COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68603 NANCY A. SADDLER : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION UNITED SERVICES AUTOMOBILE : ASSOCIATION : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 16, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-247069 JUDGMENT: JUDGMENT REVERSED. JUDGMENT ENTERED FOR APPELLANT DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARK L. WAKEFIELD (#0017614) SINDELL, LOWE & GUIDUBALDI 610 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 For Defendant-Appellant: TERRENCE J. KENNEALLY (#0023408) SAVOY, BILANCINI, FLANAGAN & KENNEALLY 595 West Broad Street Elyria, Ohio 44035 - 2 - 2 SPELLACY, P.J.: Defendant-appellant United Services Automobile Association ("USAA") appeals from a declaratory judgment requiring it to provide underinsured motorist coverage to plaintiff-appellee Nancy Saddler. USAA raises the following assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF NANCY A. SADDLER AND AGAINST THE DEFENDANT UNITED SERVICES AUTOMOBILE ASSOCIATION. I. Saddler, a Georgia resident, brought this declaratory judgment action seeking coverage under the underinsured motorist provision of her auto-insurance policy with USAA after a motorist struck and killed her father, an Ohio resident, in Ohio. The policy, issued in Georgia, provides, in part: UNINSURED MOTORISTS COVERAGE We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of [bodily injury] sustained by a covered person and caused by an accident. The policy defines "covered persons" and "family member" as follows: COVERED PERSON AS USED IN THIS PART MEANS: 1. You or any family member 2. Any other person occupying your covered auto. 3. Any person who is legally entitled to recover damages because of [bodily injury] to which this coverage applies sustained by a person described in 1. or 2., above. Family member means a person related to you by blood, marriage, or adoption who is a resident - 3 - 3 of your household. This includes a ward or foster child. Both Saddler and USAA moved for summary judgment. The trial court found that: Defendant's Motion for Summary Judgment is hereby overruled. Pursuant to Kurent v. Farmer's Ins. of Col. (1991), 62 Ohio St.3d 242, the place where this injury occurred is Ohio and therefore Ohio Law determines the rights and liabilities of these parties. Pursuant to Ohio Law, the plaintiff is hereby entitled to $100,000 in underinsured motorist coverage. II. USAA contends the trial court erred in applying Ohio law instead of Georgia law to Saddler's action to recover under the policy. We agree. Although the tortfeasor's legal obligation to Saddler sounds in tort, Kurent v. Farmers Ins. of Columbus, Inc. (1991), 62 Ohio St.3d 242, syllabus, Saddler's action for recovery under the underinsured motorist coverage provision of the policy sounds in contract. Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 632; Miller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624; Colvin v. Globe Am. Cas. Co. (1982), 69 Ohio St.2d 293, 295; Motorists Mut. Ins. Co. v. Tomanski (1971), 27 Ohio St.2d 222, 222- 223; see, also, Kurent, 62 Ohio St.3d at 243 ("The basis of [the insurer's] obligation to the [insureds] lies in the insurance contract and our analysis begins with an examination of the policy ***."); Fiste v. Atlantic Mut. Ins. Co. (1994), 94 Ohio App.3d 165, 167 ("Although the triggering event to this cause of action was the - 4 - 4 automobile accident which occurred in Canada, because [the insured's] cause of action herein is against his insurer, as to [the insurer's] contractual obligation to [the insured] himself, and involves interpretation of a contract executed in Ohio by Ohio residents, this matter sounds in contract and not in tort."); Hunt v. Nationwide Mut. Ins. Co. (July 6, 1995), Cuyahoga App No. 66562, unreported ("[A]n insurance company's obligation to its insured must be determined by the terms of the insurance policy, i.e. the contract between the parties."). "It is well-settled in Ohio that in 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. In Gries Sports Enterprises, Inc. v. Modell (1984), 15 Ohio St.3d 284, syllabus, the Ohio Supreme Court held that: In the absence of an effective choice of law by th account to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. (Section 188 of l Restatement of the Law 2d, Conflict of Laws, adopted and applied.) We find Georgia law applicable to this insurance contract delivered in Georgia to a Georgia resident. - 5 - 5 Application of Georgia law precludes recovery. The terms of the policy bar recovery because the person sustaining bodily injury, Saddler's father, was not a resident of Saddler's household. Georgia has no prohibition against such an exclusion. Consequently, we reverse the entry of judgment for Saddler and enter judgment for USAA. Accordingly, USAA's assignment of error is well taken. Judgment reversed and judgment entered for USAA. - 6 - 6 This cause is reversed. Judgment entered for USAA. It is, therefore, considered that said appellant recover of said appellee its 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. JAMES M. PORTER, J. and JOSEPH J. NAHRA, 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 .