In my view, this case requires a determination of factual issues; accordingly, I dissent.
The pleadings and affidavit do not unequivocally show that the insured rejected uninsured motorist coverage within the contemplation of R. C. 3937.18.
That section requires that every automobile liability policy provide uninsured motorist coverage either in the policy itself or supplemental thereto. While such coverage may be provided by language in the body of the policy or in an attached endorsement, such coverage must be included as part of the basic coverage afforded by the policy. It may be deleted from the policy only if the insured expressly rejects such coverage.
Here, uninsured motorist coverage was offered only as additional coverage, not as part of the basic coverage. The contended "rejection" signed by the insured states that uninsured motorist coverage is requested "not to be added" to the policy in consideration of issuance "without an additional premium charge." The affidavit of James T. L. Martin states: "I then asked Mr. Smith if he wanted to purchase the Uninsured Motorists Coverage for an additional $7.00."
The insured, on the other hand, in his affidavit stated: "At no time did James T. Martin explain to affiant that *Page 114 Uninsured Motorist Coverage available as part of the coverage provided in the policy purchased by affiant nor did affiant know, at that time, anything about Uninsured Motorist Coverage."
In Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, Justice Corrigan states, at page 163:
"Appellant's contention that this section is a mere regulatory statute requiring appellant, as an insurance company, to offer uninsured motorist coverage with automobile liability policies is clearly not borne out by the terminology of the statute.
"The language of the statute makes the uninsured motorist coverage imperative in that it requires the insurer, as a condition to the issuance of a policy, to provide that coverage in the policy. However, the statute does not require the insured to accept that coverage. The statute does not employ the word `offer,' but it does provide `that the named insured shall have the right to reject such coverage." Thus, the only way in which the coverage can be eliminated from the insurance contract is by the overt refusal by the insured to accept it. * * *"
Here, rather than an "overt refusal by the insured to accept" uninsured motorist coverage, there was only a request that such coverage not be added to the policy for an additional premium. Under circumstances where the insured fully understands the statutory requirements, such a request that such coverage not be added might constitute an "overt refusal by the insured to accept" such coverage. This, however, requires a factual determination which cannot be made upon summary judgment where the facts are disputed.
Later, in the Abate opinion, Justice Corrigan states, at page 165: "R. C. 3937.18 makes mandatory the offering of uninsured motorist coverage by insurance companies licensed in the state of Ohio." However, such "offering" must be a part of the basic coverage of the policy, not merely an "offering" available as additional coverage for an additional premium. *Page 115