130th Ohio General Assembly
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As Introduced

122nd General Assembly
Regular Session
1997-1998
H. B. No. 261

REPRESENTATIVES HOTTINGER-BATCHELDER-BUCHY-GARCIA-HOUSEHOLDER- TIBERI-VAN VYVEN-MASON-METELSKY-TAVARES-OLMAN


A BILL
To amend section 3937.18 of the Revised Code to modify Ohio's Uninsured and Underinsured Motorists Law by limiting the insured's right to recover when the owner or operator of the uninsured motor vehicle has an immunity; by requiring independent corroborative evidence to recover for injuries caused by an unidentified motorist; and by making other modifications to the scope of and coverage under the Uninsured and Underinsured Motorists Law.

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


Section 1. That section 3937.18 of the Revised Code be amended to read as follows:

Sec. 3937.18. (A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following coverages are provided OFFERED to persons insured under the policy for loss due to bodily injury or death suffered by such persons INSUREDS:

(1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury, SICKNESS, or DISEASE, INCLUDING death under provisions approved by the superintendent of insurance, for the protection of persons insured INSUREDS thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, suffered by any person insured under the policy.

For purposes of division (A)(1) of this section, a person AN INSURED is legally entitled to recover damages if he THE INSURED is able to prove the elements of his THE INSURED'S claim that are necessary to recover damages from the owner or operator of the uninsured motor vehicle. The fact that the owner or operator of the uninsured motor vehicle has an immunity, whether based upon a statute or the common law, UNDER CHAPTER 2744. of the Revised Code that could be raised as a defense in an action brought against him THE OWNER OR OPERATOR by the person insured under uninsured motorist coverage does not affect the insured person's INSURED'S right to recover under his uninsured motorist coverage. HOWEVER, ANY OTHER TYPE OF STATUTORY OR COMMON LAW IMMUNITY THAT MAY BE A DEFENSE FOR THE OWNER OR OPERATOR OF AN UNINSURED MOTOR VEHICLE SHALL ALSO BE A DEFENSE TO AN ACTION BROUGHT BY THE INSURED TO RECOVER UNDER UNINSURED MOTORIST COVERAGE.

(2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured INSUREDS THEREUNDER against loss for bodily injury, sickness, or disease, including death, suffered by any person insured under the policy, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage. Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverages, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident. The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.

(B) Coverages offered under division (A) of this section shall be written for the same limits of liability. No change shall be made in the limits of one of these coverages without an equivalent change in the limits of the other coverage.

(C) The A named insured OR APPLICANT may only reject or accept both coverages offered under division (A) of this section. The A named insured OR APPLICANT may require the issuance of such coverages for bodily injury or death in accordance with a schedule of optional lesser amounts approved by the superintendent, that shall be no less than the limits set forth in section 4509.20 of the Revised Code for bodily injury or death. Unless the A named insured OR APPLICANT requests such coverages in writing, such coverages need not be provided in or supplemental to a POLICY renewal OR REPLACEMENT policy where the A named insured OR APPLICANT has rejected the coverages in connection with a policy previously issued to him THE NAMED INSURED OR APPLICANT by the same insurer. If the A named insured OR APPLICANT has selected uninsured motorist coverage in connection with a policy previously issued to him THE NAMED INSURED OR APPLICANT by the same insurer, such THE coverages offered under division (A) of this section need not be provided in excess of the limits of the liability previously issued for uninsured motorist coverage, unless the A named insured OR APPLICANT requests in writing higher limits of liability for such coverages. THE REJECTION OF SUCH COVERAGES, OR THE ELECTION OF LOWER LIMITS, BY ANY NAMED INSURED OR APPLICANT SHALL BE BINDING ON ALL INSUREDS.

(D) For the purpose of this section, a motor vehicle is SHALL BE DEEMED uninsured if the IN EITHER OF THE FOLLOWING CIRCUMSTANCES:

(1) THE liability insurer denies coverage or is or becomes the subject of insolvency proceedings in any jurisdiction;

(2) THE IDENTITY OF THE OWNER AND OPERATOR OF THE MOTOR VEHICLE CANNOT BE DETERMINED, BUT INDEPENDENT CORROBORATIVE EVIDENCE EXISTS TO PROVE THAT THE BODILY INJURY, SICKNESS, DISEASE, OR DEATH OF THE INSURED WAS PROXIMATELY CAUSED BY THE NEGLIGENCE OR INTENTIONAL ACTIONS OF THE UNIDENTIFIED OPERATOR OF THE MOTOR VEHICLE. FOR PURPOSES OF THIS DIVISION, THE TESTIMONY OF ANY INSURED SEEKING RECOVERY FROM THE INSURER SHALL NOT CONSTITUTE INDEPENDENT CORROBORATIVE EVIDENCE, UNLESS THE TESTIMONY IS SUPPORTED BY ADDITIONAL EVIDENCE.

(E) In the event of payment to any person under the coverages required OFFERED by this section and subject to the terms and conditions of such coverages, the insurer making such payment to the extent thereof is entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury or death for which such payment is made, including any amount recoverable from an insurer which is or becomes the subject of insolvency proceedings, through such proceedings or in any other lawful manner. No insurer shall attempt to recover any amount against the insured of an insurer which is or becomes the subject of insolvency proceedings, to the extent of his THOSE rights against such insurer which such insured assigns to the paying insurer.

(F) The coverages required OFFERED by this section shall not be made subject to an exclusion or reduction in amount because of any workers' compensation benefits payable as a result of the same injury or death.

(G) Any automobile liability or motor vehicle liability policy of insurance that includes coverages offered under division (A) of this section may, without regard to any premiums involved, include terms and conditions that preclude any and all stacking of such coverages, including but not limited to:

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

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

(H) Any automobile liability or motor vehicle liability policy of insurance that includes coverages offered under division (A) of this section and that provides a limit of coverage for payment for damages for bodily injury, including death, sustained by any one person in any one automobile accident, may, notwithstanding Chapter 2125. of the Revised Code, include terms and conditions to the effect that all claims resulting from or arising out of any one person's bodily injury, including death, shall collectively be subject to the limit of the policy applicable to bodily injury, including death, sustained by one person, and, for the purpose of such policy limit shall constitute a single claim. Any such policy limit shall be enforceable regardless of the number of insureds, claims made, vehicles or premiums shown in the declarations or policy, or vehicles involved in the accident.

(I) Nothing in this section shall prohibit the inclusion of underinsured motorist coverage in any uninsured motorist coverage provided in compliance with this section.

(J) THE COVERAGES OFFERED UNDER DIVISION (A) OF THIS SECTION MAY INCLUDE TERMS AND CONDITIONS THAT PRECLUDE COVERAGE FOR BODILY INJURY OR DEATH SUFFERED BY AN INSURED UNDER EITHER OF THE FOLLOWING CIRCUMSTANCES:

(1) WHILE THE INSURED IS OPERATING OR OCCUPYING A MOTOR VEHICLE OWNED BY, FURNISHED TO, OR AVAILABLE FOR THE REGULAR USE OF THE INSURED, A SPOUSE, OR A RESIDENT RELATIVE, IF THE MOTOR VEHICLE IS NOT DESCRIBED IN THE POLICY UNDER WHICH A CLAIM IS MADE, OR IS NOT A NEWLY ACQUIRED OR REPLACEMENT MOTOR VEHICLE COVERED UNDER THE TERMS OF THE POLICY;

(2) WHILE THE INSURED IS OPERATING OR OCCUPYING A MOTOR VEHICLE WITHOUT A REASONABLE BELIEF THAT THE INSURED IS ENTITLED TO DO SO, PROVIDED THAT UNDER NO CIRCUMSTANCES WILL AN INSURED WHOSE LICENSE HAS BEEN SUSPENDED, REVOKED, OR NEVER ISSUED, BE HELD TO HAVE A REASONABLE BELIEF THAT THE INSURED IS ENTITLED TO OPERATE A MOTOR VEHICLE.

(K) AS USED IN THIS SECTION, "UNINSURED MOTOR VEHICLE" AND "UNDERINSURED MOTOR VEHICLE" DO NOT INCLUDE ANY OF THE FOLLOWING MOTOR VEHICLES:

(1) A MOTOR VEHICLE INSURED WITHOUT ANY APPLICABLE EXCLUSION UNDER THE LIABILITY COVERAGE OF THE SAME POLICY OF WHICH THE UNINSURED AND UNDERINSURED MOTOR VEHICLE COVERAGE IS A PART;

(2) A MOTOR VEHICLE OWNED BY, FURNISHED TO, OR AVAILABLE FOR THE REGULAR USE OF THE INSURED, A SPOUSE, OR A RESIDENT RELATIVE;

(3) A MOTOR VEHICLE DURING THE TIME IT IS OPERATED BY ANY PERSON WHO IS SPECIFICALLY EXCLUDED FROM COVERAGE FOR BODILY INJURY LIABILITY UNDER THE POLICY OF WHICH THE UNINSURED AND UNDERINSURED MOTOR VEHICLE COVERAGE IS A PART;

(4) A MOTOR VEHICLE OWNED BY A POLITICAL SUBDIVISION, UNLESS THE OPERATOR OF THE MOTOR VEHICLE HAS AN IMMUNITY UNDER CHAPTER 2744. OF THE REVISED CODE THAT COULD BE RAISED AS A DEFENSE IN AN ACTION BROUGHT AGAINST THE OPERATOR BY THE INSURED;

(5) A MOTOR VEHICLE SELF-INSURED WITHIN THE MEANING OF THE FINANCIAL RESPONSIBILITY LAW OF THE STATE IN WHICH THE MOTOR VEHICLE IS REGISTERED.


Section 2. That existing section 3937.18 of the Revised Code is hereby repealed.
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