Cuppett v. Grange Mutual Companies

This case comes before this court on appeal from judgment of the Erie County Court of Common Pleas.

This case arose as the result of the refusal of appellee, Grange Mutual Companies, to arbitrate a claim for punitive damages filed by its insureds, appellants Marlene B. Cuppett and Michael D. Cuppett, pursuant to the uninsured motorist provision of an insurance policy issued to appellants by appellee. On October 21, 1982, appellants filed a complaint for declaratory judgment in the Erie County Court of Common Pleas, seeking a determination of whether appellee was liable, under the terms of the uninsured motorist provision of its policy, for any punitive damages to which appellants would be entitled at law. On November 12, 1982, appellee answered, denying liability.

On February 18, 1983, the trial court, having considered the parties' pleadings and memoranda of law, entered judgment, determining that "* * * Grange Mutual Companies [appellee] not be required to respond to punitive damages * * *" and dismissing appellants' complaint.

From that judgment, appellants appeal, presenting the following assignment of error:

Assignment of Error "The Erie County Common Pleas Court erred in ruling that the uninsured motorist provisions of the Plaintiffs-Appellants' auto policy did not extend to cover punitive damages when the policy in question required the insurance company: `To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury * * * caused by an accident * * * or use of such uninsured motor vehicle.'"

Our review of the record reveals that the insurance policy in issue provided, in pertinent part, as follows:

"To pay all sums which the insured or his legal representativeshall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle * * *." (Emphasis added.)

Upon consideration of the foregoing language, we find that appellee clearly and unambiguously contracted to pay the insuredall sums which the insured is legally entitled to recover from an uninsured motorist. In the absence of a provision expressly excluding punitive damages, the term "all sums" must, by its clear import, include punitive as well as compensatory damages. See Ady v. West American Ins. Co. (1982), 69 Ohio St. 2d 593 [23 O.O.3d 495]; Home Indemn. Co. v. Tyler (Tex.App. 1975),522 S.W.2d 594. We, therefore, find appellants' assignment of error well-taken.

On consideration whereof, the court finds that substantial justice has not been done the parties complaining, and the judgment of the Erie County Court of Common Pleas is reversed.

Judgment reversed and cause remanded.

RESNICK, J., concurs separately.

CONNORS, P.J., dissents.