COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68552 : CHARLES C. HYDEL : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CINCINNATI INSURANCE COMPANY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 11, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-266924 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: W. CRAIG BASHEIN, ESQ. JOHN F. GANNON, ESQ. ANTHONY P. SOUGHAN, ESQ. 333 Leader Building BASHEIN & BASHEIN 526 Superior Avenue, N.E. 1200 Illuminating Building Cleveland, Ohio 44114 55 Public Square Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant The Cincinnati Insurance Company ("Cincinnati") appeals from an order of the trial court granting summary judgment in favor of plaintiff-appellee Charles Hydel in this underinsured motorist declaratory judgment action. This litigation arises out of a fatal accident in which Charles Hydel's father was killed after being struck by a Tazmanian Freight Forwarding Company truck driven by Robert Rossbach. Prior to this declaratory judgment action, Norman Hydel, the administrator of decedent's estate, filed a wrongful death and survivor action against Tazmanian and Rossbach. Tazmanian was insured by Cincinnati with liability limits of $500,000 per claim and Rossbach was insured by a $12,500 bond. The probate court ultimately approved a settlement of the wrongful death action for $489,222.87, the administrator executed a general release on behalf of decedent's beneficiaries, and the wrongful death case was dismissed with prejudice. The proceeds of the settlement were distributed, pursuant to an October 14, 1992, order of the probate court, to decedent's surviving spouse after payment of attorney fees and expenses. Charles Hydel, decedent's adult son, did not receive any proceeds of the wrongful death settlement. However, Charles Hydel was also insured under a personal automobile policy issued to him by Cincinnati at the time of his father's death. Charles Hydel submitted a claim to Cincinnati - 3 - under his own policy to recover underinsurance benefits for his father's death in June, 1992, approximately four months prior to the settlement of the wrongful death case. Charles Hydel filed the complaint for declaratory judgment and monetary damages sub judice to recover underinsurance benefits under his own automobile policy after Cincinnati denied his claim. Charles Hydel alleged that Cincinnati in bad faith refused to pay his underinsured motorist claim. Cincinnati filed an answer, raised various affirmative defenses, and asserted a counterclaim for declaratory judgment. Charles Hydel filed a motion for partial summary judgment on all issues except damages. Charles Hydel's brief argued that he was entitled to recover underinsured motorists benefits from Cincinnati to compensate him for damages resulting from the death of his father. Cincinnati filed a brief in opposition arguing that Charles Hydel was precluded from recovering under his policy because of the settlement and release executed by the administrator in the prior wrongful death action. The trial court granted Charles Hydel's motion for partial summary judgment in a typewritten five-page entry journalized September 19, 1994. The trial court subsequently journalized a final judgment entry in which the parties stipulated to damages in the amount of $132,520 and disposed of all other claims. Cincinnati timely appeals raising the following two "arguments": - 4 - THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND HOLDING THAT APPELLEE WAS ENTITLED TO UNDERINSURED MOTORIST BENEFITS. THE COURT ERRED IN HOLDING THAT APPELLEE'S CLAIM WAS NOT BARRED BY THE PROVISIONS OF R.C. 2125.02 AND RELEASES EXECUTED. Cincinnati's two arguments lack merit. Cincinnati argues that under its insurance policies insureds are not entitled to recover underinsured motorists benefits for the wrongful death of a parent who does not reside in the same household with the insured, because the policy expressly excluded family members not in the same household. Cincinnati further argues that even if insureds are entitled to recover under these circumstances, recovery is barred when the wrongful death case arising out of the death of the parent is settled and dismissed. The law governing the recovery of underinsured motorists benefits following automobile accidents resulting in death has recently undergone considerable development. There has been a split of authority concerning the central issue in this case, viz., whether insureds are entitled to recover underinsured motorists benefits for the wrongful death of parents expressly excluded because they do not reside in the same household with them. Policy Coverage The Cincinnati policy in this case provides in pertinent part as follows: 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: - 5 - 1. Sustained by a covered person; and 2. Caused by an accident. * * * 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 for damages that person is entitled to recover because of bodily injury to which coverage applies sustained by a person described in 1. or 2. above. (Emphasis added.) The policy restricts family members to those residing in the same household. The sole issue in this case is whether Charles Hydel, who did not reside in the same household with his father, is "legally entitled to recover" damages resulting from the death of his