Sumwalt v. Allstate InsuranceSumwalt v. Allstate Insurance
Lead Opinion
The sole issue presented on appeal is whether plaintiff-appellant has a right to uninsured motorists benefits under her insurance policy with defendant-appellee containing the following uninsured motorists provision:
“We will pay damages for bodily injury, sickness, disease or death which a person insured is legally entitled to recover from the owner or operator of an
We conclude that appellant has a right to uninsured motorists benefits under the coverage provided by appellee for the reasons that follow.
There is no Ohio legal precedent interpreting the phrase “legally entitled to recover” contained in the uninsured motorists provision of appellant’s policy as it relates to the defense of immunity of the unemancipated child to a negligence action pursued by his parent. The difficulty created in interpreting and applying this phrase is our holding in Mauk v. Mauk (1984),
Appellee’s rationale, accepted by the court of appeals, is that since intrafamily tort immunity bars recovery by appellant from her unemancipated son based upon his negligence, then by reason thereof appellant is not “legally entitled to recover from the owner or operator of an uninsured auto” (emphasis added) within the meaning of the uninsured motorists coverage provision. We reject that rationale.
The phrase “legally entitled to recover from the owner or operator of an uninsured auto,” contained in the uninsured motorist provision of appellant’s policy, means that the insured must be able to prove the elements of her claim necessary to recover damages. That the uninsured motorist tortfeasor has a child-parent immunity does not affect the insured’s elements of the claim for damages nor the insured’s right to recover uninsured motorists benefits from her insurer. Allstate Ins. Co. v. Elkins (1979),
With reference to the defense of interspousal immunity, by a parity of reasoning with Elkins, supra, the court in Guillot v. Travelers Indemn. Co. (La. App. 1976),
After referring to the earlier decision of Gremillion v. State Farm Mut. Auto. Ins. Co. (La. App. 1974),
“* * * In Gremillion we held that the defense of interspousal immunity is personal to the husband or wife and cannot be raised by an insurer in a direct action against same.
“In Gremillion we quoted extensively from Booth v. Fireman’s Fund Insurance Company,
“ ‘* * * †-jjg insurer does not stand in the shoes of the uninsured motorist who is the tort feasor.
i( <* * *
“ ‘We interpret the words “legally entitled to recover” to mean simply
The court of appeals in this case in reaching its decision relied heavily upon York v. State Farm Fire & Cas. Co. (1980),
On the basis of the rationale previously set forth in this opinion holding the insurer liable to its insured for uninsured motorists benefits even where the uninsured tortfeasor is the child of the insured, our recent holdings in Mauk v. Mauk, supra, and Bonkowsky v. Bonkowsky (1982),
Three members of the majority in this case express the view that the parent-child immunity restated in Karam v. Allstate Ins. Co. (1982),
The judgment of the court of appeals is reversed.
Judgment reversed.
Dissenting Opinion
dissenting. By attempting to create a distinction without a difference, today’s majority opinion sub silentio places a foot in the door to abrogate the doctrine of parent-child immunity which was recently upheld by this court in Mauk v. Mauk (1984),
The relevant portion of the uninsured motorist provision at issue states:
“We will pay damages for bodily injury, sickness, disease or death which a person insured is legally entitled to recover from the owner or operator of an uninsured auto.” (Emphasis added.)
While the majority begs the question by stating that there is no precedent in this state which interprets the phrase “legally entitled to recover,” it is clear from prior case law that a mother is not legally entitled to recover from her unemancipated child in a negligence action. Mauk, supra. The unemancipated child is protected by absolute immunity. Therefore, appellant is precluded from recovering under the uninsured motorist provision as there is no basis for liability under the facts presented. In the absence of liability, there is no protection for an injured plaintiff under an uninsured proviso.
Other jurisdictions have reached similar conclusions. In Markham v. State Farm Mut. Auto. Ins. Co. (C.A. 10, 1972),
This court has previously faced an analogous situation in York v. State Farm Fire & Cas. Co. (1980),
This court unanimously denied plaintiffs’ recovery on the premise that an uninsured motorist proviso is for the protection of persons insured thereunder and such provisions apply only to those who are legally entitled to recover damages from the owner or operator of the vehicle. In construing the phrase “legally entitled to recover” in the context of the uninsured motorist statute, we stated:
“The intent and thrust of R.C. 3937.18 is not to provide coverage in all situations that might otherwise go uncompensated; rather, the uninsured motorist provision applies only when there is a lack of liability insurance. The
We also set forth legal framework in York in an effort to guide members of the bench and bar of this state. This court specifically provided:
“It is the legal defense, and not the status of insurance, that warrants our decision herein. The uninsured motorist coverage is to apply only in those situations in which the ‘lack of liability insurance’ is the reason the claim goes uncompensated, and not when the claim goes uncompensated because of the lack of liability due to the substantive laws of Ohio.” (Emphasis sic.) Id.
The majority herein attempts to distinguish York on the basis that the city of Elyria was granted statutory immunity pursuant to R.C. 701.02. The majority finds a difference between this statutory immunity and the common-law immunity of parent-child. I fail to see any difference. The general policy reasons which support immunities are the same no matter the origin of the particular immunity involved. There are certain traditional values in our society which we deem important enough to protect from liability.
I cannot in good conscience distinguish the York decision from the facts presented here. Accordingly, I would affirm the judgment of the court of appeals.
Concurrence Opinion
concurring. This case involves, first and foremost, a question of the continued viability of intrafamily immunity. Indeed, it is unnecessary to indulge in the convoluted interpretation of the phrase “legally entitled to recover” until it has first been determined that intrafamily immunity would otherwise bar the action.
I have repeatedly made my position on the issue of intrafamily immunity clear. See Dorsey v. State Farm Mut. Auto. Ins. Co. (1984),
I concur in judgment only.