Duriak v. Globe American Casualty Co. , 28 Ohio St. 3d 70 ( 1986 )

Per Curiam.

Appellants raise four propositions of law. For the following reasons we reject those propositions and find for appellees.

I

Appellants first argue that an uninsured motorist claim in an insurance policy may not be limited under the terms of the policy to a period of one year. This identical issue was raised, analyzed, and resolved in Colvin v. Globe American Cas. Co. (1982), 69 Ohio St. 2d 293 [23 O.O.3d 281], We reaffirm Colvin and decline to accept appellants’ invitation to overrule it.

II

Appellants next assert that because Globe became subrogated to the collision claim, and acted against the uninsured motorist to recoup its payment to appellants, that Globe has waived its one-year time bar with respect to the uninsured motorist claim.

In Hounshell v. American States Ins. Co. (1981), 67 Ohio St. 2d 427 [21 O.O.3d 267], we recognized that an insurance company may waive a limitation clause where its actions or declarations hold out a hope of adjustment which occasions delay by the insured in filing a claim. This is not applicable to the cause at bar because the only actions taken by Globe were with respect to the collision loss amount previously paid to appellants. Clearly, Globe’s actions in seeking payment for its monies expended on the personal property collision claim would neither limit nor prejudice any claim made independently by appellants in a personal injury action against the uninsured motorist. See Broadview S. & L. Co. v. Buckeye Union Ins. Co. (1982), 70 Ohio St. 2d 47 [24 O.O.3d 109] (efforts by insurance adjuster in gathering information for potential claim, where no settlement offers were made and there was no assurance as to the likelihood for a future offer, did not estop insurance company from enforcing limitation provision). Cf. Pedler v. Aetna Life Ins. Co. (1986), 23 Ohio St. 3d 7, 10. Accordingly, we reject appellants’ second proposition.

III

Appellants’ next proposition of law involves the propriety of excess liability insurance coverage offered by Empire which purportedly did not comply with R.C. 3937.18 by not offering uninsured motorist coverage. In addressing this issue we recognize that the court of appeals majority decision never reached this issue, deciding instead to resolve the problem by recognizing that because the Empire policy incorporated the terms of the Globe policy, noncompliance with the Globe policy would preclude payment under the Empire policy as well. We agree with the court of appeals to the extent that appellants’ failure to comply with the one-year limitation clause in the Globe policy would also preclude payment under the Empire policy. We feel it necessary, however, to go further, as did the dissent below, in assessing the impact of former R.C. 3937.18 on excess insurance coverage.

R.C. 3937.18 provided, in pertinent part:

“(A) No automobile liability or motor vehicle liability policy of insurance insuring 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 shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in the state unless an equivalent amount of * * * [uninsured motorist] coverage * * * is provided therein * * *.”

Clearly, under the express terms of R.C. 3937.18, no exception is made with respect to excess insurance coverage. If the legislature desires to exempt excess liability carriers, they are free to do so. In the meantime, however, we are compelled to hold that excess liability insurance must comport with R.C. 3937.18. In this holding we approve of Cincinnati Ins. Co. v. Siemens (1984), 16 Ohio App. 3d 129.

With respect to the instant cause we accept the reasoning of the court below that although Empire did not offer the requisite coverage, the proviso in the policy predicating recovery upon compliance with the primary insurance coverage is effective to preclude recovery from the Empire policy even if we insert uninsured motorist coverage into the policy as a matter of law.

IV

Appellants’ final contention is that the Globe policy’s exclusion applicable to medical payments was repugnant to the agreement to pay medical expenses.

The clause in question excludes:

“(i) Under coverage C [Automobile Medical Payments], to that amount of any medical expense which is paid or payable to or on behalf of the injured person under the provisions of any (1) premises insurance affording benefits for medical expenses, (2) individual, blanket or group accident, disability or hospitalization insurance, (3) medical, surgical, hospital or funeral service, benefit or reimbursement plan or (4) workmen’s compensation or liability benefits law or any similar law[.]”

While language similar to that in question was declared unenforceable by this court with respect to uninsured motorist coverage, based upon a reading of R.C. 3937.18 applicable in September 1965 (Bartlett v. Nationwide Mut. Ins. Co. [1973], 33 Ohio St. 2d 50 [62 O.O.2d 406]), no basis is suggested to allow us to declare the instant exclusionary clause, relating to medical payments under the insuring agreements provision of the policy, to be unenforceable. This court has previously recognized that “[agreements voluntarily and fairly made between competent persons are usually valid and enforceable, and the principle that agreements opposed to public policy are not enforceable should be applied cautiously and only in circumstances patently within the reasons on which that doctrine rests.” Gugle v. Loeser (1944), 143 Ohio St. 362 [28 O.O. 318], paragraph one of the syllabus. See, also, Kerry v. State Farm Mut. Auto. Ins. Co. (1978), 60 Ohio App. 2d 8 [14 O.O.3d 7].

The clause in question merely allows for setoff on medical expense payments to insure that there is no double recovery. Such a clause violates neither public policy nor any statute presented before us in this cause. Accordingly, we reject appellants’ final proposition of law and affirm the judgment of the court of appeals below.

Judgment affirmed.

Celebrezze, C.J., Locher, Holmes and Wright, JJ., concur. Douglas, J., concurs in judgment only. Sweeney, J., dissents. C. Brown, J., dissents with opinion.