Holt v. Grange Mutual Casualty Co.

Cook, J.,

dissenting. Although stare decisis limits the extent of my dissent, that same doctrine dictates it. For as much as I disagree with the reasoning and holdings in Wood v. Shepard (1988), 38 Ohio St.3d 86, 526 N.E.2d 1089, In re Estate of Reeck (1986), 21 Ohio St.3d 126, 21 OBR 429, 488 N.E.2d 195, and Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, among others, even those cases compel a result opposite to that reached by the majority in this case. The decisional law of this court dictates that a wrongful death beneficiary cannot recover under the uninsured/underinsured motorist provisions of a decedent’s automobile liability insurance policy unless that beneficiary qualifies as an insured.

PRIOR DECISIONS LIMITING RECOVERY TO INSUREDS

In Wood, the court enlarged underinsured motorist coverage for wrongful death beneficiaries by deeming that R.C. 2125.02 creates a separate claim for each wrongful death beneficiary. As a limitation to that holding, however, Wood also recognized that compensation for the claim is not mandated by R.C. 3937.18, unless the claimant is an insured under the policy.

Referring to the precise issue this court faces today, Justice Douglas, writing for the Wood majority, stated, “It is contended that the wrongful death statute, and specifically R.C. 2125.02, could be used, under today’s decision, to permit recovery by persons who are not in any way contractually in privity with an underinsured carrier. This, of course, is not the case. Only an insured under the underinsured motorist provision can recover under the policy for injury or wrongful death.” (Emphasis sic.) Wood at 91, 526 N.E.2d at 1093. The requirement is further reflected in the syllabus of Wood, which states, “Each person entitled to recover damages pursuant to R.C. 2125.02 for wrongful death, and who is an insured under an underinsured motorist provision in an insurance policy, has a separate claim * * (Emphasis added.)

Faced with this limitation in Wood, the majority in the present case dismisses the prerequisite of contractual privity as “inapplicable” due to the “special nature” of a wrongful death claim. To reach the conclusion that wrongful death *412beneficiaries who are not insureds under a policy are entitled to uninsured/under-insured proceeds of a decedent, the majority relies on In re Estate of Reeck, and rationalizes that wrongful death beneficiaries, through a personal representative, “step into the shoes” of the decedent. Thus, the majority concludes that the beneficiaries are not required to be in contractual privity because the decedent is in contractual privity with the insurer.

However, to do so, the majority must ignore that in both Reeck and Wood, the wrongful death beneficiaries were permitted to recover because they also qualified as insureds themselves. In Reeck, the claimant was entitled to recover proceeds from the uninsured/underinsured section of the policy because she qualified as an “ ‘insured’ within the meaning of the State Farm policy.” Id. at 129, 21 OBR at 432, 488 N.E.2d at 198. In Wood, the wrongful death beneficiaries were all covered persons under the policy — a key factor in Justice Douglas’s opinion. Wood at 91, 526 N.E.2d at 1093.

The majority’s reliance on State Farm Auto. Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397, 583 N.E.2d 309, is also belied by this court’s later decision in Savoie, 67 Ohio St.3d at 509, 620 N.E.2d at 816, which expressly approved Wood. Justice Pfeifer, writing for a majority of the court, stated, “According to Wood, each insured, who under an underinsured motorist policy has the right to have a wrongful death action brought in his or her name pursuant to R.C. 2125.01, has a separate wrongful death claim subject to a separate per person policy limit. * * * Despite previous attempts by this court to restrict the application of Wood, * * * it remains good law in Ohio. Each person who is covered by an uninsured/underinsured policy and who is presumed to be damaged pursuant to R.C. 2125.01 has a separate claim subject to a separate per person policy limit.” (Emphasis added.)

POLICY LIMITS PAID

Aside from it being at odds with our prior cases on the subject, this decision by the majority reasons from an unmet premise, i.e., that the position taken by the insurer toward its insured here is inequitable. I disagree. It seems that the payment of the insurance proceeds under this policy actually corresponds with the analysis of the majority. Indeed, under the majority’s rationale, Ingrid Holt received $250,000, as the personal representative, “stepping into the shoes” of the insured decedent. Under his policy, the decedent could recover only $250,000 as the per person limit. Applying the “stepping into the shoes” theory, Ingrid Holt and her sons as statutory beneficiaries may share the total amount of coverage paid to Ingrid as the personal representative of the decedent’s next of kin. There appears to be no reasoning by the majority supporting a requirement that there be more than one payment of the policy per person limit other than the status of *413the sons as statutory beneficiaries presumed to have suffered damages. Having suffered damages, however, is, of course, not the equivalent of having acquired coverage for such damages. Ohio law requires only that uninsured/underinsured motorist coverage be offered. It does not mandate compensation from a decedent’s automobile insurer for all wrongful death statutory beneficiaries.

CONCLUSION

Consistent with our prior decisions and the intent of R.C. 3937.18 of providing uninsured/underinsured proceeds for those insured under the policy, rather than vicariously through the decedent, I would hold that an R.C. 2125.02 wrongful death beneficiary cannot recover under the uninsured/underinsured motorist provisions of a decedent’s automobile liability insurance policy unless the beneficiary qualifies as an insured. For these reasons, I respectfully dissent.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.