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Luckenbill v. Hamilton Mutual Insurance Co.8/31/2001
for underinsured motorist coverage regardless of the settlement received from the tortfeasor or the policy limits provided in the Westfield or Colonial Penn policies. Id. at 432.
As a preliminary point, we note that the Ohio Supreme Court's conclusion about Ernie's status as an "insured" under the Westfield and Colonial policies appears to be incorrect. Specifically, the appellate court decision in Littrell says, regarding the Westfield and Colonial Penn policies, that " hese two policies are applicable to all five insureds present in the minivan and John Jr. and Stella's wrongful death beneficiaries." Littrell (March 13, 2000), Butler App. Nos. CA99-05- 092 and 99-08-041, unreported, 2000 WL 270038, at p. 8. The appellate court in Littrell also commented later in its decision that
ecovery under the Colonial Penn and Westfield UIM policies is sought for injuries to the five occupants of the car and their wrongful death beneficiaries. Under both policies, the covered "insureds," either as occupants of the minivan or as wrongful death beneficiaries, are the same individuals entitled to damages under the State Farm liability coverage." Id. at 11.
Consequently, Stella Pratt's wrongful death beneficiaries, including Ernie, would have been "insureds" under both the Westfield and Colonial Penn policies. As a grandson, Ernie was not rebuttably presumed to have suffered damages under the wrongful death statute. However, that did not affect his status as a potential wrongful death beneficiary. Specifically, R.C. 2125.02(A)(1) authorizes a wrongful death action for the benefit of the surviving spouse, children, parents, and other next of kin of the decedent. Grandchildren are included as "next of kin" for purpose of this statute. See, Buchert v. Newman (1993), 90 Ohio App.3d 382, 384; Senig v. Nationwide Mut. Ins. Co. (1992), 76 Ohio App.3d 565, 573-574; and Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97.
Therefore, Ernie would have been included - at least according to the appellate court decision in Littrell - as an insured under the Westfield and Colonial Penn policies. We note that this is also consistent with the law in effect at the time. Specifically, under Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, and Moore, supra, (2000), 88 Ohio St. 27, provisions requiring that insureds sustain bodily injury in order to recover UIM benefits were not enforceable.
The treatment of the Littrell claims is additionally perplexing because the Court appears to have considered the claims of multiple parties (even those with individual and separate claims, as opposed to derivative claims) as a collective entity, based solely on whether the claims were asserted under a single policy of insurance. Unfortunately, the Court did not point to statutory or policy provisions that authorize such a distinction. In fact, statutory discussion in Littrell is minimal. And, as we said, policy language is not even mentioned.
One possible explanation is that the Court's reference in Littrell to "statutory setoff" was significant. In this regard, the Court focused on the last sentence in R.C. 3937.18(A)(2), which states that " he policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured." 91 Ohio St.3d at 429 (emphasis in original). Previously, the statute said that " he limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and in
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