COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59139, 59140 PHYLLIS BUCKSHAW, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT G. FUCHS, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : OCTOBER 3, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 165,261 and 141,737 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: SHERRY A. PIDALA, ESQ. PAUL D. EKLUND, ESQ. 650 Broadway Avenue 1700 Midland Bldg. Bedford, OH 44146 Cleveland, OH 44115 RONALD J. DEERY, ESQ. WILLIAM F. SCHMITZ, ESQ. 1100 Illuminating Bldg. 55 Public Square Cleveland, OH 44113 - 2 - PATTON, J.: Plaintiff-appellants Phyllis and Gerald Buckshaw ("appel- lants") appeal from a judgment rendered in a declaratory judgment action regarding disputes of insurance coverage between several insurance carriers. The underlying facts are as follows: On January 1, 1986, appellants were passengers in an automobile driven by Albert Holdash and owned by his wife, Josephine Holdash ("Holdashes"). The two couples were injured as a result of the alleged negligent operation of a motor vehicle by Robert Fuchs ("tortfeasor"). In a separate action, appellants sued the tortfeasor, the Matador Bar ("Bar")/1\ (the establishment where the tortfeasor allegedly became intoxicated prior to said accident), the Bar's owner, State Auto Insurance Company ("State Auto") under its uninsured provisions, and Motorists Mutual Insurance Company ("Motorists Mutual") under its uninsured provisions. The complaint sought money damages for injuries sustained as a result of said accident, including a derivative claim for loss of consortium. State Auto insured the automobile owned and operated by the Holdashes. The policy limits were $100,000 per person/$300,000 per accident for bodily injury and $100,000/$300,000 for unin- sured/underinsured motorist coverage. /1\ The trial court "believed" the Bar has no insurance and deemed it to be "uncollectible." - 3 - The appellants had an automobile insurance policy with Motorists Mutual with limits of $50,000/$100,000. However, the appellants, as passengers in the Holdashes' vehicle are contractually insured by State Auto to the limit of $100,000/$300,000 less any appropriate set-off of monies from other sources they are entitled to receive pursuant to a clause in their policy. Westfield Insurance Companies ("Westfield") insured the tortfeasor to a single limit of $100,000 for bodily injury. Westfield agreed to settle with Albert Holdash for $43,000 and Josephine Holdash for $7,000. The balance of the policy limits, $50,000, was agreed to be paid to the appellants. Appellants sought a declaration against State Auto, as the total available insurance is in dispute. State Auto recognized that appellants and the Holdashes are covered persons under its uninsured motorists coverage./2\ However, State Auto claimed it had a right of set-off under the terms of its policy./3\ Appellants sought a declaration against Motorists Mutual that they have a right to the uninsured motorist provisions. /2\ For purposes of policy coverage, the applicable policy provisions for uninsured coverage is the same for underinsured coverage. /3\ State Auto's insurance policy provides that the "each person" set-off is the amount each injured person (i.e., appellants and the Holdashes) receives for his or her personal injuries from Westfield, the tortfeasor and the Bar, plus the amount his or her spouse receives for loss of services and consortium from the three aforementioned defendants. - 4 - Motorists Mutual contended that an anti-stacking provision precluded appellants from accessing the uninsured provisions, as they have a legitimate claim to other insurance which, at a minimum, provides coverage of $100,000/$300,000. The trial court agreed. State Auto, in its declaratory judgment action, requested the court to declare the parties' rights and obligations under the uninsured policy provisions. The trial court declared as follows with respect to State Auto's rights and obligations: The split limits of liability provision in the State Auto Insurance Co. policy is a valid restriction of insurance coverage. The limit of liability coverage in the Holdashes' policy is determined by the number of persons injured in any one accident, and not by the number of maintainable causes of action. The unambiguous language provides separate liability coverage up to $100,000 on account of each person, up to three, who sustains bodily injury in a single auto accident. Cincinnati Ins. Co. v. Phillips (1989), 44 Ohio St. 3d 163, 166. The limit of liability section of State Auto's policy, as amended by Endorsements "PP 04 01" and "PP 04 82," provides in pertinent part: *** With respect to coverage under Section 2 of the definition of uninsured motor vehicle (i.e., the underinsured motorists coverage), the limit of liability shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible *** The same language was approved and was held to be clear and unambiguous in James v. - 5 - Michigan Mut. Ins. Co. (1985), 18 Ohio St. 3d 385. Further, headnote #2 of James pronounces that such set-off may be had directly against the limits of the underinsured motorists coverage, provided the set-off language is clear and does not result in the insured receiving less than if he had been injured by an uninsured motorist. Therefore, under Ohio law and the terms of State Auto's underinsured motorists coverage, State Auto is obligated in the amount of $100,000, reduced by all sums paid by Robert Fuchs, Westfield, and the Matador Bar, to each claimant for his or her primary claims and to his or her spouse for the spouse's derivative claims. However, in no event, shall State Auto be obligated for the January 1, 1987 accident in an amount exceeding $300,000, despite the number of claims or claimants. With respect to Motorists Mutual, the trial court declared: As between the plaintiffs Buckshaw and Motorists Mutual Insurance Co., the Buckshaws contend that they are entitled to the remaining limits under the Westfield policy, to wit, $50,000; that they are entitled to the underinsured motorist benefits through State Auto, which insured the vehicle in which they were riding as passengers; and that they can access their own policy with Motorists to the extent of the underinsured benefits of $50,000/$100,000. The "Other Insurance" clause in the Motorists policy recites: *** If this policy and any other policy providing similar insurance apply to the same accident, the maximum limit of liability under all the policies shall be the highest applicable limit of liability under any policy *** Pursuant to the authority of Estate of Laura Donnell, etc. v. Motorists Mutual Insurance Company (June 2, 1988), Cuyahoga App. No. 55100, unreported, this Court holds that the language of the Motorists Mutual Insurance - 6 - Co. policy, covering the Buckshaws, effectively precludes the stacking of underinsured coverage according to R.C. 3937.18(G). In other words, the plaintiffs Buckshaw cannot access their underinsured motorist benefits with defendant Motorists when (1) they qualify as "covered persons" under the State Auto policy providing benefits of $100,000/$300,000 for uninsured/underinsured motorist coverage, and (2) when the benefits under the Motorists policy are only to the extent of $50,000/$100,000 limits. There being no just reason for delay, judgment is entered accordingly. It is from this judgment that the appellants timely appeal assigning the following errors:/4\ I. THE TRIAL COURT ERRED IF IT HELD THAT STATE AUTO WAS ENTITLED TO REDUCE BOTH ITS PER PERSON AND PER ACCIDENT LIMIT OF LIABILITY BY THE AMOUNTS APPELLANTS RECEIVED FROM OR ON BEHALF OF THE TORTFEASOR. II.THE TRIAL COURT ERRED BY HOLDING THAT APPELLANTS COULD NOT ACCESS THEIR UNDERINSURED COVERAGE WITH MOTORISTS. III. THE TRIAL COURT ERRED BY NOT RULING THAT MOTORISTS' LIMITS OF LIABILITY ARE AVAILABLE TO EACH OF APPELLANTS' CAUSES OF ACTION. IV.THE TRIAL COURT ERRED BY NOT DETERMINING THAT MOTORISTS IS ONLY ENTITLED TO A SET-OFF FOR AMOUNTS PAID BY WESTFIELD. State Auto's cross-appeal argues: I. A HOLDING THAT STATE AUTO IS ENTITLED TO A SETOFF AGAINST BOTH /4\ State Auto filed a timely cross-appeal, which is simultaneously addressed in our discussion of appellants' first assignment of error. - 7 - ITS PER PERSON AND PER ACCIDENT LIMIT OF LIABILITY IS CONSISTENT WITH THE SUPREME COURT'S DECISION IN JAMES V. MICHIGAN MUTUAL INS. CO., 18 OHIO ST. 3D 386 (1985). I. Appellants' first assignment of error and State Auto's cross-assignment of error relate to the limit of liability provisions regarding the uninsured section in Josephine Holdash's automobile insurance policy. Appellants challenge the trial court's ruling that, under State Auto's underinsured motorists coverage, it is obligated in the amount of $100,000, reduced by all sums paid by the tortfeasor, his insurance carrier Westfield, and the Bar to each claimant for his or her primary claims and to his or her spouse for their derivative claims. The court further held that State Auto shall not be obligated in an amount exceeding $300,000, regardless of the number of claims or claimants. Appellants contest this ruling, arguing that the uninsured endorsement is unclear and ambiguous and is therefore invalid in that the endorsement can be construed to mean that State Auto is entitled to a set-off against only its per person limit of $100,000 and not both the $100,000/person limit and the $300,000/accident limit. In support of their argument, appellants draw this court's attention to two endorsements that pertain to the limit of liability provision in Part C of State Auto's policy. Prior to the endorsements, said policy in its - 8 - standard form did not provide for uninsured motorists coverage. The applicable section, prior to amendment, stated: LIMIT OF LIABILITY The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; 4. Vehicles involved in the accident. Any amounts otherwise payable for damages under this coverage shall be reduced by all sums: 1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and 2. Paid or payable because of bodily injury under any of the following or similar law: a. workers' compensation law; or b. disability benefits law. Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A. Endorsement PP 04 82 (10-83) amended the aforementioned provision and reads: LIMIT OF LIABILITY The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: - 9 - 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; 4. Vehicles involved in the accident. Except with respect to coverage under paragraph 2 of the definition of uninsured motor vehicle, any amounts otherwise payable for damages under this coverage shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy. With respect to coverage under paragraph 2 of the definitions of uninsured motor vehicle, the limit of liability shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy. Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A of the policy. Endorsement PP 04 01 (6-80) describes the split liability provisions and reads: LIMIT OF LIABILITY The limit of liability shown in the Declarations for "each person" for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one accident. Subject to this limit for "each person," the limit of liability shown in the Declarations for "each accident" for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident. This is the most we will pay regardless of the number of: - 10 - 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; 4. Vehicles involved in the accident. The above endorsement is not conspicuously spelled out in the policy. The endorsement number, PP 04 01, is listed on the policy's declaration page under "Form Applicable." The policy does not explicate the contents of this prior amendment, but this does not necessarily mean the endorsement does not apply. In any event, the alleged contents of this endorsement need not be spelled out because the language contained in Endorsement PP 04 82 is sufficient to allow State Auto the right of set-off for both the per person and per accident limits. The Ohio Supreme Court in James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St. 3d 386, at paragraph two of the syllabus, held that: An insurer may apply payments made by or on behalf of an underinsured motorist as a setoff directly against the limits of its underinsured motorist coverage, so long as such setoff (1) is clearly set forth in the terms of the underinsured motorist coverage and (2) does not lead to a result wherein the insured receives a total amount of compensation that is less than the amount of compensation that he would have received if he had been insured by an uninsured motorist. (Emphasis added.) The endorsement in James, supra, contained identical language as that of Endorsement PP 04 82, which applicable portion reads in pertinent part: - 11 - The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown in the Declaration; or 4. Vehicles involved in the accident. However, the limit of liability shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. *** (Emphasis added.) Appellants, as support for their position, argue that because the endorsement stated "the limit [singular] of liability shall be reduced by all sums paid ***," this should be construed as only limiting the per person limit and not both per person and per accident. This reasoning is flawed. The James court, with an identical endorsement, construed this language to hold that an insurer may apply payments made by or on behalf of an underinsured motorist as a set-off directly against the limits [plural] of its underinsured motorist coverage, so long as certain requirements are met. Id., at paragraph two of the syllabus. The James court did not find any distinction between the use of the singular and the plural. Likewise, we do not find persuasive appellants' contention that the singular usage of "limit" in any way can be construed to mean that the right of set-off is only applicable to the per person limitation. - 12 - Accordingly, appellants' first assignment of error is overruled, and cross-appellant State Auto's assignment of error is sustained. II. Appellants' second assignment of error challenges the trial court's decision which held that the "other insurance" clause in Motorists Mutual's insurance policy precluded them from accessing their underinsured coverage. Specifically, they posit that this "other insurance" clause is capable of more than one meaning and should therefore be construed in favor of the insureds (i.e., appellants). Motorists Mutual argues that first, the language of this clause is clear and unambiguous and second, appellants are attempting to stack insurance coverage which the insurance policy strictly forbids./5\ The trial court, in precluding appellants from accessing their underinsured coverage, reasoned that: 1. They [appellants] qualify as "covered persons" under the State Auto policy providing benefits of $100,000/$300,000 /5\ "Stacking" is the lumping