ORDER

James G. Carr, Judge

This is an insurance coverage case in which plaintiff alleges he is entitled to underinsured motorist coverage from his employer's liability insurance provider and its excess carrier. This court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending are the parties' cross motions for summary judgement. For the following reasons, defendant Winterthur International's ("Winterthur") motion shall be granted, defendant Travelers Indemnity Company's ("Travelers") motion shall be granted, and plaintiff Hindall's motion shall be denied.

Background

On May 1, 1999, plaintiff was involved in an accident in Findlay, Ohio, when a car driven by Mandy Klinger struck plaintiff's motorcycle. (Doc. 1 at 3). Klinger was at fault, and her insurance carrier paid plaintiff the limits of its liability coverage. (Id.). Plaintiff claims that his damages exceed the limits of Klinger's insurance coverage.

At the time of the accident, plaintiff was an employee of Philips Display Components ("Philips Display"), a subsidiary of Philips Electronics North America ("Philips"). Philips was the named insured on a commercial automobile liability insurance policy issued by Travelers. (Id. at 2). This policy was for the period from December 31, 1998 to December 31, 1999, and was in effect at the time of plaintiff's accident. On December 31, 1998, Philips' Risk Manager, an authorized representative, signed a form rejecting uninsured and underinsured motorist coverage for the Travelers policy. (Doc. 12, Ex. A at Ex. 1). The validity of this rejection is disputed by the parties, and is determinative of Travelers' liability.

Although plaintiff was not acting within the scope of his employment at the time of the accident, he seeks to recover underinsured motorist coverage from his employer's policy pursuant to the Ohio Supreme Court's decision in Scott-Ponzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660 (1999).

At the time of plaintiff's accident, Philips had an umbrella policy issued by Winterthur. This policy provided coverage for losses in excess of other collectible insurance. Plaintiff also seeks to recover from this policy.

Discussion A. Liability of Travelers

Section 3937.18(A) of the Ohio Revised Code requires insurers to provide uninsured and underinsured motorist coverage in an amount equal to the amount of any liability insurance provided. If not offered by an insurer, this type of insurance arises as a matter of law. Such coverage may, however, be rejected by an insured.

Travelers asserts that it is entitled to summary judgment because Philips properly rejected underinsured motorist coverage in its policy. Travelers bases this argument on O.R.C. § 3937.18(C), as amended by Am.Sub.H.B. No. 261, effective September 3, 1997. Because the accident occurred in May of 1999, the amended statute, rather than the version that previously existed, applies.

Plaintiff asserts that he is entitled to summary judgment as to Traveler's liability based on two Ohio Supreme court cases interpreting former § 3937.18(C). In Gyori v. Johnston Coca-Cola Bottling Group, 76 Ohio St.3d 565 (1996), the Court held that there can be no rejection of uninsured motorist coverage under O.R.C. § 3917.18(C) absent a written offer of such coverage from the insurance provider. Additionally, the Court held that such a rejection must be in writing and be received by the insurance provider prior to the commencement of the policy year. (Id. at Syllabus). This year the Court broadened its interpretation of the former statute, by finding additional requirements for the content of the written offer, in Linko v. Indem. Ins. Co., 90 Ohio St.3d 445.

Citing these cases, plaintiff argues Philips' purported rejection was invalid; thus underinsured motorist insurance coverage exists as a matter of law. Plaintiff argues that no written offer exists, and that the rejection form is ineffective because it was received by Travelers on the date the policy year began, rather than before the commencement of the policy year.

Additionally, plaintiff argues that Philips' rejection was not effective under Linko, because Linko requires that a separate offer must be made to each subsidiary, or each additional entity that is a named insured, in order for that named insured to make a valid rejection. Plaintiff thus argues that because the rejection was made by a Philips representative, rather than by a representative of Philips Display, such rejection is not valid as to coverage for Philips Display and its employees.

In making these arguments, Plaintiff fails to acknowledge that each of these cases interprets the former statute, and that the amended statute applies to this case. The amended statute, by its terms, supercedes these requirements. Because they interpret the former statute, the requirements of the two cases, and the retroactivity of Linko, are not at issue in this case.

While the former statute was silent as to the form of offer and rejection, as well as the time by which such rejection must be received, the amended statute speaks directly to each issue. Section 3937.18(C) now provides:

A named insured's or applicant's rejection of both coverages as offered under division (A) of this section . . . shall be in writing and shall be signed by the named insured or applicant. A named insured's or applicant's written, signed rejection of both coverages as offered under division (A) of this section . . . shall be effective on the day signed, shall create a presumption of an offer of coverages consistent with division (A) of this section, and shall be binding on all other named insureds, insureds, or applicants.

Thus, under the current statute, the rejection form signed by Philips' Risk Manager creates a presumption of a valid offer under the statute, and no separate, written offer is required. Also, the rejection was effective the day it was signed, which was more than four months before the accident.

Finally, as quoted above, § 3937.18(C), as amended, provides that a written rejection signed by a named insured will be binding on all other named insureds and insureds. Thus, underinsured motorist coverage has been rejected as to Philips Display, and, as well, plaintiff. Accordingly, summary judgment for defendant Travelers is proper.

B. Liability of Winterthur

As noted above, Philips policy with Winterthur was an excess policy only. Thus, the Winterthur policy becomes applicable when Philips has liability that exceeds the limit of its primary policy. Specifically, the Winterthur policy covers liability in excess of the limit of the Travelers policy. (Doc. 18, Ex. 3 Form 36-3). By the terms of the Winterthur policy, it is invoked only after Philips sustains liability covered by the Travelers policy, Travelers pays Philips the full limit of the policy, and Philips has remaining liability. Because the Travelers policy provides no coverage in this case, there is no excess coverage for Winterthur to pay.

Plaintiff argues that Winterthur should be primarily liable to him because § 3937.18 requires excess insurance providers to offer uninsured and underinsured motorist coverage just as it requires primary insurers to do so. Thus, according to plaintiff, because Winterthur did not offer, and Philips did not reject, underinsured motorist coverage, such coverage arises as a matter of law in the Winterthur policy and Winterthur is primarily liable, even if Travelers has no liability.

Section 3937.18 does apply to excess liability providers. See Gyori, 76 Ohio St. 3d at 568. Accordingly, in cases where the underlying insurance policy provides uninsured and underinsured motorist coverage, the excess provider must provide such coverage unless the insured makes a valid rejection pursuant to § 3937.18(C). Id. Such a scenario is inapposite in this case, however, because the underlying policy contained no uninsured or underinsured motorist coverage. Because the Travelers policy provides no coverage in this case, the Winterthur excess policy provides no coverage. Thus, summary judgment in favor of Winterthur is appropriate.

For the foregoing reasons, it is hereby

ORDERED THAT

1. Defendant Travelers' motion for summary judgment be, and hereby is, granted;

2. Defendant Winterthur's motion for summary judgment be, and hereby is, granted;

3. Plaintiff's cross motion for summary judgment be, and hereby is, denied.

So ordered.