COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59304 ANDREW MICHELS, A Minor, etc. : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ALLSTATE INSURANCE COMPANY : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 164320 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MARK FUSCO JOHN J. WARGO, JR. Wargo & Wargo Co., L.P.A. 30 Park Drive, P.O. Box 332 Berea, Ohio 44017 For Defendant-Appellee: FREDRIC E. KRAMER McNeal, Schick, Archibald & Biro 10th Floor-Illuminating Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, C.J.: Plaintiffs brought an action in the Cuyahoga County Court of Common Pleas seeking a declaratory judgment with respect to uninsured motorists coverage under their insurance policy with defendant company. The trial court granted judgment in favor of defendant. Plaintiffs timely appeal. The relevant facts follow: John Williams, plaintiff Michels' step-father, purchased an automobile insurance policy from defendant Allstate Insurance Company consisting of a basic policy with an endorsement thereto. While the policy was in effect, Mr. Williams and plaintiff Michels were involved in a motor vehicle accident due to Mr. Williams' negligent operation of a motorcycle upon which he and plaintiff Michels were riding. Plaintiff Michels was severely injured in the accident. Plaintiff Michels applied for bodily injury coverage under the liability portion of his step-father's policy; however, the application was denied on the basis of an intrafamilial exclusion clause contained in that portion of the contract. Plaintiff then under another portion of the policy made a claim for uninsured motorists benefits. The relevant portion of the policy states as follows: Part V - Uninsured Motorists Insurance... We will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. The bodily injury must be caused by accident and arise out of - 3 - the ownership, maintenance or use of any unin- sured auto.... * * * * Insured Persons 1. You and any resident relative. 2. Any person while in, on, getting into or out of an insured auto with your permission. Insured auto means a motor vehicle: 1. you own. This includes any auto you purchase. An uninsured auto is: 3. a motor vehicle for which the insurer denies coverage, or the insurer becomes insolvent. (Emphasis added.) Defendant denied coverage on the uninsured motorists portion of the policy based upon the definition contained in the endorse- ment to that portion of the contract, viz., "an uninsured auto is not:...a motor vehicle defined as an insured auto under the liability portion of this policy." (Emphasis added.) Plaintiffs thereupon filed an action in the trial court seeking a declaratory judgment with respect to the insurance policy, viz., (1) plaintiff Michels was insured under the unin- sured motorists provision of the policy, or in the alternative, (2) "plaintiff's [Michels] rights and the obligations of Defendant under the uninsured motorists' policy" be determined. The case was tried on briefs. The trial court thereafter issued a ruling in which it determined that "the policy must be read as intending to preclude uninsured *** motorists coverage under the facts of this case." Further, the trial court held - 4 - that the insurance policy did not violate R.C. 3937.18(A). Judgment was therefore rendered for defendant. Plaintiffs timely appeal from this ruling citing two assignments of error. Plaintiffs' first assignment of error follows: THE TRIAL COURT ERRED IN FINDING THAT ALLSTATE'S UNINSURED MOTOR VEHICLE POLICY OF INSURANCE DID NOT CONTRAVENE OHIO'S UNINSURED MOTOR VEHICLE STATUTE. This assignment of error lacks merit. Plaintiffs argue that defendant has circumvented R.C. 3937.18 through its definitions of an insured and an uninsured motor vehicle. This argument is unpersuasive. R.C. 3937.18 provides in relevant part as follows: 3937.18 Mandatory offering of uninsured and underinsured motorist coverage. (A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following are provided: (1) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury or death under provisions approved by the superintendent of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; * * * - 5 - (D) 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. (Emphasis added.) Plaintiffs argue that defendant has "vitiated" R.C. 3937.18(D) in the following manner, viz., by denying coverage under the liability portion defendant caused the vehicle to be "uninsured" as defined by the statute; however, defendant "cir- cumvented" the statute by defining Williams' motor vehicle as "insured" under the uninsured motorists portion of the policy. Plaintiffs argue that the intent of R.C. 3937.18 does not permit the defendant to thus refuse plaintiff Michels coverage. However, plaintiffs' argument has been addressed and re- jected by the Ohio Supreme Court in its numerous decisions relating to Ohio's uninsured motorist statute. Most recently, in Dairyland Ins. Co. v. Finch (1987), 32 Ohio St. 3d 360, the Supreme Court held the following: *** [P]ublic policy does not prevent the issuance and enforcement of an automobile insurance policy containing a reasonable exclusionary clause, within the uninsured motorist provision, prohi- biting intrafamilial recovery of damages against the issuer of the policy. (Emphasis added.) Id. at 366. Plaintiffs argue that in the Dairyland decision the operative words are "exclusionary clause;" therefore, Dairyland does not apply to the facts of this case. They argue that using - 6 - a "definitional" clause to deny intrafamilial recovery causes the policy to be in direct contravention of R.C. 3937.18(D). This is an overly narrow reading of the Dairyland decision and of the statute. The court in Dairyland specifically vali- dated family member exclusions for purposes of uninsured motor- ists coverage. The following language in the opinion illustrates this point: As was succinctly stated by the Supreme Court of Tennessee in Holt v. State Farm Mut. Auto. Ins. Co. (Tenn. 1972), 486 S.W. 2d 734, 737: "The intent of the statute is to require automobile liability insurance companies to provide their insureds protection against drivers of vehicles without liability coverage. "The car in which the *** [plaintiff] was riding, at the time of the accident, was covered by a liability insurance policy. This coverage was not available to him because he was [as a family member] specifically excluded ***, and not because of lack of liability protection." * * * What appellant's argument overlooks is that the statute requires companies issuing automobile liability insurance policies to offer coverage to insureds who become injured and are legally entitled to recover damages from the owner or operator of the