[Cite as Shrit v. Williams,
2014-Ohio-5173.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
RANDA K. SHRIT, et al.
Plaintiffs-Appellants
v.
JESSICA L. WILLIAMS, et al.
Defendants-Appellees
Appellate Case No. 26164
Trial Court Case No. 11-CV-5404
(Civil Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 21st day of November, 2014.
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SAM G. CARAS, Atty. Reg. #0016376, Sam G. Caras Co., L.P.A., 130 West Second Street, Suite
310, Dayton, Ohio 45402
Attorney for Plaintiffs-Appellants
JOHN F. McLAUGHLIN, Atty. Reg. #0052021, and JONATHAN P. SAXTON, Atty. Reg.
#0042280, Rendigs Fry Kiely & Dennis, LLP, 600 Vine Street, Suite 2650, Cincinnati, Ohio 45202
Attorneys for Defendants-Appellees
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FAIN, J.,
{¶ 1} Plaintiffs-appellants Randa Kanan Shrit and Dr. Atef Shrit appeal from a
summary judgment rendered in favor of defendant-appellee Grange Mutual Casualty Company
(Grange). The Shrits contend that the trial court erred in finding that their insurance policy with
Grange required them to file a lawsuit against Grange seeking underinsured motorist benefits
within three years after the date of the accident in which Randa Shrit was injured by an
underinsured motorist. The Shrits also contend that the requirement that they commence an
action against Grange within three years after the date of the accident violates public policy, is
unconscionable, and creates an impossibility of contractual performance. Finally, the Shrits
contend that R.C. 3937.18(H) is unconstitutional as applied to the facts of this case.
{¶ 2} We conclude that the trial court did not err in granting summary judgment to
Grange based on the plain language of the insurance policy and the decision of the Supreme
Court of Ohio in Barbee v. Nationwide Mut. Ins. Co., 130 Ohio St.3d 96,
2011-Ohio-4914,
955
N.E.2d 995. Accordingly, the judgment of the trial court is Affirmed.
I. Randa Shrit is Involved in an Accident in August 2009,
But Does Not Sue Grange Until November 2012
{¶ 3} On August 12, 2009, a vehicle driven by Jessica Williams collided with the rear
of a motor vehicle driven by Randa K. Shrit on Far Hills Avenue in Centerville. In September
2009, counsel for the Shrits sent a letter to Grange reserving potential claims for underinsured
motorist coverage.
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{¶ 4} On July 28, 2011, Randa K. Shrit and Dr. Atef Shrit commenced an action
against Jessica Williams and Thomas Kessel, who allegedly negligently entrusted operation and
use of the vehicle to Williams. Paragraph 3 of the Complaint stated that Randa Shrit had
suffered, among other things, “[s]evere personal injuries to her spine, shoulders, and neck, with
future and/or permanent residuals.” The Complaint also alleged that medical expenses had
presently exceeded $18,832. Each plaintiff sought compensatory damages in an amount
exceeding $25,000.
{¶ 5} In July 2012, Randa Shrit underwent cervical vertebrae fusion surgery. On
October 17, 2012, Williams offered a policy-limits settlement of $25,000.00 to the Shrits. Six
days later, the Shrits served notice of the proposed policy limits settlement to Grange for
approval and waiver of subrogration. Grange responded with a letter essentially denying
coverage, upon the ground that the Shrits had failed to commence a lawsuit against Grange
within three years after the date of the accident, as required by the insurance policy.
{¶ 6} On November 30, 2012, the Shrits filed a First Amended Complaint, adding
Grange as a party. The Shrits alleged a breach of contract claim against Grange, and sought
compensatory damages against Grange “in an amount likely to exceed $100,000.00.”
{¶ 7} Grange moved for summary judgment based on the insurance policy’s provision
requiring the Shrits to commence an action against Grange within three years after the date of the
underlying automobile accident. The trial court rendered summary judgment, based on the plain
language of the insurance policy and the decision of the Supreme Court of Ohio in Barbee. The
Shrits appeal from this judgment.
