirmed.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
COOK, J., concurring in part and dissenting in part.
{¶ 48} I agree with that part of the majority opinion that addresses whether the wrongful death claims can be limited to a single per-person limit. But because the majority also reaches and resolves an issue that is not before this court, I respectfully dissent from the syllabus and that part of the opinion regarding
I
{¶ 49} The majority devotes several pages to interpreting the “amounts available for payment” language in
II
{¶ 50} Even if the “amounts available for payment” language in
A. R.C. 3937.18(A)(2) Pre-S.B. 20
{¶ 51} The version of
{¶ 52} First, the subsection’s opening sentence set the minimum amount of underinsured motorist coverage (“UIM coverage”) to be offered by an insurer: “Underinsured motorist coverage * * * shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage * * *.” 142 Ohio Laws, Part I, 1739.
{¶ 53} Second, the subsection’s first sentence also established that UIM coverage was triggered for the insured only “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.” This triggering language explicitly mandates a limits-to-limits comparison. Id. at 1739-1740.
{¶ 54} Third, the subsection’s second sentence explained how the limits of an insured’s recovery were to be calculated: “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.” Id. at 1740.
{¶ 55} This court interpreted the triggering language in Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658. We held that “[u]nless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured’s policy are identical to the limits of liability set forth in the tortfeasor’s liability insurance coverage.” Id., syllabus.
{¶ 57} The court again considered former
B. Legislative Intent and the R.C. 3937.18(A)(2) Triggering Provision
{¶ 59} The majority of this court continues to indulge its preferred public policy. It evaluates the practical consequences of construing
{¶ 60} I find that the plain language of the triggering provision mandates a limits-to-limits comparison. But even assuming arguendo that the statute is ambiguous, the court may consider, in addition to other matters, not just the object of the statute and the consequences of a particular construction, but also “[t]he circumstances under which the statute was enacted,” “the legislative history,” and “[t]he common law or former statutory provisions, including laws upon the same or similar subjects.”
{¶ 61} The majority relies heavily upon the purported absence of a legislative explanation for the altered language of the setoff provision, stating that “[w]e find it significant that nowhere in the S.B. 20 amendments to
“It is the intent of the General Assembly in amending division (A)(2) of section 3937.18 of the Revised Code to supersede the effect of the holding of the Ohio Supreme Court in the October 1, 1993 decision in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, [620 N.E.2d 809], relative to the application of underinsured motorist coverage in those situations involving accidents where the tortfeasor’s bodily injury liability limits are greater than or equal to the limits of the underinsured motorist coverage.” Section 7, S.B. 20, 145 Ohio Laws, Part I, 238.
{¶ 62} Given such an explicit expression of legislative intent, I cannot agree that the General Assembly intended to adhere to the Andrews-Savoie construction of the triggering provision of
{¶ 63} I note that the effect of the statutory scheme is not to vitiate the actual existence of UIM coverage as some may claim. Rather, the insured has purchased coverage that, as with much insurance, is subject to context-specific determinations of applicability. While the policy may not provide accessible coverage in regard to a specific claim, depending upon a limits-to-limits comparison, the policy may at the same time remain fully accessible in another claim. The insured chooses the amount of coverage he desires and is free to contract for greater levels of coverage that would increase the likelihood of applicability.
R.C. 3937.18(A)(2)
{¶ 64} Instead of acknowledging the uncodified law, the majority continues to rely upon “the public policy behind the enactment of the underinsured motorist statute, as well as the statutory language” to conclude that “the purpose of underinsured (and uninsured) motorist coverage is to treat injured automobile liability policyholders the same whether a tortfeasor is underinsured or uninsured.” I disagree for two reasons.
{¶ 65} First, the express words chosen by the General Assembly in the enacted statute and in the uncodified law evince a public policy contrary to that policy espoused by the majority. The second sentence of
“Underinsured motorist coverage was first required by statute after the legislature discovered the ‘underinsurance loophole’ in uninsured motorist coverage—i.e., persons injured by tortfeasors having extremely low liability coverage were being denied the same coverage that was being afforded to persons who were injured by tortfeasors having no liability coverage. Thus, the original motivation behind the enactment of [former]
R.C. 3937.181(C) was to assure that persons injured by an underinsured motorist would receive at least the same amount of total compensation that they would have received if they had been injured by an uninsured motorist.” (Emphasis sic.)
{¶ 67} The articulation of public policy set forth in James should not be, and cannot be, regarded as authoritative. This is so because there is no authority supporting James’s declaration of public policy, as a review of the legislative history of
{¶ 68} The passage of Am.Sub.H.B. No. 22 in 1979 amended former
{¶ 69} Former
“As used in this section, ‘underinsured motorist coverage’ means coverage in an automobile or motor vehicle liability policy protecting 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 insufficient to pay the loss up to the insured’s uninsured motorist coverage limits.” 138 Ohio Laws, Part I, 1459.
{¶ 70} This provision did not guarantee UIM recovery equal to the amount recoverable under UM coverage. Rather, much like the second sentence of current
{¶ 71} Nor does former
“The benefits provided under underinsured motorist coverages shall be subject to the same provisions as to denial of coverage, insolvency, subrogation, or off-set as provided in uninsured motorist coverage under divisions (B), (C), and (D) of section 3937.18 of the Revised Code.” 138 Ohio Laws, Part I, 1460.
{¶ 72} Former
{¶ 73} Nonetheless, this court cited James’s articulation of the purported public policy underlying former
{¶ 74} James’s “public policy” soon became an enabling mantra, relied upon to ignore the actual language of the triggering provision of
{¶ 75} With its analysis here, the majority uses this “public policy” to reject the legislature’s decision and again decides what the UM/UIM insurance law of
D. UIM Coverage is not Triggered in This Case
{¶ 76} Following this court’s decisions in Andrews and Savoie, the General Assembly amended the setoff provision of
“The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.” 145 Ohio Laws, Part I, 211.
{¶ 77} In considering this amended language—specifically the change from “amounts actually recovered” to “amounts available for payment”—the majority concludes that the legislature intended to adhere to this court’s pre-S.B. 20 interpretation in Andrews of what “amounts available for payment” means. Such reasoning espouses the view that the 1994 amendment to the statute was merely cosmetic, then, as it would have effected no substantive change.
{¶ 78} Not only does this case fail to present this issue to this court, but this case also could not properly present the setoff issue, because UIM coverage is not even triggered under the policies involved here. As the majority concedes, Andrews interpreted the triggering provision of (A)(2) and not the setoff provision. While Andrews construed “the limits of coverage available for payment” in the triggering
{¶ 79} That statute’s plain language both provided and provides for a limits-to-limits comparison in the triggering provision. In this case, the tortfeasor’s liability coverage was in the amount of $100,000 per person. Clark’s UIM policy also had a $100,000 per-person limit. Therefore, under the limits-to-limits comparison mandated by the first sentence of
{¶ 80} For the foregoing reasons, I decline to reach an issue not presented by this case and then elevate resulting dicta to the level of syllabus law. Further, were the issue presented, I would hold (1) that the intent of the General Assembly in S.B. 20 was to make clear that a limits-to-limits comparison is used in determining whether UIM coverage applies, and (2) that because the limits of the tortfeasor’s coverage are the same as the UIM coverage in this case, the issue of setoff is never reached.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing opinion.
Lamkin, Van Eman, Trimble, Beals & Rourke and Thomas W. Trimble; Crew, Buchanan & Lowe and Jeffrey A. Swillinger, for appellant.
Smith, Rolfes & Skavdahl Co., L.P.A., Matthew J. Smith and James P. Nolan II, for appellee.
Elk & Elk Co., L.P.A., and Todd O. Rosenberg, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
Notes
Suppose one person (“Craig”) is injured in an automobile accident caused by an insured tortfeasor (“Bob”). Bob has automobile liability insurance with limits of $100,000 per person and $300,000 per accident. Craig has provable damages of $150,000. Craig recovers $100,000 from Bob’s insurer. Craig has automobile liability insurance that includes a provision for uninsured/underinsured motorist coverage with limits of $100,000 per person and $300,000 per accident. Pursuant to
Now suppose that, in addition to Craig, there are three other passengers traveling in Craig’s automobile. All four occupants suffer injuries as a result of Bob’s negligence and sustain provable damages in excess of $100,000 each. Each person in Craig’s vehicle has separate automobile liability insurance policies that include uninsured/underinsured motorist coverage provisions of $100,000 per person and $300,000 per accident. Bob’s insurer pays $300,000, the per-accident limit of liability, to Craig and his three passengers. Thus, assuming equal distribution, each person in Craig’s vehicle receives $75,000.
Suppose that the setoff provision of
If, however, Craig and his passengers had been injured by an uninsured motorist, each person would have a separate uninsured motorist claim against his or her own insurer and would be able to collect uninsured motorist benefits up to the $100,000 per person limit. Thus, comparing the two examples with the stated purpose and intent of
Conversely, by interpreting the “amounts available for payment” language in