Lead Opinion
{¶ 1} The United States District Court for the Northern District of Ohio, Eastern Division, has certified the following question of state law for our resolution: “Does Ohio Revised Code Section 3937.18, as amended in 2001 by S.B. 97 (effective October 31, 2001), permit insurers to include an express limitation of coverage in an automobile insurance policy that precludes payments made under Uninsured/Underinsured Motorist coverage for medical expenses that are paid or payable under the Medical Payments coverage purchased in the same policy?” Stated differently, the question is whether an insurance carrier may decline to pay medical expenses pursuant to UM/UIM coverage when those same medical expenses have previously been paid or will be paid pursuant to the medical payments coverage in the same policy.
{¶ 2} We answer in the affirmative and hold that R.C. 3937.18(1), as amended by S.B. 97, permits an insurer to limit coverage so as to preclude payment pursuant to UM/UIM coverage for medical expenses that have previously been paid or are payable under the medical payment coverage in the same policy.
Facts and Procedural History
{¶ 3} We adopt the following factual and procedural history from the certification order submitted by the United States district court.
{¶ 4} Laura Grace, Elizabeth Garcia, Ladon Ruffin, Dorian Jones, Angela Webb, and Patricia Schwab (collectively, “the insureds”), allege involvement in
{¶ 5} State Farm declined to pay medical expenses under the UM/UIM coverage, asserting that such expenses were already paid or payable under the Med Pay coverage of the same policy. Grace, Garcia, Ruffin, and Jones together filed a putative class action against State Farm, and Webb and Schwab each filed individual putative class actions against State Farm. Each insured sought to represent a class of persons composed of all residents of the state of Ohio who (1) were insured persons under a policy of insurance issued by State Farm that included UM/UIM coverage and Med Pay coverage, for which State Farm charged separate premiums, (2) were insured persons under a policy of insurance comprised of State Farm’s standard policy form or forms that included a purported “non-duplication” clause, and (3) suffered a bodily injury for which State Farm refused to provide medical payment benefits under both the UM/ UIM and Med Pay portions of the policy.
{¶ 6} These underlying actions challenge the enforceability of the nonduplication clauses set forth in State Farm automobile insurance policies, which purportedly preclude payment pursuant to the UM/UIM coverage for medical expenses that are paid or payable under the Med Pay coverage purchased in the same policy.
{¶ 7} The parties do not dispute that the declarations page of each policy identified separate limits of coverage for UM/UIM and Med Pay coverage, or that State Farm charged separate premiums for each of these coverages. Each of the challenged policies contained an endorsement form 6083W, or a substantially identical form, containing the following “non-duplication” clause limiting the UM/UIM coverage:
{¶ 8} “Non-Duplication
{¶ 10} “(1) Medical Payments Coverage of this policy, or
{¶ 11} “(2) The medical payments coverage, no fault coverage, personal injury protection, or other similar coverage of any other motor vehicle policy.” (Boldface sic.)
{¶ 12} Each policy also contained a separate “non-duplication” clause within the Med Pay portion of the policy, stating:
{¶ 13} “Non-Duplication
{¶ 14} “No person for whom medical expenses are payable under this coverage shall recover more than once for the same medical expense under this or similar vehicle insurance.” (Boldface and italics sic.)
{¶ 15} Confronted with State Farm’s motions for judgment on the pleadings alleging that the nonduplication clauses contained in the subject insurance policies are valid and enforceable as a matter of law, the United States district court certified the instant question of state law to this court pursuant to Sup.Ct.Prac.R. XVIII. We accepted the certified question and agreed to answer it. Grace v. State Farm Mut. Auto. Ins. Co.,
Argument of the Parties
{¶ 16} State Farm contends that R.C. 3937.18, as amended by Am.Sub.S.B. No. 97 (“S.B. 97”), 149 Ohio Laws, Part I, 779, effective October 31, 2001, expressly permits insurers to insert exclusionary or limiting provisions into the UM/UIM portion of their policies. State Farm recognizes that this court’s decisions interpreting earlier versions of R.C. 3937.18 have held that such exclusions violate public policy. But State Farm argues that S.B. 97 signals a dramatic shift in public policy because it eliminates the statutorily mandated offering of UM/UIM coverage, as well as the attendant public policy against reducing such mandatory coverage, and expressly permits insurers to contractually limit UM/UIM coverage. Accordingly, State Farm urges that the certified question be answered in the affirmative.
{¶ 17} The insureds, on the other hand, maintain that this court’s decisions in Shearer v. Motorists Mut. Ins. Co. (1978),
{¶ 18} We focus then on the narrow issue of whether R.C. 3937.18(1), as amended by S.B. 97, permits an insurer to contractually preclude payment pursuant to UM/UIM coverage for medical expenses that have previously been paid or are payable under the medical payment coverage in the same policy.
Interpretation of R.C. 3937.18 Prior to the Enactment of S.B. 97
{¶ 19} Prior to the General Assembly’s 2001 enactment of S.B. 97, R.C. 3937.18 required insurers to offer UM/UIM coverage to all persons who obtained motor vehicle liability insurance policies in Ohio. See, e.g., former R.C. 3937.18, 148 Ohio Laws, Part V, 11380. In construing this statutorily mandated offer of coverage, we held that in the absence of an express rejection of that coverage by the insured, the coverage arose by operation of law. See, e.g., Linko v. Indemn. Ins. Co. of N. Am. (2000),
{¶ 20} In Shearer v. Motorists Mut. Ins. Co.,
{¶ 21} Next, we considered a policy term that provided an insurer a contractual right of subrogation for payments made under the Med Pay portion of an insurance policy. In Grange Mut. Cas. Co. v. Lindsey,
{¶ 22} Most recently, in Berrios v. State Farm, Ins. Co.,
Interpretation of R.C. 3937.18 Subsequent to the Enactment of S.B. 97
{¶23} Subsequent to our decisions in Shearer and Lindsey, in 2001, the General Assembly enacted S.B. 97, effecting comprehensive changes to Ohio’s UM/UIM law. Notably, the enactment eliminated the mandatory offer requirement for UM/UIM coverage, and, consequently, the possibility that UM/UIM coverage could arise by operation of law. See R.C. 3937.18(A) (the insurer “may, but is not required to,” include UM/UIM coverage); S.B. 97, Sections 3(B)(1), (2), and (4), 149 Ohio Laws, Part I, 779, 788.
