COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70205 : ESTATE OF VIOLA S. SAGHY, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION NATIONWIDE INSURANCE COMPANY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-288267 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: GEORGE J. ARGIE, ESQ. JAMES A. SENNETT, ESQ. DOMINIC J. VITANTONIO, ESQ. ADAM E. CARR, ESQ. LOU D'AMICO, ESQ. LOUIS R. MOLITERNO, ESQ. ARGIE & ASSOCIATES WILLIAMS & SENNETT CO., L.P.A. 6571 Wilson Mills Road 126 W. Streetsboro Street Mayfield Village, Ohio 44143-3404 Suite 4 Hudson, Ohio 44236 - 2 - KARPINSKI, J.: Plaintiffs-appellants Ernest, Ashley and Melissa Saghy, and the estate of Viola Saghy appeal from an order of the trial court granting summary judgment in favor of defendant-appellee Nationwide Insurance Co. ("Nationwide") in this underinsured motorists coverage dispute. Following the death of decedent Viola Saghy after being struck by a motor vehicle on April 22, 1993, plaintiffs filed this action for breach of contract and declaratory judgment in the trial court. Plaintiffs alleged, inter alia, they were entitled to recover underinsured motorists benefits for decedent's wrongful death from Nationwide under an insurance policy issued by Nationwide to Ernest Saghy personally. Decedent Viola Saghy was the mother of Ernest and grandmother of Ashley and Melissa, but did not reside in the same household with any of them at the time of her death. Nationwide filed an answer denying the substantive allegations of plaintiffs' complaint. Nationwide thereafter filed a motion for summary judgment on the grounds that the claims were subject to a valid exclusion from coverage for relatives and that decedent's granddaughters had no cause of action for wrongful death. After both sides briefed the questions, the trial court granted Nationwide's motion for summary judgment. - 3 - Plaintiffs timely appeal raising the following two assignments of error: THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT, AND IN CONCLUDING THAT THE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. THE TRIAL COURT ERRED IN FINDING THAT ERNEST SAGHY IS NOT ENTITLED TO COVERAGE FOR THE DEATH OF HIS MOTHER PURSUANT TO THE AUTOMOBILE POLICY ISSUED BY NATIONWIDE INSURANCE TO ERNEST SAGHY. THE TRIAL COURT'S RELIANCE ON VISOCKY V. FARMERS INS. OF COLUMBUS (1994), 98 OHIO APP.3D 118, IS MISPLACED AS SAID CASE IS NOT DISPOSITIVE OF THE ISSUE HEREIN. These assignments are well taken. Plaintiffs argue they are entitled to recover underinsured motorists benefits from Nationwide under the terms of the policy issued to Ernest Saghy and that the provision restricting coverage to relatives who live in the same household as the 1 decedent is contrary to R.C. 3937.18. The policy in this case provides the following uninsured motorists coverage: 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 or driver of an uninsured motor vehicle because of bodily injury suffered by you or a relative. 1 Plaintiffs' complaint sought to recover underinsured motorists benefits under the policy issued by Nationwide to Ernest Saghy, but made no claim concerning the policy with lower coverage limits issued by Nationwide to decedent Viola Saghy. This appeal does not involve any issue concerning the policy issued to decedent. - 4 - Damages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use; of the uninsured motor vehicle. 2 (Uninsured Motorists Coverage Endorsement 2352. ) The definitions section of the policy defines the term "relative" as follows: "RELATIVE" means one who regularly lives in your household, related to you by blood, marriage or adoption (including a ward or foster child). A relative may live temporarily outside your household. (Page 2, Para. 3.) The law governing the recovery of underinsured motorist benefits following automobile accidents resulting in death has recently undergone considerable development. Courts throughout the state have reached conflicting opinions. The dispute concerns whether insurers may validly limit underinsured motorist coverage to persons who suffer death or bodily injury and/or their relatives who reside in the same household with them. This court recently surveyed the law in this area and recognized that insurers may not limit underinsured motorist benefits by adopting exclusions which violate R.C. 3937.18. See Hydel v. Cincinnati Ins. Co. (Jan. 11, 1996), Cuyahoga App. No. 2 There is no dispute that the uninsured motorist coverage endorsement in this case applies when the tortfeasor is either uninsured, or underinsured as in this case. - 5 - 68552, unreported. Hydel recognized that most Ohio courts applied Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, to find that such exclusions are invalid because they conflicted with R.C. 3937.18. Others courts, like this court in its prior opinion in Visocky v. Farmers Ins. of Columbus (1994), 98 Ohio App.3d 118, applied Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, to authorize the exclusion of coverage. Nationwide argues that this court should continue to follow its opinion in Visocky. However, we rejected this precise argument in Hydel because the Ohio Supreme Court changed its interpretation of R.C. 3937.18 since our opinion in Visocky. Hydel specifically declined to follow Visocky because the Supreme Court overruled Hedrick, upon which Visocky was based, in Martin v. Midwestern Group Ins. (1994), 68 Ohio St.3d 478. The Supreme Court's decision in Martin was rendered after our opinion in Visocky and eroded the foundation for its holding. Nationwide has made no persuasive argument to depart from Hydel's holding that the exclusion of uninsured motorist coverage for relatives who did not reside with the decedent is invalid under R.C. 3 3937.18 in cases involving fatal automobile accidents. 3 Two cases since Hydel have addressed whether the Senate Bill 20 amendments to R.C. 3937.18, effective after the accident in this case, may be applied to pending cases and have reached conflicting results. Compare Simone v. Western Reserve Mutual Ins. Co. (Apr. 18, 1996), Cuyahoga App. No. 69236, unreported; with Kocel v. Farmers Ins. of Columbus, Inc. (Mar. 7, 1996), Cuyahoga App. No. 69058, unreported, certiorari granted (1996), 76 Ohio St.3d 1495. We need not address this issue because Nationwide has (continued...) - 6 - Accordingly, the two assignments of error are well taken. Judgment reversed and remanded for further proceedings. 3 (...continued) made no argument concerning the application of these amendments, effective October 20, 1994, to this case. - 7 - This cause is reversed and remanded for further proceedings. It is, therefore, ordered that appellants recover of appellee their costs herein taxed. 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. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .