COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70421 RICHARD E. FIELDS : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MIDWESTERN INDEMNITY CO., ET : AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-296300 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendants-appellees: PAUL M. KAUFMAN, ESQ. JOHN G. FARNAN, ESQ. 801 Terminal Tower WESTON, HURD, FALLON, PAISLEY 50 Public Square & HOWLEY Cleveland, Ohio 44113 2500 Terminal Tower Cleveland, Ohio 44113-2241 - 2 - PER CURIAM: Appellant brought this declaratory judgment action against his insurance company to determine his rights under the underinsured motorist provision of his policy. Appellant was involved in an automobile accident on August 15, 1992 with Edna DeLuca. DeLuca's liability coverage had a $50,000.00 limit. Appellant settled with DeLuca's insurance company for $30,000.00 then proceeded to bring this suit pursuant to the underinsured motorist provision of his own policy. Appellee filed a declaratory judgment counter-claim against appellant, asserting that appellant had failed to exhaust the limits of the tortfeasor's insurance coverage prior to filing his claim under the underinsured motorist provision. The uninsured - underinsured motorists provision of appellee's amended policy read in relevant part as follows: We will pay damages, excluding punitive and exemplary damages, for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the underinsured vehicle. We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payments of judgments or settlements. Appellee filed a motion for summary judgment. The trial court determined that appellant had failed to exhaust the tortfeasor's limits and therefore is not entitled to underinsured motorists coverage. The court cited Biondic v. Nationwide Mut. Ins. Co. - 3 - (1988), 51 Ohio App.3d 179, Queen City Indemnity Co. v. Wastovich (1990), Cuyahoga App. No. 56888, unreported, and Motorists Mut. Ins. Co. v. Grischkan (1993), 86 Ohio App.3d 148. The trial court granted appellee's motion for summary judgment on March 5, 1996. Appellant filed a timely notice of appeal, pursuant to App.R. 11.1 and Loc.App.R. 25, asserting one assignment of error. I THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Appellant argues that the $30,000.00 settlement effectively exhausted the tortfeasor's liability limit of $50,000.00. Appellant claims that he is entitled to underinsured motorists coverage for any damages he has sustained exceeding $50,000.00. Appellant's argument is without merit. Exhaustion provisions have consistently been upheld by courts in Ohio as valid preconditions to the triggering of underinsured motorists coverage. Bogan v. Progressive Casualty Ins. Co. (1988), 36 Ohio St.3d 22 and Motorists Mut. Ins. Co. v. Grischkan (1993), 86 Ohio App.3d 148. The Ohio Supreme Court in Bogan determined that the exhaustion provision did not require that the entire amount available under the tortfeasor's liability coverage be recovered before a claim could be asserted under the underinsured motorists provision. However, the Bogan decision also warned that their interpretation of the exhaustion provision did not mean that an injured insured could "voluntarily or otherwise, abandon his claim against the tortfeasor or his insurer and so proceed directly - 4 - against the underinsured motorist insurer." Bogan v. Progressive Casualty Ins. Co., supra, at 28. This Court has held that the acceptance of sums in settlement which are significantly less than the tortfeasors' limits actually amounts to abandonment of the claims against the tortfeasors and their insurers. Amounts accepted in settlement which further the policy consideration of saving litigation expenses do not amount to abandonment of the claims. In Queen City Indemnity Co. v. Wastovich, supra, this Court held that a settlement of $20,000.00, where the limit of coverage was $50,000.00 amounted to an abandonment of the claim. In the other two cases cited by the trial court in its journal entry, Biondic v. Nationwide Mut. Ins. Co., supra, and Motorists Mutual Ins. Co. v. Grischkan, supra, it was found that the injured insureds did not have damages exceeding the tortfeasors' liability coverage, precluding the injured insureds from asserting any claims against their underinsured motorists coverage. This Court nevertheless held in Grischkan that a $75,000.00 settlement out of a possible $100,000.00 limit amounted to an abandonment of the claim. One case from the Franklin County Court of Appeals, Kuhner v. Erie Ins. Co. (1994), 98 Ohio App.3d 692, motion to certify overruled (1995), 71 Ohio St.3d 1474, has held that underinsured motorists coverage was not precluded by the injured insured accepting settlements amounting to 60% and 67% of the tortfeasors' - 5 - available liability limits. This case falls outside the parameters set by cases decided by this Court. We are constrained to follow precedent set within this jurisdiction and find that a settlement amounting to only 60% of the tortfeasor's possible liability coverage does not effectively exhaust the limits. It was not asserted that the $20,000.00 difference amounted to any savings in litigation costs. Nor was any evidence of actual medical expenses or other damages contained within the record for the trial court to determine whether or not the damages even exceeded the tortfeasor's liability limit of $50,000.00. Appellant did not raise this factual issue which may have precluded the trial court from granting a summary judgment motion. See Motorists Mut. Ins. Co. v. Grischkan, supra. We find that appellant did not exhaust the limits and is precluded from bringing a claim against his insurer under the underinsured motorists provision of his policy. Appellant's assignment of error is overruled. The trial court's determination of the rights and responsibilities of the parties is affirmed. - 6 - It is ordered that appellees recover of appellant their 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. _________________________________ JAMES D. SWEENEY, JUDGE _________________________________ ANN DYKE, JUDGE _________________________________ JOHN T. PATTON, 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 .