Weiker v. Motorists Mutual Insurance

Francis E. Sweeney, Sr., J.

The issue in this is case is whether a wrongful death beneficiary is precluded from underinsured motorist coverage because of her failure to notify her insurer of a proposed wrongful death settlement. Because we find that appellant did not violate the terms of her personal insurance policy, she is entitled to underinsured motorist coverage from her insurance provider.

Weiker’s personal automobile insurance policy with Motorists includes uninsured/underinsured motorist coverage provisions, including a subrogation clause, which state, “We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury caused by an accident. * * * A person seeking Uninsured Motorists Coverage must also promptly notify us in writing of a *184tentative settlement between the insured and the insurer * * * and allow us 30 days to advance payment to that insured in an amount equal to the tentative settlement to preserve our rights against the insurer, owner or operator of such uninsured motor vehicle.”

R.C. 3937.18 provides that automobile insurance carriers must offer uninsured and underinsured motorist coverage to their policy holders. Pursuant to R.C. 3937.18(E), the inclusion of a subrogation clause in insurance contracts providing underinsured motorist coverage is a valid and enforceable precondition to the duty to provide such coverage. McDonald v. Republic-Franklin Ins. Co. (1989), 45 Ohio St.3d 27, 29, 543 N.E.2d 456, 459; Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22, 521 N.E.2d 447, paragraph four of the syllabus.

R.C. 2125.01 et seq. establishes the procedures governing all wrongful death actions in Ohio. It provides that “an action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent * * * and for the exclusive benefit of the other next of kin of the decedent.” R.C. 2125.02(A)(1). The establishment of a personal representative in a wrongful death action promotes judicial economy by combining all potential claims into a single action. Ramsey v. Neiman (1994), 69 Ohio St.3d 508, 511, 634 N.E.2d 211, 213. The personal representative is presumed to act in the best interests of the beneficiaries, the real parties in interest. Id.

Motorists argues that because Weiker did not notify it of the proposed settlement, Weiker failed to protect its subrogation rights and materially breached the terms of her insurance contract. The court of appeals below, relying on Love v. Nationwide Mut. Ins. Co. (1995), 104 Ohio App.3d 804, 663 N.E.2d 407, agreed, holding that a beneficiary in a wrongful death action is barred from seeking underinsured motorist benefits from his or her own policy after the administrator had settled all wrongful death claims and released the tortfeasor from further liability.

However, Weiker claims that she did not violate the specific terms of the insurance contract’s notification clause. The explicit language of the contract states that there must be notification of a “tentative settlement between the insured and the insurer of [the] vehicle,” so that Motorists could preserve its subrogation rights. (Emphasis added.) Since Weiker was not a named party to the agreement, did not sign the agreement, and never received any proceeds from the settlement, she argues that the tentative settlement agreement between the administrator of Pettit’s' estate and the tortfeasor’s insurer was not an agreement between the insured and the tortfeasor’s insurer. Moreover, she asserts that she was not even aware of the existence of the agreement until after it was executed and approved by the probate court.

*185We agree with appellant that she did not violate the notification provision of her personal policy. We find Gibson v. State Farm Mut. Auto. Ins. Co. (Aug. 22, 1997), Clark App. No. 95CA107, unreported, 1997 WL 476686, to be persuasive in the case sub judice. In that case, Gibson presented an underinsured motorist claim to her insurance company after the executor of her deceased father’s estate had settled the wrongful death claim. Gibson’s policy required that there would be no coverage “for any insured who, without our written consent, settles with any person or organization who may be liable for the bodily injury.” State Farm rejected the claim on the ground that the settlement and release of the tortfeasor constituted a material breach of the policy. However, the court of appeals held that under the specific language of her policy, there was no breach of the settlement notification and consent provisions of the insurance contract, since the personal representative who entered into the settlement was not the “insured” under the policy. The Gibson court stated, ‘We decline to glean from thése cases [cited by State Farm in support] the blanket proposition that settlement by an insured’s legal representation [sic ] automatically disentitles the insured to under-insurance coverage irrespective of the actual terms of the contract.” Id.

As in Gibson, the language of Weiker’s personal policy specifically requires notification of any “tentative settlement between the insured and the insurer of [the] vehicle.” (Emphasis added.) Since Weiker was not an insured who entered into a settlement agreement, she did not violate the explicit terms of the contract. ‘Words and phrases used in an insurance policy must be given their natural and commonly accepted meaning, where they in fact possess such meaning, to the end that a reasonable interpretation of the insurance contract consistent with the apparent object and plain intent of the parties may be determined. [Citations omitted.] The insurer, having prepared the policy, must also be prepared to accept any reasonable interpretation, consistent with the foregoing, in favor of the insured.” Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168, 24 O.O.3d 274, 275-276, 436 N.E.2d 1347, 1348.

Even if the language in Weiker’s policy were to be considered ambiguous, “where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 211, 519 N.E.2d 1380, 1383.

The court of appeals below found that Weiker was precluded from recovering underinsured motorists benefits because she had actual notice of the probate proceedings and the proposed settlement. On the contrary, although Weiker was aware that probate proceedings were being pursued, she never realized that the personal representative was acting on her behalf, and was never made aware of *186the proposed settlement on behalf of the next of kin until after it was approved by the probate court.

Motorists argues that under McDonald and Bogan, a valid subrogation clause requiring notification is enforceable. However, McDonald and Bogan involved situations where the insured themselves signed away their insurer’s subrogation rights. In Weiker’s case, the personal representative settled the wrongful death action without her knowledge. Unlike the case in either McDonald or Bogan, Weiker did not agree to the settlement in this case and took no affirmative steps to destroy Motorists’ subrogation rights. Thus, she should not be precluded from asserting her right to underinsured motorist coverage.

Therefore, we hold that appellant is entitled to assert a claim for underinsured motorist coverage under her personal insurance policy.1 The court of appeals’ judgment is reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Douglas, Resnick and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.

. Weiker concedes that her damages do.not exceed $100,000 and that if she is entitled to coverage under her personal automobile policy, her claim under her commercial automobile policy would be moot.