UPDATE OF UM COVERAGE PROVIDED BY OPERATION OF LAW APRIL 19, 2002

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UPDATE OF UM COVERAGEPROVIDED BY OPERATION OF
LAWAPRIL 19, 2002

• Robert W. Kerpsack, Esq.,
• ROBERT W. KERPSACK CO., L.P.A.
• 21 East State Street, Suite 300
• Columbus, OH 43215
• Telephone [phone]
• Facsimile [phone]
• E-mail bob_at_rwklaw.com

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UM COVERAGE BY OP. OF LAWRECENT APPELLATE CASE
LAW

• Shropshire v. Hamilton Mut. Ins. Co. (October 5,
  2001), Montgomery App. No. 18803 and 18814,
  unreported
• German v. Therm-O-Disc, Inc. (March 28, 2002),
  Richland App. No. 01CA51-2, unreported
• Davis v. State Farm Fire and Cas. (December 18,
  2001), Franklin App. No. 00AP-1458, unreported
• Lemm v. The Hartford (October 4, 2001), Franklin
  App. No. 01AP-251, unreported, appeal to OH SC
  allowed at 93 Ohio St.3d 1474
• Zurcher v. National Surety Corp. (February 25,
  2002), Stark App. No. 2001CA00197, unreported

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DEFUSING UM DEFENSES (UM coverage provided by
operation of law)

• Scott-Pontzer, at 666
• Any policy restrictions intended to apply solely
  to the liability coverage do not apply to UM/UIM
  coverage provided by operation of law.
• Citing Demetry v. Kim (1991), 72 Ohio App.3d 692,
  698, 595 N.E.2d 997, 1001

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LATE NOTICE OF UIM CLAIM/FAILURE TO PROTECT SUBRO

• FATAL PER SOME APPELLATE COURTS
• See Luckenbill v. Midwestern Indem. Co. (June 1,
  2001), Darke App. No. 1536, unreported
  homeowners policynotice and subrogation
  provisions are coverage conditions, not
  coverage restrictions.
• But. . ., discretionary appeal allowed by Ohio
  Supreme Court and determination that a conflict
  exists at 93 Ohio State 3d 1487 oral argument
  scheduled June 4, 2002.

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LATE NOTICE OF UIM CLAIM/FAILURE TO PROTECT SUBRO

• BUT SEE. . . German v. Therm-O-Disc, Inc. (March
  28, 2002), Richland App. No. 01CA51-2,
  unreported.
• UM coverage provided by operation of law is not
  subject to any of the notice or subrogation
  requirements attributable to the liability
  coverage or contained within the general policy
  conditions
• Motion to certify conflict with Luckenbill filed
  4/8/02

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SELF-INSURED RETENTIONS/ DEDUCTIBLE AMOUNTS

• QUERY Are fronting policies (equal coverage
  and deductible amounts) subject to R.C. 3937.18?
• Yes, according to Eby v. Zurich Am. Ins. Co.
  (November 30, 2001), Cuyahoga C.P. No. 408279,
  unreported and Gilchrist v. Gonsor (February 6,
  2002), Cuyahoga C.P. No. 420200, unreported
  unless certificate of self-insurance filed with
  State.
• See also German v. Therm-O-Disc, Inc. (March 28,
  2002), Richland App. No. 2001CA51-2, unreported
  UIM coverage provided by operation of law is
  not subject to deductible amounts attributable to
  liability coverage.

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EMPLOYERS POLICIES

• Query Do commercial policies insuring sole
  proprietorships provide UM coverage for
  employees?
• No Pontzer you ambiguity therefore, no
  employee UM coverage by operation of law. See
  Geren v. Westfield Ins. Co. (March 8, 2002),
  Lucas App. No. L-01-1398, unreported. See also
  Reinbolt v. Gloor (September 1, 2001), Henry App.
  No. 7-01-05, unreported.
• But see Shropshire v. Hamilton Mut. Ins. Co.
  (October 5, 2001), Montgomery App. Nos. 18803 and
  18814, unreported (an employee of a partnership
  is an insured under a CGL policy providing UM
  coverage by operation of law).

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EMPLOYERS POLICIESWHO IS INSURED?

• QUERY Are resident relatives of employees
  household covered under un/underinsured motorist
  coverage that is provided by employers policy by
  operation of law?
• Yes, according to Ezawa v. Yasuda Fire Marine
  (1999), 86 Ohio St. 3d. 557 and Still v. Indiana
  Ins. Co. (February 25, 2002), Stark App. No. 2001
  CA 00300), unreported.

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HOMEOWNERS-TYPE POLICIES

• Lemm v. The Hartford (October 4, 2001), Franklin
  App. No. 01AP-251, unreported pre-H.B. 261
  policy conflict certified by Ohio Supreme Court
  at 93 Ohio St.3d 1474 on the following issue
• When a homeowners insurance policy provides
  express liability for damages arising from a
  motor vehicle accident when the injured party is
  the homeowners residence employee and the injury
  occurred in the course of that employment, is the
  policy deemed an automobile liability or motor
  vehicle policy subject to the requirement of
  former R.C. 3937.18 to offer uninsured and
  underinsured coverage?

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HOMEOWNERS-TYPE POLICIES

• QUERY Are homeowners policies providing motor
  vehicle coverage for residence employees and
  issued after the effective date of H.B. 261
  (9/3/97) motor vehicle liability insurance
  policies that are subject to R.C. 3937.18?
• Yes, according to Davis v. State Farm Fire and
  Cas. (December 18, 2001), Franklin App. No.
  00AP-1458, unreported.
• No, according to Jones v. Nationwide Ins. Co.
  (July 23, 2001), Stark App. No. 2000CA0329,
  unreported, appeal to OH Sup. Ct. allowed at 93
  Ohio St.3d 1496 (stayed pending Lemm, a pre-HB
  261 policy).

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R.C. 3937.31(A) TWO-YEAR UM/UIM COVERAGE GUARANTEE

• Wolfe v. Wolfe (2000), 88 Ohio St.3d 246
• R.C. 3937.31(A) provides a two year guarantee
  period during which a policy cannot be altered.
  The guarantee period is not limited to the first
  two years after inception of the policy.
• A new 2-year guarantee period commences every two
  years

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WOLFE v. WOLFE

• Query
• Does Wolfe apply equally to commercial policies
  and personal/consumer policies?
• Yes, according to Shropshire v. Hamilton Mut.
  Ins. Co. (October 5, 2001), Montgomery App. Nos.
  18803 and 18814, unreported and Carper v. Valley
  Forge Ins. Co. (March 20, 2002), U.S. Dist. Court
  (S. D. OH) No. C-1-01-281, unreported.
• No, according to Zurcher v. National Surety Corp.
  (February 25, 2002), Stark App. No. 2001CA00197,
  unreported.