H. B. No. 481 As Introduced

As Introduced

127th General Assembly

Regular Session

2007-2008

H. B. No. 481

Representative Blessing

Cosponsors: Representatives Oelslager, Stebelton, Okey, Huffman, Hughes, Foley, Combs, Szollosi, Skindell

A BILL

To amend sections 2305.16 and 3937.18 of the Revised

Code to include in the definition of uninsured

motorist, operators who avoid liability because of

a "sudden emergency" plea, to prohibit uninsured

and underinsured coverage from limiting or

contracting certain coverage requirements, and to

include uninsured motorist and underinsured

motorist coverage in the current tolling of the

statute of limitations due to the person bringing

an action being within the age of minority or of

unsound mind.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2305.16 and 3937.18 of the Revised	12
Code be amended to read as follows:	13

Sec. 2305.16. Unless otherwise provided in sections 1302.98,	14
1304.35, ~~and~~ 2305.04 to 2305.14, and 3937.18 of the Revised Code,	15
if a person entitled to bring any action mentioned in those	16
sections, unless for penalty or forfeiture, is, at the time the	17
cause of action accrues, within the age of minority or of unsound	18
mind, the person may bring it within the respective times limited	19
by those sections, after the disability is removed. When the	20
interests of two or more parties are joint and inseparable, the	21
disability of one shall inure to the benefit of all.	22

After the cause of action accrues, if the person entitled to	23
bring the action becomes of unsound mind and is adjudicated as	24
such by a court of competent jurisdiction or is confined in an	25
institution or hospital under a diagnosed condition or disease	26
which renders the person of unsound mind, the time during which	27
the person is of unsound mind and so adjudicated or so confined	28
shall not be computed as any part of the period within which the	29
action must be brought.	30

Sec. 3937.18. (A) Any policy of insurance delivered or	31
issued for delivery in this state with respect to any motor	32
vehicle registered or principally garaged in this state that	33
insures against loss resulting from liability imposed by law for	34
bodily injury or death suffered by any person arising out of the	35
ownership, maintenance, or use of a motor vehicle, may, but is not	36
required to, include uninsured motorist coverage, underinsured	37
motorist coverage, or both uninsured and underinsured motorist	38
coverages.	39

Unless otherwise defined in the policy or any endorsement to	40
the policy, "motor vehicle," for purposes of the uninsured	41
motorist coverage, underinsured motorist coverage, or both	42
uninsured and underinsured motorist coverages, means a	43
self-propelled vehicle designed for use and principally used on	44
public roads, including an automobile, truck, semi-tractor,	45
motorcycle, and bus. "Motor vehicle" also includes a motor home,	46
provided the motor home is not stationary and is not being used as	47
a temporary or permanent residence or office. "Motor vehicle" does	48
not include a trolley, streetcar, trailer, railroad engine,	49
railroad car, motorized bicycle, golf cart, off-road recreational	50
vehicle, snowmobile, fork lift, aircraft, watercraft, construction	51
equipment, farm tractor or other vehicle designed and principally	52
used for agricultural purposes, mobile home, vehicle traveling on	53
treads or rails, or any similar vehicle.	54

(B) For purposes of any uninsured motorist coverage included	55
in a policy of insurance, an "uninsured motorist" is the owner or	56
operator of a motor vehicle if any of the following conditions	57
applies:	58

(1) There exists no bodily injury liability bond or insurance	59
policy covering the owner's or operator's liability to the	60
insured.	61

(2) The liability insurer denies coverage to the owner or	62
operator, or is or becomes the subject of insolvency proceedings	63
in any state.	64

(3) The identity of the owner or operator cannot be	65
determined, but independent corroborative evidence exists to prove	66
that the bodily injury, sickness, disease, or death of the insured	67
was proximately caused by the negligence or intentional actions of	68
the unidentified operator of the motor vehicle. For purposes of	69
division (B)(3) of this section, the testimony of any insured	70
seeking recovery from the insurer shall not constitute independent	71
corroborative evidence, unless the testimony is supported by	72
additional evidence.	73

(4) The owner or operator has diplomatic immunity.

