Opinion
No. 73-435
Decided March 6, 1974.
Insurance — Automobile liability — "Uninsured motorist" provision — R.C. 3937.18 — Insolvency of insurer — Denial of coverage — Insured an "uninsured motorist," when.
APPEAL from the Court of Appeals for Montgomery County.
This appeal arises out of a declaratory judgment action, filed in the Court of Common Pleas of Montgomery County by The Buckeye Union Insurance Company, appellant herein, seeking a determination that the uninsured motorist coverage in the automobile insurance policy issued by it to defendant-appellees, Inez M. Steiner and Bradley C. Steiner, Sr., did not cover and apply to an accident in which appellees were involved.
The policy was in effect on May 3, 1969, when the appellees suffered personal injuries when their automobile was struck from the rear by an automobile owned by one Juanita Suddath who was fully covered by an insurance policy issued by defendant Ohio Valley Insurance Company. A provision of the appellees' policy defined "uninsured automobile" as one with respect to which no insurance policy was applicable or as one with respect to which:
"* * * there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder * * *."
On September 16, 1970, appellees filed a complaint in the Court of Common Pleas of Lucas County, seeking judgment for $101,571.17 for personal injuries.
On October 1, 1970, R.C. 3937.18, requiring the mandatory offering of uninsured motorists coverage, was amended to include the following:
"(B) For the purpose of this section, a motor vehicle is uninsured if the liability insurer denies coverage or is or becomes the subject of insolvency proceedings in any jurisdiction."
On November 27, 1970, Ohio Valley Insurance Company was declared insolvent by the Court of Common Pleas of Franklin County.
The Court of Common Pleas of Montgomery County held that appellees did have coverage under the uninsured motorist provision of their policy. The Court of Appeals affirmed the judgment of the trial court, and declared that the insolvency of Ohio Valley Insurance Company subsequent to the accident involving the appellees constituted a denial of coverage within the terms of the policy issued by appellant.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. John J. Adams, for appellant.
Cumming, Bannister, Izenson Kenney Co., L.P.A., and Mr. Keith Hall, for appellees.
The judgment of the Court of Appeals is affirmed, but for the reasons stated in Abate v. Pioneer Mutual Cas. Co. (1970), 22 Ohio St.2d 161, and Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, STEPHENSON and W. BROWN, JJ., concur.
P. BROWN, J., dissents.
STEPHENSON, J., of the Fourth Appellate District, sitting for CELEBREZZE, J.