Barbee v. Nationwide Mutual Insurance Co.

Transcription

1 Barbee v. Nationwide Mutual Insurance Co. 130 OHIO ST. 3D 96, 2011-OHIO-4914, 955 N.E.2D 995 DECIDED SEPTEMBER 29, 2011 I. INTRODUCTION Barbee v. Nationwide Mutual Insurance Co. 1 presented the Supreme Court of Ohio with the question of whether a provision in an automobile insurance policy involving uninsured/underinsured-motorist coverage [was] ambiguous when read in conjunction with another policy provision[,] which required any action against the insurer for uninsured or under-insured motorist coverage to be brought within three years of the date of an accident. 2 However, separate policy provisions required the insured to first exhaust any other coverage available and fully comply with all other terms of the policy before commencing any legal action. 3 Reversing the court of appeals, the Ohio Supreme Court held that the provision was unambiguous and therefore enforceable. 4 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Appellees, Edward Barbee, Darlene Barbee, Thomas Barbee, and Margaret Barbee ( the Barbees ), brought suit against appellant, Nationwide Mutual Insurance Company ( Nationwide ), as a result of an automobile accident that occurred on October 12, 2002, involving an automobile for which Nationwide provided insurance. 5 Edward Barbee was operating the automobile, owned by Margaret Barbee. 6 The insurance policy provided by Nationwide included coverage for uninsured motorists. 7 The insurance policy defined uninsured motor vehicle to include one which is underinsured. 8 The policy also contained an exhaustion Ohio St. 3d 96, 2011-Ohio-4914, 955 N.E.2d 995 (2011). 2. Id. at 97, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Barbee v. Nationwide Mut. Ins. Co., 130 Ohio St. 3d at 97, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at

2 1226 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 provision 9 and a compliance provision. 10 These provisions are the subject of this lawsuit. 11 Following the accident, Nationwide filed suit... against the tortfeasors to recover medical payments that Nationwide had paid for injuries sustained by the Barbees as a result of the accident. 12 Counsel for the Barbees gave notice to Nationwide that underinsured-motorist claims may arise from this accident, but no action was filed at that time. 13 However, the Barbees filed suit against the tortfeasors in federal court in Wisconsin more than two years after the accident. 14 The defendants were an estate and the United States of America, by and through its insured, a member of the Armed Forces. 15 Faith C. Donley, also injured in the accident, filed a separate claim against the tortfeasors in federal court in Wisconsin. 16 Donley s claim was consolidated with the Nationwide case. 17 In Nationwide s case, the federal district court found the Armed Forces member was thirty percent liable, and the estate was seventy percent liable, for the damages caused by the accident. 18 Following the Nationwide case, the Barbees claim against the service member and the estate went to trial, and judgment was entered for the Barbees. 19 The United States government [as insurer of the service member] paid 30 percent of the amounts awarded to [each plaintiff], and the estate s $75,000 policy coverage was split among them[,] leaving each 9. Id., 2011-Ohio , 955 N.E.2d at ( No payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments. ). 10. Id. at 98, 2011-Ohio , 955 N.E.2d at 997. The compliance provision reads as follows: 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. Subject to the preceding paragraph, under the Uninsured Motorists coverage of this policy, any lawsuit must be filed against us: a) within three (3) years from the date of the accident. Barbee, 130 Ohio St. 3d at 98, 2011-Ohio , 955 N.E.2d at See id. at 97, 2011-Ohio , 955 N.E.2d at Id. at 98, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at 98, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at 997.

