COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66562 JOAN J. HUNT, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION NATIONWIDE MUTUAL INSURANCE : COMPANY, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JULY 6, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 202437 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Claudia R. Eklund SINDELL, LOWE & GUIDUBALDI 610 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 For defendant-appellee: Timothy D. Johnson Gregory E. O'Brien WESTON, HURD, FALLON, PAISLEY & HOWLEY 2500 Terminal Tower Cleveland, Ohio 44113 -2- NAHRA, C.J.: In this action for a declaratory judgment regarding coverage under an automobile insurance policy, plaintiff-appellant Joan Hunt appeals from the trial court order granting defendant-appellee Nationwide Mutual Insurance Company's motion for summary judgment, thus terminating the action. The underlying facts of this case are not in dispute. Appellant, a resident of the State of Connecticut, purchased in Connecticut an automobile insurance policy for her car, which was titled and principally garaged in Connecticut, from appellee, a corporation which sells insurance in all states but has its home office in Columbus, Ohio. The policy purchased by appellant was drafted in accordance with Connecticut law, referred to Connecticut law, and provided uninsured/underinsured motorists coverage in the amount of $100,000.00 as follows: Under this coverage, we will pay bodily injury damages that you or your legal representative are legally entitled to recover from the owner or driver of an uninsured motor vehicle. Bodily injury means, bodily injury, sickness, disease, or death. Relatives living in your household also have this protection. (Emphasis added.) On March 20, 1990, appellant's adult emancipated daughter, a resident of Ohio, was struck and killed in Cleveland by an underinsured motorist. After receiving $12,500.00 from the tortfeasor, the limit of liability under his policy, appellant made a demand upon appellee for underinsured benefits under her own -3- policy. When appellee refused to provide coverage, appellant filed the instant action for declaratory judgment against appellee in the Cuyahoga County Court of Common Pleas. Appellant requested the trial court to declare appellee "provide underinsured motorist coverage benefits" to her "under the Ohio Wrongful Death statute." In its answer, appellee asserted appellant had no cause of action because Connecticut law applied and appellant had no claim for damages under her policy. Following some discovery, appellant filed a motion for summary judgment, arguing the issues should be decided according to the law of Ohio and that pursuant to R.C. 2125.02 and Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 432, she had a right to recover damages under the policy. Appellee responded to appellant's motion, requested the trial court for a ruling declaring Connecticut law as "the substantive law applicable to [appellant's] claim" and filed its own motion for summary judgment. In its memorandum in support, appellee argued that since appellant's action "sounded in contract," the law of the principal location of the risk, i.e., Connecticut, governed the rights created under the policy. Appellee asserted that since Connecticut law does not recognize any cause of action such as the one appellant sought to maintain, summary judgment was appropriate. Appellee also contended that even under Ohio law, appellant was precluded from recovery since she failed to meet the second element -4- of the test set forth in Sexton v. State Farm Mut. Auto. Ins. Co., supra. Appellant filed a brief in opposition, admitting that under Connecticut law, the decedent's survivors "do not have a right to recover damages." Appellant argued, however, that the "essence of this action is one of tort law" and urged the court to find that Ohio had a "compelling, governmental interest to see that survivors of its residents are compensated * * * ." In reply to appellant's brief, appellee maintained that Ohio had no interest in compensating "citizens of foreign