Can a Set Off and Anti-Stacking Provisions Be Enforced Under Underinsured Motorist Coverage In Context of Wrongful Death Claims ?
In Wood v. Shephard (1988), 38 Ohio St. 3d 86, the Court considered the enforceability of set off and anti-stacking provisions under underinsured motorist coverage in the context of wrongful death claims.
The wrongful death statute, R.C. 2125.02(A)(1), requires that an action for wrongful death must be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, children, parents and next of kin of the decedent.
The law presumes damage to all.
Therefore, in a wrongful death action "the surviving spouse and children of the decedent have the right to recover damages suffered by reason of the wrongful death, even though the action must be brought in the name of the personal representative of the decedent." Id., 89.
The Court held that each survivor has a separate claim and that all the separate claims may not be combined and limited to the single limit of liability in the insureds uninsured or underinsured motorist coverage. Id. 88.
Since R.C. 2125.02 presumes specified persons have suffered damages resulting from a death, each has a compensable claim. R.C. 3937.18 mandates uninsured coverage for wrongful death.
In Re Estate of Reeck ((1986), 21 Ohio St. 3d 126. Nothing in R.C. 3937.18 grants authority to limit claims for wrongful death to a single limit of liability.
The Wood Court noted that R.C. 3937.18(A)(2) expressly allowed insurers to include in their policies a right of setoff: the limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less the amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured.
"Only an insured under the underinsured motorist provision can recover under the policy for injury or wrongful death." Wood v. Shepard, supra, 91.
Finally, the Wood Court pointed out that the Dues decision, which allowed insurers to limit recovery for all causes of action arising out of bodily injury to one person to a single limit of liability (i.e., injury and derivative claims), was distinguishable because R.C. 2125.02 afforded each survivor a separate claim for damages.