Motorists Mutual Insurance v. Andrews

Cacioppo, J.

The question presented to this court is whether underinsured motorist coverage is available to an insured where the tortfeasor’s policy limit is greater than the insured’s policy limits but the claims of multiple claimants have resulted in undercompensation of the insured’s injuries. For the reasons which follow, we hold that underinsured motorist coverage is available, and affirm the court of appeals.

The central dispute in the case at bar is whether the accident involved an underinsured motorist within the meaning of R.C. 3937.18(A)(2). Motorists asserts that Mac’s Transport was not underinsured because its policy limit, $750,000, was greater than the Andrews policy limits. On the other hand, the Andrewses contend that Mac’s Transport was underinsured because the amount available for payment to the Andrewses was zero after the policy limit had been paid to Richard Andrews.

In considering this question, we first examine R.C. 3937.18(A)(2), which requires insurance companies to offer underinsured motorist coverage as part of every automobile insurance policy. This provision states that insurance companies must offer:

“Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, whether the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured’s uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.”

Motorists asserts that the comparison-of-the-limits approach applied by this court in Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658, leads to the result that Mac’s Transport was not underinsured. The Andrews-es counter that the Hill rationale is inappropriate in a case such as this, where the claims of multiple claimants have limited the amount which each injured party can recover. The Andrewses assert that if the position advanced by Motorists were adopted by this court, the public policy behind requiring underinsured motorist coverage would be circumvented.

*365This court examined the public policy behind underinsured motorist coverage in James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 389,18 OBR 440, 443, 481 N.E.2d 272, 274-275:

“Underinsured motorist coverage was first required by statute after the legislature discovered the ‘underinsurance loophole’ in uninsured motorist coverage — i.e., persons injured by tortfeasors having extremely low liability coverage were being denied the same coverage that was being afforded to persons who were injured by tortfeasors having no liability coverage. Thus, the original motivation behind the enactment of R.C. 3937.181(C) was to assure that persons injured by an underinsured motorist would receive at least the same amount of total compensation that they would have received if they had been injured by an uninsured motorist.” (Emphasis sic.)

This court reiterated this policy in Hill, supra, 50 Ohio St.3d at 245, 553 N.E.2d at 661. Lower courts have also recognized and considered this policy in addressing these issues. See, e.g., Felber v. Grange Mut. Ins. Co. (Aug. 28, 1991), Summit App. No. 15003, unreported, 1991 WL 168586; Wilson v. Grange Mut. Cas. Co. (Aug. 29, 1989), Franklin App. No. 87AP-1197, unreported, 1989 WL 99417; Knudson v. Grange Mut. Cos. (1986), 31 Ohio App.3d 20, 23, 31 OBR 34, 37, 507 N.E.2d 1155, 1157-1158. Simply stated, the well-reasoned public policy behind requiring underinsured motorist coverage is to assure that an injured person receive at least the same amount of compensation whether the tortfeasor is insured or uninsured.

Returning to R.C. 3937.18(A)(2), we must interpret this statute in light of the public policy responsible for its adoption. In Hill, this court interpreted R.C. 3937.18(A)(2) to mean that:

“Unless otherwise provided by an insurer, underinsured motorist liability insurance coverage is not available to an insured where the limits of liability contained in the insured’s policy are identical to the limits of liability set forth in the tortfeasor’s liability insurance coverage. (R.C. 3937.18[A][2], construed and applied; Wood v. Shepard [1988], 38 Ohio St.3d 86, 526 N.E.2d 1089, distinguished and explained.)” Hill, supra, 50 Ohio St.3d 243, 553 N.E.2d 658, syllabus. In Hill, the insured-decedent and the tortfeasor had policies with identical limits of underinsured motorist and liability coverage, respectively; $50,000 per person and $100,000 per occurrence. The decedent’s estate had been compensated by the same amount as the limit of the underinsured coverage. Therefore, the estate was not entitled to recover under the under-insured motorist coverage.

The Hill rationale is appropriate in a case involving a single claimant. However, Hill fails to address the situation where, as in the case at bar, the claims of multiple claimants result in reduction of the amount available for *366payment to the insured below the underinsured motorist limits. Several courts of appeals, including the courts below, have considered this issue, with similar results.

