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Selander v. Erie Insurance Group6/2/1999
the scope of uninsured/underinsured ("UM/UIM") motorist coverage as mandated by R.C. 3937.18 and further erodes the contractual nature of the relationship between an insurer and insured. The majority now finds a business liability policy the basis for UM/UIM coverage for company vehicles despite the fact that the policy expressly excludes this type of automobile coverage.
Twin Electric, a business belonging to two brothers who work as electricians, purchased the Fivestar General Business Liability Policy to provide liability coverage for its business operations. Twin Electric also had a Pioneer Commercial Automobile Policy to provide liability coverage, including UM/UIM coverage, for company vehicles. Although the Fivestar policy specifically excluded liability coverage for company vehicles, a portion of the policy did cover "hired" or "non-owned" vehicles that may be used during the operation of the business. With respect to the "hired" or "non-owned" vehicles, the Fivestar policy agreed to pay "all sums which anyone we protect becomes legally obligated to pay as damages because of personal injury or property damage arising out of" the use of these vehicles, i.e., vicarious liability. When vicarious liability is at issue, the insured is not seeking compensation for damages. Instead, the insured is legally liable for damages for injuries to another. Because the very premise of vicarious liability involves injury to one other than those protected by the insurance policy at issue, UM/UIM coverage does not apply in this situation and makes no sense.
The basic premise of UM/UIM coverage is " `to protect persons from losses that, because of the tortfeasor's lack of liability coverage, would otherwise go uncompensated.' " Schaefer v. Allstate Ins. Co. (1996), 76 Ohio St.3d 553, 555, 668 N.E.2d 913, 915, quoting Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 480, 639 N.E.2d 438, 440. The majority concedes that Twin Electric had an automobile liability policy with matching UM/UIM coverage of $300,000 per accident. Glenn Selander also had personal automobile insurance coverage. These plaintiffs received compensation from at least three sources: the tortfeasor's policy, the Twin Electric automobile liability policy, and Glenn Selander's personal policy. It cannot be argued that the purpose of R.C. 3937.18 was not met and these plaintiffs were uncompensated for their losses.
As a result of today's opinion, any commercial liability policy that also provides limited liability coverage for vehicles under certain circumstances will provide an extra source of UM/UIM coverage, regardless of any applicable policy exclusions. The majority has opened a Pandora's box. This opinion will overwhelmingly reach every existing company policy.
Therefore, I would adhere to the sound reasoning and common sense of the court in Mauler v. Westfield Ins. Co. (Sept. 28, 1989), Franklin App. Nos. 88AP-914 and 88AP-915, unreported, 1989 WL 112342. Because I would answer "No" to the certified question before us, I respectfully Dissent.
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