Advent v. Allstate Insurance

Cupp, J.

{¶ 1} The issue presented in this case is whether the versions of R.C. 3937.18 and 3937.31 in effect on September 12, 2002, permitted modification of an automobile insurance policy’s uninsured- and underinsured-motorist (hereinafter “UM”) coverage at the beginning of the policy-renewal period within the two-year statutory guarantee period.

{¶ 2} Because the two-year guarantee period began after September 21, 2000, the effective date of 2000 Sub.S.B. No. 267, 148 Ohio Laws, Part V, 11,380, and because the modification occurred after October 31, 2001, the effective date of 2001 Am.Sub.S.B. No. 97,149 Ohio Laws, Part I, 779, we hold that modification of UM coverage was a change permitted by law. Further, we find that the terms of the automobile insurance policy at issue were in fact modified within that period of time, and we affirm the judgment of the appellate court.

I

{¶ 3} This action arises from an automobile accident on September 28, 2002. Valijean D. Advent died as a result of injuries sustained in the accident. Her husband, Jack Advent, is the executor of her estate. Mr. and Mrs. Advent were the named insureds on an automobile insurance policy issued by Allstate Insurance Company. The liability limits on the policy were $300,000 per person and $500,000 per occurrence. The UM coverage limits were $50,000 per person and $100,000 per accident. The policy was originally purchased on March 12, 1989. The policy remained in effect throughout the two-year guarantee period of March 12, 2001, to March 12, 2003. Within the two-year guarantee periods, the policy *249was renewed every six months, including the six-month period of September 12, 2002, to March 12, 2003, which is the policy period when the accident occurred.

{¶ 4} As the executor, Advent settled the estate’s claims against the tortfeasor and his automobile insurance company for the bodily-injury liability limit under the tortfeasor’s policy, which was $100,000. In settling the claim, Advent reserved the right to pursue UM coverage under his own Allstate policy. Advent made a claim for $200,000 from Allstate on the theory that by operation of law, the amount of UM coverage was equivalent to his policy’s liability limits of $300,000, subject to an offset of the $100,000 recovered from the tortfeasor’s policy. Advent, as executor, filed his complaint against Allstate to recover that amount.

{¶ 5} The trial court awarded summary judgment to Allstate. It determined that because of recent legislative enactments, Advent was not entitled to UM coverage in an amount equivalent to the Allstate policy’s liability limits. The appellate court affirmed. Advent v. Allstate Ins. Co., 169 Ohio App.3d 318, 2006-Ohio-5522, 862 N.E.2d 871. We accepted Advent’s discretionary appeal and certified a conflict. Advent v. Allstate Ins. Co., 112 Ohio St.3d 1490, 2007-Ohio-724, 862 N.E.2d 117.

{¶ 6} The certified-eonflict question raised in this appeal is: “Can the S.B. No. 97 amendments to R.C. 3937.18 be incorporated into an insurance policy during a two-year guarantee period that commenced subsequent to the S.B. No. 267 amendments to R.C. 3937.18 and R.C. 3937.31, but prior to the S.B. No. 97 amendments?”1 The propositions of law accepted under discretionary jurisdiction are essentially restatements of the certified-conflict question, which addresses the question of which version of R.C. 3937.18 applies in this case.2

II

{¶ 7} By statute, all automobile insurance policies must be “issued for a period of not less than two years or guaranteed renewable for successive policy periods totaling not less than two years.” R.C. 3937.31(A). Recognizing that the laws pertaining to the provisions contained in automobile insurance policies change frequently, we previously interpreted R.C. 3937.31 to mean that insurers are permitted to incorporate statutory changes into an insurance policy only when a two-year guarantee period begins. Wolfe v. Wolfe (2000), 88 Ohio St.3d 246, 250-251, 725 N.E.2d 261.

