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Bernabei v. Cincinnati Insurance Cos.9/20/2004
erpreted to provide coverage only when an insured has suffered bodily injury or death. This interpretation emphasizes the following words: "unless both of the following coverages are offered to persons insured under the policy for loss due to bodily injury or death suffered by such insureds."
{ } Both of these readings are plausible. Given the choice, the remedial nature of the statute requires an interpretation in favor of granting UIM coverage consistent with Sexton and Moore.
{ } Appellant appears to assume that the legislative intent in changing the word "persons" to the word "insureds" could only be interpreted as a negative response to the Supreme Court's prior interpretation of R.C. §3937.18(A) in Sexton and Moore. In point of fact, statutes are regularly changed because the legislature agrees with or wishes to codify a Supreme Court interpretation. A classic example of this occurred when the legislature passed R.C. §3119.82 in 2001, which codified the Supreme Court's common law procedure for allocating the income tax dependency credit in divorce cases, as set forth in Singer v. Dickinson (1992), 63 Ohio St.3d 408, 588 N.E.2d 806. Statutes are also changed for many reasons having nothing to do with Ohio Supreme Court opinions.
{ } Furthermore, in Moore the Supreme Court based its decision, in part, on the fact that the uncodified commentary to the 1994 changes to R.C. §3937.18 did not specifically state that the changes were intended to overrule Sexton. Moore at 31, 723 N.E.2d 97. The Moore opinion noted that the legislature published comments to the 1994 revisions of R.C. §3937.18 indicating the legislature's intent to overrule the Supreme Court's holding in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. No similar comments were published with respect to overruling Sexton either in 1994 or 1997. In fact, the legislature did not indicate its intent to overrule Sexton until October 31, 2001, as part of the comments included with the revisions of R.C. §3937.18 in Am.Sub.S.B. 97.
{ } The trial court in this case was correct in applying Sexton and Moore to the 1997 version of R.C. §3937.18(A) applicable to the Personal Auto policy. Appellee parents (and other family members) are entitled to UIM coverage for losses associated with the death of their son, Richard. Appellant's assignment of error is overruled and the judgment of the trial court is affirmed in Appeal No. 2002CA00078.
{ } Pursuant to the above, in Appeal No. 2002CA00073, we reverse the February 6, 2002, decision to grant summary judgment to Tamara Bernabei, and we further grant Appellant's motion for summary judgment pursuant to the IBEW policy No. CAP 500 9118 C1. The decedent Richard Bernabei was not an insured under the IBEW policy, and Richard Bernabei's related family members cannot claim to be insureds, based on the principles set forth in the recent Galatis case issued by the Ohio Supreme Court. In Appeal No. 2002CA00078, we affirm the February 6, 2002, judgment entry granting summary judgment to Appellees Robert and Shirley Bernabei, et al. on their Sexton/Moore claim under Policy No. HRA 696 49 73 issued by Cincinnati Insurance Companies.
Donofrio, J., concurs.
Vukovich, J., concurs.
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