Hit by a Police Cruiser? Your Own Uninsured Motorist Coverage May Pay: Ohio Supreme Court's Marusa Decision

Published June 21, 2013 · Ohio Supreme Court

In November 2009, Maria Marusa was driving with her daughter Melanie when a police cruiser struck their car. Everyone agreed the officer was at fault. Everyone also agreed that, because the officer and his city were immune under Ohio's Political Subdivision Tort Liability Act, the Marusas could not recover from either of them. So they turned to their own insurance company, Erie, under the uninsured motorist coverage they had paid for. Erie refused to pay.

On May 21, 2013, the Ohio Supreme Court ruled 4-3 that Erie must honor its policy. The case is Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, and it matters to anyone in Ohio who may one day be hit by a police car, a fire truck, an ambulance, a snowplow, a school bus, or any other government vehicle.

The problem: immune drivers and "legally entitled to recover"

Uninsured motorist (UM) coverage is the part of your auto policy that steps in when the driver who hurt you has no insurance. I explained the basics in What Uninsured and Underinsured Motorist Coverage Is. Since 2001, under R.C. 3937.18, Ohio insurers are not required to offer UM coverage, and those that do are allowed to write their own terms.

Nearly every UM policy promises to pay what the insured is "legally entitled to recover" from the uninsured driver. In 2007, in Snyder v. Am. Family Ins. Co., 114 Ohio St.3d 239, 2007-Ohio-4004, the Supreme Court held that this language was enforceable and that its effect was to deny UM benefits when the at-fault driver was immune under R.C. Chapter 2744. The logic was that if the law says you cannot recover from the officer, you are not "legally entitled to recover" anything, so the UM policy owes nothing. The injured person was left with no claim against the driver and no claim under the coverage she bought for exactly this situation.

That is the trap the Marusas fell into at the trial court and the court of appeals, both of which held that Snyder controlled.

What the Supreme Court held

The majority opinion, written by Justice Pfeifer, turned on the words of Erie's own policy. The UM endorsement defined "uninsured motor vehicle" to include a vehicle whose owner or operator "has immunity under the Ohio Political Subdivision Tort Liability Law." Erie had promised, in other words, to treat an immune government driver as uninsured, and then argued that the "legally entitled to recover" phrase elsewhere in the same endorsement took that promise back.

The Court refused to read the policy that way. Three principles drove the result. First, a contract is read as a whole, and no provision is disregarded if another reasonable reading gives it effect. Second, ambiguities in an insurance policy are construed against the insurer that wrote it. Third, when a specific provision and a general one conflict, the specific one controls. The definition of "uninsured motor vehicle" was specific; "legally entitled to recover" was general. The Court concluded that the definition "operates to expand UM coverage, not to limit or preclude it," and that summary judgment for Erie should have been denied.

The Court distinguished Snyder rather than overruling it. In Snyder the plaintiff had relied on a statutory definition of "uninsured motor vehicle"; in Marusa, the definition came from the policy itself. Two courts of appeals had already reached the same result on similar policy language, and the Court noted that Snyder itself had said insurers were free to offer coverage for immune drivers if they chose. Erie chose, and it was held to the choice.

The concurrence and the dissent

Justice Lanzinger, joined by Chief Justice O'Connor, concurred in the judgment but would have gone further and overruled Snyder outright. She quoted the dissenting appellate judge below on the "intolerable" state of a law that lets an insured who paid for UM coverage be denied it because the at-fault driver happened to be immune, and she wrote that the words "legally entitled to recover" should not be allowed to "demolish the UM/UIM protection that the insured expects to receive." Three justices dissented and would have applied Snyder to deny coverage.

So the Court is divided, and the rule after Marusa is narrower than injured people might wish: coverage depends on what your policy says. If your UM endorsement defines an uninsured vehicle to include one driven by an immune government employee, Marusa says the insurer must pay. If it does not, Snyder is still on the books.

Why this matters more than it sounds

Government vehicles are everywhere on Dayton-area roads, and their drivers are frequently immune. Under R.C. 2744.02(B)(1), a city is liable for its employees' negligent driving, but police, fire, and EMS drivers responding to emergency calls have a full defense unless their conduct was willful or wanton, a standard I discussed in this fire-truck post. Individual employees have their own immunities. The practical result is that a person seriously hurt by a cruiser running to a call often has no claim against the driver or the city, no matter how clear the fault. The Marusa family's situation, 100 percent fault stipulated and no one to pay, is not unusual.

For those people, their own UM coverage is the only source of recovery. Marusa means that if the policy promises it, the promise is enforceable, and the "legally entitled to recover" clause cannot be used to take it away.

What this means for you

Two things. First, if you have been hit by a government vehicle, do not assume the claim is over because the city says it is immune. Immunity has exceptions, which I wrote about after the Supreme Court's recent EMS decision, and even where immunity holds, your own UM coverage may respond. Have a lawyer read the actual policy language, not the declarations page. Our uninsured and underinsured motorist practice does exactly that, and the difference between one definition and another can be the entire case.

Second, if you have not been in a crash, read your UM endorsement now, or ask your agent one question in writing: does my uninsured motorist coverage apply if I am hit by a government vehicle whose driver is immune? Some policies say yes. Some are silent. The time to find out is before you need it, and the premium difference for the broader coverage is usually small.

Claims involving government vehicles also carry their own procedures, which our claims against the government practice handles, and UM claims often have policy deadlines shorter than the general two-year statute. Early advice protects both.