695 N.E.2d 354 | Ohio Ct. App. | 1997
The Summit County Common Pleas Court granted summary judgment to Nationwide Mutual Insurance Company upon issues of extent of liability under an insurance policy executed by Nationwide, the carrier for the tortfeasor in an action pending for death benefits, brought by the fiduciary of the estate of Sepia Midgyette, Ophelia Smith.1 Smith appeals assigning a single error:
"The trial court erred as a matter of law in finding that R.C.
Sepia Midgyette died as the result of negligent operation of a truck driven by appellee Kerry Mancino, who was insured by Nationwide. The insurance policy executed between Mancino and Nationwide contained liability limits of $100,000 per person and $300,000 per occurrence for bodily injuries caused by Mancino.
The policy further provided:
"Our obligation to pay * * * Bodily Injury Liability losses is limited to the amounts per person and per occurrence stated in the Declarations. The following conditions apply to these limits:
"* * * *420
"(2) Bodily Injury limits shown for any one person are for all legal damages, including all derivative claims, claimed by anyone arising out of and due to bodily injury to one person as a result of one occurrence."
The per-person limit is the total amount available when one person sustains bodily injury, including death, as a result of one occurrence. No separate limits are available to anyone for derivative claims, statutory claims or any other claims made by anyone arising out of bodily injury, including death, to one person as a result of one occurrence.
This case is another in the sequence of litigation challenging the extent to which claimants under automobile policies can, or cannot, recover money awards in excess of express contract limitations. Although an anthology of such litigation is unnecessary, it is appropriate to note that such litigation culminated in Savoie v. Grange Mut. Ins. Co. (1993),
This holding of Savoie was based on the elevated status of wrongful death claims in Ohio. Id. at 504,
Prior to Savoie, supra, and without the benefit of legislation, the Ohio Supreme Court, upon operative facts remarkably similar to those in the case sub judice, held that such coverage is determined by the number of persons injured or killed in any one accident, not by the number of persons incurring damages as a result of the injuries or death to the persons actually in the accident. Burris v. Grange Mut. Cos.
(1989),
Savoie, therefore, reflected a complete reversal of position by the Supreme Court on this issue. Savoie, which had broad sweeping effects on this issue as well as the entire area of uninsured/underinsured motorist coverage, was sharply criticized for violating the freedom to contract between insurer and insured, ignoring the legislative intent behind R.C.
Savoie also led to great debate in the Ohio legislature.Id. In an obvious effort to ameliorate the holding inSavoie, the legislature, on July 21, 1994, enacted Am. Sub. S.B. No. 20 ("Senate Bill 20"), which served to supersede each of the four paragraphs of the Savoie syllabus. Included in this legislation was R.C.
"Any liability policy of insurance including, but not limited to, automobile liability or motor vehicle liability insurance that provides a limit of coverage for payment for damages for bodily injury, including death, sustained by any one person in any one accident, may, notwithstanding Chapter 2125. of the Revised Code, include terms and conditions to the effect thatall claims resulting from or arising out of any one person'sbodily injury, including death, shall collectively be subject tothe limit of the policy applicable to bodily injury, includingdeath, sustained by one person, and, for the purpose of suchpolicy limit shall 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." (Emphasis added.)
The substantive impact of R.C.
Appellant tenders a two-step, sequential analysis of why the trial court was in error, and why the $100,000 per-person limitation of the policy should not apply: (1) R.C.
We are therefore constrained to hold that R.C.
The plaintiff relies heavily on the Supreme Court's decision in Wood v. Shepard, supra,
What the plaintiff overlooks in her reliance on Wood,
however, is the fact that it was decided on the basis of statutory authority, not the Ohio Constitution. The court considered its holding to be a reflection of the intent of the operative legislation at that time. The holding of Wood was followed in Savoie, and the holding of Burris specifically overruled, on the basis of "the legislative status of wrongful death claims in Ohio." Savoie,
In fact, the Wood opinion, rather than shedding light on this issue, merely tends to create confusion. Wood makes no distinction between a wrongful death cause of action for damages and the tortfeasor's contractual right to defense and indemnity with his insurance company. See, also, Savoie,
"Section
Civil damages recoverable for wrongful death are not limited by R.C.
The assignment of error is overruled, and the summary judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
BAIRD and REECE, JJ., concur.
JOHN R. MILLIGAN, JR., J., retired, of the Fifth Appellate District, sitting by assignment.