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Visocky v. Farmers Ins. of Columbus9/1/1994
mary judgment to Farmers Insurance, and this appeal followed.
The issue in this case is whether an insured son may recover from his insurer for the wrongful death of his parent by an underinsured motorist when that parent is not a member of the insured's household and is not covered under the insured's policy. The deeper issue, of course, is whether this limitation on coverage is valid under R.C. 3937.18(A)(1). The trial court held as a matter of law that the limitation was valid and that the insured son could not recover from his insurer because his mother was not a member of his household. We agree with the trial court and continue to adhere to the dictates of Tavzel v. Aetna Life & Cas. Co. (June 16, 1988), Cuyahoga App. No. 53931, unreported, 1988 WL 86717. However, we hope that the Supreme Court of Ohio will accept this case for review, if it is appealed.
Much disparity has occurred since the Supreme Court decided Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, 23 O.O.3d 385, 433 N.E.2d 555. This disagreement has been held among reasonable minds who are prone to differ. Yet, one concern that Sexton did not address but Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 22 OBR 63, 488 N.E.2d 840, did is whether R.C. 3937.18(A)(1) is absolute or there are legitimate limitations on coverage. In Hedrick, the Supreme Court held that a non-covered-vehicle exclusion was a legitimate limitation on coverage as set forth in R.C. 3937.18(A)(1). Hedrick caused other courts to ponder other legitimate limitations.
In Tavzel, this court held that a non-member-of-household limitation is legitimate under R.C. 3937.18(A)(1), especially when the insured is not legally obligated to pay for the expenses of the injured party, which was the case in Sexton.
Since Tavzel, many courts have differed on this issue. As recently as 1991, in a case with identical facts to this case, the Franklin County Court of Appeals, in a reported decision, held that an insured son could recover under his underinsured motorist coverage for the death of his mother, who was struck and killed by an uninsured motorist, even though the mother was not insured under the policy or a member of the son's household. Barr v. Ins. Co. of N.Am. (1991), 72 Ohio App.3d 595, 595 N.E.2d 531. In that case, the court failed to view any limitations on R.C. 3937.18(A)(1).
Consequently, we continue to march to the drum beat of Tavzel, wanting to know if our path is misguided.
Judgment affirmed.
PATTON, P.J., BLACKMON and KRUPANSKY, JJ., concur. |