or adding together of payments or the aggregation of coverage. Id., at 166, citing Grange Mut. Cas. Co. v. Volkmann (1978), 54 Ohio St. 2d 58. Stacking also has been construed to mean the "pyramiding of coverage limits and policies issued by the same company." Id. Insurance carriers are permitted by law to include anti-stacking of uninsured motorist coverage provisions in automobile insurance contracts provided such language is unambiguous and clearly displayed. Karabin v. State Automobile Mut. Ins. Co. (1984), 10 Ohio St. 3d 163, at paragraph one of the syllabus. - 13 - for uninsured/underinsured motorist coverage; and 2. The benefits available under the Motorists policy are only to the extent of $50,000/$100,000 limits. A review of appellants' policy reveals the following pertinent language contained therein: II. PART C-UNINSURED MOTORISTS COVERAGE A. The following is added to the first paragraph of the Insuring Agreement: We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. B. Item 2 of the definition of "uninsured motor vehicle" is replaced by the following: 2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit for bodily injury liability must be less than the limit of liability for this coverage. C. The Limit of Liability provision is replaced by the following: LIMIT OF LIABILITY The Limit of Liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of: 1. Covered persons; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or - 14 - 4. Vehicles involved in the accident. Except with respect to coverage under Item 2. of the definition of uninsured motor vehicle, any amounts otherwise payable for damages under this coverage shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy. With respect to coverage under Item 2. of the definition of uninsured motor vehicle, the limit of liability shall be reduced by all sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy. Any payment under this coverage will reduce any amount that persons are entitled to recover for the same damages under Part A of the policy. d. The Other Insurance provision is replaced by the following: OTHER INSURANCE If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. If this policy and any other policy providing similar insurance apply to the same accident, the maximum limit of liability under all the policies shall be the highest applicable limit of liability under any policy. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance. - 15 - This policy, along with the anti-stacking provision, included split liability limits for uninsured coverage in the amounts of $50,000 per person and $100,000 per accident. The Holdashes were paid $50,000 from the tortfeasor's liability insurer (Westfield), which sum represented half of the policy limits of the tortfeasor's policy. By agreement, the appellants are to receive the balance of the limits which effectively exhaust the tortfeasor's policy limit of liability. Further, appellants are "covered persons" under State Auto's insurance policy to the limits of $100,000 per person and $300,000 per accident. Accordingly, the total available coverage for appellants by way of "other insurance" exceeds their limits of liability under their uninsured/underinsured provisions with Motorists Mutual, which limits are only $50,000 per person and $100,000 per accident for bodily injury. Accordingly, pursuant to the anti-stacking provision contained in the Motorists Mutual policy, which provision is clear and unambiguous, appellants are precluded from accessing their underinsured coverage. Appellants second assignment of error is overruled. III & IV In appellants' third and fourth assigned errors, they argue the trial court erred in not ruling on two issues argued below. First, appellants contend the court did not rule on the issue of whether Motorists Mutual's limit of liability as to the uninsured motorist coverage is available to each of the appellants' primary - 16 - and derivative actions. Second, appellants contend the court did not rule on their argument that Motorists Mutual is only entitled to a set-off for amounts actually recovered from Westfield as Westfield, not the Holdashes nor State Auto, is the only party legally responsible. These two arguments were not addressed by the trial court because they were rendered moot by the court's ruling that appellants could not access their uninsured coverage. Since this court lacks jurisdiction to enter advisory judgments on issues unresolved in the lower court, we are precluded from reaching the merits of these contentions. Troyer, et al. v. Nationwide Mut. Ins. Co. (Jan. 24, 1991), Cuyahoga App. Nos. 57935 & 57933, unreported, at 7, citing Heinz v. Corrigan, et al. (Mar. 6, 1986), Cuyahoga App. No. 50285, unreported, at 3. Accordingly, the third and fourth assigned errors are overruled. Judgment affirmed in part and reversed and remanded in part. - 17 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. BLACKMON, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .