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Selander v. Erie Insurance Group6/2/1999
[Cite as Selander v. Erie Ins. Group (1999), ___ Ohio St.3d ___.]
Insurance - Motor vehicles - Provisions of R.C. 3937.18 apply to policy of primary insurance which provides coverage for claims of liability arising out of the use of hired or non-owned automobiles, but is not issued for delivery with respect to some particular motor vehicle.
Submitted January 13, 1999
On November 14, 1992, Eugene Selander was killed, and his brother Glenn R. Selander seriously injured, when their pickup truck was involved in an accident with another car. It was determined that the accident was caused by the negligence of the driver of the other car, David L. Clark. Betty L. Selander, Eugene's widow and the administrator of his estate, as well as Glenn Selander and his wife, each settled all claims against Clark's liability insurer for $103,500.
At the time of the collision, Glenn and Eugene Selander were electricians involved in a partnership known as Twin Electric and were working in the course and scope of their business activities. The 1980 Ford pickup truck they occupied was listed as a covered automobile in a Pioneer Commercial Auto Policy issued to Twin Electric by Erie Insurance Company. The policy included uninsured/underinsured motorist coverage in the amount of $300,000 per accident. As a result, Betty received a $200,000 settlement, and Glenn and his wife received a $100,000 settlement. Glenn Selander and his wife were also covered under a separate auto insurance policy issued by Erie Insurance Company that included uninsured/underinsured coverage. Under this policy, Glenn and his wife received $100,000.
Thereafter, appellees filed a claim for underinsured motorist benefits under a Fivestar General Business Liability Policy issued by appellant Erie Insurance Exchange ("Erie") to Twin Electric. The policy contained protection limits of $1 million per occurrence and $2 million policy aggregate. Erie refused to pay, asserting that the Fivestar policy did not provide automobile liability coverage or uninsured/underinsured motorist coverage.
Appellees filed a declaratory action seeking underinsured motorist benefits under the Fivestar policy. The trial court granted summary judgment in the appellees' favor, holding that they were entitled to underinsured motorist coverage under the Fivestar policy. The court of appeals affirmed, holding that the Fivestar policy constituted an automobile or motor vehicle liability policy subject to R.C. 3937.18. Finding its judgment in conflict with the Tenth District Court of Appeals' decision in Mauler v. Westfield Ins. Co. (Sept. 28, 1989), Franklin App. Nos. 88AP-914 and 88AP-915, unreported, 1989 WL 112342, the court of appeals entered an order certifying a conflict.
The cause is now before this court upon our allowance of a discretionary appeal and upon our determination that a conflict exists.
Francis E. Sweeney, Sr., J. The court of appeals certified the following issue for our determination: "Do the provisions of R.C. 3937.18 apply to a policy of primary insurance which provides coverage for claims of liability arising out of the use of hired or non-owned automobiles, but is not issued for delivery with respect to some particular motor vehicle?" For the reasons that follow, we answer "Yes" to the foregoing issue.
R.C. 3937.18(A) provides in part, "No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to
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