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Cincinnati Indemnity Co. v. Martin6/16/1999
(1992), 62 Ohio St.3d 397, 583 N.E.2d 309. In Holt v. Grange Mut. Cas. Co. (1997), 79 Ohio St.3d 401, 683 N.E.2d 1080, we recently held that wrongful death claimants could recover under the uninsured/underinsured motorist provisions of the decedent's automobile policy despite the fact that the policy's definition of "insured" excluded them from coverage. We found that the use of restrictive policy language that would have denied the wrongful death claimants recovery was ineffectual, since it was an impermissible restriction on the insurance coverage mandated by R.C. 3937.18. We held that coverage must be afforded in order to reconcile the requirements of former R.C. 3937.18(A) and R.C. Chapter 2125. The Holt decision was premised on the unique interplay between former R.C. 3937.18(A) and R.C. 2125.01 et seq. However, given the differences between uninsured motorist insurance and homeowner's insurance, its holding has no application here. Nor do we find that any argument based on the uninsured motorist statute is persuasive.
By focusing on his independent right to bring a wrongful death claim, and in ignoring the plain language of the policy, which excludes liability coverage for bodily injury to an insured, including claims resulting from his death, appellant has lost sight of the relevant issue at hand, i.e., whether there is policy coverage that would trigger CIC's duty to indemnify and/or defend the insured in the wrongful death lawsuit. Even though appellant may pursue an independent wrongful death claim (Thompson v. Wing , 70 Ohio St.3d 176, 637 N.E.2d 917), this does not mean that he can create liability coverage where there is none. Thus, we hold that an insurer has no duty to defend or indemnify its insured in a wrongful death lawsuit brought by a noninsured based on the death of an insured where the policy excludes liability coverage for claims based on bodily injury to an insured. Since appellant's wrongful death claim stems solely from an insured's "bodily injury," we hold that appellant's wrongful death claim is excluded from coverage and that CIC has no duty to defend or indemnify its insured.
Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed.
Moyer, C.J., Douglas, Resnick, Pfeifer and Lundberg Stratton, JJ., concur.
Cook, J., concurs in judgment only.
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