Uninsured/Underinsured Motorist (UM/UIM) Insurance

To protect themselves for injuries suffered in motor vehicle collisions caused by uninsured or inadequately insured motorists, many Ohioans purchase Uninsured/Underinsured Motorist (UM/UIM) insurance. With this coverage, a person who is injured by the carelessness of another driver who has no liability insurance, or insufficient insurance, can make a claim against his/her own insurance carrier, and obtain compensation for those injuries.

However, Ohio Courts have generally not allowed such an individual to access his/her own UM/UIM coverage in situations where injury is caused by the negligence of a driver who has insurance, but who is protected from liability by law for one reason or another. For example, police officers and other emergency personnel enjoy a qualified immunity from suit when they are responding to an emergency call. Unfortunately, "emergency call" has been interpreted broadly by the Courts, and covers responses to almost any type of call, possibly even a call to rescue a cat from a tree!

In such situations, the emergency personnel and the municipality for which they work cannot be held accountable for injuries caused by simple negligence; they can only be held liable if their conduct is more egregious, such as reckless or wanton operation of their vehicles. To add insult to injury, a person injured by a careless police officer, EMS or fire fighter generally cannot obtain a recovery under the UM/UIM coverage which that person had the good sense to purchase.

Recently, the Ohio Supreme Court carved out a very narrow exception to that harsh rule. In the case of Marusa v. Erie Insurance Company, decided on May 21, 2013, the Ohio Supreme Court ruled that Marie Marusa and her daughter Melanie could pursue UM/UIM benefits from their own insurer, for injuries they suffered when they were struck by a police cruiser negligently operated by a police officer responding to a call.

In that case, the Marusas' insurance policy included language that the insurance company would pay benefits for injuries caused by a driver who "has immunity under the Ohio Political Subdivision Tort Liability Law." In other words, despite Ohio law, the insurance company promised in writing in the policy, to pay damages in such a situation. The Ohio Supreme Court thus faced a situation where the words in the policy seemed to conflict with Ohio law. The Court decided that the promise in the policy prevailed over the general rule in Ohio, and the Marusas could pursue their claim against their own insurer.

So, if you have such language in your car insurance policy, and are injured in this type of situation, you can seek compensation from your own insurance company. However, as a result of this Court decision, it is likely that insurance companies will remove any such language from the policies which they sell in Ohio.

To protect yourself, you can always request that such language be contained in the policy you buy. Unfortunately, insurance policies are considered to be "contracts of adhesion," meaning that the bargaining power between the company and the insured is very uneven, with the insurer essentially dictating the terms to the buyer, on a "take it or leave it" basis. Smart consumers should ask their agents to find a car insurance policy which contains the language protecting them should they be struck by an emergency responder.

The other solution to the problem would be for the Ohio Legislature to pass, and the Governor to sign, a law requiring all UM/UIM policies sold in Ohio to contain that language. However, based on the conservative composition of the current Ohio Legislature, it is unlikely that it will pass such a law anytime soon.