3 2012] BARBEE V. NATIONWIDE MUTUAL INS. CO judgment unsatisfied. 20 On January 18, 2007, more than four years after the accident, the Barbees filed suit... in the Lorain County Court of Common Pleas against Nationwide, under the policy s uninsured and underinsured motorist coverage, to recover the outstanding amount due on each of their judgments. 21 Nationwide moved for summary judgment claiming that, because the Barbees failed to file the lawsuit within threeyears following the accident, as required by the policy s limitation provision (authorized by section (H) of the Ohio Revised Code), their suit was barred. 22 However, the trial court denied Nationwide s motion for summary judgment on its determination that the limitation provision must be tolled until the exhaustion requirement had been met. 23 Nationwide appealed the denial of its motion for summary judgment to the Ninth District Court of Appeals, which affirmed the trial court, holding that the exhaustion and limitation provisions of Nationwide s underinsured-motorist coverage conflicted and the conflict created an ambiguity under the facts of the case. 24 The Ninth District court reasoned that based on the exhaustion provision, the Barbees did not have a claim against Nationwide until all other liability insurance coverage had been exhausted, which did not occur until the disposition of the federal court case. 25 The Supreme Court of Ohio accepted Nationwide s appeal under its discretionary jurisdiction to consider Nationwide s following proposition of law: A policy provision that requires uninsured/underinsured actions to be brought against the insurer within three years from the date of the accident is unambiguous and enforceable even when read in conjunction with the exhaustion provision and the provision requiring the insured to fully comply with the terms of the policy before filing suit. 26 The court referenced Ohio Revised Code Chapter 3937, which provides the applicable laws governing motor-vehicle insurance, including section 20. Barbee, 130 Ohio St. 3d at 98, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id. at 98-99, 2011-Ohio , 955 N.E.2d at Id. at 99, 2011-Ohio , 955 N.E.2d at 997 (citing Barbee v. Allstate Ins. Co., Nos. 09CA009594, 09CA009596, 2010-Ohio (Ohio Ct. App. 9th Dist. 2010)). 25. Barbee, 130 Ohio St. 3d at 99, 2011-Ohio , 955 N.E.2d at 998 (citing Barbee, Nos. 09CA009594, 09CA009596, 2010-Ohio ). 26. Id., 2011-Ohio , 955 N.E.2d at 998 (citing Barbee v. Allstate Ins. Co., 126 Ohio St.3d 1581, 2010-Ohio-4542, 934 N.E.2d 345 (2010)).

4 1228 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol (H), specifically authorizing a three-year limitation period within which an insured must file a claim against the insurer for underinsuredmotorist coverage. 27 III. DECISION AND RATIONALE A. Majority Opinion by Justice Cupp Justice Cupp, writing for the majority, began his analysis with the wellsettled principle that [t]he legal basis for recovery under the uninsured motorist coverage of an insurance policy is contract and not tort. 28 As such, the statute of limitations for a written contract, which is fifteen years, applies. 29 Notwithstanding the statute of limitations, parties to a contract may shorten the period of time in which either party may bring an action on the contract, as long as the shorter period is reasonable and the language of the contract provision reducing the time to bring a claim is clear and unambiguous to the policyholder, in the case of an insurance contract. 30 In the instant case, Nationwide s contention was that the policy provisions unambiguously declared that a policyholder s claim for uninsured or underinsured benefits began on the date of the action, while the Barbees argued that the exhaustion, compliance, and limitation provisions taken together indicated that a policyholder s claim for uninsured or underinsured motorist benefits would not arise until all other liability insurance is exhausted. 31 The Barbees relied on Kraly v. Vannewkirk 32 to 27. See id., 2011-Ohio , 955 N.E.2d at 998. See also OHIO REV. CODE ANN (H) (West 2008), which states: 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 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. OHIO REV. CODE ANN (H); Barbee, 130 Ohio St. 3d at 99, 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at 100, 2011-Ohio , 955 N.E.2d at 998 (quoting Kraly v. Vannewkirk, 69 Ohio St. 3d 627, 632, 635 N.E.2d 323, 327 (1994)). 29. Id., 2011-Ohio , 955 N.E. 2d at 998 (citing OHIO REVISED CODE (West 2012)). 30. Id., 2011-Ohio , 955 N.E. 2d at 998 (quoting Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St. 3d 403, 405, 2005-Ohio , 835 N.E.2d 692, 696 (2005)). 31. Id., 2011-Ohio , 955 N.E. 2d at Ohio St. 3d 627, 635 N.E.2d 323 (1994).

5 2012] BARBEE V. NATIONWIDE MUTUAL INS. CO support their argument. 33 However, the majority dismissed the Barbees proposition that Kraly was the appropriate precedent explaining that the Kraly holding was limited to the unique factual circumstances of that case in which the insured tortfeasor was essentially rendered uninsured by the insolvency of his insurer shortly before the claimant s own policy time limit for filing an uninsured motorist claim expired. 34 The majority distinguished the right to payment of uninsured or underinsured motorist benefits from the accrual of the claim for such benefits. 35 Although it is typical for an insurance policy to require exhaustion of all proceeds from a tortfeasor s liability policy prior to the right of payment under the claimant s own uninsured or underinsured motorist coverage, the actual date of exhaustion is not determinative of the applicable law to a claim under the uninsured or underinsured motorist provisions. 36 The policy provision at issue in this case stated, [n]o payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments. 37 The majority read this provision with an understanding that its plain meaning was that a claimant s right to receive payment of uninsured or underinsured motorist benefits was conditioned on the exhaustion of a tortfeasor s own limits of liability insurance, rather than a condition that must be satisfied prior to the ripening of a claimant s right to file suit against his insurer. 38 The majority reasoned that because the exhaustion clause did not affect when the insured s right to file suit against his insurer for uninsured or underinsured motorist benefits arose, there was no conflict between the exhaustion, compliance, and limitation provisions of the insurance policy, and therefore, no ambiguity to be resolved. 39 The majority found that the plain meaning of the policy provision requiring exhaustion of all other liability insurance and bonds prior to payment of claims for uninsured or underinsured motorist coverage provided the timing of or order in which payments would be made and did not establish any condition precedent to filing a claim for uninsured motorist benefits. 40 The majority pointed to additional support of its conclusion that the exhaustion provision did not affect the accrual of the claim in the language of section (H) of the Ohio Revised Code, which stated, [a]ny 33. Barbee, 130 Ohio St. 3d at 101, 2011-Ohio , 955 N.E.2d at Id. at , 2011-Ohio , 955 N.E.2d at Id. at 103, 2011 Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at 1001 (Ross v. Farmers Ins. Group of Cos., 82 Ohio St. 3d 281, 287, 695 N.E.2d 732, 736 (1998)). 37. Id., 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at 103, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at 1001.

6 1230 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 policy of insurance... may... require[ ] that... each claim or suit for... underinsured motorist coverage... be made or brought within three years after the date of the accident The preceding provision was passed by the General Assembly after the Ohio Supreme Court s decision in Ross v. Farmers Insurance Group of Cos., 42 in which the court again distinguished an insured s right to payment of benefits from the accrual of the claim itself. 43 The majority noted that the General Assembly was aware of the recent decision in Ross and could have easily drafted the statute to make the three-year period begin to run from the date that liability limits are exhausted, rather than from the date of the accident. 44 The majority concluded that the policy provisions were unambiguous and, although the exhaustion provision requiring the tortfeasor s limit of liability insurance be exhausted was a condition precedent to the claimant s right to payment of uninsured or under-insured motorist benefits, it was not a condition precedent to the claimant s right to file a claim against his insurer prior to the exhaustion of all liability insurance. 45 B. Dissenting Opinion by Justice Pfeifer Justice Pfeifer, joined by Justice McGee Brown, began by stating, [t]oday, this court aids and abets Nationwide Mutual Insurance Company in avoiding payment of one relatively modest claim while opening all insurance companies up to massive ongoing legal costs. 46 The Barbees were unaware that they had a claim for uninsured motorist coverage until nearly three years after the time of the accident, and when they filed suit against Nationwide, the insurer promptly defended on the basis that it could no longer be sued due to the expiration of the three-year limit in the insurance policy. 47 Although the dissent agreed that the three-year limitation period in the contract was unambiguous on its own, when taken together with the other provisions of the insurance policy, it becomes much less clear when, exactly, the three years should begin to run. 48 One of the complicating provisions of the policy was the compliance provision, which required that the insured comply with all provisions of the policy prior to 41. Id. at 104, 2011-Ohio , 955 N.E.2d at (alteration in original) (emphasis in original) Ohio St. 3d 281, 695 N.E.2d Barbee, 130 Ohio St. 3d at , 2011-Ohio , 42, 955 N.E.2d at Id. at 104, 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id. at 105, 2011-Ohio , 955 N.E.2d at (Pfeifer, J., dissenting). 47. Id., 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at 106, 2011-Ohio , 955 N.E.2d at 1003 (Pfeifer, J., dissenting).

7 2012] BARBEE V. NATIONWIDE MUTUAL INS. CO filing any claims against Nationwide. 49 The exhaustion provision was, of course, one of the provisions with which a claimant must comply. 50 The dissent noted that Nationwide, not unreasonably, argued that the exhaustion provision did not prevent the Barbees from filing suit, while the Barbees argued that they should not be required to file suit before they are aware of whether they have a meritorious claim. 51 The dissent accepted that the arguments advanced by both parties were reasonable; but the dissent further noted that at a minimum, when considered together, the policy provisions were ambiguous. 52 The dissent stated that the court should have found the provisions ambiguous and deferred to the principle that [l]anguage in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer. 53 The majority and Nationwide saw no ambiguity in the policy provisions and believed that the Barbees should have filed a claim for uninsured motorist coverage even though they were unaware that they would be underinsured. 54 Justice Pfeifer pointed out that the majority s and Nationwide s reliance on the fact that another injured party from the same accident filed a claim for uninsured motorist coverage before knowing whether she would, in fact, be entitled to the insurance coverage magnifies the existence of an ambiguity in the policy language, rather than proving it is unambiguous. 55 [T]his dichotomy [that one party took one course of action and the other took a different course in light of the same policy provisions] actually seems like proof of how ambiguous the policy is. 56 Further, the two lower courts found the language to be ambiguous, while this court, although divided on the issue, ultimately held it to be unambiguous. 57 Justice Pfeifer believed that if different people, all of whom were well versed in the law and in the language of insurance policies, arrived at different conclusions regarding the same language, that it must be an indication of ambiguity Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at 106, 2011-Ohio , 955 N.E.2d at 1003 (Pfeifer, J., dissenting) (quoting Faruque v. Provident Life & Acc. Ins. Co., 31 Ohio St.3d 34, 508 N.E.2d 949, at syllabus (1987)). 54. Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id. at , 2011-Ohio , 955 N.E.2d at Barbee, 130 Ohio St. 3d at , 2011-Ohio , 955 N.E.2d at 1004 (Pfeifer, J., dissenting).

8 1232 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 The dissent pointed to the far-reaching effects that this decision will have on insureds, insurers, lawyers, and the courts because this court, as a matter of public policy, has determined that it is better for insureds to file claims against their insurer in all circumstances regardless of whether they are aware that they are uninsured or underinsured. 59 The effects of this decision will require lawyers for insurers to answer complaints for uninsured or underinsured motorist coverage in nearly every accident that occurs in Ohio. 60 Justice Pfeifer would have tolled the applicable limitations period for an uninsured or underinsured motorist claim until a determination is made regarding the liability coverage of the tortfeasor. 61 IV. ANALYSIS The court framed the issue whether a provision in an automobile insurance policy involving uninsured/underinsured-motorist coverage is ambiguous [and, therefore unenforceable] when read in conjunction with another policy provision. 62 The provision at issue required 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[d] that proceeds from any other available insurance be exhausted first and that the insured [fully complied] with all policy terms before filing suit. 63 Although the majority arrives at the conclusion that the provision is unambiguous and therefore enforceable, this decision is inconsistent with the facts of this case and the two lower court decisions finding the policy ambiguous. Moreover, on the facts of this case, the outcome is inconsistent with this court s precedent. Arguably, there was little question that each of the policy provisions compliance, exhaustion, and limitation was unambiguous in its own terms, when read out of context with the rest of the policy. 64 However, when taken together, the three provisions created an ambiguity. The compliance provision, which required that the insured comply with all provisions of the policy prior to filing any lawsuits against the insurer, was clear. 65 But, once the exhaustion provision was read in conjunction with the compliance provision, the policy was no longer clear. 66 The exhaustion 59. See id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at Id., 2011-Ohio , 955 N.E.2d at 1004 (citing see Kraly, 69 Ohio St. 3d 627, 635 N.E.2d 323, at syllabus). 62. Id. at 97, 2011-Ohio , 955 N.E.2d at 996 (majority opinion). 63. Barbee, 130 Ohio St. 3d at 97, 2011-Ohio , 955 N.E.2d at See id. at 100, 2011-Ohio , 955 N.E.2d at See id., 2011-Ohio , 955 N.E.2d at See id., 2011-Ohio , 955 N.E.2d at 999.

9 2012] BARBEE V. NATIONWIDE MUTUAL INS. CO provision stated, [n]o payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments. 67 The Barbees had no indication that they would require uninsured or underinsured motorist coverage under their policy until the federal district court decided their case and apportioned liability on the tortfeasors. 68 Following this court s decision, the Barbees should have contemporaneously filed a claim against Nationwide for uninsured/underinsured motorist coverage even though there was no indication at the time of the accident that they would be entitled to any benefits under this coverage. The court s decision in this case worked an injustice on the Barbees, all of whom were physically injured and, following this decision, unable to fully recover for their damages; but it also set the stage for many inefficiencies for the courts and for any party involved in a motor vehicle accident in the future. Even though the exhaustion clause did not have language explicitly precluding litigation, the compliance clause did and by its terms required that the exhaustion provision, along with all other provisions, be satisfied prior to filing any lawsuit against the insurer. 69 Although it is possible to read the relevant policy provisions in this case and reach more than one rational interpretation, as the majority, dissent, and injured parties did, the existence of this dichotomy should have at least been indicative to the court that the policy provisions were susceptible to at least some degree of ambiguity. The court has long recognized that insofar as the parties have offered their own separate interpretations of the language of the policy, both of them plausible, [the court] must resolve any uncertainty in favor of the insured. 70 The age-old maxim of ambiguitas contra stipulatorem est (an ambiguity is resolved against the stipulator) should have been applied in this case. 71 Finally, aside from the unjust outcome in this circumstance, the court has all but guaranteed that in all motor vehicle accidents in the state of Ohio, insureds will file lawsuits against their insurer contemporaneously 67. Id. at 103, 2011-Ohio , 955 N.E.2d at See Barbee, 130 Ohio St. 3d at 100, 2011-Ohio , 955 N.E.2d at See id. at 100, 2011-Ohio , 955 N.E.2d at Neal-Pettit v. Lahman, 125 Ohio St. 3d 327, 330, 928 N.E.2d 421, 424 (2010) (citing Buckeye Union Ins. Co. v. Price, 39 Ohio St. 2d 95, 313 N.E.2d 844 (1974)). 71. Central Realty Co. v. Cutter, 62 Ohio St. 2d 411, 413, 406 N.E.2d 515, 517 (1980) (citing Franck v. Railway Exp. Agency, 159 Ohio St. 343, , 112 N.E.2d 381, 383 (1953); O Neill v. German, 154 Ohio St. 565, 571, 97 N.E.2d 8, 11 (1951)). See also King v. Nationwide Ins. Co., 35 Ohio St. 3d 208, 211, 519 N.E.2d 1380, 1383 (1980) ( it is well-settled that, where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured. ).

10 1234 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 with any lawsuits filed against the tortfeasor(s) to preserve their rights to receive any uninsured or underinsured coverage benefits to which they may become entitled. Justice Pfeiffer pointed out that in 2009 there were 298,646 motor vehicle accidents in Ohio according to the Ohio Department of Public Safety. 72 For every accident resulting in a lawsuit in which an insured also files a claim against the insurer for potential uninsured or underinsured motorist coverage, the lawyers representing the insurer will also have to answer each of those complaints, while the courts will be burdened by additional, and potentially unnecessary, litigation and insureds may likely pay the heaviest price of injustice under the circumstances. V. CONCLUSION The court s decision in this case has the potential to have far reaching effects, the cost of which will likely fall on insureds either in the form of denied benefits due to the time limits or, perhaps, in the form of higher premiums if the court s holding in this case causes more insureds to file claims for uninsured or underinsured coverage benefits before knowing whether they are actually eligible. As Justice Pfeiffer most aptly stated, [a] far better practice would be to toll the limitations period relevant to an underinsured-motorist claim until it is known whether that coverage is needed. 73 Less than a month and a half after this decision, the effects of the decision were felt by the plaintiffs in Longley v. Thailing, 74 in which a plaintiff, much like the Barbees, brought a claim under its uninsured motorist coverage against its insurer for damages following an accident in which the plaintiff was unable to recover from the tortfeasor. 75 However, in Longley, the plaintiff did not discover that uninsured motorist coverage would be necessary until after the time limit had expired to file per the policy provisions. 76 When plaintiff appealed to the Supreme Court of Ohio, the court affirmed the court of appeals affirmation of the trial court s grant of summary judgment to the insured in an opinion that stated only [t]he judgment of the court of appeals is affirmed on the authority of Barbee v. Nationwide Mut. Ins. Co. 77 Justice Pfeiffer dissented in this case as well Barbee, 130 Ohio St. 3d at 107, 2011-Ohio , 955 N.E.2d at 1004 (Pfeiffer, J., dissenting). 73. Id., 2011-Ohio , 955 N.E.2d at Ohio St.3d 352, 2011-Ohio-5755, 958 N.E.2d 565 (2011). 75. See Longley v. Thailing, 130 Ohio St. 3d 352, 2011-Ohio-5755, 958 N.E.2d 565; Longley v. Thailing, No , 2010-Ohio (Ohio Ct. App. 8th Dist. 2010). 76. Longley, No , 2010-Ohio Longley, 130 Ohio St. 3d at 352, 2011-Ohio , 958 N.E.2d at Id. at 353, 2011-Ohio-5755, 958 N.E.2d at 565.

11 2012] BARBEE V. NATIONWIDE MUTUAL INS. CO The court s decision in the instant case leaves the General Assembly with the option, and perhaps incentive, to reconsider the time limits to file claims for uninsured or underinsured motorist coverage and to create a clear rule that either tolls the running of the three-year limitation, or provides that the claim does not arise until the insured knows or should know that the tortfeasor does not have adequate liability insurance. JAMES HUGH WALKER