OHIO SUPREME COURT AGREES TO HEAR NEW INSURANCE CASE ("Other Owned Vehicle Exclusion")

**NOTE: THE OHIO SUPREME COURT HAS RULED ON THIS CASE. SEE BLOG UPDATE OF JANUARY 3, 2009

OHIO SUPREME COURT - Accepts appeal of case interpreting "Other Owned Vehicle" Exclusion.

2007-1760-Lager v. Miller-Gonzalez

Lucas County
Accepted by Ohio Supreme Court on December 12, 2007
Pfeifer, J., dissents

INSURANCE –
OTHER OWNED VEHICLE EXCLUSION –
“BECAUSE OF BODILY INJURY” VS. “FOR BODILY INJURY”

2007-1760-Lager v. Miller-Gonzalez

Lucas County
Accepted on December 12, 2007
Pfeifer, J., dissents

FACTS ON APPEAL

In 2003, Sara Lager died from injuries suffered while riding as a passenger in her own vehicle. The vehicle was insured by appellant Nationwide Mutual Fire Insurance Company. Her parents were also insured through a separate Nationwide policy. The parents filed a claim for Sara’s wrongful death under their own insurance policy.

The parents' policy purports to pay “compensatory damages…because of bodily injury suffered by you or a relative….” The other owned vehicle exclusion provides: “This coverage does not apply to anyone for bodily injury …While any insured operates or occupies a motor vehicle ….owned by….you or a relative, but not insured…under this policy.” The vehicle was owned by Sara and not insured under her parents’ policy.

The successful argument was the the parents wrongful death claim was derivative and clearly "because" of bodily injury, including death. The "other owned vehicle" exclusion only precluded direct claims "for" bodily injury, which did not include a derivative wrongful death action. Therefore, the claim was covered and not excluded.

The trial court granted summary judgment to the parents. The court of appeals affirmed.

ISSUE ON APPEAL

Appellant’s Position

Use of the language “because of bodily injury” in an insurance policy’s coverage section and the language “for bodily injury” in an exclusion does not create an ambiguity, because there is no rational distinction between two phrases. Claims for wrongful death are clearly claims “for bodily injury,” and thus not covered pursuant to the other owned vehicle exclusion.

Appellees’ Position

The language of the exclusion here does not apply to wrongful death claims. Wrongful death claims are not “for bodily injury,” although they may arise out of bodily injury. Appellees do not seek recovery for their bodily injury, but for the loss of their daughter. The courts should not rewrite insurance contracts.

*We will be sure to follow this case and provide an update once the Ohio Supreme Court renders its decision.