dissenting. By attempting to create a distinction without a difference, today’s majority opinion sub silentio places a foot in the door to abrogate the doctrine of parent-child immunity which was recently upheld by this court in Mauk v. Mauk (1984), 12 Ohio St. 3d 156. Thus, I dissent.
The relevant portion of the uninsured motorist provision at issue states:
“We will pay damages for bodily injury, sickness, disease or death which a person insured is legally entitled to recover from the owner or operator of an uninsured auto.” (Emphasis added.)
While the majority begs the question by stating that there is no precedent in this state which interprets the phrase “legally entitled to recover,” it is clear from prior case law that a mother is not legally entitled to recover from her unemancipated child in a negligence action. Mauk, supra. The unemancipated child is protected by absolute immunity. Therefore, appellant is precluded from recovering under the uninsured motorist provision as there is no basis for liability under the facts presented. In the absence of liability, there is no protection for an injured plaintiff under an uninsured proviso.
Other jurisdictions have reached similar conclusions. In Markham v. State Farm Mut. Auto. Ins. Co. (C.A. 10, 1972), 464 F. 2d 703, the Tenth Circuit Court of Appeals ruled that due to parent-child immunity a mother could not recover from her insurer under an uninsured motorist provision since she was not legally entitled to recover damages from her daughter. See, also, Patrons Mut. Ins. Assn. v. Norwood (Kan. 1982), 647 P. 2d 1335; Bocek v. Inter-Ins. Exchange of Chicago Motor Club (Ind. App. 1977), 369 N.E. 2d 1093 (limits the cause of action under an uninsured motorist provision to those who could recover against the offending motorist if such person had maintained liability insurance); Annotation (1958), 60 A.L.R. 2d 1284, and cases cited therein.
This court has previously faced an analogous situation in York v. State Farm Fire & Cas. Co. (1980), 64 Ohio St. 2d 199 [18 O.O.3d 412]. In York, the plaintiffs were injured when the van in which they were riding collided with a fire truck owned by the city of Elyria. The insurance carrier for the municipality denied coverage on the basis of R.C. 701.02 which grants governmental immunity to the city and members of its fire department while responding to an emergency. Thus, plaintiffs sought relief by virtue of qualifying under the uninsured motorist provision to a policy owned by the driver of the van.
This court unanimously denied plaintiffs’ recovery on the premise that an uninsured motorist proviso is for the protection of persons insured thereunder and such provisions apply only to those who are legally entitled to recover damages from the owner or operator of the vehicle. In construing the phrase “legally entitled to recover” in the context of the uninsured motorist statute, we stated:
“The intent and thrust of R.C. 3937.18 is not to provide coverage in all situations that might otherwise go uncompensated; rather, the uninsured motorist provision applies only when there is a lack of liability insurance. The *298insurance policy, and more importantly the statute, are not implemented when there is a lack of liability dm to immunity. ” (Emphasis added in part.) York, supra, at 202.
We also set forth legal framework in York in an effort to guide members of the bench and bar of this state. This court specifically provided:
“It is the legal defense, and not the status of insurance, that warrants our decision herein. The uninsured motorist coverage is to apply only in those situations in which the ‘lack of liability insurance’ is the reason the claim goes uncompensated, and not when the claim goes uncompensated because of the lack of liability due to the substantive laws of Ohio.” (Emphasis sic.) Id.
The majority herein attempts to distinguish York on the basis that the city of Elyria was granted statutory immunity pursuant to R.C. 701.02. The majority finds a difference between this statutory immunity and the common-law immunity of parent-child. I fail to see any difference. The general policy reasons which support immunities are the same no matter the origin of the particular immunity involved. There are certain traditional values in our society which we deem important enough to protect from liability.
I cannot in good conscience distinguish the York decision from the facts presented here. Accordingly, I would affirm the judgment of the court of appeals.
Locher, J., concurs in the foregoing dissenting opinion.