Opinion
No. V89-76630.
Decided May 30, 1990.
Norman Fox, Jr., for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On August 9, 1989, in Cuyahoga County, Ohio, the applicant, Marlene Sotak, suffered personal injury as the result of an automobile accident. The offender, Scott P. Meyer, was driving under the influence of alcohol when the accident occurred. On August 17, 1989, Meyer was convicted of an OMVI violation.
At the time of the accident, Meyer was driving Sotak's car. Sotak, who was also intoxicated, was seated in the right front passenger seat of the car. According to the accident report contained in the claim file, Sotak was not wearing a seat belt at the time of the accident.
The Attorney General has investigated the claim and recommends it be denied pursuant to R.C. 2743.60(F). More specifically, the Attorney General contends the applicant's failure to wear a seat belt, as required by R.C. 4513.263(B)(3), constitutes contributory misconduct. I do not agree.
R.C. 2743.60(F) states, in pertinent part, the following:
"In determining whether to make an award of reparations pursuant to this section, a single commissioner or panel of commissioners shall consider whether there was contributory misconduct by the victim or the claimant. A single commissioner or a panel of commissioners shall reduce an award of reparations or deny a claim for an award of reparations to the extent it is determined to be reasonable because of the contributory misconduct of the claimant or the victim."
R.C. 2743.51(M) defines "contributory misconduct" as follows:
"`Contributory misconduct' means any conduct of the claimant or of the victim through whom the claimant claims an award of reparations that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct, has a causal relationship to the criminally injurious conduct that is the basis of the claim."
Finally, R.C. 4513.263(B)(3) provides the following:
"No person shall do any of the following:
"* * *
"(3) Occupy, as a passenger, a seating position on the front seat of an automobile being operated on any street or highway unless he is wearing all of the available elements of a properly adjusted occupant restraining device."
"Contributory misconduct" is defined in R.C. 2743.51(M) as conduct which is either unlawful, or intentionally tortious and which is causally related to the criminally injurious conduct upon which the claim is based. The provisions of R.C. 4513.263(B)(3) require that front seat passengers in motor vehicles wear seat belts, unless protected by passive restraints. Notwithstanding this requirement, Sotak was not wearing a seat belt at the time the accident occurred.
Although Sotak's failure to wear a seat belt may have been unlawful and may bear some causal relationship to the fact that she sustained personal injury, her conduct did not bear any causal relationship to the offender's decision to drive while under the influence of alcohol. The essence of contributory misconduct is the causal connection between the injured party's conduct and the offender's conduct rather than the injuries arising from that conduct. Put simply, the offender's decision to drive drunk was not motivated or instigated by the applicant's decision not to wear a seat belt. Therefore, the applicant's claim will be granted.
Findings of Fact
1. The applicant suffered personal injury as the fault of the criminally injurious conduct which occurred on August 9, 1989, in Cuyahoga County, Ohio.
2. The assault was reported to a law enforcement officer or agency within seventy-two hours after the occurrence.
3. The applicant failed to wear a properly adjusted seat belt restraint device while a front seat passenger in her car.
4. R.C. 4513.263(B)(3) requires front seat passengers of motor vehicles to wear seat belts.
5. The applicant incurred unreimbursed work loss in the amount of $700.72.
6. All of the applicant's allowable expense has been or may be reimbursed from collateral sources.
Conclusions of Law
1. The applicant qualifies as a "claimant" as defined by R.C. 2743.51(A).
2. The applicant's failure to wear a seat belt as a front seat passenger of an automobile driven by an offender who was later convicted of an OMVI violation, whether lawful or unlawful, does not constitute "contributory misconduct" as defined in R.C. 2743.51(M).
3. The applicant's claim will not be denied pursuant to R.C. 2743.60(F).
4. The applicant will be granted an award of reparations in the amount of $700.72, all of which represents "unreimbursed work loss," as defined in R.C. 2743.51(G).
5. Applicant's claim for "allowable expense" as defined in R.C. 2743.51(F) is denied pursuant to R.C. 2743.60(D) because this loss has been, or may be reimbursed from collateral sources.
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $700.72.
2. The warrant issued in payment of this judgment to the applicant shall be sent by the Director of Budget and Management to the applicant at the address certified to the Director by the Clerk of this court.
3. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.68 if the applicant incurs economic loss not considered in this determination and not reimbursed from other persons, including collateral sources.
4. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.60(D) and 2743.68 if the applicant submits timely application to a collateral source for payment but does not receive reimbursement from that source.
So ordered.