Moore v. State Automobile Mutual Insurance

[This opinion has been published in Ohio Official Reports at 

88 Ohio St.3d 27

.]




 MOORE, APPELLANT, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY,
                                        APPELLEE.
           [Cite as Moore v. State Auto. Mut. Ins. Co., 

2000-Ohio-264

.]
Automobile liability insurance—Uninsured motorist coverage—R.C. 3937.18(A)(1),
        as amended by Am.Sub.S.B. No. 20, construed.
R.C. 3937.18(A)(1), as amended by Am.Sub.S.B. No. 20, does not permit an insurer
        to limit uninsured motorist coverage in such a way that an insured must
        suffer bodily injury, sickness, or disease in order to recover damages from
        the insurer.
    (No. 98-2495—Submitted October 19, 1999—Decided February 16, 2000.)
       APPEAL from the Court of Appeals for Huron County, No. H-98-012.
                                  __________________
        {¶ 1} Our recitation of the facts of this case is based on stipulations entered
into by the parties. On May 28, 1996, Randy Moore (“the decedent”) died as a
result of injuries sustained in an automobile accident caused by the negligence of
an uninsured motorist.
        {¶ 2} Appellant, Alice Moore, is the decedent’s mother. She was not
involved in the accident, nor did she sustain bodily injury from the accident. At the
time of the accident, appellant was a named insured on a policy of automobile
liability insurance issued by appellee, State Automobile Mutual Insurance
Company. The policy also provided uninsured motorist coverage. The decedent
was not a named insured in appellant’s policy, was not a resident of appellant’s
household, and, at the time of the accident, was not occupying a vehicle that was
covered by appellant’s policy.
                                  SUPREME COURT OF OHIO




         {¶ 3} It appears that appellant filed an uninsured motorist claim with
appellee for damages arising out of the death of her son.1 Appellee denied the claim
and thereafter, on December 31, 1996, appellant filed a complaint against appellee
in the Court of Common Pleas of Huron County. In her complaint, appellant
asserted that pursuant to R.C. 2125.02, she was presumed to have suffered damages
as a result of the wrongful death of her son. Appellant further contended that she
was entitled to receive compensation for those damages from appellee, up to the
policy limit, pursuant to the uninsured motorist provision of her policy of insurance.
         {¶ 4} On February 9, 1998, appellee filed a motion for summary judgment,
asserting that the terms of the policy precluded appellant from receiving uninsured
motorist benefits. The relevant policy language provided that appellee would pay
“compensatory damages which an ‘insured’ is legally entitled to recover from the
owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily injury’: 1.
Sustained by an ‘insured’; and 2. Caused by an accident.” Appellee contended that
appellant’s claim did not satisfy this policy provision because, as stipulated by
appellant, the decedent was not an insured under the policy and the insured,
appellant, did not sustain bodily injury as a result of the accident.
         {¶ 5} In her brief in opposition to appellee’s motion for summary judgment,
appellant contended that the policy limitation sought to be enforced by appellee
was contrary to Ohio law and was therefore invalid. Appellant also asserted that
she was entitled to recover under the terms of the policy. In this regard, appellant
contended that the “nervous shock and psychological trauma” she suffered as a
result of her son’s death constituted “bodily injury.”2



1. The record does not contain documentation regarding appellant’s claim or appellee’s denial of
appellant’s claim. However, paragraph eleven of appellant’s complaint filed in the trial court
alleges: “Although Plaintiff, Alice Moore, has requested payment of said Uninsured benefits
pursuant to her policy, Defendant, State Auto, has refused to honor her request.”
2. Appellant made this argument despite the fact that she had previously stipulated that she had no
bodily injury as a result of the accident.




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                                January Term, 2000




       {¶ 6} The trial court found that the policy provision limiting uninsured
motorist benefits to accidents in which an insured sustains bodily injury was
permitted by Ohio law and held that the policy did “not provide uninsured motorist
coverage to [appellant] for the death of her son.” Hence, the court granted
appellee’s motion for summary judgment. Upon appeal, the court of appeals
affirmed the judgment of the trial court on essentially the same grounds.
       {¶ 7} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
       R. Jack Clapp & Associates Co., L.P.A., R. Jack Clapp and Timothy A. Ita,
for appellant.
       Flynn, Py & Kruse, L.P.A., John D. Py and James W. Hart, for appellee.
                               __________________
       DOUGLAS, J.
       {¶ 8} The central issue for our determination in this case is whether the
insurance policy limitation enforced by the courts below is valid under Ohio law.
In order for a limitation on uninsured motorist coverage to be valid it must not be
contrary to the coverage mandated by R.C. 3937.18(A). Sexton v. State Farm Mut.
Auto. Ins. Co. (1982), 

