COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69058 STANLEY KOCEL : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : FARMERS INSURANCE OF COLUMBUS, : OPINION INC. : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-275360. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: David W. Goldense, Esq. Dubyak & Goldense 920 Terminal Tower Cleveland, OH 44113-2206 For Defendant-Appellee: D. John Travis, Esq. 7th Floor Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 Gary L. Nicholson, Esq. Gallagher, Sharp, Fulton & Norman 6th Floor Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 -2- DAVID T. MATIA, P.J.: Stanley Kocel, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Farmers Insurance of Columbus, Inc.'s, defendant-appellee's, motion for summary judgment and denying plaintiff-appellant's similar motion. Plaintiff- appellant raises two errors for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On October 26, 1993, Mark Kocel was killed by a vehicle driven by an uninsured motorist. Stanley Kocel, plaintiff-appellant, was at that time the sole surviving sibling of the deceased. Plaintiff-appellant, at the time of the unfortunate accident, maintained automobile insurance through Farmers Insurance of Columbus, Inc., defendant-appellee. Plaintiff-appellant filed an uninsured motorist claim for injuries he suffered due to the death of his brother. Defendant-appellee refused to provide such coverage. On August 15, 1994, plaintiff-appellant filed a complaint claiming defendant-appellee breached its automobile insurance contract by failing to provide uninsured motorist coverage to plaintiff-appellant for damages he sustained as a result of his brother's death. The claimed damages are those of a surviving brother as provided by the Ohio Wrongful Death Statute, R.C. 2125.02. Farmers Insurance of Columbus, Inc., defendant-appellee, filed a motion for summary judgment arguing uninsured motorist coverage -3- under the insurance policy requires bodily injury be to an "insured person." Since the deceased does not qualify as an "insured person" under the policy, plaintiff-appellant was not entitled to coverage. Stanley Kocel, plaintiff-appellant, responded by filing his own motion for summary judgment and brief in opposition. Plaintiff- appellant argued that uninsured motorist coverage is personal to insureds. Since he is an insured under the policy, plaintiff- appellant argues the coverage extends to derivative, Wrongful Death Statute damages such as those he sustained by his brother's death. Moreover, plaintiff-appellant argues the limitations urged by defendant-appellee are impermissible under the requirements of R.C. 3937.18. On April 25, 1995, the trial court granted defendant-appellee's motion for summary judgment and denied plaintiff-appellant's similar motion. Plaintiff-appellant timely filed this appeal. II. FIRST AND SECOND ASSIGNMENT OF ERROR Since Stanley Kocel's, plaintiff-appellant's, first and second assignments of error contain similar issues of law and fact, this court will consider them concurrently. I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, FARMERS INSURANCE OF COLUMBUS. II. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT FILED BY PLAINTIFF- APPELLANT, STANLEY KOCEL. -4- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant argues the trial court erred in granting defendant-appellee's motion for summary judgment and in denying plaintiff-appellant's similar motion. Specifically, plaintiff- appellant argues that as an insured, he is entitled to coverage for injuries he received which are recognized by R.C. 2125.02. Moreover, plaintiff-appellant argues recent Ohio Supreme Court decisions not only mandate coverage, but also prohibit the type of restriction on uninsured motorist coverage as being violative of R.C. 3937.18, i.e., requiring bodily injury to the insured. Plaintiff-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues 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 reasonable minds can come but to 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. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. "Upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute -5- and that no genuine issue of material fact exists is on the party moving for the summary judgment." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND IN DENYING PLAINTIFF- APPELLEE'S SIMILAR MOTION. The uninsured motorist provision at issue reads in pertinent part: 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. * * * As used in this Part: 1. Insured person means: a. You or a family member. b. Any other person while occupying your insured car. c. Any person for damages that person is entitled to recover because of bodily injury to you, a family member, or another occupant of your insured car. -6- In the case sub judice, there is no dispute that plaintiff- appellant's brother was not an "insured person" under the insurance policy. The issue here concerns the validity of the restriction: "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." (Italics added.) Plaintiff-appellant argues the condition is invalid and violates R.C. 3937.18. Plaintiff-appellant primarily relies upon Sexton v. State Farm (1982), 69 Ohio St.2d 431, Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500 and Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478. For the following reasons, we disagree with plaintiff-appellant. In Sexton, the court recognized that for policy limitations to be valid, they cannot be contrary to the uninsured motorist coverage mandated by R.C. 3937.18(A). Id. at 433. The court held to come within the meaning of the statute: 1) the claimant must be an insured, 2) the claimant is legally entitled to recover damages, 3) the damages result from injury, sickness, disease or death and 4) the tortfeasor must be the owner and/or operator of an uninsured motor vehicle. Id. at 434, 435. In that case, the claimant qualified as an insured and was seeking damages he suffered as a result of his daughter's death at the hand of an uninsured motorist. The insurance company argued that under the terms of the policy, he could not recover because an insured did not sustain bodily injury. The court held -7- since the statute did not indicate who must have sustained bodily injury and said statute must be construed liberally, the restriction limiting coverage to only those insureds who sustained bodily injury was invalid. Id. at 435, 436. The court then awarded only those damages which the father was entitled to recover under the wrongful death statute from the tortfeasor, i.e, pecuniary injury and/or funeral expenses. Id. at paragraph two of the syllabus. Since this decision, different panels on this court have struggled with an insured's right to collect under his/her uninsured/underinsured motorist coverage for derivative damages, i.e., Wrongful Death damages, sustained by the death of an uninsured. See Tavzel v. Aetna Life & Cas. Co. (June 16, 1988), Cuyahoga App. No. 53931, unreported; Visocky v. Farmers Ins. of Columbus (1994), 98 Ohio App.3d 118; Dudash v. State Farm Mut. Auto. Ins. Co. (1994), 96 Ohio App.3d 348. Recently, this court, relying on Sexton, supra, held that an insured was "legally entitled to recover" underinsurance benefits from their automobile insurance policy for damages suffered by reason of a death of an uninsured under the Wrongful Death statute, R.C. 2125.02(A). Hydel v. Cincinnati Insurance Company (January 11, 1996), Cuyahoga App. No. 68552. unreported. However, this court's interpretation of R.C. 3937.18(A) has since been dispelled. On October 19, 1994, after the trial court's decision in Hydel supra, the General Assembly enacted Amended Substitute Senate Bill Number 20 which invalidated Savoie, supra, -8- and negated the holding in Sexton, supra. See, also, State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1. In that Bill, the legislature clarified that R.C. 3937.18(A) was meant to provide persons insured under the policy for loss due to bodily injury or death suffered by such person. The Bill reads in pertinent part: A. No automobile liability or motor vehicle liability policy of insurance *** shall be delivered or issued *** unless both of the following COVERAGES ARE PROVIDED TO PERSONS INSURED UNDER THE POLICY FOR LOSS DUE TO BODILY INJURY OR DEATH SUFFERED BY SUCH PERSONS: (1) Uninsured motorist coverage, which *** shall provide *** for the protection of persons 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, SUFFERED BY ANY PERSON INSURED UNDER THE POLICY. In this case, Amended Substitute Senate Bill Number 20 was enacted before the trial court's decision and therefore applicable towards its interpretation of R.C. 3937.18(A). See Bartlett v. Nationwide Mutl. Ins. Co. (1973), 33 Ohio St.2d 50. In accordance with the General Assembly's clarification of R.C. 3937.18(A), we can now hold that an insurance policy exclusion which limits uninsured/underinsured motorist coverage to bodily injury or death sustained by an insured does not violate R.C. 3937.18(A). Moreover, we believe today's decision comports with the rule set forth in Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478 which held "[t]he validity of an insurance policy exclusion of uninsured coverage depends on -9- whether it conforms to R.C. 3937.18." Id. at 480. For these reasons, the trial court did not err in granting defendant- appellee's motion for summary judgment. Judgment affirmed. -10- 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. TERRENCE O'DONNELL, J. and JOHN T. PATTON, J. CONCUR. DAVID T. MATIA 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 .