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Sarmiento v. Grange Mutual Casualty Co.10/26/2005
feasor on the underlying claim. The court determined that a UM policy should provide the same level of protection for an insured as if the tortfeasor had been insured:
{ } "As a result of the policy provision [requiring a lawsuit to be filed within one year of the accident], appellants were not placed in the same position, with regard to the recovery of damages, that they would have enjoyed had the tortfeasor been insured. As a practical matter, the effect of the policy provision was to deprive appellants of the coverage required by R.C. 3937.18." Miller, 69 Ohio St.3d at 623, 635 N.E.2d 317.
{ } Miller's purposewas not to create a limitation period that would apply in every case. It stood for the proposition that an insured should enjoy the same limitation period whether the tortfeasor was insured or not. Miller acknowledged that parties to an insurance contract could negotiate a limitation period less than the 15-year statute of limitations for contract actions set forth in R.C. 2305.06. But the agreed-upon reduced time period is void if it "purports to dilute or eliminate the rights of the insured to coverage required by statute." Miller, 69 Ohio St.3d at 624, 635 N.E.2d 317. The contract provision in this case clearly diluted the rights of appellants under New Mexico law. Thus, the two-year limitation period in the contract should be declared void in this case.
{ } The circumstances of this case make the majority opinion especially hard to swallow. Appellants notified Grange of the accident soon after it occurred, well within the two-year limitation period of the contract. Appellants also sued the tortfeasor in New Mexico, preserving Grange's subrogation rights. What kept Grange from paying under the policy? The fact that after two years, they could no longer be forced to.
RESNICK, J., concurs in the foregoing opinion.
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