*250{¶ 8} After Wolfe, the General Assembly enacted S.B. 267, effective September 21, 2000, expressly permitting insurers to change policies at the beginning of any policy-renewal period within a two-year guarantee period. See R.C. 3937.31(E) (“Nothing in this section prohibits an insurer from incorporating into a policy any changes that are permitted or required by this section or other sections of the Revised Code at the beginning of any policy period within the two-year period set forth in division (A) of this section”). Subsequently, we explored the ramifications of S.B. 267 on Wolfe, as applicable to R.C. 3937.31, in Shay v. Shay, 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591. In Shay, we concluded that the provisions of S.B. 267 were permissive, and we left Wolfe intact. Id. at ¶ 1. Therefore, we did not require an insurer to amend policy terms to incorporate recent legislative changes at a policy-renewal period within the two-year guarantee period. Id.

(¶ 9} Left unchanged by S.B. 267, however, was the general statutory requirement for insurers to offer UM coverage in an amount equal to the liability limits of the policy. See former R.C. 3937.18(A), 148 Ohio Laws, Part V, 11,380 (effective September 21, 2000). An insurer’s failure to offer UM coverage within a policy resulted in UM coverage arising by operation of law in an amount equal to the policy’s liability limits. Gyori v. Johnston Coca-Cola Bottling Group, Inc. (1996), 76 Ohio St.3d 565, 567, 669 N.E.2d 824. UM coverage arose by operation of law if the insurer was unable to demonstrate that it had made a written offer of UM coverage and that its insured had (1) selected in writing UM coverage in a lesser amount or (2) expressly refused UM coverage in writing. Id.; Mason v. Royal Ins. Co. of Am., Stark App. No. 2003 CA 00029, 2003-Ohio-7047, 2003 WL 23009004, ¶ 11, 28.

{¶ 10} Thereafter, the UM coverage laws were further amended by S.B. 97, effective October 31, 2001. S.B. 97 rewrote R.C. 3937.18, with the express intention of superseding the holdings of this court in “cases previously superseded by * * * S.B. 267” and, among other named cases, Gyori, 76 Ohio St.3d 565, 669 N.E.2d 824. Section 3(D) and (E), S.B. 97, 149 Ohio Laws, Part I, 789-790. In addition to eliminating “any requirement of a written offer, selection, or rejection form,” this amendment was also intended to “[eliminate the possibility of uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages being implied as a matter of law in any insurance policy.” Id. at 788, Section 3(B)(4) and (2).3

*251{¶ 11} The cumulative effect of the General Assembly’s amendments to R.C. 3937.18 in S.B. 267 and S.B. 97 leads us to conclude that insurers may incorporate any changes permitted or required by the Revised Code at the beginning of any policy-renewal period on or after October 31, 2001 (the effective date of S.B. 97) within the policy’s two-year guarantee period that began on or after September 21, 2000 (the effective date of S.B. 267).

{¶ 12} Moreover, modification of the UM coverage terms of an automobile insurance policy is a change permitted or required by the Revised Code, after October 31, 2001 (the effective date of S.B. 97), at the beginning of any policy-renewal period within the two-year guarantee period that began after September 21, 2000 (the effective date of S.B. 267).

{¶ 13} In light of the foregoing, we resolve the certified-eonflict question in the affirmative and reject the two propositions of law.

Ill

{¶ 14} The policy that the Advents purchased from Allstate had a two-year guarantee period from March 12, 2001, through March 11, 2003. It is not disputed that the UM statute applicable to the Advent policy reflected the changes enacted by S.B. 267, effective September 21, 2000. As a result, if the insured consented, Allstate could incorporate changes permitted or required by the Revised Code into the existing policy at the beginning of any policy-renewal period within the two-year guarantee period. See R.C. 3937.31(E); Shay, 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591, at ¶ 1.

{¶ 15} Advent contends that notwithstanding the amendment by S.B. 267, UM coverage still arose by operation of law in the amount of the liability limits of the policy if a proper offer and selection or rejection of UM coverage in -writing could not be demonstrated by the insurer. Advent’s argument, however, overlooks the application of S.B. 97, effective October 31, 2001. The provisions of S.B. 97, which include the rewriting of portions of R.C. 3937.18, are “changes that are permitted or required” by the Revised Code to be incorporated into existing policies, by virtue of S.B. 267, at any renewal, including any renewal period within the two-year guarantee period if the insurer and insured agree to do so. R.C. 3937.31(E); Shay, 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591, at ¶ 1.

