COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60611 RICHARD A. SCHNELLINGER : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : AETNA LIFE & CASUALTY CO., ET AL. : OPINION : : DEFENDANT-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-178463 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DAVID J. ELK TODD O. ROSENBERG ELK & ELK CO., L.P.A. 25550 CHAGRIN BOULEVARD, #204 CLEVELAND, OHIO 44122 For Defendant-Appellees: RONALD V. RAWLIN JAMES H. CRAWFORD RHOA, FOLLEN & RAWLIN CO., L.P.A. 1850 MIDLAND BUILDING 101 PROSPECT AVENUE, WEST CLEVELAND, OHIO 44115 - 2 - SPELLACY, J.: Robert and Roesella Schnellinger are residents of Ohio. Their son, Leo Schnellinger, was killed in an automobile accident caused by the negligence of Donald Hoe. The accident occurred in Hawaii. Richard Schnellinger, as administrator of Leo Schnellinger's estate, Roesella Schnellinger, and Leo Schnellinger, deceased, ("appellants") subsequently initiated a declaratory judgment action against defendants-appellees Aetna Life and Casualty Insurance Company and Aetna Casualty and Surety Company ("Aetna") seeking a declaration of their rights under an underinsured motorist provision in Richard Scnellinger's automobile insurance policy with Aetna. They now appeal from the trial court's decision entering summary judgment in favor of Aetna and raise the following assignments of error: 1. THE TRIAL COURT ERRED IN FAILING TO APPLY HAWAII LAW BASED UPON OHIO CONFLICT OF LAW PRINCIPLES. 2. THE TRIAL COURT ERRED IN FINDING THAT LEO SCHNELLINGER WAS NOT A RESIDENT OF THE NORWALK HOUSEHOLD. 3. THE TRIAL COURT ERRED IN UPHOLDING THE COVERED VEHICLE EXCLUSION. 4. THE TRIAL COURT ERRED IN APPLYING A PRINCIPAL GARAGE EXCLUSION. 5. THE TRIAL COURT ERRED IN FINDING THAT THE TORTFEASOR WAS NOT UNDERINSURED AS A MATTER OF LAW. -3- I. In their first assignment of error, appellants contend the trial court erred when it applied Ohio law instead of Hawaii law. Appellants' assignment of error has merit. Conflict of laws issues are resolved by applying interest analysis tests adopted from the Restatement of the Law 2d, Conflict of Laws. Gries Sports Enterprises, Inc. v. Modell (1984), 15 Ohio St. 3d 284, syllabus; Morgan v. Biro Mfg. Co. (1984), 15 Ohio St. 3d 339, 342; Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St. 3d 436, 438. The applicable test is determined by the basis of the action. If an action is based in tort, then Sections 145 and 146 are applied. Morgan, supra. If an action is based in contract, then Section 187 or Section 188 is applied. Modell, supra; Schulke, supra. In Nationwide Ins. Co. v. Fryer (1990), 62 Ohio App. 3d 905, the court held that a declaratory judgment action concerning recovery under an underinsured motorist insurance policy is based in tort. Fryer, supra, reached its holding by finding that: *** the existence of an insurance policy is of no relevance to the determination of its function, rather an insurance policy is simply a means of underwriting the injured party's losses. *** The contract, however, is not intended to establish what type and to what extent damages should be recoverable. The damages available to the injured party must first be determined by the tortfeasor's degree of care owed the injured party, and any associated negligence/fault on the part of the injured party, and any associated negligence/fault on the part of the injured insured. Such factors, based upon tort law, clearly limit the injured party's right to -4- recover and, as such, necessarily influence the insured's measure of damages. Logically, if tort law controls the factors which establish how the injury occurred and who was at fault, then tort law should also control the measure of damages which are recoverable. *** We conclude then that the measure of damages from an automobile accident is a substantive question to be decided based upon principles of tort law. Id. at 908-909, citing to Mayse v. Watson (Sept. 27, 1985), Erie App. No. E-85-8, unreported, at 8-9. Based on the reasoning in Fryer, supra, we find the action in this case to be based in tort. In Morgan, supra, the court stated that: When confronted with a choice-of-law issue in a tort action under the Restatement of the Law of Conflicts view, analysis must begin with Section 146. Pursuant to this section, a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relation- ship to the lawsuit. To determine the state with the most significant relationship, a court must then proceed to consider the gen- eral principles set forth in Section 145. The factors within this section are: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under section 6 which the court may deem relevant to the litigation. All of these factors are to be evaluated according to their relative importance to the case. Id. at 342. Applying these factors to the facts in this case it becomes clear that Ohio's interest is not sufficient to overcome the -5- presumption that Hawaii law controls. We conclude, therefore, that the trial court erred when it applied Ohio law instead of Hawaii law. Accordingly, appellants' first assignment of error is well taken. II. Based on our conclusion that appellants' first assignment of error is well taken, we find it unnecessary to address appellants' second, third, fourth, and fifth assignments of error. Judgment reversed and remanded for proceedings consistent with this opinion. -6- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. Exceptions. FRANCIS E. SWEENEY, P.J., AND BLACKMON, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .