Kocel v. Farmers Ins. of Columbus, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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KOCEL, APPELLANT, V. FARMERS INSURANCE OF COLUMBUS, INC., APPELLEE.
[Cite as Kocel v. Farmers Ins. of Columbus, Inc. (1997), ___ Ohio St.3d ___.]
Appeal dismissed as improvidently allowed.

(No. 96-1000 -- Submitted May 21, 1997 -- Decided October 1, 1997.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 69058.
__________________

Dubyak & Goldense Co., L.P.A., David W. Goldense and Paul V. Wolf, for
appellant.

Gallagher, Sharp, Fulton & Norman, D. John Travis and Gary L.
Nicholson, for appellee.

McCarthy, Palmer, Volkema, Boyd & Thomas and Michael S. Miller, urging
reversal for amicus curiae, Ohio Academy of Trial Lawyers.
__________________

The appeal is dismissed, sua sponte, as having been improvidently allowed.

MOYER, C.J., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.

ALICE ROBIE RESNICK, J., dissenting. I disagree with the majority's decision
to dismiss this case as improvidently allowed. This case involves a policyholder
who was not involved in a motor vehicle accident attempting to recover from his
own insurer under uninsured/underinsured motorist coverage as a wrongful death
beneficiary. The issue presented -- whether a policyholder can recover in such a
situation when an uninsured or underinsured tortfeasor caused the wrongful death
of a relative and the relative was not an "insured" under the implicated policy -- is
an issue that should be reviewed and resolved by this court. To decline to address
the question does a disservice to the courts of this state, and also to the parties

involved in litigation raising this issue. This identical issue will continue to arise
in future cases. We should address the merits of the issue today.

This case does not come to us as a certified conflict, but the courts of
appeals of this state have been split on whether the policyholder may recover from
his own insurer under former R.C. 3937.18 in this situation. There also exist
differing opinions within the same district. The panel of judges in the Eighth
Appellate District sitting on this case, in finding that coverage is not available, has
resolved the issue in a way that is not consistent with decisions in other cases
made by different panels within that district. See Hydel v. Cincinnati Ins. Co.
(Jan. 11, 1996), Cuyahoga App. No. 68552, unreported, 1996 WL 11316 (decided
shortly before the case sub judice), and Simone v. W. Res. Mut. Cas. Co. (Apr. 18,
1996), Cuyahoga App. No. 69236, unreported, 1996 WL 191768 (decided shortly
after the case sub judice).

Moreover, because of these diverse opinions, the appellate courts would
welcome guidance from this court on this issue. Some courts, particularly those
considering this issue in the late 1980s and early 1990s, have agreed with the
decision by the court of appeals in this case that coverage is not available. See,
e.g., Visocky v. Farmers Ins. of Columbus, Inc. (1994), 98 Ohio App.3d 118, 648
N.E.2d 6; Everage v. Illinois Natl. Ins. Co. (Mar. 2, 1993), Clark App. No.
CA2968, unreported, 1993 WL 55970; Brown v. Allstate Ins. Co. (1991), 81 Ohio
App.3d 87, 610 N.E.2d 478; Smith v. Erie Ins. Group (1990), 61 Ohio App.3d
794, 573 N.E.2d 1174; Monnot v. Motorists Mut. Ins. Co. (Mar. 27, 1989), Stark
App. No. CA-7632, unreported, 1989 WL 28687; Hill v. State Farm Mut. Auto.
Ins. Co. (Nov. 18, 1988), Lucas App. No. L-87-382, unreported, 1988 WL
121287; Tavzel v. Aetna Life & Cas. Co. (June 16, 1988), Cuyahoga App. No.
53931, unreported, 1988 WL 86717.

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However, several of the appellate districts rendering the above opinions
have reconsidered their positions, and have since held that coverage is available in
this situation. Among the opinions allowing recovery are Simone, supra; Hydel,
supra; Sherard v. State Farm Mut. Auto. Ins. Co. (May 22, 1996), Hancock App.
No. 5-95-34, unreported, 1996 WL 310125; United Serv. Auto. Assn. v. Mack
(May 17, 1995), Clark App. No. 94-CA-32, unreported, 1995 WL 301437;
Cincinnati Ins. Co. v. Jarvis (1994), 98 Ohio App.3d 155, 648 N.E.2d 30; Lynch v.
State Farm Mut. Auto. Ins. Co. (Mar. 21, 1994), Butler App. No. CA93-06-099,
unreported, 1994 WL 93163; Fay v. Motorists Ins. Co. (1992), 80 Ohio App.3d
63, 608 N.E.2d 836; Senig v. Nationwide Mut. Ins. Co. (1992), 76 Ohio App.3d
565, 602 N.E.2d 438; Barr v. Ins. Co. of N. Am. (1991), 72 Ohio App.3d 595, 595
N.E.2d 531.

While not expressing an opinion on how I believe the question presented
should be answered, I believe this court should provide an answer. The preceding
list of cases is a small sampling of the many cases in which recovery in this
situation was allowed. A perceivable emerging trend among the courts of appeals
is clearly in favor of recovery. This case presents us with the opportunity to either
approve or disapprove of that trend. Furthermore, since the decision of the court
of appeals in this case denying recovery is contrary to this trend, it seems grossly
unfair to these parties to dismiss this appeal as improvidently allowed without
considering this case on the merits.

DOUGLAS and F.E. SWEENEY, JJ., concur in the foregoing dissenting
opinion.

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