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Pallay v. Nationwide Insurance Co.10/31/2005
e liability coverage section of the Policy.
{ } For this reason alone, the trial court judgment must be reversed and judgment entered in favor of Nationwide on its Civ.R. 12(B)(6) motion to dismiss.
{ } "2. Any Obligation To Reimburse Medicare For Payments Made For Medical Expenses Incurred By Pallay Should Not Be Set-Off From The $100,000 In Determining The Amount Available For Payment.
{ } This argument is based on R.C. §3937.18(A)(2), which states in pertinent part:
{ } "(2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for insureds thereunder against loss for bodily injury, sickness, or disease, including death, suffered by any person insured under the policy, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage. Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverages, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident. The 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." (Emphasis added.) (Am.Sub.H.B. 261, effective Sept. 3, 1997.)
{ } R.C. §3937.18(A)(2) requires that UIM benefits be reduced by any "amounts available for payment" under all insurance policies covering persons liable to the insured, which would include any payments deriving from Mrs. Pallay's liability to Appellee. The "amounts available for payment" language has been frequently litigated. An issue that has often arisen is whether "amounts available for payment" means that an UIM claimant must simply look to the tortfeasor's auto liability policy and deduct the limits of liability coverage as stated in the policy, or whether "amounts available for payment" refers to money actually received by the UIM claimant from the tortfeasor. The tortfeasor in this case is Mrs. Pallay.
{ } In Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 744 N.E.2d 719, the Ohio Supreme Court held:
{ } " e construe the 'amounts available for payment' language in R.C. 3937.18(A)(2), as amended by S.B. 20, as requiring a comparison between the amounts that are actually accessible to the injured claimant from the tortfeasor's automobile liability insurance carrier and the injured claimant's own underinsured motorist coverage limits. The phrase 'amounts available for payment' means just that. In other words, it means those amounts the insured actually recovers from a tortfeasor whose liability policy is subject to the claim of the insured and also to the claims of other injured persons." Id. at 276.
{ } In Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425, 746 N.E.2d 1077, the Supreme Court considered whether certain expenses of an insured might be deducted from the "amounts available for payment" calculations, for purposes of determining the UIM policy limits pursuant to R.C. §3937.18(A)(2). One of the possible expenses that the court considered was a Medicare lien. When Medicare makes a payment for medical care relating to a personal injury claim, federal law gives Medicare very powerful subrogation rights, often referred to as a Medicare lien, to r
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