dissenting. I agree with the majority’s conclusion that the relevant contract term is an exclusionary provision and not an anti-stacking clause. However, I respectfully dissent from the holding that it was effective to preclude recovery under the facts of this case and the laws of Ohio.
The resolution of this appeal rests on an application of the clear mandate of Ohio’s General Assembly set forth in R.C. 3937.18(A). As the majority recognizes, this statute establishes a public policy consideration recognized by the legislature and this court that uninsured motorist coverage “* * * is designed to protect persons injured in automobile accidents from losses which, because of the tort-feasor’s lack of liability coverage, would otherwise go uncompensated.” (Emphasis added.) Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St. 2d 161, 165 [51 O.O.2d 229],
To this end, the statute asserts control over the terms of contracts of insurance in that it unequivocally provides that “[n]o automobile liability * * * policy of insurance * * * shall be * * * issued * * * unless * * * coverage * * * 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 * * * [provided that] [t]he named insured shall have the right to reject such uninsured motorist coverage * * *.” (Emphasis added.) R.C. 3937.18(A), effective June 25, 1980. The legislature recognized the unequal bargaining power between insurance companies and the public. It sought to remedy this disparity by providing the insured with the option of purchasing uninsured motorist protection.
In order to comply with this mandated offering of insurance, Motorists Mutual Insurance Company (“Motorists”) included uninsured motorist coverage in “Part C” of its standard form insurance policy sold to Hedrick. The “insuring agreement” contained therein provides, inter alia:
*47“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
“1. Sustained by a covered person; and
“2. Caused by an accident.” (Emphasis sic.)
The term “covered person” certainly includes Hedrick’s son as the policy defines it to mean, “1. You or any family member. ” (Emphasis sic.)
Thus far the policy fully complies with state law as it offers uninsured motorist coverage to the named insured. The “insuring agreement” fulfils the legislative mandate as it offers protection to covered persons twenty-four hours a day, three hundred sixty-five days a year, regardless of whether the insured is injured while in the insured vehicle or elsewhere. Presumably, the parties should then be able to enter into dialogue as to whether the named insured wishes to reject such coverage, either in whole or in part. Such an express rejection is exactly the freedom-of-contract option intended by the General Assembly.2
However, the instant policy did not stop at this point, but rather went on to contractually nullify both a portion of its own “insuring agreement” as well as the underlying state statute. In a later pre-printed section of the form contract, entitled “Exclusions,” Motorists automatically deleted a small portion of the full coverage contained in its “insuring agreement” with the following proviso:
“A. We do not provide Uninsured Motorists Coverage for bodily injury sustained by any person:
“1. While occupying * * * any motor vehicle owned by you or any family member which is not insured for this coverage under this policy. * * *” (Emphasis sic.)
There are understandable reasons why Motorists would want to limit recovery of insured persons for bodily injuries in this fashion. However, the legislature gave the “named insured” the right to reject or reduce coverage and did not intend to provide the insurer with the right to unilaterally exclude or limit the offer which is mandated by law. When the bargaining positions of the parties are unequal, such an exclusion could only be enforced if the inferior party is given an option of negating the exclusion for additional consideration. Cf. Motorists Mut. Ins. Co. v. Jones (1966), 9 Ohio Misc. 113, 115 [38 O.O.2d 154].
It was this adhesion clause which was in clear contravention of state law and was thereby unenforceable because it, in effect, limits the statutorily required offer without a knowing rejection by the insured. As Judge Turner of this court observed in Bell v. Northern Ohio Tel. Co. (1948), 149 Ohio St. 157, 158 [36 O.O. 501]: “It is elementary that no valid *48contract may be made contrary to statute, and that valid, applicable statutory provisions are parts of every contract.”
The issue concerning the effectiveness of this contract exclusion is unquestionably controlled by the longstanding rule “that where a statute, designed for the protection of the public, prohibits in express terms the making of a contract, such contract is absolutely void, whether the thing contracted for is malum in se, or [as in the instant case] merely malum prohibitum. ” Rossman v. McFarland (1859), 9 Ohio. St. 369, 379.
This is because insurers “* * * are without power to insert enforceable provisions in their contracts of insurance which would restrict coverage in a manner contrary to the intent of the statute.” Bartlett v. Nationwide Mut. Ins. Co. (1973), 33 Ohio St. 2d 50, 53 [62 O.O.2d 406].
