Kish v. Central National Insurance Group

Moyer, J.,

concurring in judgment; dissenting from first and second paragraphs of syllabus and that part of the opinion in relation thereto. While I concur in the judgment of the majority, I dissent from the first and second paragraphs of the syllabus and that portion of the opinion relating thereto, because I believe this court’s interpretation of R. C. 3937.18(A) in Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St. 2d 161, and Bartlett v. Nationwide Mut. Ins. Co. (1973), 33 Ohio St. 2d 50, is the better-reasoned view of the law and permits the exclusion by an insurance policy of coverage of an insured motorist where his injuries are a result of intentional acts of an uninsured motorist. Even liberally interpreted, the uninsured motorists law was not adopted to give to an insured motorist new rights of recovery that he did not have prior to the adoption of said law. The first paragraph of the syllabus, which is the law of the case, gives an insured such a right and thereby, in my opinion, gives to R. C. 3937.18 a scope which was neither intended nor adopted by the General Assembly.

With respect to the second issue, I would likewise not disaffirm previous well-reasoned decisions of this court to effect a broad policy change in the law of Ohio. There is simply no reason other than to give a special benefit to an insured motorist who is injured by an uninsured motorist for “viewing the occurrence” through the eyes of the insured rather than the person causing the injury. The rationale of Commonwealth Cas. Co. v. Headers (1928), 118 Ohio St. 429, and Rothman v. Metropolitan Cas. Ins. Co. (1938), 134 Ohio St. 241, while applied specifically in those cases to indemnity policies, is equally *54applicable to a case involving uninsured motorist coverage. Indeed, in determining whether an injury is a result of negligence or an intentional act in other areas of the law, we consistently look at the actions of the person accused of the act rather than the person seeking a remedy for the act. This court recognized that fact in Headers, supra, at pages 432-433, when it stated:

“***[T]hat is to say, an injury or death does not occur by accident when it results from willful, intentional, personal violence inflicted by another. The situation is not strengthened any in behalf of the defendant in error by reasoning that anything is an accident that is out of the ordinary and unexpected. There is no doubt that this assault and battery was wholly unexpected and was quite out of the ordinary, but that does not constitute it an accident. The trouble with that position is that the character of the act is distinctly and positively settled by the evidence in the case. * * * ”

In that passage, this court recognized that whether an act is intentional or accidental does not depend upon the person against whom the act is directed but, rather, by an analysis of the character of the act itself. To say that Kish’s unfortunate death was an accident is to close one’s eyes to the facts in this case.