Contrary to the position taken by plaintiff insurer in this case, we believe the State Mutual Cyclone Insurance Co test was intended to apply to those cases where plaintiff is seeking to recover from defendant, or defendant's insurer, where defendant had occasioned direct injury to plaintiff in his person or property, not where a party is seeking legal redress from his own insurer, which insurer has contractually agreed to indemnify him for injury perpetrated upon him, not by the insurer, but by third parties. A similar distinction was made by the court in Schulz v. Allstate Insurance Co, 17 Ohio Misc. 83, 84; 244 N.E.2d 546, 547 (1968), in interpreting an Ohio statute which read: "An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
" 197 N.W.2d l.c. 159. Schleif v. Hardware Dealer's Mut. Fire Ins. Co., supra; Sahloff v. Western Casualty Surety Co., supra; Booth v. Fireman's Fund Ins. Co., supra; Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968), an action for damages arising from an automobile collision by an insured against his insurer on uninsured motorist coverage, was dismissed by the trial court on the bar of two-year statute of limitations for actions for bodily injury.
Here the sole purpose of plaintiffs' lawsuit was to recover damages for the paper destroyed in the fire, and this Court holds that when the complaint is stripped of its legal terminology, plaintiffs' cause of action in substance and effect was one for recovery of injury to personal property, and not, as plaintiffs contend, for violation of rights in personal property or for violation of rights arising out of an injury to personal property. This holding does not mean that in every case wherein personal property has been damaged a suit in contract may not lie which applies a limitation different from § 2305.10. See, e. g., Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (Ct. of Common Pleas of Franklin County 1968). There are various cases under Ohio law wherein the cause of action sounded in contract and in no way sought recovery for injuries to body or personal property or where recovery under a tort theory was incidental to the lawsuit. The following cases are examples of this principle and are distinguishable from both the case at bar and the Andrianos decision.
The court held the action was governed by the six-year statute of limitations for implied contracts and was not barred by the two-year limitations period governing actions for personal injury or property damage. See also Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). As in this case, the underlying basis for the implied contract of indemnification was the payment of a tort claim for personal injury and property damage arising from an automobile accident.
In our case, however, under Oklahoma law, Dorothy Markham never had a cause of action against her daughter. Such being the case, she was not "legally entitled to recover damages" from her daughter, and accordingly was not entitled to recover under either the uninsured motorist provisions of the insurance policies issued her husband or under the Oklahoma uninsured motorist statute. It is for this reason that we conclude that such cases as Motorist Mutual Insurance Company v. Tomanski, 21 Ohio App.2d 271, 257 N.E.2d 399 (1970); Booth v. Fireman's Fund Insurance Company, 197 So.2d 352 (La.Ct.App. 1967); and Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (Ohio Ct. of Common Pleas 1968), are inapposite. We believe that our disposition of the controversy squares with the purpose behind uninsured motorist coverage and statutes requiring the inclusion of such in a standard liability insurance policy, which is to afford the same protection to a person injured by an uninsured motorist as he would have enjoyed if the offending motorist had himself carried liability insurance.
Motorist Mutual Ins. Co. v. Tomanski, 21 Ohio App.2d 271, 257 N.E.2d 399 at pp. 403, 404, 405; Booth v. Fireman's Fund Ins. Co. (La.App. 1967) 197 So.2d 352; Horne v. Superior Life Ins. Co. (1962) 203 Va. 282, 123 S.E.2d 401; the defense of statute of limitations is personal to the tort-feasor and not available to automobile insurer. Schulz v. Allstate Ins. Co. (1968) 17 Ohio Misc. 83, 244 N.E.2d 546; there is no basis in the endorsement (uninsured motorist) that coverage be restricted to those situations in which insurer can stand in the shoes of the uninsured motorist. The claim against defendant on the endorsement should be and is treated differently than the cause of action the insured has against the uninsured motorist.
This is the position held by the majority of courts who have ruled on this issue. Booth v. Fireman's Fund Ins. Co., 197 So.2d 352 (La.Ct.App. 1967); De Luca v. Motor Vehicle Accident Indem. Corp., 17 N.Y.2d 76, 215 N.E.2d 482, 268 N.Y.S.2d 289 (1966); Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546, 46 Ohio Op.2d 109, (1968); Sahloff v. Western Casualty Surety Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969). Furthermore, plaintiff contends that he had no obligation to commence a tort action against the uninsured motorist prior to the running of the tort statute of limitations.
able to an action on an uninsured motorist policy. Craven directs our attention to cases from eighteen States whose courts apply the contract statute of limitations: Cline v. Aetna Ins. Co., 317 F. Supp. 1229 (S.D. Ala. 1970); Transnational Ins. Co. v. Simmons, 19 Ariz. App. 354 (1973); Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del. 1982); Burnett v. Fireman's Fund Ins. Co., 408 So.2d 838 (Fla. App. 1982); Sykes v. Fireman's Fund Ins. Co., 269 F. Supp. 229 (S.D. Fla. 1967); Burgo v. Illinois Farmers Ins. Co., 8 Ill. App.3d 259 (1972); Lemrick v. Grinnell Mutual Reinsurance Co., 263 N.W.2d 714 (Iowa 1978); Van Hoozer v. Farmers Ins. Exch., 219 Kan. 595 (1976); Booth v. Fireman's Fund Ins. Co., 253 La. 521 (1968); Jacobs v. Detroit Auto Inter-Ins. Exch., 107 Mich. App. 424 (1981); Edwards v. State Farm Ins. Co., 574 S.W.2d 505 (Mo. App. 1978); Selected Risks Ins. Co. v. Dierolf, 138 N.J. Super. 287 (1975); De Luca v. Motor Vehicle Accident Indemnification Corp., 17 N.Y.2d 76 (1966); Schultz v. Allstate Ins. Co., 17 Ohio Misc. 83 (1968); Turley v. Farmers Ins. Exch., 259 Or. 612 (1971); Pickering v. American Employers' Ins. Co., 109 R.I. 143 (1971); Schlief v. Hardware Dealer's Mut. Fire Ins. Co., 218 Tenn. 489 (1966); Franco v. Allstate Ins. Co., 505 S.W.2d 789 (Tex. 1974); Sahloff v. Western Casualty Sur. Co., 45 Wis.2d 60 (1960). Royal-Globe asserts, without citation to authority, that other States have held the contrary.
In rejecting the rule proposed by Safeco, Washington is aligned with those jurisdictions that apply the contract statute of limitation to an insured's UIM claim against his or her insurer. See Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del. 1982); Jacobs v. Detroit Auto. Inter-Insurance Exch., 107 Mich. App. 424, 309 N.W.2d 627 (1981); De Luca v. Motor Vehicle Accident Indem. Corp., 17 N.Y.2d 76, 215 N.E.2d 482, 268 N.Y.S.2d 289 (1966); Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968); Franco v. Allstate Ins. Co., 505 S.W.2d 789 (Tex. 1974). [2] Citing scant authority, Safeco argues that even if the contract statute of limitation applies, the statute should begin to run against the insured immediately on the date of the accident.
This view is in accord with other cases throughout the country which have held that actions by insureds against their insurers, under uninsured motorist endorsements similar to that prescribed by the Maryland statute, are contract actions and thus are governed by the principles and procedures applicable to contract actions generally. See, e.g., Transnational Insurance Co. v. Simmons, 19 Ariz. App. 354, 507 P.2d 693 (1973); Hartford Accident Indem. Co. v. Mason, 210 So.2d 474 (Fla.App. 1968); Booth v. Fireman's Fund Insurance Company, 253 La. 521, 218 So.2d 580, 584 (1969); Detroit Auto. Inter-Insurance Exch. v. Hafendorfer, 38 Mich. App. 709, 197 N.W.2d 155, 160 (1972); Hill v. Seaboard Fire Marine Cas. Co., 374 S.W.2d 606 (Mo. App. 1963); DeLuca v. Motor Vehicle Accident Indem. Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968); Turlay v. Farmers Ins. Exch., 259 Or. 612, 488 P.2d 406 (1971); Sahloff v. Western Casualty Surety Company, 45 Wis.2d 60, 171 N.W.2d 914, 917 (1969). Since this is a contract action rather than a tort action against the alleged tortfeasor Williams, and since nothing in the statutorily mandated contract coverage requires that the alleged tortfeasor be made a party, the action was properly brought in Maryland against State Farm alone.