I can appreciate the logic that “to require insurers * * * to explain in detail every sentence of an insurance contract as a prerequisite to its efficacy would be unduly burdensome.” However, at a minimum, insurers must explain the policy’s provisions for uninsured motorist coverage, truly offer the coverage required by law, identify what the insured’s coverage options are, and inform the policy holder to what extent (and under what circumstances if the contract is not all inclusive) the policy selected provides recovery for bodily injury resulting from an uninsured motorist.3
I am dismayed, as are Justices Sweeney and Brown, that the majority, having first concluded the provision is not an anti-stacking clause, nevertheless attempts to bolster its holding by discussing statutory amendments and case law concerning “stacking” of insurance. It is regretful that the members of this august tribunal could not place aside their divergent view*49points concerning “anti-stacking” clauses in.order to consider the merits of this case.4
Lastly, I join in the essence of Justices Sweeney’s and Brown’s dissenting opinions, infra, in that they further illuminate the fallacy of the majority’s reasoning and the unnecessary emasculation of past precedent.
Based on all of the above, I dissent.
Sweeney and C. Brown, JJ., concur in the foregoing dissenting opinion.This opportunity to reject the offer not only provides the policy holder the right to purchase uninsured motorist coverage but also recognizes that the insured may not wish, or be able to afford the premiums for, full coverage. The policy holder may indeed desire to purchase more restrictive coverage, or a policy with lesser limits of recovery, if such is offered by the insurer.
An influential statement made by Professor Llewellyn addressed the problems of standard form contracts and is of guidance in this case:
“Instead of thinking about ‘assent’ to boiler-plate clauses, we can recognize that so far as concerns the specific, there is no assent at all. What has in fact been assented to, specifically, are the few dickered terms, and the broad type of the transaction, and but one thing more. That one thing more is a blanket assent (not a specific assent) to any not unreasonable or indecent terms the seller may have on his form, which do not alter or eviscerate the reasonable meaning of the dickered terms. The fine print which has not been read has no business to cut under the reasonable meaning of those dickered terms which constitute the dominant and only real expression of agreement * * *.
(< * * *
“* * * [T]he boiler-plate is assented to en bloc, ‘unsight, unseen,’ on the implicit assumption and to the full extent that (1) it does not alter or impair the fair meaning of the dickered terms when read alone, and (2) that its terms are neither in the particular nor in the net manifestly unreasonable and unfair. Such is the reality, and I see nothing in the way of a court’s operating on that basis, to truly effectuate the only intention which can in reason be worked out as common to the two parties, granted good faith. And if the boiler-plate party is not playing in good faith, there is law enough to bar that fact from benefiting it * * *. [A]ny contract with boiler-plate results in two several contracts; the dickered deal, and the collateral one of supplementary boiler-plate.
“Rooted in sense, history, and simplicity, it is an answer which could occur to anyone.” (Emphasis sic.) Llewellyn, The Common Law Tradition, Deciding Appeals (1960) 370-371.
The policy herein did contain a valid "anti-stacking clause which, by its own terms, is not at issue in this case. See fn. 1, supra. As we noted in Karabin v. State Automobile Mut. Ins. Co. (1984), 10 Ohio St. 3d 163, 165: “* * * [I]t is apparent that divisions (A) and (E) [now (G)] complement rather than conflict with each other. Division (A) sets forth the general policy guaranteeing that an insured will be afforded the opportunity to purchase uninsured motorist coverage in an amount up to his liability limits. Division (E) provides a specific modification, permitting insurers to confine their liability to the limits of a single policy.” (Emphasis added.)
The breadth of the “specific modification” made by the legislature is found in paragraph one of the syllabus in Karabin:
“The unambiguous language of former R.C. 3937.18(E) permits insurance carriers to include provisions in automobile insurance contracts which preclude stacking of uninsured motorist coverage.”
The exclusion clause at issue in this case simply does not fall within the narrow “anti-stacking” exception carved out by the legislature. Other than terms which fall within the statutory exception, insurers cannot reduce or restrict uninsured motorist coverage absent a rejection of such coverage by the named insured. R.C. 3937.18(A).