COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68136 DOUGLAS FAIN, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION USAA CASUALTY INSURANCE : COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 17, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-262282 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: KENT B. SCHNEIDER (#0032275) JAY H. SALAMON (#0029192) Hermann, Cahn & Schneider 1301 East Ninth Street, Suite 500 Cleveland, Ohio 44114 For Defendant-Appellee: TERRENCE J. KENNEALLY (#0023408) Savoy, Bilancini, Flanagan & Kenneally 595 West Broad Street Elyria, Ohio 44035 - 2 - 2 SPELLACY, P.J.: Plaintiffs-appellants Douglas Fain, Mary Jo Fain, Shelly Fain Magavern, and Megan Fain appeal from the entry of summary judgment for defendant-appellee USAA Casualty Insurance Company and raise one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT USAA AND AGAINST THE PLAINTIFFS. I. Douglas and Mary Jo, Susan Fain's parents, and Shelly and Megan, Susan Fain's sisters, brought this declaratory judgment action after a car struck and killed Susan in Cleveland, Ohio. Douglas, Mary Jo, Shelly, and Megan sought underinsured motorist coverage under Susan's auto insurance policy issued in Virginia. Douglas, Mary Jo, and Megan also sought underinsured motorist coverage under Douglas's auto insurance policy issued in Colorado. The trial court found that no coverage was available. II. A. Virginia Policy Coverage under Susan's policy hinges on whether the car that struck her was underinsured. Under the policy, a motor vehicle is underinsured when: the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and "available for - 3 - 3 payment" for such bodily injury or property damage *** is less than the total amount of uninsured motorists coverage afforded each person injured as a result of the operation or use of the vehicle. $100,000 was "available for payment." The policy provides uninsured motorist coverage split-liability limits of $100,000 for each person and $300,000 for each accident. A limit-of-liability provision within the policy provides: Regardless of the number of (1) persons *** who are insureds under this insurance *** [or] (3) claims made or suits brought on account of bodily injury or property damage *** (a) *** the limit of liability for bodily injury stated as applicable to "each person" is the limit of the company's liability for all damages because of bodily injury sustained by one person as the result of any one accident ***. Under the terms of the policy, therefore, the car was not underinsured because the limit-of-liability provision restricts the total amount of uninsured motorists coverage to $100,000, equivalent to the amount available for payment. Douglas, Mary Jo, Shelly, and Megan argue the limit-of-liability provision violates Virginia law by consolidating their wrongful-death claims, along with Susan's own claim, into a single each-person limit. They further argue that without the limit-of-liability provision the amount available for payment is less than the total amount of uninsured motorist coverage afforded each person because they are each an injured person. - 4 - 4 Under Virginia law, "[i]f the terms of an insurance policy do not conflict with any provision of law, the terms of the contract, as written, will govern and limit the extent of recovery under the policy." Dairyland Ins. Co. v. Douthat, 449 S.E.2d 799, 801 (Va. 1994). Virginia Code 38.2-2206 provides: A. *** [N]o policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle *** unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured vehicle *** [within limits that] shall equal but not exceed the limits of liability insurance provided by the policy, [unless rejected] *** The endorsement or provision shall also obligate the insurer to make payment for bodily injury or property damage caused by the operation or use of an underinsured motor vehicle to extent the vehicle is underinsured, as defined in subsection B of this section. *** B. *** A motor vehicle is "underinsured" when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage *** is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle. We find no conflict between the limit-of-liability provision and Code 38.2-2206. Douglas, Mary Jo, Shelly, and Megan rely heavily on the Ohio case Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, which held that each wrongful-death claimant has a - 5 - 5 separate claim subject to a separate per-person policy limit. This reliance, however, is misplaced; the Ohio General Assembly has enacted legislation specifically overruling Savoie. See R.C. 3937.18. B. Colorado Policy Coverage under Douglas's policy hinges on whether it unambiguously requires that a covered person sustain bodily injury. The policy provides: We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident. Under Colorado law, an insurance policy is ambiguous when it is subject to more than one reasonable interpretation. Union Ins. Co. v. Houtz, 883 P.2d 1057, 1061 (Colo. 1994). Ambiguous insur- ance policies are construed against the insurer. Id. Unambiguous insurance policies are given their plain and ordinary meaning. Terranova v. State Farm Mut. Automobile Ins. Co., 800 P.2d 58, 60 (Colo. 1990). Douglas, Mary Jo, and Megan argue that the failure to keep related words together results in confusion over whether "sustained by a covered person" modifies "damages" or "bodily injury." We find, however, that the policy clearly requires that a covered person sustain bodily injury. "Sustained by a covered person" immediately follows "bodily injury." Douglas, Mary Jo, and Megan's - 6 - 6 interpretation requires "sustained by a covered person" to leap over "which a covered person is legally entitled to recover from the owner or operator of an insured motor vehicle because of bodily injury." Further, the double reference to "covered person" removes any confusion. Accordingly, the assignment of error is not well taken. Judgment affirmed. - 7 - 7 It is ordered that appellee recover of appellants 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. PATRICIA BLACKMON, J. and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .