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Kocel v. Farmers Insurance of Columbus3/7/1996
any argued that under the terms of the policy, he could not recover because an insured did not sustain bodily injury. The court held since the statute did not indicate who must have sustained bodily injury and said statute must be construed liberally, the restriction limiting coverage to only those insureds who sustained bodily injury was invalid. Id. at 435, 436. The court then awarded only those damages which the father was entitled to recover under the wrongful death statute from the tortfeasor, i.e, pecuniary injury and/or funeral expenses. Id. at paragraph two of the syllabus.
Since this decision, different panels on this court have struggled with an insured's right to collect under his/her uninsured/underinsured motorist coverage for derivative damages, i.e., Wrongful Death damages, sustained by the death of an uninsured. See Tavzel v. Aetna Life & Cas. Co. (June 16, 1988), Cuyahoga App. No. 53931, unreported; Visocky v. Farmers Ins. of Columbus (1994), 98 Ohio App.3d 118; Dudash v. State Farm Mut. Auto. Ins. Co. (1994), 96 Ohio App.3d 348.
Recently, this court, relying on Sexton, supra, held that an insured was "legally entitled to recover" underinsurance benefits from their automobile insurance policy for damages suffered by reason of a death of an uninsured under the Wrongful Death statute, R.C. 2125.02(A). Hydel v. Cincinnati Insurance Company (January 11, 1996), Cuyahoga App. No. 68552. unreported. However, this court's interpretation of R.C. 3937.18(A) has since been dispelled. On October 19, 1994, after the trial court's decision in Hydel supra, the General Assembly enacted Amended Substitute Senate Bill Number 20 which invalidated Savoie, supra, and negated the holding in Sexton, supra. See, also, State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1. In that Bill, the legislature clarified that R.C. 3937.18(A) was meant to provide persons insured under the policy for loss due to bodily injury or death suffered by such person. The Bill reads in pertinent part:
A. No automobile liability or motor vehicle liability policy of insurance * shall be delivered or issued * unless both of the following COVERAGES ARE PROVIDED TO PERSONS INSURED UNDER THE POLICY FOR LOSS DUE TO BODILY INJURY OR DEATH SUFFERED BY SUCH PERSONS:
(1) Uninsured motorist coverage, which * shall provide * for the protection of persons thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury , sickness or disease, including death, SUFFERED BY ANY PERSON INSURED UNDER THE POLICY.
In this case, Amended Substitute Senate Bill Number 20 was enacted before the trial court's decision and therefore applicable towards its interpretation of R.C. 3937.18(A). See Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50.
In accordance with the General Assembly's clarification of R.C. 3937.18(A), we can now hold that an insurance policy exclusion which limits uninsured/underinsured motorist coverage to bodily injury or death sustained by an insured does not violate R.C. 3937.18(A). Moreover, we believe today's decision comports with the rule set forth in Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478 which held " he validity of an insurance policy exclusion of uninsured coverage depends on whether it conforms to R.C. 3937.18." Id. at 480. For these reasons, the trial court did not err in granting defendant- appellee's motion for summary judgment.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered th
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