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II. The Plain Language of the Insurance Contract Requires
a Suit to Be Commenced Against Grange Within
Three Years After the Date of the Accident
{¶ 8} The First Assignment of Error states:
THE TRIAL COURT ERRED IN FINDING THAT THE GRANGE
POLICY ISSUED TO APPELLANTS REQUIRED APPELLANTS TO FILE A
LAWSUIT AGAINST GRANGE, THOUGH APPELLANTS HAD NO VIABLE
LEGAL BASIS TO DO SO, AS A CONTRACTUAL CONDITION TO
UNDERINSURED MOTORIST COVERAGE.
{¶ 9} When reviewing a summary judgment, an appellate court conducts a de novo
review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996).
“De Novo review means that this court uses the same standard that the trial court should have
used, and we examine the evidence to determine whether as a matter of law no genuine issues
exist for trial.” Brewer v. Cleveland City Schools Bd. Of Edn.,
122 Ohio App.3d 378, 383,
701
N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co.,
64 Ohio St.2d 116,
413
N.E.2d 1187 (1980). Therefore, the trial court’s decision is not granted any deference by the
reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs.,
87 Ohio App.3d 704, 711,
622
N.E.2d 1153 (4th Dist.1993).
{¶ 10} Under the heading “Deciding Fault and Amount,” the Grange insurance policy
states:
So long as the insured has not prejudiced our right of subrogation, any
suit against us will be barred unless commenced within three years (THREE
5
YEARS) after the date of the accident causing the bodily injury, sickness,
disease, or death, or within one year after the liability insurer for the owner or
operator of the motor vehicle liable to the insured has become the subject of
insolvency proceedings in any state, whichever is later.
(Emphasis sic.)
{¶ 11} And the section of the Grange policy titled “Additional Duty After An Accident
or Loss” states:
A person seeking Uninsured Motorists Coverage must also promptly notify
us in writing of a tentative settlement between the insured and the insurer of a
vehicle described in Paragraph C. of the definition of uninsured motor vehicle,
and allow us 90 days to advance payment to that insured in an amount equal to the
tentative settlement to preserve our rights against the insurer, owner or operator of
such uninsured motor vehicle.
(Emphasis sic.)
{¶ 12} The trial court found that the plain language of the insurance policy required the
Shrits to commence an action against Grange within the three years immediately following the
date of the accident. The trial court explained:
The affidavit of Mr. Caras establishes that Plaintiffs sent notice to
Defendant of potential underinsured/uninsured motorist claims on September 8,
2009, well within three years of the date of the accident. Plaintiffs, though, did
not file “suit” against Defendant by providing [it] a written notice of a potential
claim.
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This is not a situation where Plaintiff did not know what the policy limits
were for the tortfeasors’ insurance carrier. The Court finds that the limits of
Defendant Jessica Williams and Defendant Thomas Kessler’s policy, $25,000.00,
remained the same from the time of the accident through the time of settlement.
There was no requirement under the insurance policy of an exhaustion of the
torfeasor’s insurance as a condition that must be satisfied before Plaintiffs could
file suit against Defendant to establish their claim for underinsured-motorist
benefits. The policy clearly states: “ … any suit against us will be barred
unless commenced within 3 years (THREE YEARS) after the date of the
accident … .” (emphasis added) The plain meaning of the policy provision is
that an insured must file the action against Defendant within three years of the
date of the accident. The Court finds that this provision is unambiguous and
enforceable.[] There is also no dispute of fact that Plaintiffs did not file the action
against Defendant within three years of the date of the accident.
(Emphasis sic.) Dkt. 61, p. 5-6.
{¶ 13} In coming to its conclusion that summary judgment should be granted to Grange,
the trial court also relied upon the decision of the Supreme Court of Ohio in Barbee v.
Nationwide Mut. Ins. Co., 130 Ohio St.3d 96,
2011-Ohio-4914,
955 N.E.2d 995. In Barbee, the
Court held, at ¶ 45:
A provision in an automobile insurance policy requiring an action for
uninsured/underinsured-motorist coverage to be brought against the insurer by the
policyholder within three years of the date of the accident is unambiguous and
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enforceable. The provision does not conflict with coexisting policy provisions
that require the insured to fully comply with the policy terms before filing suit and
that require the tortfeasor’s insurance assets to be exhausted before payment by
the policyholder’s own insurer. Although exhaustion of the tortfeasor’s liability
limits is a condition precedent to an insured’s right to payment, it is not a
precondition to filing suit by the insured against his insurer within the limitation
period.
{¶ 14} The Shrits concede that “the Grange policy is indistinguishable from the
Nationwide policy [in Barbee] to the extent it states that any lawsuit against Grange be
commenced within three years of the date of the accident.” Brief, p. 5. The Shrits also concede
that “both the Nationwide policy interpreted by the Barbee Court, and the Grange policy at issue
in this case, require that the insured comply with all the terms and conditions of the policy,
including but not limited to the protection of the insurer’s subrogation rights by submitting a
tentative settlement with the tortfeasor to the insurer for approval or advance of payment.” Id.
However, the Shrits contend that the insurance contract, when applied as a whole, required the
Shrits to act unreasonably by commencing an action against Grange before there was an existing
cause of action to commence against Grange. Therefore, the Shrits contend that their situation
should not be controlled by the holding in Barbee. We do not agree.
{¶ 15} The plain language of the insurance policy required the Shrits to commence an
action against Grange within three years after the date of the accident. Furthermore, the
Supreme Court of Ohio has held that similar language is unambiguous and enforceable. Barbee
at ¶ 45. Consequently, we conclude that the trial court did not err in granting summary judgment
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to Grange.
{¶ 16} The First Assignment of Error is overruled.
III. The Three-Year Limitations Period in the Policy
Is Not Against Public Policy
{¶ 17} The Second Assignment of Error states:
THE TRIAL COURT’S DECISION THAT THE GRANGE POLICY
REQUIRED, AS A CONTRACTUAL CONDITION FOR UNDERINSURED
MOTORIST COVERAGE, THAT APPELLANTS FILE A LAWSUIT AGAINST
APPELLEE, GRANGE, THOUGH APPELLANTS HAD NO VIABLE LEGAL
BASIS TO DO SO, VIOLATES OHIO PUBLIC POLICY AND IS
UNCONSCIONABLE.
{¶ 18} The Shrits contend that the condition of the insurance contract requiring them to
commence an action against Grange within three years after the date of the underlying accident
violates Ohio public policy. We do not agree.
{¶ 19} R.C. 3937.18(H) provides that insurance companies may limit the amount of time
within which an insured may bring a claim for uninsured or underinsured motorist coverage.
R.C. 3937.18(H) provides:
Any policy of insurance that includes uninsured motorist coverage,
underinsured motorist coverage, or both uninsured and underinsured motorist
coverages may include terms and conditions requiring that, so long as the insured
has not prejudiced the insurer's subrogation rights, each claim or suit for uninsured
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motorist coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist coverages be made or brought within three years after the
date of the accident causing the bodily injury, sickness, disease, or death, or within
one year after the liability insurer for the owner or operator of the motor vehicle
liable to the insured has become the subject of insolvency proceedings in any
state, whichever is later.
{¶ 20} “As has been repeatedly held, ‘[i]t [is] for the legislature of Ohio to define the
public policy of that State.’ ” (Citations omitted.) Sposito v. Krzynowek, 11th Dist. Ashtabula
No. 2013-A-0038, 2014-Ohio-1151, ¶ 24. See also State ex rel Cincinnati Enquirer v. Dupuis,
98 Ohio St.3d 126,
2002-Ohio-7041,
781 N.E.2d 162, ¶ 21 (“the General Assembly is the
ultimate arbiter of public policy”). For better or worse, the General Assembly has spoken on this
issue and specifically permitted insurance companies to insert three-year limitation periods into
their insurance contracts. Therefore, we conclude that this insurance provision is not against
public policy.
{¶ 21} The Second Assignment of Error is overruled.
IV. It Was Not Impossible for the Shrits to Comply
with the Insurance Policy, and R.C. 3937.18(H) Is
Not Unconstitutional As Applied to the Shrits
{¶ 22} The Third Assignment of Error states:
THE TRIAL COURT’S DECISION THAT THE GRANGE POLICY
REQUIRED, AS A CONTRACTUAL CONDITION FOR UNDERINSURED
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MOTORIST COVERAGE, THAT APPELLANTS FILE A LAWSUIT AGAINST
GRANGE, THOUGH APPELLANTS HAD NO VIABLE LEGAL BASIS TO
DO SO, ON THE FACTS OF THIS CASE CREATED AN IMPOSSIBILITY OF
CONTRACTUAL PERFORMANCE EXCUSING APPELLANTS FROM
COMPLIANCE THEREWITH.
{¶ 23} The Fourth Assignment of Error states:
THE TRIAL COURT’S DECISION THAT THE GRANGE POLICY
REQUIRED, AS A CONTRACTUAL CONDITION FOR UNDERINSURED
MOTORIST COVERAGE, THAT APPELLANTS FILE A LAWSUIT AGAINST
GRANGE, THOUGH APPELLANTS HAD NO VIABLE LEGAL BASIS TO
DO SO, IS UNCONSTITUTIONAL AS APPLIED IN THIS CASE.
{¶ 24} The Shrits contend that the provision in the Grange contract requiring the Shrits
to commence an action against Grange within three years after the date of the accident created an
impossibility of contractual performance excusing the Shrits from complying with the contractual
provision. We do not agree.
{¶ 25} In Barbee, the Supreme Court of Ohio explained that exhaustion of a tortfeasor’s
liability limits is not a condition that must occur before an insured’s claim accrues. The Court
also noted that:
It appears, however, that filing within the three-year policy period from the
date of the accident to preserve an insured’s underinsured-motorist claim is an
existing practice. Donley, for example, filed an underinsured-motorist claim
against her insurer in Ohio before the federal suits were concluded. The Ohio
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trial court stayed the case pending the resolution of the federal suits. In many
cases, counsel will likely be able to learn about a party’s coverage through
discovery. Counsel’s knowledge of the extent of injuries and damages sustained
by the claimant will further determine whether an action for underinsured-motorist
coverage must be asserted to preserve the policyholder’s
underinsured-motorist-coverage rights. And because the trial court can stay
proceeding on the underinsured-motorist claim until the claims against the
tortfeasor are resolved, there is little extra burden on the court’s docket in
preserving the insured’s claim for underinsured-motorist coverage in this manner.
Id. at ¶ 44.
{¶ 26} As explained in Barbee, the Shrits could have commenced an action against
Grange within the three-year period provided for by the insurance policy and asked the trial court
to stay the proceeding until it became clear that the policy limits would be exceeded.
Furthermore, the Shrits knew no later than July 2012, the month in which Randa Shrit underwent
cervical vertebrae fusion surgery, that there was a good possibility that their damages would far
exceed the $25,000 policy limit of the insurance policy on Williams. Indeed, in their Complaint
filed in July 2011, the Shrits alleged that Randa Shrit had suffered, among other things, “[s]evere
personal injuries to her spine, shoulders, and neck, with future and/or permanent residuals.” The
Complaint also alleged that medical expenses had presently exceeded $18,832.00. Each plaintiff
sought compensatory damages in an amount exceeding $25,000.00. Given these facts, we
conclude that it was not impossible for the Shrits to anticipate the need to sue Grange for
underinsured motorist coverage and to do so within three years after the date of the underlying
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accident.
{¶ 27} The Shrits also contend that R.C. 2937.18(H) is unconstitutional as applied in
this case because it (1) requires the filing of a legally unjustified lawsuit as a condition precedent
to underinsured motorist benefits; and (2) requires that any lawsuit be predicated on full
compliance with policy terms that could not be executed within three years of the accident.
Brief, p. 11. We do not agree. As we noted above, the Shrits were aware well within three
years of the accident that there was a substantial likelihood that they would need to seek
underinsured motorist benefits from Grange. Furthermore, the Supreme Court of Ohio has made
it clear that the Shrits could commence an action against Grange and then request that the trial
court stay that action if the Shrits believed that resolution of their action against Grange may be
premature. Barbee at ¶ 44. While we acknowledge that there could be a set of facts that make
application of the three-year limitation period patently unreasonable and potentially
unconstitutional, that set of facts is not in the record before us.
{¶ 28} The Third and Fourth Assignments of Error are overruled.
V. Conclusion
{¶ 29} All of the Shrits’ assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Sam G. Caras
John F. McLaughlin
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Jonathan P. Saxton
Hon. Timothy N. O’Connell