In Knudson v. Grange Mut Cos., supra, 31 Ohio App.3d at 21, 31 OBR at 35, 507 N.E.2d at 1156, the issue before the Court of Appeals for Lucas County was whether underinsured coverage was available where the tortfeasor’s liability limits were identical to the insured’s, but the amount available for payment to the insured was reduced below the liability limits because of the claims of multiple claimants. The court reviewed R.C. 3937.18(A)(2) and this court’s pronouncement of the policy behind requiring underinsured motorist coverage. The court held that the insured was entitled to underinsured coverage. The Knudson court stated that “an insurance company is obligated to offer underinsured motorist coverage that is applicable when the projected amount available for payment under the tortfeasor’s insurance policy is less than the victim’s underinsured motorist coverage limits.” (Emphasis sic.) Id. at 23, 31 OBR at 37-38, 507 N.E.2d at 1158.

In Wilson v. Grange Mut. Cas. Co. (Aug. 29, 1989), Franklin App. No. 87AP-1197, the Court of Appeals for Franklin County considered the same issue. As in Knudson, the claims of multiple claimants resulted in the insured receiving less than the tortfeasor’s insurance limits. The Wilson court held that the clear language of R.C. 3937.18(A)(2) required the court to consider the amount actually available for payment, and not to consider only the policy limits. The court continued that, “[cjlearly, in a situation where the limits of a third party’s liability coverage are identical to the limits of the insured’s uninsured motorist coverage, the presence of multiple claimants making claims against the third party decreases the available limit of the third party’s liability coverage to the insured.” (Emphasis sic.) Id. at 8.

We agree with the above-mentioned appellate courts that the clear language of R.C. 3937.18(A)(2) requires a comparison between the amount actually available for payment to an insured and the policy limits of the insured’s underinsured motorist coverage. The operative language of R.C. 3937.-18(A)(2) states that “[ujnderinsured motorist coverage * * * shall provide protection * * * where the limits of coverage available for payment to the insured * * * are less than the limits for the insured’s uninsured motorist coverage at the time of the accident. * * * ” Reading this statute, in conjunction with the public policy behind its adoption, the inescapable conclusion is that, when determining whether a motorist is underinsured, the amount actually available for payment under the tortfeasors’s policy must be compared with the insured’s underinsured motorist coverage limits. If the amount available for payment is less than the insured’s underinsured policy *367limits, then the insured is entitled to underinsured motorist coverage. This is the only reading of R.C. 3937.18(A)(2) which can give full effect to the General Assembly’s stated intent.2

Turning to the case at bar, we find that Mac’s Transport was an underinsured motorist within the meaning of R.C. 3937.18(A)(2). The decision is achieved by comparing the amount available for payment to the Andrewses, zero, to the underinsured motorist coverage limits, at least $25,000 per person, $50,000 per occurrence. To hold otherwise would place the Andrewses in a better position had they been struck by an uninsured vehicle.3 This decision also recognizes the importance of the insurance protection which Dennis Andrews sought. Dennis contracted for coverage from his insurer for at least $25,000 per person/$50,000 per occurrence in the event of an accident with an underinsured motorist. Our decision allows the Andrewses to recover that for which Dennis contracted. See Felber v. Grange Mut. Ins. Co. (Aug. 28, 1991), Summit App. No. 15003, unreported, at 4-5.

Therefore, for the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Sweeney, Douglas, Wright and H. Brown, JJ., concur. Holmes, J., dissents. Mary Cacioppo, J., of the Ninth Appellate District, sitting for Resnick, J.

. We note that this is a sound result as underinsured motorist coverage attaches to individuals, not accidents. Zelko v. Parsons (1985), 29 Ohio App.3d 302, 306, 29 OBR 400, 405, 505 N.E.2d 271, 275, following Auto-Owners Mut. Ins. Co. v. Lewis (1984), 10 Ohio St.3d 156, 158, 10 OBR 490, 492, 462 N.E.2d 396, 399. Therefore, it is appropriate to compare the amount actually available for payment under the tortfeasor’s policy to the injured party rather than a strict policy limits comparison. A strict policy limits approach would attach underinsured motorist coverage to the accident, not the individual.

. Clearly, had Mac’s Transport been uninsured, the Andrewses would be entitled to uninsured motorist coverage and would receive Dennis’ policy limits. If we were to adopt appellant’s position, the Andrewses would be denied coverage. This result would be contrary to the General Assembly’s policy for requiring underinsured motorist coverage.