uninsured vehicle which caused the insured's damages. The vehicle in which appellant sustained her injuries carried liability insurance protection and, accordingly, we are unable to conclude that the subject exclusion contravenes the purpose or intent of the General Assembly when promulgating R.C. 3937.18, ***. Id. at 364. (Emphasis added.) Furthermore, the court has previously upheld a similar policy exclusion as the one in the case sub judice. See, e.g., - 7 - Hedrick v. Motorists Mutual Ins. Co. (1986), 22 Ohio St. 3d 42 (limiting Ady v. West American Ins. Co. (1982), 69 Ohio St. 2d 593); Cf. Buckeye Union Ins. Co. v. Price (1974), 39 Ohio St. 2d 95 (insurance policy issued before uninsured motorists statute enacted). The plaintiffs in the case sub judice rely on Smith v. Heritage Mutual Ins. Co. (1988), 48 Ohio App. 3d 67, in support of their argument that the specific language of R.C. 3937.18(D) requires a reversal of the trial court's judgment. However, plaintiffs' reliance on this case is misplaced. This court declines to follow Smith v. Heritage Mutual Ins. Co., supra, since it is an appellate decision and Dairyland is an Ohio Supreme Court decision which is the controlling law in Ohio. In Smith, supra, the facts follow: (1) the plaintiff was the owner of an insured vehicle; (2) he permitted an uninsured motorist to drive his vehicle; (3) while he was a passenger in his own insured vehicle an accident occurred in which he sustained injuries; and (4) the insurance company denied the claim. Based upon these facts, the court of appeals in Smith determined that plaintiff was entitled to coverage. The court did not cite Dairyland in support of its decision; indeed, Dairyland is not mentioned at all even though Smith, supra, was decided after Dairyland. The Smith court instead based its decision on a recognition that R.C. 3937.18 was specifically enacted to protect the person who purchased the insurance policy - 8 - against uninsured motorists. The court therefore stated that on the facts of the case the insurance company could not by a definitional clause in its policy deny coverage to the owner merely because he was in his own vehicle. The specific fact situation in the case sub judice is more akin to that faced by The Supreme Court of Ohio in Dairyland. Plaintiff Michels' stepfather was an insured motorist and the motorcycle on which plaintiff Michels was riding was an insured vehicle. In addition, the policy specifically excluded Michels as a family member from coverage. According to Dairyland, this is precisely the fact situation contemplated by R.C. 3937.18. The following quote from Dairyland illustrates the court's rationale in reaching its decision: [T]here is no language in R.C. 3937.18 prohibiting insurance companies seeking to minimize possible collusive suits *** [T]he recognition that insurance companies retain the right to erect reasonable exclusions to deter collusive suits is clearly demonstrated by the underlying action. *** Without question, the factual posture of the underlying proceeding demonstrates the necessity for insurance carriers to be able to invoke reasonable exclusions and, as such, we are not persuaded that the subject exclusion is either unreasonable or repugnant to the purpose or intent of the General Assembly when R.C. 3937.18 was enacted. The Dairyland court quoted the following in support of its rationale. In construing the mandates of the General Assembly insofar as the offering of uninsured motorist coverage in Ohio is concerned, we must not unduly restrict the free right of contract, and must allow for a certain amount of latitude for the - 9 - exercise of discretion on the part of the policyholder as to the desirable extent or breadth of coverage for which he is willing, or able, to pay the premiums. Thus, Smith v. Heritage Mutual, supra, is not controlling over the decision in the case sub judice, and the trial court did not err in finding defendant's insurance policy did not contravene Ohio's uninsured motor vehicle statute. Accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION IN NOT CONSIDERING PLAINTIFF/APPELLANT'S ARGUMENT THAT THE CONTRACT OF INSURANCE WAS AMBIGUOUS. This assignment of error also lacks merit. Plaintiffs contend that it is evident from the trial court's written opinion that it did not consider their argument concerning the ambiguity of the contract of insurance. They further assert that this failure was an abuse of discretion, citing Taylor v. Taylor (1981), 2 Ohio App. 3d 79. However, plaintiffs' contentions are without foundation. The order of the trial court in the case sub judice specifically states the following: The insurance policy's section on liability coverage excluded protection against claims by family members, of which Andrew was one. The uninsured motorist provision of the policy stated: We will pay those damages which an uninsured person is legally entitled to recover from the ... operation of an uninsured auto... - 10 - * * * Insured Persons 1. You and any resident relative. * * * An uninsured auto is: * * * 3. A motor vehicle for which the insurer denies coverage... * * * 5. An underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident. * * * An uninsured auto is not: * * * 2. A motor vehicle defined as an insured auto under the liability portion of this policy. (Emphasis in original.) * * * Because the definition of "uninsured auto" specifically excludes the vehicle named in the insurance policy (which was the motorcycle in this accident), defendant claims there is no coverage. Because the definition also specifically includes a vehicle for which the insurer denies coverage and an underinsured motor vehicle which has lia- bility protection in effect, plaintiff claims that coverage exists. (Emphasis in original.) * * * The specific exclusion of the named vehicle under the policy as an insured vehicle is of overriding importance in construing the policy; thus, the policy must be read as intending to preclude uninsured and underinsured motorist coverage under the facts of this case. (Emphasis added.) It is clear from the foregoing language that the trial court specifically addressed the issue put forth by the plaintiffs that the contract was ambiguous. The trial court obviously did not find it to be so. Neither will this court - 11 - rewrite the policy so as to make an otherwise clear and concise exclusion ambiguous. Dairyland, supra. Accordingly, plaintiffs' second assignment of error is not well taken and is overruled. Judgment affirmed. - 12 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas Court 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. SPELLACY, J., and HARPER, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .