COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71734 IOLA WILSON, ET AL. : : : Plaintiffs-appellants : : : -vs- JOURNAL ENTRY : AND NATIONWIDE INSURANCE COMPANY : OPINION Defendant-appellee : : : DATE OF ANNOUNCEMENT : NOVEMBER 20, 1997 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 293890 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Jeffrey H. Friedman, Esq. Timothy D. Johnson, Esq. Stephen S. Vanek, Esq. Gregory E. O'Brien, Esq. Friedman, Domiano & Smith Daniel A. Richards, Esq. Co., L.P.A. Weston, Hurd, Fallon, Paisley & Sixth Floor - Standard Bldg. Howley, L.L.P. 1370 Ontario Street 2500 Terminal Tower Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ROCCO, J.: In this action for a declaratory judgment regarding coverage under two automobile insurance policies, plaintiff-appellants Patricia Berneski and Donald Fields appeal from the trial court order granting defendant-appellee Nationwide Mutual Insurance Company's ( Nationwide's ) motion for summary judgment. The trial court determined that pursuant to the policies, one of which was governed by the law of the state of Maryland, both appellants were precluded from recovery from Nationwide under the uninsured motorists ( UM ) provisions. This court has reviewed the record, finds the trial court's order was appropriate, and thus affirms it. This action stems from the death of Charles Wilson, who lived at 431 East 123rd Street in Cleveland, Ohio. On February 26, 1995, at the age of thirty-three, Wilson was struck and killed near his home by an automobile. Neither the driver nor the owner of the automobile had insurance coverage. Appellants are the adult siblings of Charles Wilson. Appellant Patricia Berneski lives in Silver Spring, Maryland. Appellant Donald Fields lives at 7217 Linnwood in Cleveland, Ohio. Wilson's mother Iola was appointed executrix of his estate. She and appellants subsequently filed an action for wrongful death and declaratory judgment against both the driver and the owner of the automobile and also against Nationwide. In the complaint, appellants asserted they were each the owner of a policy of insurance issued by Nationwide. Appellants further asserted that pursuant to these two policies, they were entitled to UM benefits -3- for the death of their brother. Appellants thus sought a declaration they be permitted to recover the full policy limits of their UM coverage from Nationwide. Nationwide filed an answer to the complaint and also a counterclaim for relief as to each appellant. Nationwide asserted appellants were not entitled to UM coverage for the claims they were making. A copy of each of appellants' insurance policies was attached to Nationwide's pleading. Appellant Berneski purchased her policy in Maryland in order to protect her two vehicles which were titled and principally garaged in Maryland. The policy was drafted in accordance with Maryland law and referred to Maryland law. UM coverage was provided in the amount of $50,000 per person and $100,000 per occurrence pursuant to the following agreement: 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, and because of property damage. Damages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use; of the uninsured motor vehicle. Berneski's policy stated the following in the Definitions section: 2. YOU and YOUR mean the policyholder and spouse if living in the same household. -4- 3. RELATIVE means one who regularly lives in your household and who is related to you by blood, marriage or adoption (including a ward or foster child). A relative may live temporarily outside your household. * * * 11. BODILY INJURY means: a) bodily injury; b) sickness; c) disease; or d) death of any person. Fields' policy provided UM coverage in the amount of $25,000 per person and $50,000 per occurrence. Pursuant to the most recent endorsement, the agreement provided: [Nationwide] 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. Damages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use; of the uninsured motor vehicle. In the Definitions section of Fields' policy, the following terms appeared: 2. YOU and YOUR means the policyholder and spouse if living in the same household. 3. 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. * * * 11. BODILY INJURY means: a) bodily injury; c) disease; or b) sickness d) death; of any person. -5- The parties pursued discovery in the action. Thereafter, Nationwide filed a motion for summary judgment. Nationwide argued that since appellants admitted in their answers to interrogatories the decedent was not a resident of either of their households, Nationwide owed no coverage under either of the policies. As to appellant Berneski, Nationwide contended Maryland law applied to bar coverage; appellant neither had insured the decedent under her policy as required by the Maryland UM statute nor was a surviving relative as defined in the Maryland wrongful death statute. As to both appellants, Nationwide argued the recent amendments to R.C 3937.18 permitted Nationwide to limit UM coverage to its insureds and their resident-relatives. Appellants filed a brief in opposition to Nationwide's motion. Therein, they argued the trial court should apply the law of Ohio to appellant Berneski's claims. They further argued that pursuant to Ohio law and the Definitions section of the policies, Nationwide had extended its coverage to encompass damages due to its insureds for the death of any person, which included the decedent. Thus appellants argued it was immaterial that decedent was a resident of either of their households at the time of his death. Nationwide responded with a reply brief. Thereafter, the trial court filed its opinion and order in which it ruled in Nationwide's favor. The trial court initially determined Maryland law applied to bar appellant Berneski's claim. The trial court further held that the newly-enacted version of R.C 3937.18 permitted Nationwide to -6- exclude from UM coverage non-resident relatives; therefore, appellant Fields was likewise barred from recovery. Thus, the trial court granted summary judgment for Nationwide on appellants' claims. Since the trial court's judgment entry complied with the requirements of Civ.R. 54(B) and R.C 2505.02, appellants thereafter filed a timely appeal in this court. Appellants present two assignments of error for review, which will be addressed in logical order. Appellants' second assignment of error states as follows: THE TRIAL COURT ERRED IN APPLYING THE LAW OF THE STATE OF MARYLAND TO THE POLICY ISSUED BY APPELLEE NATIONWIDE INSURANCE COMPANY TO APPELLANT PATRICIA BERNESKI. Appellants argue the trial court incorrectly determined appellant Berneski's insurance policy with Nationwide was governed by Maryland law. They contend since their declaratory judgment action was one based upon their decedent's wrongful death in Ohio, a tort, this court should apply Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339, to hold Ohio law control's Berneski's rights under the UM coverage of her policy. The argument appellants raise has been considered and rejected by the Ohio Supreme Court. Miller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624. Moreover, this court also has rejected the argument several times. For example, in Hunt v. Nationwide Mutual Insurance Co. (July 6, 1995), Cuyahoga App. No. 66562, unreported, the following observations were made: *** the Ohio Supreme Court has stated that an insurance company's obligation to its insured must be determined by the terms of the insurance policy, i.e., thecontract between the parties. Kurent v. Farmers Ins. -7- of Columbus, Inc. (1991), 62 Ohio St.3d 242. See, also, Motorist Mut. Ins. Co. v. Tomanski (1971), 17 Ohio St.2d 222. Thus, although a tortious injury may have led to the instant action, since it seeks essentially to determine appellee's contractual obligations to appellant, the action itself sounds in contract rather than tort. R.C 2721.03; Kurent v. Farmer's Ins. of Columbus, Inc., supra; Fiste v. Atlantic Mut. Ins. Co. (1994), 94 Ohio App.3d 165; cf., Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339; Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500; Peace v. Prudential Prop & Cas. Ins. Co. (Aug. 6, 1993), Erie App. No. E.- 92-60, unreported, rev'd. and remanded (1993), 68 Ohio St.3d 106; Nationwide Ins. Co. v. Fryer (1990), 62 Ohio App.3d 905; Duffy v. State Auto Mutual Ins. Co. (Mar. 16, 1995), Cuyahoga App. No. 67061, unreported. It is well settled in Ohio that in cases involving a contract, the law of the state where the contract is made governs interpretation of the contract. Nationwide Mut. Ins. Co. v. Ferrin (1986), 21 Ohio St.3d 43, 44. Furthermore, in deciding choice of law questions, the following are the relevant factors to be considered in cases involving the interpretation of contracts of insurance: (1) the location of the execution of the contract; (2) negotiation or performance of the contract; (3) the location of the subject matter of the contract; and (4) the domicile, residence, nationality, place of incorporationand place of business of the parties. Id. at 45, citing Restatement of the Law 2d, Conflict of Laws (1971), Section 188. See, also, Gries Sports Enterprises, Inc. v. Modell (1984), 15 Ohio St.3d 284; Fiste v. Atlantic Mut. Ins. Co., supra, at 167-168; General Acc. Ins. Co. v. Ins. Co. of North America (1990), 69 Ohio App.3d 52; Jarvis v. State Farm Mut. Auto. Ins. Co. [(Dec. 30, 1993) Cuyahoga App. No. 64597, unreported]. Slip opinion at 9-10. (Emphasis in original.) See, also, Saddler v. United Services Automobile Association (Nov. 16, 1995), Cuyahoga App. No. 68603, unreported; Hooker v. Nationwide Mutual Ins. Company (June 19, 1997), Cuyahoga App. No. 71472, unreported. Other Ohio appellate districts have agreed with the preceding analysis. Preferred RiskMutual Insurance Co. v. Reece (Dec. 30, 1994), Montgomery App. No. 14664, unreported; cf., Dick v. Motorists Insurance Companies (1995), 103 Ohio App.3d 441 at 445. -8- In this case, Berneski's policy was issued and delivered in Maryland for motor vehicles principally garaged and registered in that state. Since the contract made reference to Maryland law, and Berneski was a Maryland citizen, the parties clearly intended Maryland law to apply. Therefore, the trial court did not err in determining Berneski's policy was governed by Maryland law. Appellants further assert that even under Maryland law, appellant Berneski is entitled to recover for the death of her adult, nonresident brother. A perusal of the relevant statutes belies their assertion. Maryland's UM statute is set forth in Maryland Code 1957 Article 48(A), Section 541. Subsections (c)(i) and (ii) of this statute require UM coverage for wrongful death claims when the deceased person is one specifically insured under the policy in question. Thus, it is not applicable to this case. Additionally, under Maryland's UM statute, the surviving relatives as those persons are defined in Section 3-904 of the Court's article, are entitled to recover because of the death of the insured. However, pursuant to Section 3-904, the term surviving relatives is limited initially to the primary beneficiaries, i.e., the wife, husband, parent and child of the deceased. Secondary beneficiaries such as siblings may make a claim on ly if no primary beneficiaries exist. Flores v. King (1971), 13 Md.App. 270. Since the decedent's mother, plaintiff Iola Wilson, survived him, appellant Berneski does not meet the definition of a surviving relative under Maryland law. -9- Hence, the trial court erred neither in applying Maryland law to the policy issued to appellant Berneski nor in determining there was no issue of fact that appellant Berneski was barred from recovery against Nationwide for the death of her brother. Accordingly, appellants' second assignment of error is overruled. Appellants' first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE NATIONWIDE INSURANCE COMPANY, WHEN IT DETERMINED THAT APPELLANTS DONALD FIELDS AND PATRICIA BERNESKI ARE NOT ENTITLED TO RECOVER FOR THE DEATH OF THEIR BROTHER, CHARLES WILSON, UNDER THE UNINSURED MOTORIST COVERAGE IN THE POLICIES ISSUED TO THEM BY APPELLEE NATIONWIDE. Appellants argue that in including the phrase of any person in the definition of bodily injury, Nationwide extended the scope of its UM coverage to include them. Essentially, appellants assert the foregoing phrase negates Nationwide's attempt to limit UM coverage under the policy to the insured or the insured's resident relatives. Although appellants cite Sexton v. State Farm Mut. Auto Ins. Co. (1982), 69 Ohio St.2d 431 in support of their argument, it remains unpersuasive. R.C 3937.18, as amended effective October 24, 1994, states in pertinent part as follows: Section 3937.18 Mandatory offering of uninsured and underinsured motorist coverage. (A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following -10- coverages are provided to persons insured under the policyfor loss due to bodily injury or death suffered by such persons: (1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury or death under provisions approved by the superintendent of insurance, for the protection of persons insured 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. For purposes of division (A)(1) of this section, a person is legally entitled to recover damages if he is able to prove the elements of his claim that are necessary to recover damages from the owner or operator of the uninsured motor vehicle. *** Plainly, new R.C 3937.18(A)(1) requires insurers to provide UM coverage which insures against personal loss suffered only by an individual insured under the policy; thus derivative claims may be excluded. Cf., Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500. The Ohio Supreme Court has recently confirmed the constitutionality of the amended version of this statute. Beagle v. Walden (1997), 78 Ohio St.3d 59. Specifically, the court in Beagle stated that since judicial interpretation of the earlier version of the statute did not meet with the legislature's approval, [i]t was the General Assembly's prerogative to redress its dissatisfaction with new