COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67061 ROBERT E. DUFFY : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION STATE AUTOMOBILE MUTUAL : INSURANCE COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-246123 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LEO M. PLEVIN (#0008631) JOEL LEVIN (#0010671) NURENBERG, PLEVIN, HELLER & McCARTHY CO., L.P.A. 1370 ONTARIO - FIRST FLOOR CLEVELAND, OHIO 44113-1792 For Defendant-Appellee: BURT FULTON (#0005140) GARY L. NICHOLSON(#0005268) GALLAGHER, SHARP, FULTON & NORMAN SEVENTH FLOOR, BULKLEY BUILDING 1501 EUCLID AVENUE CLEVELAND, OHIO 44115 - 2 - SPELLACY, P.J.: Plaintiff-appellant Robert E. Duffy ("appellant") appeals the grant of summary judgment in favor of defendant-appellee State Automobile Insurance Company ("State Auto"). Appellant had sought a declaratory judgment determining whether the uninsured motorists provisions of his insurance policy with State Auto applied to an accident which occurred in Canada. Appellant assigns the following error for review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT. As the assignment lacks merit, the judgment of the trial court is affirmed. I. On August 26, 1991, appellant was involved in an automobile collision in Niagara Falls, Ontario, Canada. Mark Flanagan, the other driver, was a resident of Ontario. Ontario is a "no-fault" jurisdiction in which the tortfeasor is immune from liability unless the injured person died or sustained either permanent serious disfigurement or permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature. Appellant made inquiries of Flanagan's insurer regarding the accident. He was informed he could not recover because he did not suffer injuries meeting the level of severity required under - 3 - Ontario's no-fault law. Appellant did not pursue any further action with Flanagan's insurance carrier. Appellant then turned to his own insurer, State Auto. Appellant sought compensation under the uninsured motorists and medical payments provisions of his policy with State Auto. The medical claim was paid but State Auto denied appellant's uninsured motorists claim. Appellant then filed a complaint for declaratory judgment. Appellant asked the trial court to declare that State Auto is obligated to provide uninsured motorists coverage for the August 26, 1991, accident. Both appellant and State Auto filed motions for summary judgment. The trial court granted State Auto's motion. II. In his assignment of error, appellant asserts the trial court erred in granting State Auto's motion for summary judgment. State Auto had relied on the contention that Kurent v. Farmers Ins. of Columbus, Inc. (1991), 62 Ohio St.3d 242, foreclosed any claim for an uninsured motorists claim in the instant case. Appellant argues Kurent does not apply, is not good law, and was overruled by implication. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that - 4 - reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. Appellant first contends he has a cognizable claim under R.C. 3937.18 and that any conflict between it and Kurent must be resolved in favor of the statute. Appellant argues Flanagan's insurance carrier denied coverage making Flanagan uninsured for the purposes of R.C. 3937.18. Appellant further asserts he is legally entitled to recover from Flanagan because this only requires proof of fault. R.C. 3937.18 states 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, mainte- nance, 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) Uninsured motorist coverage, which shall be in the amount of coverage - 5 - 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; *** (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. In Kurent, an Ohio resident was injured in Michigan in an automobile accident caused by a Michigan resident. The court looked to Michigan's no fault laws in determining the action and held: When an Ohio resident is injured in an auto- mobile accident in a no-fault insurance state, by a resident of that state who is insured under that state's no-fault insurance laws, the Ohio resident's legal right to recover from the tortfeasor-motorist must be determined with reference to the no-fault state's laws. Where the no-fault state does not recognize a claim against the tortfeasor-motorist, the Ohio insured is not entitled to collect uninsured motorist benefits from his own insurer. Id., syllabus. The court noted that the Kurents had to show the other vehicle was uninsured and that they were legally entitled to recover from the driver. The court found the Michigan driver was insured as he had coverage but the Kurents' claim did not meet the threshold level required by Michigan law. The court adopted the definition of the phrase "legally entitled to recover" set forth in Sumwalt v. Allstate Inc. Co. (1984), 12 Ohio St.3d 294, which - 6 - states that an insured is legally entitled to recover if he can prove the elements of his claim. Id., syllabus. Damages are one of the elements of a claim. The insured is entitled only to recover those damages the tortfeasor is legally liable to pay. That legal liability was determined by Michigan law. Under the no- fault law, the Kurents did not prove all the elements of their claim as they did not show non-economic damages beyond the threshold level. Therefore, the Kurents were not legally entitled to recover from the tortfeasor. Kurent, at 246. Kurent looked to R.C. 3937.18 in reaching its holding. Appellant argues he has a claim under the statute which must supersede the holding of Kurent. Kurent interpreted the language of R.C. 3937.18. There is no conflict between the two. If Kurent is applied to the instant case, appellant would not be legally entitled to recover from the Canadian tortfeasor as there is no evidence his injuries reached the required threshold level under Ontario's no-fault law. Appellant argues Kurent was decided on the principles of comity under which an Ohio court deferred to the law of its sister state of Michigan. Appellant correctly points out that the doctrine comity is not applied with equal force when the other jurisdiction is a foreign nation. Ellis v. Midwestern Indemn. Co. (1993), 85 Ohio App.3d 289, involved an accident occurring in Ontario between an Ohio resident and a resident of Ontario. The court stated: Whether plaintiffs are legally entitled to recover from Ares must be determined with - 7 - reference to the law of the Canadian province of Ontario, which is a "no-fault" jurisdic- tion. Id., at 293. Similarly, Kurent must be applied to the instant case. Under Kurent the law of the law of the situs of the accident is presumed to be applicable. As in Ellis, Ontario's no-fault provisions are determinative of appellant's claim. Because appellant cannot recover under the law of Ontario, he is not legally entitled to recover from the tortfeasor and uninsured motorists coverage is not applicable. Appellant further argues State Farm Auto. Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397, impliedly overruled Kurent. The holding of Alexander was: An automobile insurance policy may not elimi- nate or reduce uninsured or underinsured motorist coverage, 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. Id., syllabus. Alexander involved a household exclusion in the uninsured motorist provisions of an insurance contract. The court relied on Kurent in noting that R.C. 3937.18(A)(1) and (2) are premised on the tortfeasor's legal liability to the injured insured. Pursuant to Kurent that legal liability is presumably determined by the place of the accident. Ohio tort law does not apply to torts occurring outside Ohio's borders. There is nothing in Alexander which indicates that Kurent was overruled. - 8 - Appellant advances numerous policy arguments as to why Kurent is not a correct interpretation of R.C. 3937.18. Appellant relies in part on the dissent in Kurent authored by Justice Alice Robie Resnick. Although the reasoning of the dissent is persuasive, nevertheless this court is constrained to apply the holding of the majority under the doctrine of stare decisis. Appellant's assignment of error is overruled. Judgment affirmed. - 9 - 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 DAVID T. MATIA, 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. .