father after being struck by an underinsured truck. Cincinnati does not dispute that every other condition of the policy has been satisfied. Revised Code 3937.18(A) requires insurers to offer uninsured/underinsured motorist coverage for the protection of persons they insure "who are legally entitled to recover damages from the owner or operator of uninsured motor vehicles because of bodily injury ***." Under the wrongful death statute, appellee is legally entitled to recover for the death of his father. R.C. 2125.02(A)(1) expressly provides that "the surviving spouse, the children, and the parents of the decedent" all "are rebuttably presumed to have suffered damages" resulting from wrongful death. - 6 - The statute does not restrict its application to only those family members who reside in the household. Nor may an insurance 1 policy. As the syllabus in State Farm Auto. Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397, said, An automobile insurance policy may not eliminate 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. In its discussion of Alexander, the Ohio Supreme Court specified coverage is mandated 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. Martin v. Midwestern Group Ins. (1994), 70 Ohio St.3d 478, at 481. In the case sub judice all three criteria are satisfied: (1) appellee is the named insured on the insurance policy; (2) the tortfeasor was not fully insured; and (3) the claim of wrongful death is recognized by Ohio tort law. The parties do not dispute that the identical principles apply regardless of whether the tortfeasor was uninsured or underinsured. Id. (citing State Farm Ins. Co. v. Alexander, supra.) Different panels of this court of appeals have recently followed conflicting lines of authority concerning whether an 1 In Savoie v. Grange Mut. Ins. Co. (1993) 67 Ohio St.3d 500, 504, the Supreme Court noted that wrongful death claims in Ohio have an "elevated status." In fact, the Ohio Constitution in its Bill of Rights provides special protection for wrongful death claims. Section 19a, Article I. - 7 - insured was "legally entitled to recover" damages under these circumstances. The Court in Dudash v. State Farm Mut. Auto. Ins. Co. (1994), 96 Ohio App.3d 348, held that an insured was "legally entitled to recover" underinsurance benefits, whereas the Court in Visocky v. Farmers Ins. of Columbus (1994), 98 Ohio App.3d 118, reached the contrary result following a prior unreported case Tavzel v. Aetna Life & Casualty Co. (June 16, 1988), Cuyahoga App. No. 53931, unreported. The differing results in these cases were based on conflicting readings of two Ohio Supreme Court cases. One line of cases based on Sexton v. State Farm Mut. Ins. Co. (1982), 69 Ohio St.2d 431, held that persons who are rebuttably presumed to have suffered damages by reason of a death under R.C. 2125.02(A), such as Charles Hydel in this case, are "legally entitled to recover" underinsured motorist benefits under their own automobile insurance policy. The Dudash court followed this view. The minority view, on the other hand, has been to deny recovery because of policy exclusions for non-resident family members. The Visocky and Tavzel courts found these exclusions valid based on the Ohio Supreme Court's opinion in Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42. However, in Martin v. Midwestern Group Ins. (1994), 70 Ohio St.3d 478, the Ohio Supreme Court recently overruled Hedrick and eroded whatever support Hedrick provided for the denial of recovery in this context. Because Hedrick was overruled, the law in Tavzel and - 8 - Visocky no longer applies in this district, and Dudash remains good authority, which this court now follows in the case at bar. Effect of Wrongful Death Settlement Cincinnati argues that Charles Hydel's claim for underinsured motorists benefits resulting from his father's death in this declaratory judgment action is barred by the settlement, release and dismissal by the administrator of the wrongful death case. However, this argument has specifically been rejected when raised by Cincinnati in another case. Cincinnati Ins. Co. v. Jarvis (1994), 98 Ohio App.3d 155. Charles Hydel's rights in this declaratory judgment action arise under his own automobile insurance policy and the administrator lacked standing to assert these contract rights in the wrongful death action. Id. at 163-164. Moreover, approximately four months prior to the settlement of the wrongful death case, Charles Hydel specifically notified Cincinnati of his claim for underinsurance benefits under his own policy. Cincinnati had sufficient time as a matter of law to protect any subrogation rights it may have had prior to settlement of the wrongful death case. Id. For this reason, Cincinnati's reliance on Tennant v. State Farm Mut. Ins. Co. (1991), 81 Ohio App.3d 20, to support its argument is misplaced. Tennant is readily distinguishable. Unlike Tennant, Charles Hydel in the case sub judice, informed - 9 - Cincinnati of his underinsured motorist benefit claim prior to resolution of the wrongful death case. Accordingly, Cincinnati's two "arguments" are overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant his 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. SARA J. HARPER, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI 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 .