dissenting. I respectfully dissent.
In McDonald v. Republic-Franklin Ins. Co. (1989), 45 Ohio St.3d 27, 29, 543 N.E.2d 456, 459, and Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22, 521 N.E.2d 447, paragraph four of the syllabus, this court interpreted R.C. 3937.18(E) to mean that “a subrogation clause is reasonably includable in contracts providing underinsured motorist insurance. Such a clause is therefore both a valid and enforceable precondition to the duty to provide underinsured motorist coverage.” The statute is unambiguous and creates no exception for wrongful death beneficiaries.
In reaching its conclusion, the majority finds ambiguity not in the statute, but in the subrogation provision of the insurance policy, holding that Weiker was not required to notify Motorists of a tentative settlement between her wrongful death personal representative and the tortfeasor’s insured. The majority bases this conclusion on the policy language requiring Weiker to notify Motorists of any “tentative settlement between the insured and the insurer of [the] vehicle.” *187(Emphasis added in majority opinion.) Presumably because Weiker did not sign the settlement or receive proceeds under its terms, the majority concludes that there was no tentative or ultimate settlement between Weiker and the tortfeasor’s insurer.
The law in Ohio has long held that, in wrongful death actions, the personal representative is merely a nominal party and the statutory beneficiaries are the real parties in interest. E.g., Burwell v. Maynard (1970), 21 Ohio St.2d 108, 50 O.O.2d 268, 255 N.E.2d 628. Pursuant to R.C. 2125.02(C), the personal representative had authority to enter into a settlement with the defendant subject only to court approval. There was no requirement that the wrongful death beneficiaries agree to the terms of the settlement, or that the settlement individually name the wrongful death beneficiaries that it is intended to cover. Furthermore, because the statutory beneficiaries are the real parties in interest to a wrongful death action, this court has consistently held that they are subject to principles of res judicata, amenable to claims of contributory negligence, and are bound by a general release. Burwell, 21 Ohio St.2d at 111, 50 O.O.2d at 270, 255 N.E.2d at 629-630. Accordingly, Weiker was bound by her personal representative’s settlement.
In light of the clear and long-standing law on this issue, the subrogation provision in Weiker’s policy contains no ambiguity. We presume that the parties to a contract adopt the terms of their bargain in reliance on the applicable law. See Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 78, 25 OBR 125, 131, 495 N.E.2d 380, 386. Both R.C. Chapter 2125 and the cases interpreting that statute make it clear that a personal representative’s actions in pursuing a wrongful death claim are made on behalf of the statutory beneficiaries — who in this case included Weiker. Accordingly, the wrongful death settlement was, in fact, between Weiker (among others) and the tortfeasor’s insured. By failing to notify Motorists of the proposed wrongful death settlement, Weiker failed a condition precedent to Motorists’ coverage obligation and should not be permitted to recover.
Based on the foregoing, I would affirm the judgment of the court of appeals.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.