{¶ 16} At the renewal of the six-month policy period immediately prior to the six-month policy period during which the accident occurred (the policy-renewal period of March 12, 2002, to September 12, 2002), Allstate included an “Important Notice” with its “Renewal Auto Policy Declarations” information indicating that *252the method of selecting UM coverage had changed.4 The same notice, under the heading of “Important Information and Coverage Information,” stated, “The coverage limits you have chosen for Uninsured Motorists Insurance for Bodily Injury are less than your limits for Bodily Injury under Automobile Liability Insurance.” The Advents were advised to contact their agent or Allstate if they wished to increase their UM limits. The Advents neither objected to this change nor acted to modify the UM limits specifically listed on the policy declarations page. Rather, the insurance coverage with Allstate was maintained at the stated policy amounts.

{¶ 17} When the Advents renewed their policy for the final six-month policy period of the two-year guarantee period, the Renewal Auto Policy Declarations again informed the Advents that their chosen UM limits were less than their liability limits and advised them to contact their agent or Allstate if they wished to increase their UM limits. Again, the Advents maintained their insurance coverage with Allstate at the stated policy amounts.

{¶ 18} Admittedly, the notification of these changes in the Advents’ policies contained minimal explanation. However, we believe that the notices contained sufficient information to put the Advents on notice that the provisions regarding UM coverage in the policy had changed, that the UM coverage was as stated on the policy declarations page, and that action on their part was necessary to modify the stated UM limits. By failing to take any action to modify the stated UM coverage limits, the Advents consented to the changes in their policy and to the express coverage limits of $50,000 per person and $100,000 per accident.

{¶ 19} In summary, S.B. 267 permits but does not require insurers to incorporate into automobile insurance policies changes permitted or required by the Revised Code during any policy-renewal period within the two-year guarantee *253period. S.B. 97 repealed the requirement to offer UM coverage and eliminated any requirement to prove offers, selections, or rejections in writing. The consequence of these two statutory changes is that the possibility of UM coverage “being implied as a matter of law in any insurance policy” is eliminated. Section 3(B)(2), S.B. 97,149 Ohio Laws, Part I, 788.

{¶ 20} Further, Allstate’s automobile insurance policy with the Advents was renewed every six months within their two-year guarantee period; the provisions of S.B. 97 governing UM coverage were incorporated into the Advent policy during one of the renewal periods prior to the accident; and the coverage available to the Advents at the time of the accident is determined by that policy with the incorporated terms.

{¶ 21} Because the UM coverage limits in effect on the date of the accident were $50,000 per person and $100,000 per occurrence, and not $300,000 per person and $500,000 per occurrence, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., and Lundberg Stratton, O’Connor, O’Donnell, and Lanzinger, JJ., concur. Pfeifer, J., dissents.

. The conflict case is Storer v. Sharp, Cuyahoga App. No. 86525, 2006-Ohio-1577, 2006 WL 832458.

. The First Proposition of Law is: “R.C. § 3937.18, effective September 21, 2000 (S.B. 267), is the controlling version of the UM statute for this case pursuant to Ross and Wolfe." The Second Proposition of Law is: “The S.B. 97 amendments to R.C. § 3937.18, effective October 31, 2001, have no application or bearing on the instant cause of action.”

. {¶ a} R.C. 3937.18(A) now reads:

{¶ b} “Any policy of insurance delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state that insures against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle, may, but is not required to, include uninsured *251motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages.”

. {¶ a} The “Important Notice” stated:

{¶ b} “We’d like you to know that we’ve changed the process for selecting and making changes to Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage.

{¶ c} “Effective immediately, you can add or remove Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage and increase or decrease your limits under Uninsured Motorists Insurance for Bodily Injury by simply calling your Allstate representative. There will be no forms to sign.

{¶ d} “Please refer to the enclosed Policy Declarations to determine if your policy currently has Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage.

{¶ e} “If Uninsured Motorists Insurance for Bodily Injury or Uninsured Motorists Insurance-Property Damage is not included in your policy and you would like to purchase it, or if you would like to increase or decrease the Uninsured Motorists Insurance for Bodily Injury limits shown on the Policy Declarations, please feel free to contact your agent or the Allstate Customer Information Center * *