Schaefer v. Allstate Insurance

Francis E. Sweeney, Sr., J.

We are asked to decide whether Mrs. Schaefer’s personal injury claim and Mr. Schaefer’s loss of consortium claim share a single per person limit of uninsured motorist coverage, or whether they each have available to them a separate per person limit to provide compensation for their *555own claims. In answering this question, we must determine the validity, in light of recent case law, of an automobile insurance policy provision which limits recovery for all causes of action arising out of bodily injuries sustained by one person to a single per person limit. For the following reasons, we find such a provision unenforceable. Accordingly, we find that Mr. Schaefer’s claim for loss of consortium constitutes a separate compensable injury subject to its own per person limit. The judgment of the court of appeals is reversed.

In construing provisions in an automobile insurance policy, we are mindful of the basic tenet that the purpose of uninsured motorist coverage and its mandatory offering is “to protect persons from losses which, because of the tortfeasor’s lack of liability coverage, would otherwise go uncompensated.” Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 480, 639 N.E.2d 438, 440, citing Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 165, 51 O.O.2d 229, 231, 258 N.E.2d 429, 432. Furthermore, since R.C. 3937.18(A)(1) is remedial legislation, it must be liberally construed in order to effectuate the legislative purpose. Martin, 70 Ohio St.3d at 480, 639 N.E.2d at 440, citing Curran v. State Auto. Mut. Ins. Co. (1971), 25 Ohio St.2d 33, 54 O.O.2d 166, 266 N.E.2d 566. An insurance policy provision will be deemed unenforceable if the provision is contrary to the statute and its purpose. Martin at 480, 639 N.E.2d at 440. With these principles in mind, we now turn to the insurance policy which Allstate provided to its insureds:

The policy at issue contained the following pertinent provision, included within its Uninsured Motorists Insurance Coverage:

“Limits of Liability
“The coverage limit stated on the declarations page for:
“(1) ‘each person’ is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident.
“(2) ‘each accident’ is the total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident.” (Emphasis added.)

Although this provision clearly states that Mr. Schaefer’s claim for loss of consortium, arising from the bodily injuries sustained by his spouse, shares her single per person limit, nevertheless, Mr. Schaefer contends that he and his wife are not subject to a single $100,000 per person limit of liability. Instead, he believes that he should be compensated for his own separate claim and be awarded an additional $100,000 for his loss of consortium claim. He argues that such a result is dictated by our decision in Savoie v. Grange Mut. Ins. Co. (1993), *55667 Ohio St.3d 500, 620 N.E.2d 809.1 He contends that since a wrongful death beneficiary has a separate claim subject to a separate per person limit, he, too, should be compensated for his own claim rather than be subject to his spouse’s single per person limit of liability. Allstate, however, contends that there is no need to resort to Savoie as the cases of Dues v. Hodge (1988), 36 Ohio St.3d 46, 521 N.E.2d 789, and Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 540 N.E.2d 716, directly support its position that the provision is valid.

Dues and Tomlinson do indeed support Allstate’s position. However, based upon our decision in Savoie and cases culminating in its decision, we need to revisit Dues and Tomlinson to determine whether they comport with the current law of our state.

In Dues, we held that “[a]n insurance policy provision that limits recovery for all causes of action arising out of bodily injury to one person to a single limit of liability is a valid restriction of uninsured motorist coverage.” Id. at paragraph two of the syllabus. In so holding, however, Dues overruled Auto-Owners Mut. Ins. Co. v. Lewis (1984), 10 Ohio St.3d 156, 10 OBR 490, 462 N.E.2d 396, which had held that a separate per person limit of uninsured motorist coverage must be available to provide compensation both for the personal injury claim brought by a father on his son’s behalf and for the father’s own derivative claim for the loss of his son’s services. In Auto-Oumers, the court had reasoned that “[w]ere this not the rule, [an insured] could conceivably be in the position of having less coverage than he paid for, despite the fact that [the insured] has individual claims arising from” the accident which physically injured his son. Id., 10 Ohio St.3d at 161, 10 OBR at 495, 462 N.E.2d at 401.

As its rationale for overruling Auto-Oumers, the court in Dues merely stated that “R.C. 3937.18(A)(1) does not indicate that it was intended to override reasonable limitations on the amount of coverage.” Dues, 36 Ohio St.3d at 49, 521 N.E.2d at 793. However, such an interpretation disregards the rule that language in an insurance policy must be read strictly in favor of the insured and contravenes the public policy concern that uninsured motorist coverage is to protect motorists from the dangers of uninsured motorists.

Applying Dues, Tomlinson, 44 Ohio St.3d 11, 540 N.E.2d 716, held that an insurer may, by appropriate language, limit all claims arising out of a single bodily injury to a single per person limit of coverage. Id. at paragraph one of the syllabus.

*557However, since Tomlinson was announced, this court has declined to apply it to wrongful death claims. See Cincinnati Ins. Co. v. Phillips (1990), 52 Ohio St.3d 162, 556 N.E.2d 1150, where a sharply divided court considered the same language considered in Tomlinson in the context of liability limits in a tortfeasor’s insurance policy and found that a wrongful death claim, another type of derivative action, could not be subject to a single person limit. Athough the plurality decision distinguished Tomlinson on the basis that Tomlinson was a loss of consortium case, it questioned its validity. Id. at 164, 556 N.E.2d at 1152. However, the concurring opinion asserted that the majority opinion should be read as overruling Tomlinson. Id. at 166, 556 N.E.2d at 1154, fn. 4 (H. Brown, J., concurring).

In an effort to bring stability, consistency, and clarity to the state of automobile insurance law in Ohio, this court decided Savoie, supra. In Savoie, we held that beneficiaries in a wrongful death action each are entitled to a separate per person limit of coverage under an uninsured motorist policy. Id., 67 Ohio St.3d 500, 620 N.E.2d 809, paragraph one of the syllabus. In so finding, we recognized that R.C. 2125.02(A)(1) created separate rights to recovery. Id. at 504, 620 N.E.2d at 812. However, we believe that the logic of the decision in Savoie should now be applied to loss of consortium claims in personal injury cases.2

Ohio common law recognizes that when one spouse is injured, the other spouse is also damaged and may assert his or her own cause of action against the tortfeasor for those damages — ie., a claim for loss of consortium. Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970), 22 Ohio St.2d 65, 74, 51 O.O.2d 96, 101-102, 258 N.E.2d 230, 235. “Consortium consists of society, services, sexual relations and conjugal affection which includes companionship, comfort, love and solace.” Id., paragraph three of the syllabus. Even though a loss of consortium claim is derivative in that it is dependent upon the defendant’s having committed a legally cognizable tort upon the spouse who suffers bodily injury, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93, 585 N.E.2d 384, 392, it is nonetheless legally separate and independent from the claim of the spouse who suffered the bodily injury. Id.

The fact that loss of consortium is a creation of the common law does not meaningfully differentiate spouses bringing those actions from spouses who are beneficiaries under the wrongful death statute. It is the separate injury which parties to both kinds of claims suffer that entitle them to separate per person limits. Thus, we see no valid reason to distinguish between 'wrongful death *558claims and loss of consortium claims in personal injury cases. Therefore, we hold that each person who is covered by an uninsured motorist policy and who is asserting a claim for loss of consortium has a separate claim subject to a separate per person policy limit. A provision in an insurance policy which reaches a contrary result is unenforceable. Because Tomlinson and paragraph two of the syllabus of Dues do not comport with the law of this state, we now expressly overrule them and return the law to where it was before those cases overruled Lewis.

Applying our holding to the facts of this case, we find that Mr. Schaefer’s claim for loss of consortium is subject to its own per person limit of liability. Thus, the jury award to Mr. Schaefer in the amount of $100,000 is reinstated. The court of appeals’ decision overturning this verdict is reversed.

Judgment reversed.

Douglas, Resnick and Pfeifer, JJ., concur. Douglas, J., concurs separately. Moyer, C.J., and Cook, J., separately dissent. Hildebrandt, J., dissents. Lee H. Hildebrandt, Jr., J., of the First Appellate District, sitting for Wright, J.

. Mr. Schaefer also argues that the policy provision is invalid under State Farm Auto. Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397, 583 N.E.2d 309, since it improperly reduces or eliminates uninsured motorist coverage for a claim arising from a recognized tort. However, it is unnecessary to address this argument as Savoie is dispositive of the issue presented in this case.

. See, also, Cole v. Holland (1996), 76 Ohio St.3d 220, 667 N.E.2d 353, which applies paragraph three of the syllabus of Savoie to hold that in a personal injury case, an insurer’s setoff applies against the insured’s damages, not against the policy limit of uninsurance/underinsurance coverage. Thus, Cole also expands the logic announced in Savoie to cases involving nonfatal injuries.