jurisdictions" and appellant was not legally entitled to recover damages under the uninsured motorist provision of the policy. Ultimately, the trial court issued its opinion and order in which it both granted appellee's motion for summary judgment and denied appellant's motion. The court initially decided that appellant's claim was one based in tort, therefore, the law of Ohio was applicable to appellant's complaint. Next, the court concluded that the theory upon which appellant sought to establish coverage was "too remote from the purpose of the provisions under [R.C.] 3937.18." Finally, the trial court ruled that appellee's contractual limitation on underinsured motorists coverage that the insured sustain bodily injury was a valid restriction on coverage. Appellant filed a timely notice of appeal from the trial court's order. She presents the following assignments of error for this court's review. -5- ASSIGNMENT OF ERROR NUMBER 1 THE TRIAL COURT ERRED IN HOLDING THAT APPELLANT HAD NO RIGHT TO CLAIM UNDERINSURED BENEFITS UNDER HER OWN INSURANCE POLICY FOR THE WRONGFUL DEATH OF HER DAUGHTER WHO WAS NOT AN INSURED PERSON UNDER THE POLICY. ASSIGNMENT OF ERROR NUMBER 2 THE TRIAL COURT ERRED IN HOLDING THAT A CONTRACTUAL LIMITATION RELATIVE TO UNDERINSURED COVERAGE MAY LIMIT COVERAGE TO "BODILY INJURIES" SUSTAINED BY THE INSURED. Seeking to uphold the ultimate decision in its favor, appellee presents the following cross-assignments of error pursuant to R.C. 1 2505.22: I. THE TRIAL COURT ERRED IN HOLDING THAT THE ISSUE BEFORE IT WAS ONE SOUNDING IN TORT, RATHER THAN CONTRACT. II. THE TRIAL COURT ERRED IN APPLYING THE CHOICE OF LAWS PRINCIPALS SET FORTH IN SECTION 145 AND 146 OF THE RESTATEMENT, RATHER THAN SECTION 193, TO RESOLVE THE CHOICE OF LAWS ISSUE. III. THE TRIAL COURT ERRED IN APPLYING R.C. 3937.18, OR ANY CASE INTERPRETING IT, TO THE CASE AT BAR. THAT STATUTE APPLIES ONLY TO POLICIES THAT ARE "DELIVERED" IN OHIO AND WHICH PROVIDE COVERAGE FOR VEHICLES PRINCIPALLY GARAGED HERE. IV. THE PUBLIC POLICY CONCERNS UNDERLYING OHIO'S WRONGFUL DEATH STATUTE ARE NOT IMPLICATED BY PLAINTIFF'S CLAIM. THEREFORE, THE TRIAL COURT WAS CORRECT IN 1 R.C. 2505.22 states: 2505.22 Assignments of error filed on behalf of appellee In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court. -6- REFUSING TO PERMIT THE PLAINTIFF TO RECOVER UNDER HER CONNECTICUT POLICY FOR THE WRONGFUL DEATH OF HER DAUGHTER. V. THE DECISION OF THE TRIAL COURT SHOULD BE AFFIRMED, UNDER CONNECTICUT LAW, THE PLAINTIFF IS PRECLUDED FROM BRINGING A CLAIM FOR WRONGFUL DEATH. In her assignments of error, appellant argues the trial court incorrectly interpreted Ohio law to bar her claim for damages. In addition to its arguments in opposition to appellant's 2 assignments of error, appellee essentially asserts in its cross- assignments of error that the trial court came to the correct conclusion for the wrong reasons; appellee contends the trial court should have applied Connecticut law rather than Ohio law in this case to grant summary judgment in its favor. This court finds appellee's position on cross-appeal to be persuasive. R.C. 3937.18 provides in pertinent part: (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: * * * 2 In opposing appellant's assignments of error, appellee argues the following propositions: 1) a claim such as appellant's has not been squarely faced by any of the Ohio Supreme Court decisions upon which she relies; 2) the policy does not afford coverage to appellant in this situation; and 3) appellant does not meet the requirements set forth in Sexton v. State Farm Mut. Auto Ins. Co., supra. Since this court finds appellee's cross-appeal dispositive of the case, it need not address these arguments. App.R. 12(A)(1)(c). -7- (2) 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 an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured are less than the limits or the insured's uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amount actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. (Emphasis added.) In Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 482, the Supreme