McKenzie v. Dualite, Inc.

Plaintiff-appellant, Robert McKenzie, appeals a decision of the Brown County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Dualite, Inc. ("Dualite").

On October 23, 1988, McKenzie was injured in an automobile accident. At that time, he was an employee of Dualite and was covered under Dualite's employee group benefit plan. Under the plan, Dualite paid $33,087.13 for McKenzie's medical bills.

The group benefit plan provides in pertinent part:

"If you are injured and have the right to recover the cost of your hospital, medical or dental care or receive loss-of-income payments from any person or organization, this PLAN may recover from you the amount of any benefits which we have paid in connection with that injury."

Additionally, on September 9, 1989, McKenzie signed a reimbursement agreement which states in pertinent part:

"I hereby agree to reimburse the PLAN [to] the extent of any health benefits paid for the injury or illness by any third person, corporation or insurance company whether said benefits are paid by formal court award, informal compromise, redemption agreement or otherwise."

McKenzie received insurance settlements totaling $100,000: $25,000 from the tortfeasor's insurance and $75,000 from his own underinsured motorist coverage. Out of that settlement, McKenzie paid his attorney a fee of $33,333.33 and incurred litigation related expenses of $3,043.19. Of the total $33,087.13 McKenzie received under the plan, he has reimbursed Dualite $16,667.

On April 29, 1991, McKenzie filed a complaint for declaratory judgment, demanding that Dualite's recovery be limited to $25,000, the tortfeasor's insurance limits, minus one third representing attorney fees paid on that amount by McKenzie. In the alternative, McKenzie asked for a declaration that if Dualite was entitled to the entire $33,087.13, that amount should be reduced by one third as a setoff for attorney fees.

Both parties filed motions for summary judgment. On February 19, 1992, the trial court granted Dualite's motion for summary judgment and dismissed McKenzie's declaratory judgment action with prejudice. This appeal followed.

McKenzie presents a single assignment of error for review in which he states that the trial court erred in granting Dualite's motion for summary judgment. He argues that principles of equity and fair dealing should be invoked to allow for a proportional reduction in the amount recoverable by Dualite. We find this assignment of error is not well taken.

An insurance policy is a contract and the relationship between the insurer and the insured is purely contractual.Nationwide Mut. Ins. Co. v. Marsh (1984), 15 Ohio St. 3d 107,109, 15 OBR 261, 262, 472 N.E.2d 1061, 1062. When the provisions of an insurance policy are clear and unambiguous, courts may not indulge themselves in enlarging the contract by implication in order to embrace an object distinct from that contemplated by the parties. Gomolka v. State Auto. Mut. Ins. Co. (1982),70 Ohio St. 2d 166, 167-168, 24 O.O.3d 274, 436 N.E.2d 1347,1347-1349. In Provident Life Acc. Ins. Co. v. Thomas (Nov. 25, 1991), Butler App. No. CA91-05-083, unreported, 1991 WL 247541, a case involving similar facts and similar policy language, this court concluded that the policy language was clear, that there were no issues of material fact and that the trial court properly granted summary judgment in favor of the insurer. Accordingly, on the authority of Thomas, supra, we conclude that the unambiguous contract language, which requires McKenzie to repay the entire amount of benefits he received without qualification, must be followed and the trial court did not err in granting summary judgment in favor of Dualite. See Harless v.Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.

Accordingly, McKenzie's sole assignment of error is overruled.

Judgment affirmed.

WILLIAM W. YOUNG, J., concurs.

JONES, P.J., dissents.