COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69419 EDWARD McDONALD, etc., et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION NATIONWIDE MUTUAL INSURANCE COMPANY: : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 8, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 269,608 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: KENT B. SCHNEIDER JAY S. SALAMON Attorneys at Law 1301 East Ninth Street, #500 Cleveland, Ohio 44114 For defendant-appellee: TIMOTHY D. JOHNSON GREGORY E. O'BRIEN DANIEL A. RICHARDS Attorneys at Law 2500 Terminal Tower Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: This is an appeal from the judgment rendered by the Cuyahoga County Court of Common Pleas in a declaratory judgment action pertaining to the availability of underinsured motorist coverage to Edward McDonald under an insurance policy issued by appellee Nationwide Mutual Insurance Company to Beverley Skelley, McDonald's ex-wife. The facts in this case have been stipulated to by all the parties. On April 14, 1991, Levi McDonald, the son of Edward McDonald and Beverley Skelley, was killed, along with five other persons, in an automobile accident caused by the negligence of an underinsured motorist. At the time of Levi McDonald's death, Edward McDonald and Beverley Skelley were divorced, and Edward McDonald was not living in Beverley Skelley's household. After settling with the tortfeasor's liability insurance carrier, Skelley and McDonald each presented underinsured motorist claims to their insurers, Nationwide and State Farm, respectively. Each policy provided uninsured/underinsured coverage in the amount of $100,000 per person/$300,000 per accident. State Farm paid McDonald $95,833.34 of underinsured motorist coverage pursuant to his policy. McDonald then sought additional UIM coverage under Skelley's Nationwide policy. - 3 - Nationwide denied coverage based upon the following language in the policy: Uninsured Motorists Coverage Agreement You and a Relative We will pay compensatory damages, including derivative claims, which are due by law to you or a relative from the owner of driver of an uninsured[/underinsured] motor vehicle because of bodily injury suffered by you or a relative. Under the policy, the term "bodily injury" includes death. Thus, the policy provided that damages would only be paid to Beverley Skelley or a "relative" of Beverley Skelley. The policy defines "relative" as one who regularly lives in one's household and who is related to that person by blood, marriage or adoption. This provision defining the term "relative" excluded McDonald from coverage since he was not related to Skelley by marriage and was not residing with her at the time of their son's accident. Nationwide nonetheless determined that the decedent and his brothers, Steven and Sean, were "relatives" under Skelley's policy since they were related to her by blood and were residents of her household and, in January, 1992, made the following payments pursuant to Skelley's policy: Beverley Skelley received $80,833.34; Steven Skelley, son of Beverley Skelley and brother of the decedent, received $10,000; Sean McDonald, son of Beverley Skelley and brother of the decedent, received $5,000. - 4 - The estate then brought this action seeking a declaration of the rights of McDonald under the Nationwide policy. Both parties filed a motion for summary judgment. The trial court granted Nationwide's motion. On appeal, appellants contend that the trial court erred in granting summary judgment for Nationwide because Skelley's policy unlawfully purports to cover only those wrongful death beneficia- ries who live with and are "related" to Beverley Skelley. Appel- lants urge us to find these definitional restrictions to coverage in the policy unreasonable and unenforceable under R.C. 3937.18. They maintain that Ohio law prohibits an insurance company from denying underinsured motorist coverage to persons, like McDonald, who are permitted by Ohio's wrongful death statute, R.C. 2125.02, to make a claim. See State v. Alexander (1992), 62 Ohio St.3d 397. Nationwide, on the other hand, argues that a person seeking to assert an underinsured motorist claim based on wrongful death must first qualify as an insured under the policy providing that coverage. See Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, paragraph four of the syllabus. Since McDonald fails to meet the contractual definition of an "insured," Nationwide urges this court to affirm the trial court's award of summary judgment in its favor. - 5 - Thus, we must decide whether a person seeking to assert an underinsured motorist claim based on wrongful death must first qualify as an insured under the policy providing that coverage. This precise issue was decided by this court in Simone v. Nationwide Ins. Co. (Nov. 3, 1994), Cuyahoga App. No. 67081, unreported. In Simone, the policyholder was killed by an unin- sured motorist. He was survived by his wife and two adult children. The children submitted uninsured motorists claims under their father's policy. The insurer denied coverage for the reason that the children did not qualify as insureds under the policy because they were not residents of their father's household. In affirming the judgment for the insurer, this court held: Devona and Louis Simone are not insureds under their father's insurance policy since they do not fall within the policy's definition of "relative." Since Devona and Louis Simone did not qualify as insureds under their father's policy, they may not seek separate per person claims through his policy based upon his wrongful death. See Berleman v. State Farm Mut. Auto. Ins. Co. (1992), 76 Ohio App.3d 81, 600 N.E.2d 1145. The trial court erred in granting the [e]state's, plaintiff-appellee, motion for summary judgment. Appellants disagree with this court's decision in Simone, and they specifically ask that it be reversed. They further ask that we adopt the position of the Third and Twelfth Appellate Districts of Ohio, which hold that statutory wrongful death beneficiaries may not be excepted from coverage even if they are not defined as insureds under the applicable policy. See Dion v. State Farm Mut. Auto. Ins. Co. (Mar. 24, 1992), Defiance App. No. 4-91-14, unre- - 6 - ported and Lynch v. State Farm Mut. Auto. Ins. Co. (Mar. 21, 1994), Butler App. No. CA-93-06-099, unreported. Upon review of the decisions in Simone, Dion and Lynch, we are persuaded that Simone is more in line with R.C. 3937.18 and the Ohio Supreme Court's decisions in the area of uninsured/under- insured motorist coverage than Dion and Lynch. See Wood v. Shepard (1988), 38 Ohio St.3d 86; Savoie v. Grange Mut. Ins. Co., supra. Cf., Sexton v. State Farm Mut. Automobile Ins. Co. (1992), 69 Ohio St.2d 431. In Wood, the court stated that only an "insured" under the underinsured motorist provision can recover under the policy for injury or wrongful death. In the words of the court: It is contended that the wrongful death statute, and specifically R.C. 2125.02, could be used, under today's decision, to permit recovery by persons who are not in any way contractually in privity with an underinsured carrier. This, of course, is not the case. Only an insured under the underinsured motor- ist provision can recover under the policy for injury or wrongful death. Appellee, herein, does not dispute that James, Jessica and Carrie Wood are all covered persons under the policy. (Emphasis added.) See, also, Savoie v. Grange Mut. Ins. Co., supra, paragraph four of the syllabus, applying Wood v. Shepard, supra ("Each person who is covered by an uninsured/underinsured policy and who is presumed to be damaged pursuant to R.C. 2125.01 has a separate claim subject to a per person policy limit.") (cites omitted; emphasis added); Cf., Sexton v. State Farm Mut. Automobile Ins. Co., supra at 434 ("To come within the meaning of [R.C. 3937.18], the first requirement is - 7 - that there be an insured. Sexton meets this qualification, for he was the owner of the policy and the named insured.") (Emphasis added.) In this case, it is undisputed that McDonald is not an in- sured under the policy since he is not a "relative," as that term is defined in the policy; i.e., he was neither married to Skelley nor residing with her at the time of their son's accident. There- fore, consistent with Simone, we find that since McDonald is not an insured under the policy, the trial court did not err in granting summary judgment in favor of Nationwide. The appellants' sole assignment of error is overruled. Judgment affirmed. - 8 - 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 Cuyahoga County 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. SARA J. HARPER, P.J. and ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .