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Heil v. United Ohio Ins. Co.3/7/1990
SHAW, Presiding Judge.
This is an appeal by defendant-appellant, United Ohio Insurance Company ("United"), from a decision of the Common Pleas Court of Defiance County, granting summary judgment in favor of an insured plaintiff. The summary judgment was based primarily upon the trial court's interpretation of two provisions in a United insurance policy pertaining to an underinsured motorist claim.
Timothy Heil was killed in an automobile collision on October 20, 1985. At the time of the collision, Timothy was insured under a policy issued by United. Plaintiff-appellee, Gene Heil ("administrator"), was appointed administrator of Timothy's estate. Although the exact nature and extent of the notice is in some dispute, it is generally agreed that the administrator became aware of a $25,000 limit in the tortfeasor's liability coverage during June 1986.
On October 17, 1986, the administrator filed a wrongful death suit against the tortfeasor in the Common Pleas Court of Butler County. In a letter dated October 20, 1986, the tortfeasor's insurance company tendered the $25,000 policy limits to the administrator.
On December 8, 1986, thirteen and one-half months after Timothy's death, the administrator submitted a claim to appellant, United, for "uninsured" motorist coverage under the United policy. However, on December 12, 1986, United informed the administrator that United would not honor the "underinsured" motorist claim because the administrator had not taken appropriate action against the company within a twelve-month time limit stated in the policy.
On March 30, 1987, the administrator made a written demand to United for arbitration and on June 5, 1987 this lawsuit was filed against United, in essence, to compel arbitration. Both parties filed motions for summary judgment. Based upon the following conclusions regarding the United policy and the circumstances of this case, the trial court granted summary judgment in favor of the administrator and against United on August 24, 1988:
"This court concludes that the requirement in the policy that the Plaintiff exhaust all insurance coverage prior to any payment to be made pursuant to the underinsured motorist coverage; the fact that this is a wrongful death action which would require additional time for the appointment of a personal representative of the decedent's estate; the fact that suit had been filed by said personal representative against the alleged tortfeasor within one year; and the fact that the primary insurance coverage was not tendered until after one year had elapsed from the time of the collision, the one year provision for filing suit against the Defendant or making demand for arbitration, if that is the meaning of the wording of the policy, is unreasonable." (Citations omitted.)
Appellant United now asserts the following single assignment of error:
"The trial court erred in holding the 12 month limitation in the subject insurance policy for filing suit or making a demand for arbitration against appellant United Ohio Insurance Company is unreasonable and therefore unenforceable."
This case turns upon the interpretation of two provisions in the insurance policy issued by United. The primary provision at issue in this appeal is entitled "ACTION AGAINST THE COMPANY" and states:
"No suit or request for arbitration may be brought against the Company unless you have complied with all terms of the Policy and unless action is filed within twelve months (12) after the date of the accident."
Also of significance to the trial court's decision was the following language under a policy provisio
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