Cuppett v. Grange Mut. Co. , 12 Ohio App. 3d 82 ( 1983 )

I concur in the judgment herein, but write separately so that I might clarify several important points.

In the case at bar, the appellee had the opportunity to prepare the insurance policy. Therefore, the words "all sums" must be strictly construed against the insurer and in favor of the insured. That is why I concur that the issue of punitive damages in the instant case must be submitted to arbitration. However, in all other cases where the words "all sums" are not found in the insurance policy, I would not come to the same conclusion for the following reasons.

First, the purpose of uninsured motorist coverage is set forth in the case of Bartlett v. Nationwide Mut. Ins. Co. (1973),33 Ohio St. 2d 50 [62 O.O.2d 406], at page 52:

"The basic purpose of R.C. 3937.18 is clear. It `is designed to protect persons injured in automobile accidents from losseswhich, because of the tortfeasor's lack of liability coverage,would otherwise go uncompensated. [Citations omitted.] In other words, the legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policyholder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance." (Emphasis added.)

From this it is readily apparent that the reason for the creation of uninsured motorist coverage was to make the injured party whole from damages received from an uninsured motorist — in other words, to compensate the injured party. This writer is of the opinion, therefore, that the legislature did not intend to include punitive damages in uninsured motorist coverage. This becomes apparent when we consider the basic definition of punitive damages, to wit:

"* * * [Punitive damages] are given in enhancement of the ordinary damages on account of the wanton, reckless, malicious or oppressive character of the act complained of. The interchangeable terms `punitive,' `exemplary' or `vindictive' damages denote those in excess of actual loss and are allowed, intheory, as an example to deter others from offending as did thewrongdoer. See 16 Ohio Jurisprudence 2d 279, Damages, Section 141et seq., and cases cited thereunder." (Emphasis added.) Trainor v. Deters (1969), 22 Ohio App. 2d 135, at page 139 [51 O.O.2d 258].

From this it can be seen that the purpose of punitive damages is to punish the wrongdoer — to hold him up to others so as to deter them from committing similar acts. What purpose can possibly be accomplished by requiring one's own insurance company to pay punitive damages under an uninsured motorist policy?

In conclusion, therefore, this writer is only concurring in judgment based solely on the language of this particular policy. The appellee drafted the language of the policy and by using the words "all sums" the issue of punitive damages must, of necessity, be submitted to arbitration.

There being a conflict throughout the United States as to the propriety of assessing punitive damages against the insured's own insurance company, it is perhaps time for the Supreme Court to definitively settle this issue.