Brown v. Erie Insurance

Pryatel, P.J.,

concurring. I concur with the majority for the following reasons:

R.C. 3937.18(A)(2) provides:

(1) Underinsured motorist coverage in an amount equal to the protection of the automobile liability coverage.

(2) Protection for an insured against loss (where the limits of coverage available for payment to the insured covering persons liable to the insured, are less than the amount for the insured’s uninsured motorist coverage).

It is undisputed that Brown’s policy with Erie (under her underinsured provision) provides, coverage of $50,000 per.person and $100,000 per accident.

It is equally undisputed that the tortfeasor has a single

limit

of $50,000 insurance. (In effect, $50,000 per accident.)

To the extent that the tortfeasor lacked the protection of $100,000 per accident, his coverage is less than the amount of Brown’s underinsured motorist coverage.

Hence, Erie (Brown’s carrier for underinsured motorist coverage) must provide protection to Brown for $50,000 less any payment already made to her under the tortfeasor’s personal injury liability coverage.

Appendix

Appellant’s assignments of error are:

I

“The trial court erred in granting defendant’s motion for summary judgment based upon the undisputed issues, thus, the judgment of the trial court is contrary to law.”

II

“The trial court committed error in granting judgment for defendant and against plaintiff on plaintiff’s motion for summary judgment or in the alternative for judgment on the pleadings as plaintiff is entitled to judgment as a matter of law.”

HI

“The trial court erred in ruling under the agreed and undisputed facts of this case that there was not a minimum of Fifteen Thousand Dollars ($15,000) additional coverage available to plaintiff under her Erie Insurance Company underinsured motorist policy.”

IV

“The trial court erred in its holding that a wrongdoer’s Fifty Thousand .Dollars ($50,000) single limit liability policy, which was reduced by the payment of Fifteen Thousand Dollars ($15,000) to another person injured in the same accident, provided to plaintiff insured the same coverage as

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her Fifty Thousand Dollars ($50,000) /One Hundred Thousand Dollars ($100,000.00) underinsured motorist coverage, so that there was no under-insured motorist coverage available to plaintiff under her own policy for this accident.”

y

“The trial court erred when it held that under Revised Code Section 3937.18[A](2), the underinsured motorist statute, that the language: '* * * limits of coverage available for payment to the insured * * *’ should be interpreted to mean only the ‘limits’ stated in the declarations of the wrongdoer’s liability policy and should ignore the language ‘available for payment to the insured * * *’ so that where a portion of the wrongdoer’s total limits is paid to some other person, thereby reducing the amount available for payment to the insured, that the insured is not entitled to recover the difference between what she actually received from the wrongdoer’s policy and her own underinsured motorist policy.”