State Auto Mut. Ins. Co. v. Progressive Cas. Ins. Co., 180 Ohio App. 3d 139, involved competing underinsured motorist policies. This case arises out of a motor vehicle accident in April 2004 wherein Tiffany Sharrett was killed while her passengers Angela and Michaelia Smith were injured. The collision was the result of the negligence of the tortfeasor whose policy was insufficient to cover the damages of the accident victims. Sharrett, the driver and owner of the victim’s vehicle, had in place an underinsured policy with State Auto which had limits of $50,000 per person and $100,000 per accident. Meanwhile, the Smiths had underinsured motorists coverage through Progressive with limits of $100,000 per person and $300,000 per accident.
State Auto brought a declaratory judgment action to determine how liability should be apportioned. After applying the torfeasor’s limits, Angela Smith had remaining damages of $84,000 and Michaelia Smith had damages remaining of $27,500. Both policies contained “other insurance” clauses.
The State Auto other insurance clause stated in pertinent part:
“[i]f there is other applicable insurance available under one or more policies or provisions of coverage that is similar to the insurance provided by this endorsement; [a]ny insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing such coverage on a primary basis.”
Progressive’s other insurance clause stated:
“If there is other applicable uninsured or underinsured motorist coverage, we will pay only our share of the damages. Our share is the proportion that our limit of liability bears to the total of all available coverage limits. However, any insurance we provide shall be excess over any other uninsured or underinsured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle.”
The Appellate Court construed both clauses as triggering excess insurance and therefore applied Ohio Supreme Court precedent that competing excess clauses are treated as providing pro rata liability amongst the carriers. See Buckeye Union Ins. Co. v. State Auto Mut. Ins. Co., 49 Ohio St. 2d 215. Although the Buckeye Union case involved liability insurance, the First District has extended its application to underinsured policies as well.
Because both insurers requested that the Court use the per person limits of liability, the Court did not address whether the per person or per accident limits were the appropriate limits to be used for the proration. As a result, State Auto would be responsible for one-third of the Smiths’ damages while Progressive would be responsible for two-thirds.