69 Ohio St.2d 431, 433

, 

23 O.O.3d 385, 386

, 

433 N.E.2d 555, 558

; Martin v. Midwestern Group Ins. Co. (1994), 

70 Ohio St.3d 478

, 

639 N.E.2d 438

, paragraph two of the syllabus. R.C. 3937.18 sets forth the minimum
uninsured and underinsured motorist coverage that an insurer must offer its insureds
at the time of contracting for automobile liability insurance.
       {¶ 9} As previously stated, the policy provision at issue herein provides that
appellee “will pay compensatory damages which an ‘insured’ is legally entitled to
recover from the owner or operator of an ‘uninsured motor vehicle’ because of
‘bodily injury’: 1. Sustained by an ‘insured’; and 2. Caused by an accident.” This




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                               SUPREME COURT OF OHIO




language, in effect, limits uninsured motorist coverage to accidents in which an
insured sustains bodily injury.
        {¶ 10} Appellant, relying on our decision in Sexton,3 contends that this
limitation is not valid because it results in less than the minimum amount of
uninsured motorist coverage mandated by R.C. 3937.18(A). The facts of Sexton
are essentially identical to those in the case at bar. In Sexton, Gareld Sexton’s
daughter was killed in an automobile accident caused by an uninsured motorist.
Sexton sought to recover his damages arising out of the death of his daughter under
the uninsured motorist provision of his insurance policy.              However, because
Sexton’s daughter was not an insured as defined by the policy, the insurer denied
the claim, relying on a policy provision requiring that an insured sustain bodily
injury. The court looked to R.C. 3937.18 to determine whether this limitation on
uninsured motorist coverage was valid.
        {¶ 11} The version of R.C. 3937.18(A) that applied in Sexton provided that
“[n]o automobile liability * * * policy of insurance * * * shall be delivered or issued
for delivery in this state * * * unless an equivalent amount of coverage for bodily
injury or death is provided therein * * * for the protection of persons insured
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, resulting therefrom.” 138 Ohio Laws, Part I, 1458.
        {¶ 12} The Sexton court noted that R.C. 3937.18 did not specify that an
insured must sustain bodily injury in order to recover damages. Accordingly, the
court held that the policy’s restrictions allowing recovery only when an insured
suffered bodily injury were “void because they attempt[ed] to limit recovery
contrary to R.C. 3937.18.” Sexton v. State Farm Mut. Auto. Ins. Co., 

69 Ohio St.2d 3

. Sexton was decided by this court in 1982, long before any present member of this court was
serving on the court.




                                             4
                                      January Term, 2000




at 437, 

23 O.O.3d at 389

, 

433 N.E.2d at 560

. Clearly, if Sexton is still the law in
this state, then appellee’s policy limitation in this case is invalid.
         {¶ 13} However, subsequent to the Sexton decision, the General Assembly,
in Am.Sub.S.B. No. 20, amended R.C. 3937.18.4 We must therefore determine
whether those amendments altered the meaning of R.C. 3937.18 in such a way as
to permit insurers to limit uninsured motorist coverage to accidents in which an
insured sustains bodily injury.
         {¶ 14} The version of R.C. 3937.18 at issue provides:
         “(A) No automobile liability * * * policy of insurance * * * shall be
delivered or issued for delivery in this state * * * 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 protection for
bodily injury or death * * * for the protection of persons insured 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.” 145 Ohio Laws, Part I, 204, 210.
         {¶ 15} Appellee contends that the plain language of the statute invalidates
our decision in Sexton. In this regard, appellee asserts that R.C. 3937.18(A),
enacted as part of Am.Sub.S.B. No. 20, permits insurers to limit uninsured motorist


4. In Ross v. Farmers Ins. Group of Cos. (1998), 

82 Ohio St. 3d 281

, 

695 N.E.2d 732

, we held that
for the purpose of determining the scope of insurance coverage the statutory law in effect at the time
of entering into a contract for automobile liability insurance controls the rights and duties of the
contracting parties. The record in this case does not indicate when the policy was issued to appellant;
however, both parties agree that R.C. 3937.18, as amended by Am.Sub.S.B. No. 20, is the applicable
law in this case.
          One of appellant’s propositions of law is that Am.Sub.S.B. No. 20 is unconstitutional and
as such the amendments to R.C. 3937.18 are invalid. However, the record does not reflect that
appellant served the Attorney General of Ohio with notice of this contention as required by R.C.
2721.12. Therefore, pursuant to the statute we lack jurisdiction to make this determination.
Accordingly, we make no ruling on the constitutionality of Am.Sub.S.B. No. 20.




                                                  5
                             SUPREME COURT OF OHIO




coverage, in their policies of insurance, to automobile accidents in which an insured
sustains bodily injury. Appellee’s contention is based on the statutory phrases
“suffered by such persons” and “suffered by any person insured under the policy”
as they relate to the phrase “bodily injury [sickness or disease] or death.” Appellee
assumes that these phrases allow insurers to require that an insured under a policy
of insurance suffer bodily injury, sickness, disease, or death in order for there to be
coverage.
       {¶ 16} Appellant, on the other hand, contends that the statute does not
permit insurers to limit uninsured motorist coverage to automobile accidents in
which an insured suffers bodily injury. Appellant’s conclusion is based on her
belief that the phrase “suffered by such persons” found in section (A) of R.C.
3937.18 refers to “loss” and the phrase “suffered by any person insured under the
policy” found in subsection (A)(1) refers to “damages.” Neither phrase, appellant
claims, refers to “bodily injury.” Hence, appellant contends that the court’s
interpretation of R.C. 3937.18 in Sexton was not altered by Am.Sub.S.B. No. 20
and is still good law. Accordingly, appellant urges us to find that appellee’s policy
limitation requiring that an insured suffer bodily injury in order to recover damages
provides less coverage than is mandated by R.C. 3937.18(A) and is therefore
invalid.
       {¶ 17} We find that R.C. 3937.18(A) is ambiguous regarding whether an
insurer may limit uninsured motorist coverage to accidents in which an insured
sustains bodily injury. Thus, we must determine the intent of the legislature in
enacting R.C. 3937.18(A) and construe the statute in a manner that reflects that
intent. Cochrel v. Robinson (1925), 

113 Ohio St. 526

, 

149 N.E. 871

, paragraph
four of the syllabus. R.C. 1.49 mandates that we consider both the objective of the
statute and the consequences of any particular construction in determining the
intention of the legislature. For the following reasons, we find that the General




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                               January Term, 2000




Assembly did not intend the amendments to R.C. 3937.18(A) contained within
Am.Sub.S.B. No. 20 to supersede the court’s ruling in Sexton.
       {¶ 18} Initially we note that R.C. 3937.18 is remedial legislation. Stanton
v. Nationwide Mut. Ins. Co. (1993), 

68 Ohio St.3d 111, 113

, 

623 N.E.2d 1197, 1199

. Therefore, it must be liberally construed to give effect to the legislative
purpose. R.C. 1.11; Curran v. State Auto. Mut. Ins. Co. (1971), 

25 Ohio St.2d 33, 38

, 

54 O.O.2d 166, 169

, 

266 N.E.2d 566, 569

; Martin v. Midwestern Group Ins.
Co., 

70 Ohio St.3d at 480

, 

639 N.E.2d at 440

.
       {¶ 19} The purpose of uninsured motorist coverage is to protect persons
from losses which, because of the tortfeasor’s lack of liability coverage, would
otherwise go uncompensated. 

Id.

 See, also, Schaefer v. Allstate Ins. Co. (1996),

76 Ohio St.3d 553, 555

, 

668 N.E.2d 913, 915

. It is clear that claims such as
appellant’s fit within this purpose. R.C. 2125.01 recognizes a cause of action for
wrongful death and R.C. 2125.02(A)(1) acknowledges that parents of wrongful
death victims are presumed to have suffered damages. Therefore, the parents of a
wrongful death victim are legally entitled to recover damages from the tortfeasor
responsible for their child’s death.        However, under appellee’s suggested
interpretation of R.C. 3937.18(A), the parent of the wrongful death victim would
go uncompensated due to the tortfeasor’s uninsured status, notwithstanding the fact
that the parent had uninsured motorist coverage.
       {¶ 20} Thus, applying appellee’s proposed interpretation of R.C. 3937.18
would thwart the underlying purpose of uninsured motorist insurance, i.e., to
protect persons who are entitled to recover damages from uninsured motorists, and
would conflict with R.C. Chapter 2125, the wrongful death statute. This result
would in turn violate R.C. 1.47(C), which provides a presumption against statutory
construction that would produce unreasonable or unjust consequences. Therefore,
we decline to adopt appellee’s proposed interpretation.




