Ohio Casualty Insurance v. Yoby , 23 Ohio App. 3d 51 ( 1985 )

I respectfully dissent. Applying the applicable law to the facts of this case, it is my opinion that both appellants were entitled to relief under their respective policies.

It is clear that when an insurance policy or any of its terms or phrases are ambiguous and subject to different reasonable interpretations, the language must be construed against the insurer and in favor of the insured, to give the insured the greater coverage. Security Finance Co. v. Aetna Ins. Co. (1971),26 Ohio St. 2d 135, at 138 [55 O.O.2d 242]; Buckeye Union Ins.Co. v. Price (1974), 39 Ohio St. 2d 95 [68 O.O.2d 56]; AmericanFinancial Corp. v. Fireman's Fund Ins. Co. (1968), 15 Ohio St. 2d 171, at 173 [44 O.O.2d 147].

A review of the policies indicates that the only definition of underinsured motorist coverage is contained in the "Important Notice" statement upon which each appellant has relied. A reasonable interpretation of this language indicates that the policyholder can make a claim when his/her injuries exceed the limits of the tortfeasor's liability insurance policy.

The conflicting provisions cited by the appellees are ambiguous at best. First, they are set out in a manner that is nearly incomprehensible. Second, once an individual takes the time to decipher these provisions, it is still not clear what they really mean. Never within these provisions is the word underinsured defined. It is conceivable that a person reading the policy (including the "Important Notice" defining underinsured coverage, which was attached to the policy), would believe that he/she would be entitled to uninsured coverage if the tortfeasor had liability insurance which is less than their uninsured coverage, and entitled to underinsured coverage if the tortfeasor's liability coverage is not sufficient to cover injuries. This conclusion is further supported by the fact that an underinsured coverage premium is paid in addition to the uninsured coverage fee.

In light of these facts, I believe that the policies in the instant case are ambiguous, and that the language, when construed in favor of the insured, entitles them to the requested relief. Accordingly, I would reverse in both cases and hold that the appellants are entitled to file claims with the respective insurance companies.

One final note. The majority cites Hagen v. J.C. Penney Cas.Ins. Co. (1984), 16 Ohio App. 3d 218, and Buckeye Ins. Co. v.Wallace (Mar. 27, 1981), Lucas App. No. L-80-146, unreported, to support the proposition that the language is unambiguous. In those cases, however, the restriction on underinsured coverage is clearly set forth within an express definition of underinsured coverage. No such definition exists in the case at bar.