Stark App. No. 2003CA00096, 2003-Ohio-6366. On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 4 of the court of appeals’ Journal Entry filed January 4, 2004:
“Whether an uninsured/underinsured motorist claimant, when making a claim based upon the death of a person, is barred from recovery under a personal auto policy when the policy requires that the claimant be ‘legally entitled to recover’ and the uninsured/underinsured motorists claim is first presented to the insurance company providing the uninsured/underinsured motorists coverage after the time, as set forth in the wrongful death statute, for filing a wrongful death claim against the tortfeasor has expired.”
Resnick and F.E. Sweeney, JJ., dissent.The conflict case is Hutchison v. Midwestern Indemn. Co. (Mar. 2, 1989), Ross App. No. 1496, 1989 WL 19380.
Sua sponte, cause consolidated with 2004-0044, McColIam, v. Am. & Foreign Ins. Co., Stark App. No. 2003CA00096, 2003-Ohio-6366.