COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67811 BRENDA LEE PAYNE : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION STATE FARM INSURANCE COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION MAY 25, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 259690 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: WILLIAM T. WHITE, ESQ. HENRY A. HENTEMANN, ESQ. White & Bartko Co., L.P.A. Meyers, Hentemann, Schneider 410-S Crittenden Building & Rea Co., L.P.A. 1382 West Ninth Street Superior Building, 21st Floor Cleveland, Ohio 44113-1217 Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Brenda Lee Payne appeals from the trial court's grant of summary judgment in favor of defendant-appellee State Farm Insurance Company on her uninsured motorist insurance claim. Plaintiff claims the trial court deviated from the law and deprived her of her right to a jury trial by granting summary judgment. We find no error and affirm for the reasons stated below. Plaintiff was a resident and licensed Ohio driver when involved in a motor vehicle collision at Lincoln Park, Michigan on October 25, 1991. Plaintiff claimed that her injuries were caused by the negligence of Paul W. Smith, a resident of Michigan and operator of the other vehicle. Smith was uninsured. Plaintiff was covered by a State Farm policy which included uninsured motorist coverage. Michigan is a no-fault insurance state. M.C.L.A. 500.3101 et seq. This means that the insured tortfeasor driver is subject to tort liability for non-economic damages only if the injured person suffers damages beyond the threshold limit, i.e., in Michigan: death, serious impairment of a bodily function or permanent serious impairment of body function or permanent serious disfigurement. It is undisputed that plaintiff has not exceeded the threshold. State Farm paid the economic losses, but refuses to pay for pain and suffering damages (non-economic) because plaintiff has not exceeded the Michigan threshold. - 3 - Plaintiff's State Farm policy provided the following uninsured motorist coverage: We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of the uninsured motor vehicle. Since the trial court found plaintiff could not recover from the Michigan tortfeasor under Michigan no-fault law, she could not recover under her State Farm policy and awarded summary judgment. This appeal ensued. Plaintiff's sole assignment of error states as follows: I. WHETHER THE TRIAL COURT DEVIATED FROM THE LAW AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED PLAINTIFF-APPELLANT'S BASIC RIGHT TO A TRIAL BY GRANTING SUMMARY JUDGMENT. The issue before the court is whether plaintiff is entitled to uninsured motorist benefits under her State Farm policy for the Michigan accident caused by a Michigan resident under Michigan no- fault insurance laws. This specific "no-fault" issue was decided by the Ohio Supreme Court in the case of Kurent v. Farmers Ins. of Columbus, Inc. (1991), 62 Ohio St.3d 242, which we find to be dispositive of the issues in the instant case. In Kurent, the Supreme Court resolved this issue in favor of the insurance company and denied uninsured motorist benefits as held in the syllabus: When an Ohio resident is injured in an automobile 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 - 4 - 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. (Emphasis added.) A discussion of Kurent is appropriate. In Kurent, an Ohio resident travelling in Michigan was injured in an automobile accident with a Michigan resident who was insured with the AAA Michigan Insurance Company. The Kurents' personal injury claims were rejected by the AAA Insurance Company because the plaintiffs' personal injuries did not meet the "threshold definition" under Michigan's no-fault insurance laws. The threshold limit in Michigan for the recovery of non-economic damages is defined as: "*** death, serious impairment of a bodily function, or permanent serious disfigurement. M.C.L.A. Section 500.3135." Kurent at 243. In other words, the Kurents' claim was rejected not because the tortfeasor was uninsured, but because "[u]nder Michigan no-fault laws the Kurents are not entitled to recover non-economic damages unless their claim reaches the threshold level." Id. at 244. Like the State Farm policy here, the Farmers' policy regarding uninsured motorist coverage in Kurent provided: We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle. (Emphasis omitted.) Initially, the Kurent court noted that the above-quoted "language complies with R.C. 3937.18 which requires insurance - 5 - companies to offer uninsured motorist coverage to Ohio residents." Id. at 245. The court expressly stated that "[t]he basic purpose of R.C. 3937.18 is to protect persons injured in automobile accidents from uncompensated losses because a tortfeasor lacked liability coverage. *** It was not intended to provide coverage in every uncompensated situation." Id. In addressing some of the same arguments advanced by the plaintiff here, the Supreme Court explained its ruling: The Kurents' claim for uninsured motorist coverage is determined by their contractual relationship with Farmers. Under the contract the Kurents must show (1) Karczewski's vehicle was uninsured and (2) they are legally entitled to recover from him. The Kurents claim they satisfied the policy and statutory definition of an uninsured vehicle in that AAA "denied coverage" based on the fact that the Kurents' injuries did not rise to Michigan's threshold level. Farmers, on the other hand, maintains that AAA did not deny coverage to the Kurents because they were not "legally entitled to recover" non-economic damages. We agree with Farmers. According to Ohio law, the phrase "legally entitled to recover" means the insured must be able to prove the elements of his or her claim. Sumwalt v. Allstate Ins. Co. (1984), 12 Ohio St.3d 294, 12 OBR 368, 466 N.E.2d 544, at syllabus. The amount of damages is one element of the claim the Kurents must prove. Further, uninsured motorist coverage is dependent on the uninsured motorist's legal liability to the injured person. See York, 64 Ohio St.2d at 202, 18 O.O.3d at 414, 414 N.E.2d at 425. Therefore the Kurents are only entitled to recover damages which Karczewski is legally liable to pay. - 6 - Michigan law determines Karczewski's legal liability to the Kurents. He is a Michigan resident and the accident occurred in Michigan. A motorist travelling in Michigan accepts Michigan law as it pertains to accidents occurring in Michigan. That motorist does not have the option, for example, of claiming that Ohio's speed limit or traffic laws govern simply because the motorist resides in Ohio. The notion that Ohio law somehow controls the amount of damages flowing from torts committed on Michigan highways is akin to a contention that a Michigan resident who commits murder in Ohio is exempt from the death penalty because Michigan does not recognize capital punishment. Under Michigan law, the Kurents have not proved all the elements of their claim against Karczewski because they have not shown non- economic damages beyond the threshold level. Therefore, the Kurents are not "legally entitled to recover" from Karczewski and may not collect uninsured motorist coverage for their claim against him. Id. at 245-46. Thus, Kurent stands for the proposition that the language of R.C. 3937.18(A)(1) only provides: "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 ***." This Court has recently held that Kurent is still good law notwithstanding expansion of uninsured motorist coverage and this Court is obliged to follow it under the doctrine of stare decisis. Duffy v. State Automobile Mutual Insurance Co. (March 16, 1995), Cuyahoga App. No. 67061, unreported at 7-8. Since the plaintiff herein is not "legally entitled to recover damages" from the Michigan tortfeasor, i.e., she did not exceed the threshold imposed by Michigan's no-fault laws and is not entitled to recover from State Farm for uninsured motorist - 7 - coverage. We are compelled to honor and apply the law as contained in Kurent. Assignment of error overruled. Judgment affirmed. - 8 - 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 Court of Common Pleas 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. PATTON, C.J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER 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 .