169 Ohio App. 3d 318 | Ohio Ct. App. | 2006
{¶ 1} Plaintiff-appellant, Jack R. Advent, as executor of the estate of Valijean D. Advent, appeals from the judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Allstate Insurance Company ("Allstate"), and denying appellant's motion for partial summary judgment. For the following reasons, we affirm the trial court's judgment.
{¶ 2} This action arises out of an automobile accident that occurred on September 28, 2002, as a result of the negligence of Scott D. Rude. Valijean D. Advent died from injuries she sustained in the accident and is survived by her husband, appellant Jack Advent, and her children, Laura and Ryan. As executor of his late wife's estate, appellant settled the estate's claims against Rude and Rude's insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), for the $100,000 bodily injury limit of Rude's insurance policy, while preserving the right to pursue claims for uninsured/underinsured-motorist ("UM/UIM") coverage from Allstate, the Advents' insurer.
{¶ 3} At the time of the accident, appellant and his wife were the named insureds on an Allstate insurance policy, which provided liability coverage up to *320 $300,000 per person/$500,000 per occurrence. According to its declarations page, the Allstate policy provided UM/UIM coverage up to $50,000 per person/$100,000 per accident.
{¶ 4} On September 23, 2004, appellant filed an action for wrongful death and declaratory judgment against Allstate and Dennis O. Norton, appellant's insurance agent, in the Franklin County Court of Common Pleas.1 In his claims against Allstate, appellant seeks to recover $200,000 in UM/UIM coverage under the Allstate policy. Appellant contends that UM/UIM coverage arose by operation of law under the Allstate policy in an amount equivalent to the policy's liability limit of $300,000 per person/$500,000 per occurrence. After setting off the $100,000 paid by State Farm, appellant contends that the estate is entitled to recover $200,000 under the Allstate policy. Allstate has admitted that the estate sustained compensatory damages in excess of $300,000.
{¶ 5} On June 28, 2005, Allstate filed a motion for summary judgment, arguing that appellant was not entitled to recover UM/UIM benefits under the Allstate policy because Rude's liability coverage exceeded the Allstate policy's UM/UIM limits. Allstate also argued that because the 2001 Am. Sub. S.B. No. 97 version of R.C.
{¶ 6} Appellant raises a single assignment of error for our consideration:
The trial court erred in granting summary judgment in favor of appellee Allstate and denying appellant's motion for summary judgment.
{¶ 7} Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994),
{¶ 8} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forth-with if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only where (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis DayWarehousing Co. (1978),
{¶ 9} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim."Dresher v. Burt (1996),
{¶ 10} The parties' dispute over the amount of UM/UIM coverage afforded by the Allstate policy stems from their disagreement over which version of the Ohio uninsured-motorist statute, R.C.
{¶ 11} Allstate originally issued the Advents' policy on March 12, 1989, and the parties continually renewed the policy through the time of the accident. Pursuant to R.C.
{¶ 12} In Wolfe, the Ohio Supreme Court looked to the original issuance date of the appellants' automobile insurance policy and counted successive two-year periods from that date to determine the last guarantee period. Applying that method here, and counting successive two-year periods from the original issuance date of March 12, 1989, the last two-year guarantee period prior to the accident ran from March 12, 2001 until March 12, 2003. The statutory law in effect on March 12, 2001, included the statutory changes affected by 2000 Sub. S.B. No. 267, effective September 21, 2000. As the statutory law in effect at the beginning of the relevant guarantee period, the S.B. No. 267 versions of the insurance statutes govern the scope of the Allstate policy.
{¶ 13} Enacted after Wolfe, but before the beginning of the relevant guarantee period, S.B. No. 267 did not change the requirement of a two-year guarantee period mandated by R.C.
(E) Nothing in this section prohibits an insurer from incorporating into a policy any changes that are permitted or required by this section or other sections of the Revised Code at the beginning of any policy period within the two-year period set forth in division (A) of this section.
Section 5 of S.B. No. 267 read:
*323It is the intent of the General Assembly in amending section
3937.31 of the Revised Code to make clear that an insurer may modify the terms and conditions of any automobile insurance policy to incorporate changes that are permitted or required by that section and other sections of the Revised Code at the beginning of any policy period within the two-year period set forth in division (A) of that section.
Under R.C.
{¶ 14} The S.B. No. 267 version of R.C.
{¶ 15} Although S.B. No. 267 was in effect at the beginning of the relevant guarantee period, the General Assembly, during that guarantee period, again amended R.C.
Any policy of insurance delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state that insures against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle, may, but is not required to, include uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages.
In S.B. No. 97, the General Assembly expressed its intent to:
*324(1) Eliminate any requirement of the mandatory offer of uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages;
(2) Eliminate the possibility of uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages being implied as a matter of law in any insurance policy;
* * *
(4) Eliminate any requirement of a written offer, selection, or rejection form for uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages from any transaction for an insurance policy[.]
Allstate contends that under the S.B. No. 97 version of R.C.
{¶ 16} Simply stated, the essence of the parties' dispute becomes whether the S.B. No. 97 amendments to R.C.