(5) The owner or operator has immunity under Chapter 2744. of	75
the Revised Code.	76

(6) A court or jury determines that the operator is not	77
negligent in a motor vehicle accident due to the fact that the	78
operator was suddenly stricken by a period of unconsciousness	79
which the operator had no reason to anticipate and which rendered	80
it impossible for the operator to control the motor vehicle.	81

An "uninsured motorist" does not include the owner or	82
operator of a motor vehicle that is self-insured within the	83
meaning of the financial responsibility law of the state in which	84
the motor vehicle is registered.	85

(C) If underinsured motorist coverage is included in a policy	86
of insurance, the underinsured motorist coverage shall provide	87
protection for insureds thereunder for bodily injury, sickness, or	88
disease, including death, suffered by any insured under the	89
policy, where the limits of coverage available for payment to the	90
insured under all bodily injury liability bonds and insurance	91
policies covering persons liable to the insured are less than the	92
limits for the underinsured motorist coverage. Underinsured	93
motorist coverage in this state is not and shall not be excess	94
coverage to other applicable liability coverages, and shall only	95
provide the insured an amount of protection not greater than that	96
which would be available under the insured's uninsured motorist	97
coverage if the person or persons liable to the insured were	98
uninsured at the time of the accident. The policy limits of the	99
underinsured motorist coverage shall be reduced by those amounts	100
available for payment under all applicable bodily injury liability	101
bonds and insurance policies covering persons liable to the	102
insured.	103

For purposes of underinsured motorist coverage, an	104
"underinsured motorist" does not include the owner or operator of	105
a motor vehicle that has applicable liability coverage in the	106
policy under which the underinsured motorist coverage is provided.	107

(D) With respect to the uninsured motorist coverage,	108
underinsured motorist coverage, or both uninsured and underinsured	109
motorist coverages included in a policy of insurance, an insured	110
shall be required to prove all elements of the insured's claim	111
that are necessary to recover from the owner or operator of the	112
uninsured or underinsured motor vehicle for the purpose of the	113
insurer's determination of the accrual of the insured's claim.	114

(E) The uninsured motorist coverage, underinsured motorist	115
coverage, or both uninsured and underinsured motorist coverages	116
included in a policy of insurance shall not be subject to an	117
exclusion or reduction in amount because of any workers'	118
compensation benefits payable as a result of the same injury or	119
death.	120

(F) Any policy of insurance that includes uninsured motorist	121
coverage, underinsured motorist coverage, or both uninsured and	122
underinsured motorist coverages may, without regard to any	123
premiums involved, include terms and conditions that preclude any	124
and all stacking of such coverages, including but not limited to:	125

(1) Interfamily stacking, which is the aggregating of the	126
limits of such coverages by the same person or two or more	127
persons, whether family members or not, who are not members of the	128
same household;	129

(2) Intrafamily stacking, which is the aggregating of the	130
limits of such coverages purchased by the same person or two or	131
more family members of the same household.	132

(G) Any policy of insurance that includes uninsured motorist	133
coverage, underinsured motorist coverage, or both uninsured and	134
underinsured motorist coverages and that provides a limit of	135
coverage for payment of damages for bodily injury, including	136
death, sustained by any one person in any one automobile accident,	137
may, notwithstanding Chapter 2125. of the Revised Code, include	138
terms and conditions to the effect that all claims resulting from	139
or arising out of any one person's bodily injury, including death,	140
shall collectively be subject to the limit of the policy	141
applicable to bodily injury, including death, sustained by one	142
person, and, for the purpose of such policy limit shall constitute	143
a single claim. Any such policy limit shall be enforceable	144
regardless of the number of insureds, claims made, vehicles or	145
premiums shown in the declarations or policy, or vehicles involved	146
in the accident.	147

(H) Any policy of insurance that includes uninsured motorist	148
coverage, underinsured motorist coverage, or both uninsured and	149
underinsured motorist coverages may include terms and conditions	150
requiring that, so long as the insured has not prejudiced the	151
insurer's subrogation rights, each claim or suit for uninsured	152
motorist coverage, underinsured motorist coverage, or both	153
uninsured and underinsured motorist coverages be made or brought	154
within three years after the date of the accident causing the	155
bodily injury, sickness, disease, or death, or within one year	156
after the liability insurer for the owner or operator of the motor	157
vehicle liable to the insured has become the subject of insolvency	158
proceedings in any state, whichever is later.	159

(I) ~~Any~~Except as otherwise provided in this section, any	160
policy of insurance that includes uninsured motorist coverage,	161
underinsured motorist coverage, or both uninsured and underinsured	162
motorist coverages may include terms and conditions that preclude	163
coverage for bodily injury or death suffered by an insured under	164
specified circumstances, including but not limited to any of the	165
following circumstances:	166

(1) While the insured is operating or occupying a motor	167
vehicle owned by, furnished to, or available for the regular use	168
of a named insured, a spouse, or a resident relative of a named	169
insured, if the motor vehicle is not specifically identified in	170
the policy under which a claim is made, or is not a newly acquired	171
or replacement motor vehicle covered under the terms of the policy	172
under which the uninsured motorist coverage, underinsured motorist	173
coverage, or both uninsured and underinsured motorist coverages	174
are provided;	175

