Garlikov v. Continental Cas. Co. ( 1993 )

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Garlikov, Admr., et al. v. Continental Casualty Company, d.b.a.
CNA Insurance Company and State Farm Mutual Automobile
Insurance Company.
[Cite as Garlikov v. Continental Cas. Co. (1993), Ohio
St.3d .]
Insurance -- Underinsured motorist coverage -- Wrongful death
claim -- Each person who is covered by an
uninsured/underinsured policy has a separate claim subject
to a per person policy limit.
(No. 93-133 -- Submitted November 10, 1993 -- Decided
December 29, 1993)
On Order from the United States District Court for the
Eastern District of Pennsylvania, Certifying a Question of
State Law, No. 92-CV-892.
On March 9, 1990, Kenneth Garlikov was killed in an
automobile accident as a result of the negligence of an
uninsured motorist. Petitioner, Donald E. Garlikov, the father
of Kenneth S. Garlikov and administrator of the decedent's
estate, filed a declaratory judgment action in the United
States District Court for the Eastern District of Pennsylvania,
asking the court, among other things, to interpret an
uninsured/underinsured motorists policy with State Farm Mutual
Automobile Insurance Company in effect at the time of the
decedent's death. Under that policy, the decedent and several
members of his family were insureds. The policy contained
uninsured coverage limits of $250,000 per person and $500,000
per accident.
The United States District Court for the Eastern District
of Pennsylvania determined that this policy should be
interpreted according to Ohio law and thus certified the
following question to us:
"Whether all persons who are insureds under the insurance
policy at issue herein, and who are entitled to recover damages
under a wrongful death statute for damages arising out of the
death of a single insured person, are collectively limited in
their recovery to the single person limit ($250,000) of
liability established by that policy or whether the per
occurrence limit ($500,000) applies."
Schottenstein, Zox & Dunn Co., L.P.A., Kevin R. McDermott,
Bridgette C. Roman and Harvey Dunn; Kolsby, Gordon, Robin,
Shore & Rothweiler and Mitchell J. Shore, for petitioners.
Stradley, Ronon, Stevens & Young, Francis X. Manning and
Stephen C. Baker; Gallagher, Sharp, Fulton & Norman and Robert
H. Eddy, for respondent Continental Casualty Company.
Hamilton, Kramer, Myers & Cheek and James R. Gallagher;
Britt, Hankins, Schiable & Moughan and Brian A. Wall, for
respondent State Farm Mutual Automobile Insurance Company.
Clark, Perdue, Roberts & Scott and Glen R. Pritchard, in
support of petitioners, for amicus curiae, Ohio Academy of
Trial Lawyers.
Dinsmore & Shohl and Stephen K. Shaw, in support of
respondents, for amicus curiae, Ohio Association of Civil Trial
Attorneys.
Per Curiam. In our recent opinion in Savoie v. Grange
Mut. Ins. Co. (1993), 67 Ohio St. 500, N.E.2d , we held:
"Each person, who is covered by an uninsured/underinsured
policy and who is presumed to be damaged pursuant to R.C.
2125.01, has a separate claim subject to a separate per person
policy limit." Savoie, supra, paragraph four of syllabus.
This holding directly answers the question posed by the
United States District Court for the Eastern District of
Pennsylvania.
A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer,
JJ., concur.
Moyer, C.J., concurs separately.
Wright, J., dissents.
Moyer, C.J., concurring separately. I concur separately
in the judgment entry in the above-styled case. As my dissent
in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d
500, N.E.2d , stated, I do not agree with the law
announced in the majority decision. Nevertheless, it is the
law on the issue in the above-styled case. As I believe all
parties should receive equal application of the law announced
by this court, and only for that reason, I concur in the
judgment entry.
Wright, J., dissenting. I must dissent in continuing
protest to the majority's sundry holdings in Savoie v. Grange
Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. As
stated in the dissent in Savoie, that holding lacks sound
reasoning, reverses ten years of established case law and
flaunts the will of the General Assembly. Thus, I feel
compelled to remain in this posture until the General Assembly
has had the opportunity to undo the damage caused to the public
by this unfortunate, result-oriented decision.