Webb v. McCarty

Pfeifer, J.

{¶ 1} Appellant Ronald McCarty caused an automobile accident that resulted in the death of Deborah Webb. Appellee William Webb, Deborah’s husband, was injured in the accident. McCarty had an automobile liability policy that provided coverage subject to a $300,000-per-accident limit.

{¶ 2} Webb settled his individual claims with McCarty for $25,000. The estate of Deborah Webb settled its claims for $269,836.08. The issue before us is whether Webb, his children, or others have a claim to underinsured-motorists (“UM”) coverage under Webb’s insurance policy, which had a $100,000-per-person limit and a $300,000-per-accident limit. We conclude that Webb’s UM policy provides coverage for the difference between the $300,000-per-accident limit and the $269,836.08 that was paid to the estate. Although we are unable to determine from the briefs or oral argument how they reach the number, the parties appear to agree that the amount paid under the policy is $269,836.08.

{¶ 3} Appellant argues that because Webb’s UM policy was for the same amount as McCarty’s liability policy, there is no UM coverage. We have rejected this argument, that a limits-to-limits comparison controls, in situations involving multiple claimants. Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425, 432, 746 N.E.2d 1077; Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 744 N.E.2d 719. Today we reject it again, summarily, on the authority of Littrell.

{¶ 4} In Littrell, we stated that “[f]or the purpose of setoff, the ‘amounts available for payment’ language in R.C. 3937.18(A)(2) means the amounts actually accessible to and recoverable by an underinsured motorist claimant from all bodily injury liability bonds and insurance policies (including from the tortfeasor’s liability carrier). Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 744 N.E.2d 719, followed and applied.” Littrell, 91 Ohio St.3d 425, 746 N.E.2d 1077, syllabus. The opinion made it clear that, in a case involving multiple claimants, UM *293coverage would be compared to the amount paid under an automobile liability policy, not to the limit of the automobile liability policy. Id. at 428-435, 746 N.E.2d 1077.

{¶ 5} In this case, $269,836.08 was paid under McCarty’s automobile liability policy. This amount is the “amountf] available for payment.” Former R.C. 3937.18(A)(2), 148 Ohio Laws, Part V, 11380, 11381. See Littrell, 91 Ohio St.3d 425, 746 N.E.2d 1077, syllabus. Accordingly, Webb and other claimants under his policy are underinsured to the extent that his UM policy’s per-accident limit, $300,000, exceeds the amount available for payment. Webb and other claimants are, of course, subject to the policy’s per-person limit of $100,000.

{¶ 6} We affirm the judgment of the court of appeals and remand the cause to the trial court.

Judgment affirmed and cause remanded.

Moyek, C.J., and O’Connor, J., concur. Lundberg Stratton, Lanzinger and Cupp, JJ., concur in judgment only. O’Donnell, J., dissents.