(2) While the insured is operating or occupying a motor	176
vehicle without a reasonable belief that the insured is entitled	177
to do so, provided that under no circumstances will an insured	178
whose license has been suspended, revoked, or never issued, be	179
held to have a reasonable belief that the insured is entitled to	180
operate a motor vehicle;	181

(3) When the bodily injury or death is caused by a motor	182
vehicle operated by any person who is specifically excluded from	183
coverage for bodily injury liability in the policy under which the	184
uninsured motorist coverage, underinsured motorist coverage, or	185
both uninsured and underinsured motorist coverages are provided;	186

(4) While any employee, officer, director, partner, trustee,	187
member, executor, administrator, or beneficiary of the named	188
insured, or any relative of any such person, is operating or	189
occupying a motor vehicle, unless the employee, officer, director,	190
partner, trustee, member, executor, administrator, beneficiary, or	191
relative is operating or occupying a motor vehicle for which	192
uninsured motorist coverage, underinsured motorist coverage, or	193
both uninsured and underinsured motorist coverages are provided in	194
the policy;	195

(5) When the person actually suffering the bodily injury,	196
sickness, disease, or death is not an insured under the policy.	197

(J) InNo policy of insurance that includes uninsured	198
motorist coverage, underinsured motorist coverage, or both	199
uninsured and underinsured motorist coverage shall include terms	200
and conditions that contradict or limit the provisions of this	201
section.	202

(K) In the event of payment to any person under the uninsured	203
motorist coverage, underinsured motorist coverage, or both	204
uninsured and underinsured motorist coverages, and subject to the	205
terms and conditions of that coverage, the insurer making such	206
payment is entitled, to the extent of the payment, to the proceeds	207
of any settlement or judgment resulting from the exercise of any	208
rights of recovery of that person against any person or	209
organization legally responsible for the bodily injury or death	210
for which the payment is made, including any amount recoverable	211
from an insurer that is or becomes the subject of insolvency	212
proceedings, through such proceedings or in any other lawful	213
manner. No insurer shall attempt to recover any amount against the	214
insured of an insurer that is or becomes the subject of insolvency	215
proceedings, to the extent of those rights against the insurer	216
that the insured assigns to the paying insurer.	217

~~(K)~~(L) Nothing in this section shall prohibit the inclusion	218
of underinsured motorist coverage in any uninsured motorist	219
coverage included in a policy of insurance.	220

~~(L)~~(M) The superintendent of insurance shall study the market	221
availability of, and competition for, uninsured and underinsured	222
motorist coverages in this state and shall, from time to time,	223
prepare status reports containing the superintendent's findings	224
and any recommendations. The first status report shall be prepared	225
not later than two years after ~~the effective date of this~~	226
~~amendment~~October 31, 2001. To assist in preparing these status	227
reports, the superintendent may require insurers and rating	228
organizations operating in this state to collect pertinent data	229
and to submit that data to the superintendent.	230

The superintendent shall submit a copy of each status report	231
to the governor, the speaker of the house of representatives, the	232
president of the senate, and the chairpersons of the committees of	233
the general assembly having primary jurisdiction over issues	234
relating to automobile insurance.	235

Section 2. That existing sections 2305.16 and 3937.18 of the	236
Revised Code are hereby repealed.	237

Section 3. It is the intent of the General Assembly in	238
amending section 2305.16 of the Revised Code pursuant to this act	239
to respond to Sarmiento v. Grange Mutual Casualty Company (2005),	240
106 Ohio St. 3d 403, by clarifing that the provisions of section	241
2305.16 of the Revised Code apply to claims of uninsured motorist	242
and underinsured motorist coverage.	243

It is further the intent of the General Assembly in amending	244
divisions (I) and (J) of section 3937.18 of the Revised Code	245
pursuant to this act to supercede the effect of the holding of the	246
Ohio Supreme Court in Snyder v. American Family Insurance Company	247
(2007), 114 Ohio St. 3d 239. The General Assembly further declares	248
its intent that division (I) of section 3937.18 of the Revised	249
Code does not make the other provisions of section 3937.18 of the	250
Revised Code merely advisory, but rather division (I) of section	251
3937.18 of the Revised Code permits terms and conditions that do	252
not limit or contradict the other provisions of the section.	253

It is further the intent of the General Assembly in amending	254
division (B) of section 3937.18 of the Revised Code pursuant to	255
this act to respond to Roman v. Estate of Gobbo (2003), 99 Ohio	256
St. 3d 260, by allowing insureds who have purchased uninsured	257
motorists coverage to be compensated under that coverage for	258
losses suffered as a result of accidents caused by persons who	259
avoid liability by proving the affirmative defense of "sudden	260
emergency."	261