{¶ 24} Additionally, the bill amended former division (J) of R.C. 3937.18, redesignating it as division (I), to provide: “Any policy of insurance that includes uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages may include terms and conditions that preclude coverage for bodily injury or death suffered by an insured under specified circumstances, including but not limited to [certain listed circum
{¶ 25} Our paramount concern in construing statutes is legislative intent. Fisher v. Hasenjager,
{¶ 26} While S.B. 97 does not expressly state the General Assembly’s intent to supersede our holdings in Shearer or Lindsey, it did eliminate the statutory obligation of a carrier to offer UM/UIM coverage, which was the basis of those holdings. Moreover, the legislature broadened the circumstances under which a carrier may preclude coverage for bodily injury or death suffered by an insured, and it expressed its intent to do so by incorporating the phrase “including but not limited to” when referring to the circumstances under which coverage may be precluded.
{¶ 27} We have previously recognized that the phrase “including but not limited to” “denotes a nonexclusive list” of examples. Moore v. Lorain Metro. Hous. Auth.,
{¶ 28} This provision is different from the prior version of R.C. 3937.18(J), which restricted insurers to precluding UM/UIM coverage for bodily injury in only three circumstances and did not contain the “including but not limited to” language. 2000 Sub.S.B. No. 267, 148 Ohio Laws, Part V, 11380, effective September 21, 2000. As we recognized in Snyder v. Am. Family Ins. Co.,
{¶ 29} The uncodified language of S.B. 97 supports this conclusion. In Section 3(B)(3) of S.B. 97, the General Assembly expressed the public policy of this state not only to eliminate the mandatory offer of UM/UIM coverage, but also to permit insurers to incorporate exclusionary or limiting provisions in their UM/ UIM coverages. 149 Ohio Laws, Part I, 788. Thus, based on express legislative intent, insurers may now include terms and conditions in their policies to limit or exclude UM/UIM coverage.
{¶ 30} Seven appellate districts that have considered the S.B. 97 version of R.C. 3937.18(1) have held that it permits insurers to include limitations and exclusionary clauses in the UM portion of their policies. See Shenyey v. Glasgow, Cuyahoga App. No. 91713,
{¶ 31} One decision of the Fifth District Court of Appeals, however, reached the opposite conclusion. In Wayne Mut. Ins. Co. v. Bradley, Stark App. No. 2005CA00200,
{¶ 33} The General Assembly originally enacted R.C. 3937.18(F) in response to our decision in Savoie v. Grange Mut. Ins. Co. (1993),
{¶ 34} Expressing its intention to supersede our decision in Savoie, the General Assembly enacted Am.Sub.S.B. No. 20, 145 Ohio Laws, Part I, 204, effective October 20, 1994. See Section 9 of the bill, 145 Ohio Laws, Part I, 238. S.B. 20 amended former R.C. 3937.18(G)
{¶ 35} Unlike the situation that obtained when the General Assembly enacted S.B. 20, the facts and circumstances surrounding the enactment of S.B. 97 and the language used by the General Assembly in R.C. 3937.18(1) broadly permit insurance carriers to limit or exclude UM/UIM coverage in their policies and make no distinction on the basis of premiums paid.
{¶ 36} Based upon the foregoing, we hold that R.C. 3937.18(1), as amended by S.B. 97, permits an insurer to limit coverage so as to preclude payment pursuant to UM/UIM coverage for medical expenses that have previously been paid or are payable under the medical payment coverage in the same policy.
{¶ 37} Accordingly, we answer the certified question of state law in the affirmative.
Judgment accordingly.
Notes
. In its brief, State Farm asserts that Patricia Schwab’s complaint does not allege that she was injured in an automobile accident involving an uninsured or underinsured motorist, that she incurred medical expenses as a result of any accident, or that State Farm did not pay for any damages she incurred in an accident. However, State Farm acknowledges that she claims to represent a putative class of insureds who (1) paid separate premiums for UM/UIM coverage and Med Pay coverage and/or (2) suffered bodily injury and incurred medical expenses for which State Farm refused to pay under both coverages.
. The Supreme Court of Arizona later overruled Bacchus v. Farmers Ins. Group Exchange (1970),
. Now R.C. 3937.18(F).
Concurrence Opinion
concurring.
{¶ 38} The certified question in this case is: “Does Ohio Revised Code Section 3937.18, as amended in 2001 by S.B. 97 (effective October 31, 2001), permit insurers to include an express limitation of coverage in an automobile insurance policy that precludes payments made under Uninsured/Underinsured Motorist coverage for medical expenses that are paid or payable under the Medical Payments coverage purchased in the same policy?” Based on my reading of R.C. 3937.18, in particular subsection (I), and the analysis contained in the majority opinion, the answer to the certified question must be yes.
{¶ 39} I write separately to emphasize that Shearer v. Motorists Mut. Ins. Co. (1978),
{¶ 40} I cannot say with confidence that the State Farm policy in this case is contrary to public policy or goes beyond what the General Assembly intended to allow. Furthermore, based on the policy language in this case, the exclusion does not present a gap in coverage. See Clark v. Scarpelli (2001),