COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60565 WORLDWIDE INSURANCE GROUP : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARY R. DUCHAK : : Defendant-appellant : : JAMES A. DUCHAK : : Defendant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 174661 JUDGMENT: Reversed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DAVID A. SCHAEFER, ESQ. MAURICE L. HELLER, ESQ. KEVIN H. YOUNG, ESQ. JOEL LEVIN, ESQ. Benesch, Friedlander, Nurenberg, Plevin, Coplan & Aronoff Heller & McCarthy Co., 1100 Citizens Building 1370 Ontario - First Floor 850 Euclid Avenue Cleveland, Ohio 44113-1792 Cleveland, Ohio 44114-3399 - 1 - James and Mary Duchak were in an automobile accident. James Duchak was driving and Mary, a passenger in the same car, was injured. Mary sued her husband for negligence to recover for her injuries. James and Mary were both covered by an insurance policy issued by Worldwide Insurance Group, the appellee. Worldwide undertook to defend on behalf of James, then filed for a declaratory judgment to determine the rights and duties of the parties. The trial court ruled favorably for Worldwide on its summary judgment motion and determined that the appellee had "no duty or obligation under the policy to defend or indemnify the [Duchaks]." (trial court journal entry). Mary Duchak appeals from that order. Appellant makes one assignment of error. I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF- APPELLEE WORLDWIDE INSURANCE GROUP'S MOTION FOR SUMMARY JUDGMENT ON ITS COMPLAINT FOR DECLARATORY JUDGMENT WHERE OHIO LAW PROHIBITS AN INSURER FROM REDEFINING THE STATUTORY LANGUAGE OF AN "UNINSURED MOTOR VEHICLE. Appellant asserts that she should be entitled to coverage by the appellee under the uninsured motorist section of her policy. She argues that because appellee denied coverage to her husband for her injuries, based upon an intrafamily exclusion, she should be entitled to coverage under the uninsured motorist section. The appellee counters that argument by stating that the uninsured motorist section does not apply to the appellant's car. That car was specifically excluded under the policy's definition - 2 - of an uninsured vehicle. Appellee also argues that the Duchaks' car was insured because liability coverage was available to it, even though excluded under the uninsured motorist coverage. R.C. 3937.18 sets forth the requirements for the provision of uninsured and underinsured motorist coverage. In pertinent part section (A)(1) of the statute states that: Uninsured motorist coverage ... shall provide protection for bodily injury or death ... 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. Section (D) gives the statutory definition of an uninsured vehicle at issue here: "For the purpose of this section, a motor vehicle is uninsured if the liability insurer denies coverage..." The basic issue in this case is whether the insurance policy can contractually define an uninsured motor vehicle to effectively exclude persons intended to be protected by R.C. 3937.18. We conclude that it can not. At the time the trial court heard this case the Ohio Supreme Court's Dairyland Ins. Co. v. Finch (1987), 32 Ohio St. 3d 360 was the law governing the interpretation of R.C. 3937.18. Dairyland had substantially the same facts as the case at hand. The husband was driving and his wife, a passenger in the car, sustained injury. Their car was covered by an insurance policy which, like the Duchaks', contained an intrafamily exclusion - 3 - precluding the wife from recovering for her injuries. Under the "Uninsured Motor Vehicles" section of the policy, the car owned by the husband and wife was excluded from the definition of an uninsured vehicle, just as the Duchaks' car was excluded. The Court held that: 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 or the public policy associated with the statute. Dairyland Ins. Co. v. Finch at 364. Under this interpretation of the statutory intent of R.C. 3937.18, the Duchaks would not have been able to recover under the primary liability section, due to the intrafamily exclusion. Nor would Mary Duchak be able to recover under the uninsured motorist section of the policy because her car would be deemed covered by the liability insurance, even though she was precluded from recovering. In January of 1992 the Ohio Supreme Court overruled Dairyland's reasoning and found that the statute mandates a minimal amount of uninsured motorist coverage. Any attempt to contractually limit the coverage to less than that minimal amount of coverage would be prohibited. The facts of State Farm Auto Ins. Co. v. Alexander (1992), 62 Ohio St. 3d 397, are slightly different than those in our case - 4 - and in Dairyland. In State Farm the driver and the injured passenger were not related. The passenger was the owner of the vehicle and was covered by an insurance policy issued by State Farm. The driver also had his own insurance but it did not cover all of the medical costs incurred by Alexander, the passenger. Alexander's policy covered drivers of his vehicle, so the driver was covered by State Farm, too. However, State Farm refused to defend or indemnify the driver in favor of Alexander because the policy contained an exclusion for bodily injury to the insured. Turning to the uninsured motorist section of his policy Alexander found that his vehicle was excluded from the definition of uninsured vehicles, thereby precluding him from recovering under that section of his policy, either. The Ohio Supreme Court, in overturning Dairyland, held that: By excluding coverage for torts that occur in the insured's vehicle, State Farm seeks to escape from part of the uninsured motorist coverage that R.C. 3937.18 requires it to provide. State Farm Auto Ins. Co. v. Alexander at 400. The Court gave as the general intent of R.C. 3937.18: To provide uninsured and underinsured motorist coverage for injured persons who have a legal cause of action against a tortfeasor but who are uncompensated because the tortfeasor is either (1) not covered by liability insurance or (2) covered in an amount that is less than the insured's uninsured motorist coverage. - 5 - State Farm at 400. Because Worldwide is attempting to contractually exclude "coverage for torts that occur in the insured's vehicle" its exclusion is varying from the requirements of the statute and is therefore unenforceable. State Farm Auto Ins. Co. v. Alexander at 399. An automobile insurance policy may not eliminate or reduce uninsured or underinsured motorist coverage, required by R.C. 3937.18, to persons insured in a motor vehicle accident, where the claim or claims of such persons arise from causes of action that are recognized by Ohio tort law. State Farm Auto Ins. Co. v. Alexander at the syllabus. Mary Duchak has a recognizable tort claim against the negligence of her husband now that interspousal tort immunity has been abolished. Worldwide can not escape from the requirements of R.C. 3937.18 by eliminating Mary Duchak's uninsured motorist coverage. Appellant's assignment of error is sustained. The trial court's order granting summary judgment is reversed and the cause is remanded for findings consistent with this opinion. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court 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. JAMES D. SWEENEY, J., AND PARRINO*, J., CONCUR PRESIDING JUDGE ANN DYKE *Sitting By Assignment: Judge Thomas J. Parrino, Retired, of the Eighth District Court of Appeals. 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. .