DocketNumber: No. 05CA38.
Citation Numbers: 2006 Ohio 5680
Judges: HON. JOHN F. BOGGINS HON. JOHN W. WISE HON. W. SCOTT GWIN
Filed Date: 10/19/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 3} Appellant held an auto liability policy and an umbrella policy with Appellee, United Services Automotive Association (USAA).
{¶ 4} After an accident on July 1, 1997, Appellant filed a claim under the umbrella policy for UM/UIM coverage. Such claim was rejected.
{¶ 5} Appellant was involved in a second auto accident and filed a similar claim with Appellee, which was also denied.
{¶ 6} Appellant had been a resident of Michigan when the insurance with Appellee commenced. He moved to Ohio in 1995.
{¶ 7} Appellee issued a letter to Appellant on August 23, 1995, offering UM/UIM insurance together with a rejection form.
{¶ 8} The rejection was signed on September 7, 1995.
{¶ 9} The original form to Appellant omitted references to the coverage and premium cost of UM insurance.
{¶ 10} Appellant raises two Assignments of Error:
{¶ 12} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS HOLDING THAT THE EXTRINSIC EVIDENCE SUBMITTED BY USAA WAS SUFFICIENT TO SHOW IT MADE A MEANINGFUL OFFER OF UNINSURED/UNDERINSURED MOTORIST COVERAGE TO ENABLE PLAINTIFF TO MAKE A REJECTION OF COVERAGE."
{¶ 14} The applicability of S.B. 20 is not contested.
{¶ 15} The basic requirements of such applicable statute were stated in Linko v. Indemnity Insurance Co. v. North America
(2000),
{¶ 16} "To satisfy the offer requirement of R.C.
{¶ 17} H.B. 261 provided that once a written rejection of UM/UIM coverage is executed, a presumption that such coverage was offered arises.
{¶ 18} In addressing the viability of the Linko
requirements to H.B. 261 and in response to two questions certified by the United States District Court, the Ohio Supreme Court in Kemper, et al vs. Michigan Millers Mutual InsuranceCompany, et al. (2002),
{¶ 19} "(1) the Linko requirements relative to an offer of uninsured and underinsured motorist (UM/UIM) coverage apply to a policy of insurance written after enactment of prior statute requiring an offer and before statute eliminating requirement of an offer, and (2) a signed rejection does not act as an effective declination of UM/UIM coverage, where there is no other evidence, oral or documentary, of an offer of coverage."
{¶ 20} The Kemper, supra, holding is not of significant assistance in responding to the correctness of Judge Ellwood's conclusion that extrinsic evidence was permissible in that it had under consideration H.B. 261, not S.B. 20 and also included the words "where there is no other evidence, oral or documentary, of an offer of coverage." Such added language implies acceptance of extrinsic evidence as to H.B. 261 law.
{¶ 21} The Sixth District Appellate Court in Akins v. HarcoInsurance Company (2004),
{¶ 22} This case was reversed as to extrinsic evidence by the Ohio Supreme Court in
{¶ 23} Again, the Supreme Court revisited the issue inHollon v. Clary, Twin City Fire Ins. Co. (2004),
{¶ 24} This case permitted extrinsic evidence to show knowledge of the insured as to the offer, once rejected, of theLinko requirements even though not complete in the tendered offer. This case, however, concerned H.B. 261 but it also reviewed the differences created by this Bill as opposed to the prior version of S.B. 20 in stating:
{¶ 25} "The H.B. 261 version of R.C.
{¶ 26} The Linko requirements are a means to an end. They were chosen to ensure that insurers make meaningful offers. A "meaningful offer" is "an offer that is an offer in substance and not just in name" that "allow[s] an insured to make an express, knowing rejection of [UM/UIM] coverage." Linko,
{¶ 27} "Accordingly, we hold that a signed, written rejection of UM/UIM coverage is valid under the H.B. 261 version of R.C.
{¶ 28} We recognize the difficulty in this area where so many legislative changes have occurred as was well expressed by our esteemed colleague Judge Ellwood in stating:
{¶ 29} "This Court is therefore left with the horns of the dilemma that if pursuant to Akins, supra, extrinsic evidence may be used to establish a valid offer and rejection of underinsured/uninsured motorist coverage in determining the intent of the parties, the Defendant's Motion for Summary Judgment must be granted. However, if pursuant to R.C. §
{¶ 30} "As Akins, supra, is the last pronouncement by the Supreme Court of Ohio, this Court determines that once a written rejection of uninsured/underinsured motorist coverage is produced and established, extrinsic evidence may be used to establish the intent of the parties."
{¶ 31} The distinction we draw, however, is that a presumption of a valid offer arises under H.B. 261 after which the Supreme Court has allowed extrinsic evidence as shown in theAkins, supra, case.
{¶ 32} However, S.B. 20 does not provide such presumption and the Supreme Court has specifically drawn a distinction between the two statutes in Hollon, supra, which, to us, requires a conclusion that extrinsic evidence is not permitted under S.B. 20.
{¶ 33} Therefore, the First Assignment is sustained.
{¶ 34} Because of this ruling, the Second Assignment is moot.
{¶ 35} This cause is reversed and remanded for further proceedings consistent herewith.
Boggins, J. Wise, P.J. and Gwin, J. concur.