Court of Ohio recently overruled Hedrick v. Motorist Mut. Ins. Co. (1986), 22 Ohio St.3d 42, which the trial court discussed in its opinion, reiterating that "the purpose of uninsured motorist coverage is to protect persons from losses which, because of the tortfeasor's lack of liability coverage, would otherwise go uncompensated." Id. at 480, citing Stanton v. Nationwide Mut. Ins. Co. (1993), 68 Ohio St.3d 111; Watson v. Grange Mut. Cas. Co. (1988), 40 Ohio St.3d 195; Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161. However, the Ohio Supreme Court further explained its decision as follows: * * * We have held that R.C. 3937.18 is remedial legislation. Stanton, supra, 68 Ohio St.3d 113, 623 N.E.2d at 1199. Thus, we must liberally construe this law in order to effectuate the legislative purpose. Curran v. State Auto Mut. Ins. Co. (1971), 25 Ohio St.2d 33, 54 O.O.2d 166, 266 N.E.2d 566. * * * An automobile insurance policy may not eliminate or reduce uninsured or underinsured motorist coverage, -8- required by R.C. 3937.18, to persons injured 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. The rationale of [State Farm Auto. Ins. Co. v.] Alexander [(1992), 62 Ohio St.3d 397] is not limited to the analyzed ["other owned" or household] exclusion. Instead, this court made clear that R.C. 3937.18 is the yardstick by which all exclusions of uninsured motorist coverage must be measured. Under Alexander, the statute mandates coverage if (1) the claimant is an insured under a policy which provides uninsured motorist coverage; (2) the claimant was injured by an uninsured motorist; and (3) the claim is recognized by Ohio tort law. (Emphasis added.) Implicit in this explanation is the requirement that R.C. 3937.18 must apply to the situation at hand. Although appellant attempted to demonstrate she met the guidelines set forth in Martin and Sexton v. State Farm Mut. Auto. Ins. Co., supra, nevertheless, the tortious act which caused her decedent's death is not in dispute. Rather, the dispute is whether R.C. 3937.18, an Ohio law, applies in this case and permits appellant to collect damages from appellee. In light of the specification in R.C. 3937.18 that the underinsured motorists coverage discussed in section (A)(2) relates to motor vehicles which are registered or principally garaged in the state of Ohio, this court is convinced the trial court improperly relied on Ohio law to analyze this case. See, e.g., Jarvis v. State Farm Mut. Auto. Ins. Co. (Dec. 30, 1993), Cuyahoga App. No. 64597, unreported; Dalzell-Milstein v. Midwestern Indemnity Co. (Oct. 9, 1986), Cuyahoga App. No. 50971, unreported; cf., Mayse v. Watson (Sept. 27, 1985), Erie App. No. E-85-8, unreported. -9- Moreover, the Ohio Supreme Court has stated that an insurance company's obligation to its insured must be determined by the terms of the insurance policy, i.e., the contract between the parties. Kurent v. Farmers Ins. of Columbus, Inc. (1991), 62 Ohio St.3d 242. See, also, Motorist Mut. Ins. Co. v. Tomanski (1971), 17 Ohio St.2d 222. Thus, although a tortious injury may have led to the instant action, since it seeks essentially to determine appellee's contractual obligations to appellant, the action itself sounds in contract rather than tort. R.C. 2721.03; Kurent v. Farmer's Ins. of Columbus, Inc., supra; Fiste v. Atlantic Mut. Ins. Co. (1994), 94 Ohio App.3d 165; cf., Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339; Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500; Peace v. Prudential Prop. & Cas. Ins. Co. (Aug. 6, 1993), Erie App. No. E-92-60, unreported, rev'd. and remanded (1993), 68 Ohio St.3d 106; Nationwide Ins. Co. v. Fryer (1990), 62 Ohio App.3d 905; Duffy v. State Auto Mutual Ins. Co. (Mar. 16, 1995), Cuyahoga App. No. 67061, unreported. "It is well settled in Ohio that cases involving a contract, the law of the state where the contract is made governs interpretation of the contract." Nationwide Mut. Ins. Co. v. Ferrin (1986), 21 Ohio St.3d 43, 44. Furthermore, in deciding choice of law questions, the following are the relevant factors to be considered in cases