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                              SUPREME COURT OF OHIO




        {¶ 21} Furthermore, if the words “for loss” and “damages” were removed
from R.C. 3937.18(A) and (A)(1), then the statute would have precisely the
meaning that appellee suggests. Thus, appellee’s interpretation of the statute
renders the words “for loss” and “damages” superfluous. Such a result contravenes
the general rule of statutory construction codified under R.C. 1.47(B), which
provides that the General Assembly, in enacting a statute, intends that the entire
statute be effective. Moreover, such a result undermines our holding that “[i]n
determining the legislative intent of a statute ‘it is the duty of this court to give
effect to the words used [in a statute], not to delete words used or to insert words
not used.’ ” Wheeling Steel Corp. v. Porterfield (1970), 

24 Ohio St.2d 24, 28

, 

53 O.O.2d 13, 15

, 

263 N.E.2d 249, 251

, quoting Columbus-Suburban Coach Lines v.
Pub. Util. Comm. (1969), 

20 Ohio St.2d 125, 127

, 

49 O.O.2d 445, 446

, 

254 N.E.2d 8, 9

.
        {¶ 22} Finally, we note that, in addition to the above-mentioned
amendments to R.C. 3937.18(A)(1), Am.Sub.S.B. No. 20 also contains
amendments to R.C. 3937.18(A)(2). R.C. 3937.18(A)(2) addresses underinsured
motorist coverage. This is relevant to our discussion in this case because in the
uncodified portion of Am.Sub.S.B. No. 20, the General Assembly explicitly set
forth that its intent in amending R.C. 3937.18(A)(2) was to supersede the effect of
this court’s holding in Savoie v. Grange Mut. Ins. Co. (1993), 

67 Ohio St.3d 500

,

620 N.E.2d 809

. Section 7, Am.Sub.S.B. No. 20, 145 Ohio Laws, Part I, 238. We
believe that if the General Assembly had intended the changes in subsection (A)(1)
to supersede the court’s holding in Sexton, it would have made its intentions equally
clear by declaring such in the uncodified portions of the law.5
        {¶ 23} However, we find nothing in the uncodified section of Am.Sub.S.B.
No. 20 that indicates that the amendments to R.C. 3937.18(A)(1) were intended to

5. It should be noted that the General Assembly’s “supersede” language relates to case law
involving statutory interpretation as opposed to constitutionally based case law.




                                            8
                                 January Term, 2000




supersede our decision in Sexton. We therefore reject appellee’s assertion that the
amendments were clearly meant to supersede Sexton.
        {¶ 24} Accordingly, we hold that R.C. 3937.18(A)(1), as amended by
Am.Sub.S.B. No. 20, does not permit an insurer to limit uninsured motorist
coverage in such a way that an insured must suffer bodily injury, sickness, or
disease in order to recover damages from the insurer. Therefore, we find that the
limitation in appellee’s policy requiring that the insured suffer bodily injury in order
to recover uninsured motorist benefits is an attempt to provide lesser coverage than
that which is mandated by law. As such, we find that the limitation is invalid and
unenforceable. Having held in appellant’s favor on this issue, we need not address
appellant’s assertion that she suffered bodily injury because of the death of her son.
        {¶ 25} For the foregoing reasons, we reverse the judgment of the court of
appeals and remand the cause to the trial court for further proceedings.
                                                                   Judgment reversed
                                                                 and cause remanded.
        BROGAN, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
        JAMES A. BROGAN, J., of the Second Appellate District, sitting for RESNICK,
J.
                                __________________




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                             SUPREME COURT OF OHIO




       LUNDBERG STRATTON, J., dissenting.
       {¶ 26} In 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 court greatly extended the reach of
uninsured motorist coverage required by R.C. 3937.18. In Sexton, Gareld Sexton’s
daughter was killed in an automobile accident. The driver of the automobile was
not insured. Sexton sought recovery for his damages under the uninsured provision
of his automobile insurance policy with State Farm Mutual Automobile Insurance
Company. State Farm argued that limitations within Sexton’s insurance policy
precluded such recovery. In effect, the policy provisions limited coverage to
recovery for bodily injury or death sustained by an insured as defined in the policy.
The court in Sexton examined whether these limitations were valid in light of R.C.
3937.18. At that time R.C. 3937.18(A) read:
       “No automobile liability or motor vehicle liability policy of insurance
insuring against loss resulting from liability imposed by law for bodily injury or
death suffered by any person arising out of the ownership, maintenance, or use of
a motor vehicle shall be delivered or issued for delivery in this state with respect to
any motor vehicle registered or principally garaged in this state unless an equivalent
amount of coverage for bodily injury or death is provided therein or supplemental
thereto under provisions approved by the superintendent of insurance, for the
protection of persons insured 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, resulting therefrom.” 138 Ohio Laws,
Part I, 1458.
       {¶ 27} In examining R.C. 3937.18(A), the court in Sexton stated, “The
critical language for this case is that the coverage is ‘for the protection of persons
insured 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 resulting therefrom.” 

Id. at 434

, 

23 O.O.3d at 387

, 

433 N.E.2d at 10

                                 January Term, 2000




558. Construing this language, the court in Sexton stated, “Although the statute
does not indicate who must have sustained the bodily injury, it does not specify that
it be the insured. Because the statute should be construed liberally, * * * we will
not add that limitation.” (Emphasis added; citation omitted.) 

Id. at 434

, 

23 O.O.3d at 387

, 

433 N.E.2d at 558-559

.
       {¶ 28} In 1994, the General Assembly amended R.C. 3937.18 to read:
       “(A) No automobile liability or motor vehicle liability policy of insurance
insuring against loss resulting from liability imposed by law for bodily injury or
death suffered by any person arising out of the ownership, maintenance, or use of
a motor vehicle shall be delivered or issued for delivery in this state with respect to
any motor vehicle registered or principally garaged in this state 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 be in an amount of coverage
equivalent to the automobile liability or motor vehicle liability coverage and shall
provide protection for bodily injury or death under provisions approved by the
superintendent of insurance, for the protection of persons insured 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.” (Emphasis added.) 145 Ohio
Laws, Part I, 204, 210.
       {¶ 29} The majority relies on Sexton to find that Alice Moore should be able
to recover the damages she incurred because of the death of her emancipated son,
Randy, despite the fact that her policy limits coverage to insured individuals who
suffer a bodily injury or death. The majority acknowledges that Am.Sub.S.B. No.
20 amended R.C. 3937.18, but declines to acknowledge the effect of the added
language. Instead, the majority finds that the phrase “suffered by such persons” is
ambiguous with regard to whether it modifies the word “loss” or the words “bodily




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                            SUPREME COURT OF OHIO




injury or death.” The majority also finds that the phrase “suffered by any person
insured under the policy” is ambiguous with regard to whether it modifies the word
“damages” or the words “bodily injury, sickness, or disease.” I disagree. I believe
that the amendments made to R.C. 3937.18, pursuant to Am.Sub.S.B. No. 20,
unambiguously indicate that the General Assembly intended that insurers may limit
uninsured motorist coverage to an insured who suffers bodily injury, sickness,
disease, or death.
       {¶ 30} Courts must look to the language of the statute itself to determine
legislative intent. Provident Bank v. Wood (1973), 

36 Ohio St.2d 101, 105

, 

65 O.O.2d 296, 298

, 

304 N.E.2d 378, 381

. It is well settled that “[w]ords and phrases
shall be read in context and construed according to the rules of grammar and
common usage.” (Emphasis added.) R.C. 1.42. Pursuant to the rules of grammar,
absent an intent to the contrary, a qualifying phrase refers “solely to the last
antecedent.“ Carter v. Youngstown (1946), 

146 Ohio St. 203, 209

, 

32 O.O. 184, 186

, 

65 N.E.2d 63, 66

. See, also, Indep. Ins. Agents of Ohio v. Fabe (1992), 

63 Ohio St.3d 310, 314

, 

587 N.E.2d 814, 817

; Lancaster v. Fairfield Cty. Budget
Comm. (1998), 

83 Ohio St.3d 242

, 

699 N.E.2d 473

.
       {¶ 31} The phrase “suffered by such persons,” as set out in amended R.C.
3937.18(A), is immediately preceded by the words “bodily injury or death.” The
phrase “suffered by any person insured under the policy,” as set out in amended
R.C. 3937.18(A)(1), is immediately preceded by the words “bodily injury * * *
including death.” There is no language in amended R.C. 3937.18 indicating that
these phrases modify anything other then the terms “bodily injury” or “death.”
Absent an ambiguity in the language, a statute should be applied, not interpreted.
State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs. (1987), 

32 Ohio St.3d 24

, 

512 N.E.2d 332

.
       {¶ 32} Further, the majority’s holding effectively renders the phrases
“suffered by such persons” and “suffered by any person insured under the policy”




                                        12
                                January Term, 2000




meaningless. These phrases have no other logical purpose than to modify the terms
“bodily injury” and “death” within the respective provisions of R.C. 3937.18, so as
to allow insurers to limit coverage to instances where the insured sustains bodily
injury or death. The majority’s holding fails to give any meaning to these phrases,
thereby effectively nullifying this language added to R.C. 3937.18 by the General
Assembly pursuant to Am.Sub.S.B. No. 20. Thus, the majority’s holding conflicts
with the well-settled rule that none of the language employed in a statute should be
disregarded. 

Carter, supra,

 at paragraph one of the syllabus.
       {¶ 33} The majority also finds support for its position by noting that there
is nothing in the uncodified section of Am.Sub.S.B. No. 20 that indicates that the
amendments to R.C. 3937.18(A)(1) were intended to supersede Sexton. However,
there is no requirement that the General Assembly indicate that legislation is
superseding a specific court decision.        Further, I believe that we should not
encourage such a practice because it appears to pit the General Assembly against
the courts.
       {¶ 34} Finally, I believe that the result reached by the majority is
unreasonable. Neither uninsured motorist insurance nor underinsured motorist
insurance was intended to provide coverage for parties outside the insurance
contract. Moore did not own the car involved in the accident. Further, Moore’s
son was not living at home at the time of the accident. Therefore, Moore’s son was
not an insured under Moore’s insurance policy. The majority’s interpretation
allows recovery for risks that are impossible to assess. The majority’s holding begs
the following questions: Does one applying for coverage now need to disclose
every emancipated child’s place of residence, as well as their lifestyle, so that the
insurer can write the coverage to anticipate this possible exposure? How much
additional premium should be assessed? Will one’s own child serving in the Peace
Corps in another country, where uninsured motorists possibly abound, need to be
factored into premiums because that child represents a risk, since the stateside




                                         13
                             SUPREME COURT OF OHIO




parents can now recover for their child’s death under the parents’ uninsured
motorist coverage even though the child does not live at home? If one has ten
children living away from home, must the parents now pay a much higher premium
to cover all those exposures created by Sexton and now by Moore?
       {¶ 35} I believe that the phrases “suffered by such persons” and “suffered
by any person insured under the policy” were added to R.C. 3937.18 by the General
Assembly for the purpose of countering the unwarranted extension of uninsured
coverage allowed in Sexton. Liability coverage requires that an insured live in the
same house and drive a covered automobile. Uninsured and underinsured coverage
are meant to provide coverage or provide additional coverage where the tortfeasor
has no liability coverage or has insufficient liability coverage. No one, as yet, has
argued that one’s liability policy would cover one’s emancipated child living in
another country driving his own car. Yet that is exactly what the majority has done
with uninsured and underinsured coverage through this decision.
       {¶ 36} I agree that the purpose of R.C. 3937.18 is “to protect persons injured
in automobile accidents from losses which, because of the tort-feasor’s lack of
liability coverage, would otherwise go uncompensated.” Abate v. Pioneer Mut.
Cas. Co. (1970), 

22 Ohio St.2d 161, 165

, 

51 O.O.2d 229, 231

, 

258 N.E.2d 429, 432

. However, I believe that the majority has distorted this purpose by finding that
this protection goes beyond those insured under the policy who sustain bodily
injury, disease, sickness, or death. The majority’s holding unjustifiably subjects
insurance companies to provide coverage beyond what is required by R.C. 3937.18.
       {¶ 37} Thus, I would find that R.C. 3937.18, as amended by Am.Sub.S.B.
No. 20, unambiguously allows an insurer to limit uninsured motorist coverage to
an insured who suffers bodily injury, sickness, or death. Therefore, I would find
that to the extent that Sexton held that a provision in an insurance policy limiting
uninsured motorist coverage to an insured who sustains bodily injury or death is




                                         14
                                January Term, 2000




invalid because it conflicts with R.C. 3937.18, it is overruled. As a result, I believe
that the majority opinion is without support. Accordingly, I dissent.
       MOYER, C.J., and COOK, J., concur in the foregoing dissenting opinion.
                               __________________




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