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Barbee et al v. Nationwide Mutual Insurance Company

September 29, 2011

BARBEE ET AL.,
APPELLEES,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT.



APPEAL from the Court of Appeals for Lorain County, Nos. 09 CA 009594 and 09 CA 009596, 2010-Ohio-2016.

The opinion of the court was delivered by: Cupp, J.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Barbee v. Nationwide Mut. Ins. Co., Slip Opinion No. 2011-Ohio-4914.]

NOTICE

This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

SLIP OPINION NO. 2011-OHIO-4914

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Barbee v. Nationwide Mut. Ins. Co., Slip Opinion No. 2011-Ohio-4914.]

Underinsured-motorist policy -- Alleged conflict between insurance-contract provisions -- Exhaustion of the tortfeasor's liability limits is a condition precedent to an insured's right to payment, but it is not a precondition to filing suit by the insured against his insurer within the limitation period -- Judgment reversed.

Submitted May 24, 2011

{¶1} We are asked to decide whether a provision in an automobile insurance policy involving uninsured/underinsured motorist coverage is ambiguous when read in conjunction with another policy provision. The policy provision at issue requires that an action for uninsured/underinsured motorist coverage be brought against the insurer within three years of the date of the accident. Other provisions, however, require that proceeds from any other available insurance be exhausted first and that the insured must fully comply with all policy terms before filing suit. For the reasons that follow, we conclude that the policy provision is unambiguous and is enforceable. The judgment of the court of appeals is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

{¶2} On October 12, 2002, appellees, Edward Barbee, Darlene Barbee, Thomas Barbee, and Margaret Barbee ("the Barbees"), were involved in an automobile accident in Madison, Wisconsin.*fn1 Edward was operating the automobile, which was owned by Margaret. Thomas, Margaret, and Darlene were passengers.

{¶3} Appellant, Nationwide Mutual Insurance Company, insured the automobile, which included coverage for uninsured motorists. Under the policy definitions, an uninsured motor vehicle includes "one which is underinsured."*fn2 The policy also contained the following "exhaustion provision":

{¶4} "Limits and Conditions of Payment

{¶5} " * * *

{¶6} "6. No payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments.

{¶7} The policy also contained the following "compliance provision":

{¶8} "10. SUIT AGAINST US

{¶9} "No lawsuit may be filed against us by anyone claiming any of the coverages provided in this policy until the said person has fully complied with all the terms and conditions of this policy, including but not limited to the protection of our subrogation rights.

{¶10} "Subject to the preceding paragraph, under the Uninsured Motorists coverage of this policy, any lawsuit must be filed against us:

{¶11} "a) within three (3) years from the date of the accident; * * *."

{¶12} The Barbees' counsel had placed Nationwide on notice of potential underinsured-motorist claims within one year of the accident but did not then file suit.

{ΒΆ13} Nationwide filed suit separately against the tortfeasors to recover the medical payments that Nationwide had paid on behalf of appellees. Then, more than two years after the accident, the Barbees filed suit against the tortfeasors in federal court in Wisconsin. One defendant was an estate, and the other was the ...


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