Roush v. Butera
2012 Ohio 2506
Ohio Ct. App.2012Background
- Roush sued for UM/UIM coverage under National Union and Nationwide after a January 2001 accident caused by an uninsured driver, while Roush was driving a truck owned by his employer USF/Holland; two National Union policies governed the truck (Trucker’s Policy with $2M liability and an $1.75M deductible; an $8M umbrella in excess of the Trucker’s Policy) and Roush had a separate Nationwide policy; USF/Holland purportedly rejected UM/UIM coverage via a National Union AC form signed March 1999 by Clarke, USF’s risk manager; the trial court stayed proceedings pending Gilchrist v. Gonsor, later reactivated and granted summary judgment for National Union and Nationwide; appellants argue the rejection was invalid and UM/UIM coverage should apply; the trial court ruled no UM/UIM coverage existed under either insurer’ policies; this appeal followed; the umbrella policy issue and collateral estoppel arguments were raised but not dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USF/Holland validly rejected UM/UIM coverage | USF/Holland did not receive a valid offer meeting Linko | Affidavits show a valid rejection by authority of USF/Holland | Rejection valid; UM/UIM not owed |
| Whether Holland is bound by USF's rejection | Parent rejection binds subsidiary | Authority shown for USF to reject on Holland’s behalf | Holland bound; valid rejection applied to Holland |
| Whether Oblinger collateral estoppel precludes relitigating rejection | Oblinger bars National Union from re-litigating | No mutuality; Oblinger not binding here | Collateral estoppel does not apply; no preclusion |
| Whether the expert report should have been struck or admitted | Report timely; essential to opposition | Late-produced, not timely; Civ.R. 56(F) not satisfied | Affirmed strike; no abuse of discretion; no preservation on appeal |
| Whether Nationwide correctly excluded UM/UIM coverage under R.C. 3937.18(J)(1) | Policy language misunderstood; vehicle furnished for regular use | Exclusion applies to vehicle not identified in policy | Exclusion valid; Roush not covered by Nationwide |
Key Cases Cited
- Gyori v. Johnston Coca-Cola Bottling Group, Inc., 76 Ohio St.3d 565 (Ohio 1996) (requirement of written offer and Linko elements pre-H.B. 261; later extrinsic evidence permitted)
- Linko v. Indemn. Ins. Co. of N. Am., 90 Ohio St.3d 445 (Ohio 2000) (offer must inform availability, describe coverage, premiums, and limits)
- Hollon v. Clary, 104 Ohio St.3d 526 (Ohio 2004) (HB 261 modified Linko; signed rejection allowed extrinsic proof of offer)
- Bossin v. Groves, 2010-Ohio-664 (8th Dist.) (extrinsic evidence can prove rejection; form may lack premiums yet be supported by evidence)
- Oblinger v. State Auto Ins. Co., 163 Ohio App.3d 266 (1st Dist.) (First District found rejection invalid for lack of Linko elements; mutuality issues discussed)
- Rice v. Progressive Max Ins. Co., 2004-Ohio-6107 (8th Dist.) (considerations on HB 261 and timing of evidence)