involving the interpretation of contracts of insurance: (1) the location of the execution of the contract; (2) negotiation or performance of the contract; (3) the location of the subject matter of the contract; and (4) the domicile, residence, -10- nationality, place of incorporation and place of business of the parties. Id. at 45, citing Restatement of the Law 2d, Conflict of Laws (1971), Section 188. See, also, Gries Sports Enterprises, Inc. v. Modell (1984), 15 Ohio St.3d 284; Fiste v. Atlantic Mut. Ins. Co., supra, at 167-168; General Acc. Ins. Co. v. Ins. Co. of North America (1990), 69 Ohio App.3d 52; Jarvis v. State Farm Mut. Auto. Ins. Co., supra. In this case, the contract was made in Connecticut, it referred to Connecticut law, the insured vehicle was registered and principally garaged in Connecticut, and appellant was a Connecticut citizen dealing with a Connecticut insurance agent based in a Connecticut office. Clearly, not only did the parties intend Connecticut law to apply to the policy, but Ohio's interest in this litigation is not greater than that of the State of Connecticut. Though the tortious act underlying appellant's claim for underinsured benefits occurred in this state, R.C. 3937.18, by its terms, does not apply to appellant's vehicle. Thus, the mere fact that the state of "Ohio is the situs of the tort does not serve to invoke the application of Ohio law to interpretation of the [Nationwide] policy." Dalzell-Milstein v. Midwestern Indemnity Co., supra; see, also, Jarvis v. State Farm Mut. Auto. Ins. Co., supra. Cf. Peace v. Prudential Ins. Co., supra; Ross v. Nationwide Mut. Ins. Co. (Sept. 27, 1990), Franklin App. No. 90AP-65, appeal dismissed (1992), 63 Ohio St.3d 33; Tracy v. State Farm Ins. Co. (Sept. 20, 1984), Cuyahoga App. No. 46333, unreported; Duffy v. State Auto Mutual Ins. Co., supra. -11- Pursuant to the express terms of the policy, in order to collect benefits for her loss, appellant herein had to show not only that she suffered an injury caused by an uninsured motorist, but that she was "legally entitled to recover" damages for that injury. Kurent v. Farmers Ins. of Columbus, Inc., supra, at 245; Sexton v. State Farm Mut. Auto Ins. Co., supra; Duffy v. State Auto Mut. Ins. Co., supra. Under Connecticut law, since only the executor or administrator of a decedent's estate may maintain an action for wrongful death against a tortfeasor, a surviving next- of-kin is not presumed to have suffered a loss. C.S.G.A. 52-555; Chase v. Fitzgerald (1946), 45 A.2d 789; Leland v. Chawla (1983), 467 A.2d 439; Isaac v. Mt. Sinai Hosp. (1985), 490 A.2d 1024. Thus, appellant cannot prove she was "legally entitled to recover" from appellee. Kurent v. Farmers Ins. of Columbus, Inc., supra. Cf. Dudash v. State Farm Mut. Auto. Ins. Co. (July 28, 1994), Cuyahoga App. No. 66773, unreported. Despite the broad language of Martin v. Midwestern Group Ins. Co., supra, the supreme court has also made it clear that although R.C. 3937.18 was intended to protect Ohio residents from losses caused by financially irresponsible drivers, however, "it was not intended to provide coverage in every uncompensated situation." Kurent, supra, at 245. Under the circumstances of this case, consideration of R.C. 3937.18 was not appropriate; rather Connecticut law applies. Since appellant has no cause of action under Connecticut law, summary judgment was properly rendered for appellee. Morgan v. Biro Mfg. Co., supra; Nationwide Mut. Ins. Co. -12- v. Ferrin, supra; Schnellinger v. Aetna Life & Casualty Co. (Jan. 27, 1994), Cuyahoga App. No. 64658, unreported. Therefore, although this court disagrees with the trial court's analysis set forth in its opinion and order, the trial court's ultimate decision in appellee's favor was correct and is, accordingly, affirmed. Judgment affirmed. -13- It is ordered that appellee recover of appellant its 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 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. HARPER, J., and MATIA, DAVID T., J., CONCUR. JOSEPH J. NAHRA CHIEF JUSTICE 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 .