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2007-0549 and 2007-0684. Rogers v. Dayton, Slip Opinion No. 2008-Ohio-2336.
Montgomery App. No. 21593, 2007-Ohio-673. Certified question answered in the affirmative and judgment reversed.
Pfeifer, Lundberg Stratton, O'Connor, and O'Donnell, JJ., concur.
Moyer, C.J., and Lanzinger and Cupp, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2336.pdf
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(May 21, 2008) In a case interpreting a former version of Ohio’s uninsured/underinsured motorist (UM/UIM) law, the Supreme Court of Ohio ruled today that a municipality was self-insured for purposes of former R.C. 2937.18(K)(3) if it qualified as a self-insurer under R.C. Chapter 4509, even though the municipality was not required to obtain a certificate of self-insurance. The Court’s 4-3 majority opinion was written by Justice Evelyn Lundberg Stratton.
In April 2002, Western Rogers was injured in a traffic accident caused by a Dayton city employee, Earl Moreo, while Moreo was driving a city-owned vehicle in the course of his public employment. Rogers attempted to recover for his damages by suing Moreo and the city. He subsequently amended his complaint to include a claim for uninsured motorist (UM) coverage under his own personal auto policy issued by State Farm Insurance. The city and Moreo filed a motion for summary judgment dismissing them as defendants in the suit. They asserted that because the city was neither covered by a policy of insurance nor self-insured under the terms of Ohio’s financial responsibility statute, the city and Moreo, its employee, were therefore immune from civil liability for Rogers’ injuries under R.C. Chapter 2477, Ohio’s sovereign immunity law.
The trial court granted summary judgment in favor of the plaintiff, holding that the city vehicle qualified as “uninsured” under the version of R.C. 2937.18 in force at the time of the accident, and that Rogers was therefore eligible to recover for his damages from State Farm under the UM coverage in his own policy. State Farm appealed to the 2nd District Court of Appeals. The appellate panel affirmed the trial court’s judgment, but also certified that its ruling was in conflict with a 2004 ruling by the 1st District in a similar case. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
In today’s majority opinion, which reversed the 2nd District’s holding, Justice Stratton wrote: “The appellate court relied on the statutory definition in former R.C. 3937.18(K)(3), which excluded from the definition of uninsured motor vehicles ‘[a] motor vehicle self-insured within the meaning of the financial responsibility law of the state in which the motor vehicle is registered.’ The court concluded that Dayton did not qualify as self-insured under R.C. Chapter 4509 because it did not have a certificate of self-insurance from the registrar of motor vehicles. Therefore, for purposes of UM/UIM coverage under former R.C. 3937.18, the motor vehicle that caused Rogers’s injuries was uninsured. … The provisions of R.C. Chapter 4509, however, do not apply to motor vehicles owned and operated by a political subdivision of the state (with the exception of R.C. 4509.06, which involves filing an accident report). R.C. 4509.71. Therefore, Dayton did not have a certificate of self-insurance from the registrar because it was not legally required to obtain one. … Former R.C. 3937.18(K)(3), however, does not require filing of proof of self-insurance — only that the vehicle be ‘self-insured within the meaning of the financial responsibility law.’ (Emphasis added.) Dayton meets that threshold.”
“There is no dispute that Dayton does not have a certificate of self-insurance because it is exempt from the requirements of R.C. Chapter 4509,” wrote Justice Stratton. “Nevertheless, Dayton complied with the financial responsibility law that applies to political subdivisions by creating a self-insurance program for political-subdivision tort-liability purposes as authorized under former R.C. 2744.08(A). … Because former R.C. 3937.18(K)(3) does not specifically refer to R.C. Chapter 4509, we hold that Dayton is self-insured ‘within the meaning of the financial responsibility law of the state,’ and its vehicle is not uninsured for purposes of R.C. 3937.18(K)(3).”
The majority opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor and Terrence O’Donnell.
Chief Justice Thomas J. Moyer entered a dissent that was joined by Justices Judith Ann Lanzinger and Robert R. Cupp. The Chief Justice disputed the majority’s reading of the former UM/UIM statute to exclude the city-owned vehicle operated by Moreo from the category of “uninsured” vehicles eligible for UM/UIM coverage under Rogers’ personal insurance policy.
He wrote: “Former R.C. 3937.18(K)(2) provides that a car is not uninsured or underinsured if it is ‘[a] motor vehicle owned by a political subdivision, unless the operator of the motor vehicle has an immunity under Chapter 2744 of the Revised Code that could be raised as a defense in an action brought against the operator by the insured.’ ... In the present case, the car at issue was owned by the city of Dayton and operated by a city employee who was immune from liability under Chapter 2744 of the Revised Code. By the express terms of former R.C. 3937.18(K)(2), the car is therefore uninsured or underinsured. The majority holds the exact opposite – that Dayton is self-insured and therefore not uninsured or underinsured under former R.C. 3937.18(K)(3).”
Contacts
Mark H. Gams, 614.228.5151, for
State Farm Insurance Co.
Patrick J. Bonfield, 937.333.4100, for the city of Dayton and Earl Moreo.