This case is before the court on the demurrer of the defendant to plaintiff’s amended petition on the basis of the claim by the defendant that this action
It appears from the amended petition that plaintiff sustained personal injuries on October 30, 1963, resulting from the negligence of one Jess M. Allen in the operation of a motor vehicle. The tortfeasor, Mr. Allen, at the time of such accident was not covered by bоdily injury liability insurance. This action involves a suit against Allstate Insurance Company under the terms of a contract of insurance providing that:
“Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or opеrator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile. ’ ’
Such contract of insurance further provides:
‘ ‘ The determination as to whether the insured shall be legally entitled to recover damages, and if so entitled the amount thereof, shall be made by agreement between the insured and Allstate.
“In the event of disagreement and upon written demand of the insured, the matter or matters upon which the insured and Allstate do not agreе shall be settled by arbitration in accordance with the rules of the American Arbitration Association * * *.”
Here the amended petition alleges that on or about March 29, 1967, after being unable to agree with defendant as to the amount of damagеs which the plaintiff was entitled to recover, a demand for arbitration was filed.
The demurrer of the defendant is predicated on the assertion that plaintiff’s action, seeking to compel arbitration, is barred by Section 2305.10, Revised Code, which reads:
“An action for bodily injury or injuring personal property shall be brought within two years after the cause of action thereof arose.”
To accept this assertion one must conclude that this is an action “for bodily injury” within the purview of Sec
In support of this position counsel for defendant relies in large part on the holding of the Ohio Supreme Court in Andrianos v. Community Traction Co.,
In Andrianos it had been asserted that the two-year statute of limitations was limited in its application to actions in tort and was inapplicable to any action in “contraсt, express or implied.” Under the facts of that case it was held that such two-year statute prohibited a fare paying passenger who sustained bodily injuries during his transportation by a common-carrier of passengers from instituting suit more than two years therеafter on the theory of an “implied contract for safe carriage.” There, as obviously distinguished from the instant case, the actions of the defendant caused injury to the plaintiff. Here, by virtue of Allstate’s contract, it has obligated itself to pay an amоunt equivalent to that which could be recovered in a negligence action, but we think it clear that the “cause of action” is not one for “bodily injury” within the purview of Section 2305.10, Revised Code.
In our opinion that statute is limited to cases where the рarty defendant has breached some duty and thereby caused personal injury or property damage to the person seeking recovery.
In cases where the “fault” of the party defendant caused personal injury to a party plaintiff, it would make no difference whether such “fault” or “breach оf duty” arose from a duty imposed by “contract” or a duty imposed by law in the field of torts. In either event the action would be one against the defendant for causing such
In this connection reference might be made to the detailed discussion as to what constitutes a “cause of action” contained in the recent opinion of the Ohio Supreme Court in Henderson v. Ryan,
Reference might also be made to the fact that in Rogers v. Toni Co.,
In our opinion therefore Andricmos does not require a holding that the two-year statute is applicable to all actions on contract in which the measure of recovery is based on personal injury. While in the instant case the method of computation of damages, up to policy limits, would be the same as that employed in an action for bodily injury, such clearly is an action to enforce the terms of a contractual obligation and thus not barred by the two-year statute of limitations. While not involving an uninsured motorist provision of an insurance contract, the cases of Ohio Casualty Insurance Co. v. Capolino,
This conclusion is also fortified by the holding of the Court of Appeals of Lucas County in Cartage Company v. Fought,
On the subject of the applicable statute of limitations in uninsured motorist coverage contracts we quote from the article of Herald Aksen of the New York Bar and counsel of the American Arbitration Association in 24 O. S. L. J. at page 591:
“Applicable Statute op Limitations — Tort or Contract
“In writing uninsured motorist coverage, the insurance companies did not place any time limitations within which the insured had to file his clаim. Accordingly, the normal statute of limitations applicable in each state would prevail. The question arises, however, which statute applies to an insured’s claim against his insurer under the uninsured motorist endorsement.
“In most states the statute of limitations for actions based on written contracts is several years longer than that applied to negligence suits. In Ohio, for instance, the statute of limitations in contract actions is 15 years, and the statute of limitations for negligence actions is 2 years.
“The insurance companies have tried to sustain the position that the tort statute of limitations applies. This argument is based on the dual rationale that:
“(1) The insured’s claim for personal injuries is founded in negligence and if the insured allows this statute*88 to run, he no longer has a valid claim under the uninsured motorist endorsement which allows recovery only for the sums which the insured is legally entitled to recover; and
“(2) the lapse of the shorter negligence statute of limitations by the insured against the uninsured motorist, would рreclude the insurance company from any subrogation rights it has under the policy.
“The intent of uninsured motorist endorsements, namely to afford protection to innocent victims of uninsured motorists should help resolve this issue in favor of the longer statute of limitations. In fact, the few pertinent decisions hold that the longer contract statute of limitations applies to uninsured motorist claims against the insurer.”
The decisions there referred to as holding that the longer contract statute of limitations applied were Coccarelli v. Travelers Indem. Co., 204 N. Y. S. 2d 550; La-Marsh v. Maryland Cas. Co., 231 N. Y. S. 2d 121; Travelers Indent. Co. v. DeBose, 226 N. Y. S. 2d 16. There appear to be no reported Ohio cases on this subject matter.
We are in basic agreement with the opinions expressed by the New York Courts in these cases.
Another holding to the same effect is Booth v. Firemen’s Fund Ins. Co.,
Defendant herein relies to some extent on Sykes v. Firemen’s Ins. Co.,
In our opinion the rationalization in Sylces is limited to cases wherein the “cause of action” sought to be enforced has in effect been engrafted into a contract but where same is not truly a pаrt of such contract. In any event to the extent that any rationalization in Sylces would
Even though in this case counsel for defendant asserts that the instant action was not commenced within the two-year statute of limitations, a more careful analysis would indicate that what counsel probably is actually asserting is that even though this be an аction to enforce a contract, and even though so far as Ohio statutes of limitation be concerned the two-year statute would not apply, that no “cause of action stated” since under the terms of the contract itself the obligation of Allstate to pаy is limited to sums “which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile.” Thus, it could be asserted that since the tortfeasor himself could now raise the two-year statute of limitations, the injured party no longer could legally recover damages from such tortfeasor, and this being true, not by virtue of any statute of limitations but by virtue of the terms of the contract itself, no recovery can now be made from the insurance company.
This question is discussed in LaMarsh, DeBose and Booth аnd we agree with the conclusion therein reached that such statute of limitations is a personal protection to the party causing the injury and in no way affects the legal obligation of the insurance company to pay, pursuant to its сontract, monies which the insured could legally recover from the tortfeasor assuming otherwise the financial and procedural ability to so recover.
If, within the framework of its contractual obligation, Allstate intended to limit any payment under thе uninsured motorist clause to its own insured to a period of two years subsequent to the receiving of any such injury, it would be a simple matter to insert such language within the contract of insurance. This not having been done, in our opinion it cannot be assertеd by innuendo merely by the fact that by other language of the policy Allstate would be subrogated in the event of payment, and by the fact that, if subrogated, the insurance company could not recover from
For the reasons herein stated we conclude that Section 2305.10, Revised Code, is not applicable to an action brought tо require arbitration as to the amount of money to be paid under a policy of insurance providing for payment to its insured for damages received by such insured from the owner or operator of an uninsured automobile because of bodily injury. For these reasons the demurrer of defendant to the amended petition is overruled.
Demurrer overruled.