Auto-Owners Mutual Insurance v. Lewis

Holmes, J.,

dissenting in part. Although I concur in that part of the majority opinion dealing with the issue of stacking medical expense coverage, I must dissent as to the other issues.

The law as pronounced in Weemhoff v. Cincinnati Ins. Co. (1975), 41 Ohio *162St. 2d 231 [70 O.O.2d 248], remains valid today as applied to insurance policies containing uninsured motorist coverage. The syllabus in Weemhoff clearly, and soundly, proclaiméd the right of an insurance company to set forth terms within its policies which provide a limitation on liability to a certain amount “per person” on each vehicle where numerous automobiles are insured, and that limitation could not be “stacked” to provide coverage in excess of the amount stated in the policy.

In my view, Weemhoff is applicable here in that it does not violate the intent and meaning of R.C. 3937.18. In the present case, there is no denial of uninsured motorist coverage to the insured under the policy which covers a number of automobiles. There is only the clear and reasonable limitation upon the amount of such coverage as it would apply to one person using one of the automobiles. How this limitation constitutes a violation of the philosophy of the uninsured motorist law completely escapes me.

When Carroll W. Lewis secured the insurance coverage from Auto-Owners it is safe to assume that he intended to obtain and purchase $100,000 in uninsured motorist coverage. This sum is specifically what he contracted to purchase and is clearly listed in the declarations page as being the coverage provided. Contrary to the assertion of the appellant herein, it is not reasonable to conclude that he expected to receive $600,000 in uninsured motorist coverage when he purchased this contract of insurance.

It must be pointed out that the insured, having paid additional premiums on a number of automobiles as covered in the policy, is not being penalized if only allowed the single maximum policy limit. He would be getting value received for premiums paid. The company has indeed given quid pro quo for the additional pro-rata premium charged, in that the exposure to risk as covered was proportionately increased with the possible use by each automobile by other “insured” persons within the definition of the policy. The policy covered not only Carroll W. Lewis, but also his spouse and all relatives of either, while residents of the same household, and any person using one of the automobiles with the permission of the named insured.

There are a great number of state courts which have considered and rejected the conclusion as reached by the majority here, that an insured is entitled to multiple dipping into uninsured motorist coverage merely because of a number of premiums being paid upon a number of vehicles. See Annotation, Combining or “Stacking” Uninsured Motorist Coverages Provided in Single Policy Applicable to Different Vehicles of Individual Insured (1983), 23 A.L.R. 4th 12, and cases cited therein.

The same concepts of contract law may reasonably be advanced as to the issue of stacking of the maximum policy recovery amount both for the appellant’s personal damages for medical expenses and loss of services of his son, and the personal injury damages as claimed for his son. The parties have agreed and entered into a fair, clear and lawful contract which limits the amount of recovery by those who are insured for each “occurrence” involving one of the covered automobiles. The policy does not limit more than *163one claim being filed per occurrence. The policy permits an uninsured motorist claim being brought by Lewis for his personal losses. It also allows a representative action to be brought on behalf of the son for his injuries. However, the contract may lawfully and reasonably place a maximum limitation for which the company shall be liable under the contract for any and all such claims by any and all persons for the injury to one person in any occurrence.

The case of Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St. 2d 431 [23 O.O.3d 385], is not specifically applicable in this situation, in that it involved the question of a parent’s right to recover derivative damages under the parent’s uninsured motorist coverage. Such is not the case here. Sexton did not involve the right of recovery of double benefits or multiple benefits by way of stacking policy amounts as was presented by this appeal.

It would appear that the majority opinion here will place Ohio virtually alone among the states on the issues presented. Other states which have addressed such issue have held that claimants are only entitled to single limitation coverage regardless of how many different persons have claims as a result of bodily injury to any one person. See Moomaw v. State Farm Mut. Auto. Ins. Co. (S.D. W.Va. 1974), 379 F. Supp. 697; Arguello v. State Farm Mut. Auto. Ins. Co. (1979), 42 Colo. App. 372, 599 P. 2d 266; Florida Ins. Guaranty Assn. v. Cope (Fla. App. 1981), 405 So. 2d 292; Mackoul v. Fidelity & Cas. Co. of New York (Fla. App. 1981), 402 So. 2d 1259; Biondino v. Southern Farm Bureau Cas. Ins. Co. (Fla. App. 1975), 319 So. 2d 152; Harris v. Security Ins. Group (1976), 140 N.J. Super. 10, 354 A. 2d 704.

Accordingly, I would affirm the judgment of the court of appeals on these issues.

Looker, J., concurs in the foregoing opinion.