legislation. Even more recently, the Ohio Supreme Court has reiterated that the right to pursue an action under the UM portion of an insurance policy is one which is personal rather than derivative, since it has stated the right of recovery in the following terms: -11- *** [W]hen an uninsurance/underinsurance provider pays proceeds for the wrongful death of a policyholder, those proceeds are characterized as damages recovered by a personal representative under R.C Chapter 2125 **** because the insured party was killed (rather than injured) in the accident[;] the personal representative pursues the recovery the decedent is no longer capable of pursuing. See Thompson v. Wing (1994), 70 Ohio St.3d 176, 181, 637 N.E.2d 917, 921 (quoting from Griffiths v. The Earl of Dudley [1882], L.R., 9Q.B. 357, 363) (A wrongful death act does not give a new cause of action, but `substitute[s] the right of the representative to sue in the place of the right which the deceased himself would have had if he had survived.' ). The personal representative is, conceptually, stepping into the shoes of the insured decedent, and is the conduit through which the beneficiaries ultimately recover damages. Holt v. Grange Mut. Cas. Co (1997), 79 Ohio St.3d 401 at 406-407. (Footnote omitted.) Similarly, in Kocel v. Farmers Insurance of Columbus, Inc. (Mar. 7, 1996), Cuyahoga App. No. 69058, unreported,1 this court held as follows: 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 damagesfrom the owner or operator of an uninsured motor vehiclebecause of bodilyinjury 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). 1The Ohio Supreme Court dismissed the appeal of this court's decision in Kocel v. Farmer's Ins. of Columbus, Inc. (1997), 79 Ohio St.3d 1235. -12- 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. * * * 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. * * * On October 19, 1994 *** the General Assembly enacted Amended Substitute Senate Bill Number 20 which invalidated Savoie, supra, and negated the holding in Sexton, supra. See, also, State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1. *** * * * 1. 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 whether it conforms to R.C 3937.18. Id. at 480. The decisions in Beagle v. Walden, supra, and Kocel are dispositive of appellant's argument in this assignment of error. 2 2This case is distinguishable from the facts in Kocel regarding retroactivity, since in Kocel both the accident and the complaint occurred before the effective date of amended Senate Bill 20, whereas in the case at bar the accident occurred after. This -13- Moreover, appellants' attempt to circumvent the application of those cases to their action for declaratory judgment by relying upon the definitional language of the policies is unavailing. The identical policy language cited by appellants as ambiguous was deemed clear in Nationwide v. Wright (June 5, 1996), Lorain App. No.95CA006190, unreported; therein, appellants argument was summarily rejected. This court agrees with the analysis set forth in Wright. Read in context, the definitional language of bodily injury includes the phase of any person merely to clarify that protection extends only to human beings rather than to other living things. No further construction of the phrase is necessary. Hybud Equip Corp. v. Sphere-Drake Ins. Co (1992), 64 Ohio St.3d 657, 665; cf., Knowlton v. Nationwide Mut. Ins. Co. (1996), 108 Ohio App.3d 419. Appellant's argument, moreover, would render the policy's definition of relative meaningless. Since the policies at issue require the bodily injury to be suffered by one specifically insured or a resident relative, and appellants met neither the first requirement nor the second, the trial court's action was appropriate. The trial court properly determined no genuine issue of material fact remained and Nationwide was entitled to summary judgment on appellants' claims. Kocel v. Farmer's Insurance of Columbus, Inc., supra; Nationwide court thus offers Kocel for its analysis of the language of the policy, rather than its interpretation of retroactivity. See Simone v. Western Reserve Mutual Casualty Company (April 18, 1996), Cuyahoga App. No. 69236, unreported. -14- Mutual Insurance Company v. Wright, supra; Harris v. Mid-Century Ins. Co. (1996), 111 Ohio App.3d 399. Accordingly, appellants' first assignment of error is also overruled. Judgment affirmed. -15- 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 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. TIMOTHY E. McMONAGLE, J., CONCUR; DIANE KARPINSKI, P.J., CONCURS IN JUDGMENT ONLY _____________________________ JUDGE KENNETH A. ROCCO 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 of decision by the .