OPINION BY THREE-COMMISSIONER PANEL.
On September 18, 1987, the single commissioner issued an opinion and order which denied applicant Ruth Seifert's claim for an award of reparations. The denial was based upon the finding that the motor vehicle exclusion, found in R.C. 2743.51(C), precluded an award since there was no showing that the operator of the motor vehicle which struck and killed the victim either intended to cause personal injury or death, or was fleeing after having committed felonious conduct. On September 24, 1987, the applicant timely filed an objection and notice of appeal from the September 18, 1987 determination. The applicant's objection was heard before this panel on December 17, 1987. Counsel for the applicant and the Attorney General presented oral argument at the hearing.
At the hearing, applicant's counsel contended the single commissioner failed to recognize the applicant's eligibility as a victim under R.C. 2743.51(L)(2), thereby rendering his decision incorrect and in need of reversal.
In response, the Attorney General argued the single commissioner's decision should be affirmed since he correctly applied the statute's provisions to the facts of this claim.
The events leading up to the death of Robert Seifert are crucial to the resolution of this claim. In the early morning hours of February 9, 1986, a fight occurred inside the Gaslite Tavern involving Jeffrey Ashley, Robert Ashley, Thomas Schaeffer, and several others. The altercation moved outside to the parking lot, and the three individuals named above entered their automobile in an effort to drive away from the crowd that surrounded them. In this attempt to flee the scene, Jeffrey Ashley, the operator of the vehicle, drove over Robert Seifert and fatally wounded him.
The police reports and several witness statements indicate Robert Seifert became involved in the fracas solely as a peacemaker. The Attorney General's April 9, 1987 Investigation Report reveals, "according to (Detective) Bailey, the victim's only involvement in all of this was that he attempted to break up the fighting prior to the offenders getting in their car." In addition, Prosecutor Michael Callahan "* * * stated that the victim was an innocent bystander who was not involved in the dispute except for helping to break it up." We note that this characterization of Seifert's actions is supported by several witnesses' statements.
Having discussed the facts of the claim, we now turn to the legal issues this case presents. R.C. 2743.51(L) provides three methods by which one can qualify as a victim:
"`Victim' means a person who suffers personal injury or death as a result of any of the following:
"(1) Criminally injurious conduct;
"(2) The good faith effort of any person to prevent criminally injurious conduct;
"(3) The good faith effort of any person to apprehend a person suspected of engaging in criminally injurious conduct."
We agree with the single commissioner that the decedent cannot qualify under R.C. 2743.51(L)(1) as a victim of "criminally injurious conduct," as defined in R.C. 2743.51(C)(1), due to the motor vehicle exclusion. However, we can find the decedent to be a "victim" pursuant to R.C. 2743.51(L)(2). But for the decedent's good faith effort to prevent criminally injurious conduct ( i.e., the fighting that was occurring between the Ashleys and the others), he would not have suffered personal injury or death.
The Attorney General relies on the decision of In re Cook (Mar. 28, 1986), Ct. of Claims No. V85-63401sc, unreported, affirmed (Nov. 7, 1986), Ct. of Claims No. V85-63401tc, unreported, in which it was held, in a somewhat similar situation, that the applicant was disqualified pursuant to R.C. 2743.51(C). However, that case is distinguishable from the case at bar since the applicant's potential qualification under R.C. 2743.51(L)(2) was not ruled upon either by the single commissioner or the panel.
Therefore, the decision of the single commissioner shall be reversed. The claim shall be remanded to the single commissioner and referred to the Attorney General for investigation and a new recommendation concerning the applicant's economic loss. We make the following findings of fact and conclusions of law pursuant thereto.
Findings of Fact
1. On February 9, 1986, in Summit County, Ohio, the decedent, Robert Seifert, was killed in a collision with a motor vehicle operated by Jeffrey A. Ashley.
2. The applicant is the decedent's mother.
3. The victim was killed while attempting to prevent criminally injurious conduct.
4. The applicant has met the jurisdictional requirements necessary for an award of reparations.
5. The exact amount of the applicant's economic loss cannot be determined from the claim file.
Conclusions of Law
1. Pursuant to R.C. 2743.51 through 2743.72, the applicant qualifies as a "claimant" since the victim was killed while attempting to prevent "criminally injurious conduct," as provided in R.C. 2743.51(L)(2).
2. This claim must be remanded to the single commissioner and referred to the Attorney General for further investigation and a new recommendation concerning the applicant's economic loss.
It shall be so ordered.
Order accordingly.
DALE A. THOMPSON, KATHLEEN H. RANSIER and PHILLIP E. PARISI, Commissioners, concur.