{¶ 17} In Arn, the relevant guarantee period began on February 21, 2001, at which time the S.B. No. 267 versions of R.C.
{¶ 18} In Storer, the relevant guarantee period began on September 18, 2001, at which time the S.B. No. 267 versions of R.C.
As noted by this court in Young v. Cincinnati Ins. Co., [Cuyahoga] App. No. 82395, 2004-Ohio-54[,
2004 WL 35770 ], a policy cannot be amended to reflect statutory changes that occur during the guaranteed two-year period; an amendment does not take effect until the expiration of that two-year period. R.C.3937.31 (A); Shay v. Shay, [164 Ohio App.3d 518 ], 2005-Ohio-5874[, 843 N.E.2d 194]; Slone v. Allstate Ins. Co., Richland App. No. 2004CA0021, 2004-Ohio-3990[,2004 WL 1699899 ].
Id. at ¶ 15. We disagree with the Eighth District's analysis in Stover.
{¶ 19} The cases upon which the Eighth District based its conclusion that a policy cannot be amended to reflect statutory changes during a guarantee period involved insurance policies with guarantee periods that began prior to the effective date of S.B. No. 267 and, thus, prior to the enactment of R.C.
{¶ 20} Appellant acknowledges that R.C.
{¶ 21} To determine the policy period for the Allstate policy, we turn to the policy itself. Appellant argues that Allstate issued its policy for two-year policy periods based on the policy provision entitled "Guarantee Period," which provides:
A guarantee period required by Ohio law begins on the 90th day after the original effective date of the policy, and continues for two years from that original effective date. When this guarantee period expires, a new guarantee period will commence for another two year period unless we mail notice that we don't intend to continue the policy. Each guarantee period begins after the expiration of the prior guarantee period.
Although the Allstate period clearly provides for a two-year guarantee policy, as required by R.C.
Your policy applies only during the policy period. During this time, it applies to covered losses to the insured auto, accidents, and occurrences within the United States, its territories or possessions; Canada, and between their ports. The policy period is shown on the Policy Declarations.
(Emphasis added.)
{¶ 22} Allstate issued Renewal Auto Policy Declarations every six months. The Renewal Auto Policy Declarations issued at the beginning of the March 12, 2001 guarantee period identify the "policy period" as March 12, 2001, to September 12, 2001, at 12:01 a.m. standard time. The record contains additional Renewal Auto Policy Declarations listing policy periods of September 12, 2001, to March 12, 2002, March 12, 2002, to September 12, 2002, and September 12, 2002, to March 12, 2003.
{¶ 23} Despite policy language defining the policy period as the period set forth in the declarations, each of which identifies a six-month policy period, appellant argues that a six-month policy period is in direct contradiction to the specific language of the "Guarantee Period." Alternatively, appellant argues that the Allstate policy is ambiguous regarding the length of the policy period. We disagree. The "Guarantee Period" provision in the Allstate policy simply incorporates the guarantee period required by R.C.
{¶ 24} Appellant next argues that even if the Allstate policy was issued for six-month periods, Allstate took no action to incorporate the S.B. No. 97 version of R.C.
We'd like to let you know that we've changed the process for selecting and making changes to Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage.
Effective immediately, you can add or remove Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage and increase or decrease your limits under Uninsured Motorists Insurance for Bodily Injury by simply calling your Allstate representative. There will be no forms to sign.
Please refer to the enclosed Policy Declarations to determine if your policy currently has Uninsured Motorists Insurance for Bodily Injury and Uninsured Motorists Insurance — Property Damage.
If Uninsured Motorists Insurance for Bodily Injury or Uninsured Motorists Insurance — Property Damage is not included in your policy and you would like to purchase it, or if you would like to increase or decrease the Uninsured Motorists Insurance for Bodily Injury limits shown on the Policy Declarations, please feel free to contact your agent or the Allstate Customer Information Center at 1-800-ALLSTATE (1-800-255-7828).
We also note that, under the heading "Important Payment and Coverage Information," the Renewal Policy Declarations for the policy period from March 12, 2002, to September 12, 2002, explicitly informed the Advents that their chosen UM/UIM limits were less than their liability coverage limits and instructed them to contact their agent or Allstate if they wished to increase their UM/UIM limits. *328
{¶ 25} Appellant argues that the Notice is insufficient to incorporate the S.B. No. 97 changes into the Allstate policy because the policy itself expressly requires that any change to the policy that restricts or reduces coverage be accomplished by policy endorsement. The Allstate policy provision entitled "Coverage Changes" provides:
When Allstate broadens a coverage during the policy period without additional charge, you have the new feature if you have the coverage to which it applies. The new feature applies on the date the coverage change is effective in your state. Otherwise, the policy can be changed only by endorsement. Any change in your coverage will be made using the rules, rates and forms in effect, and on file if required, for our use in your state.
Appellant contends that the incorporation of the S.B. No. 97 changes into the Allstate policy constituted a change to the policy resulting in a reduction of coverage. Appellant claims that prior to S.B. No. 97, UM/UIM coverage would have arisen by operation of law with limits of $300,000 per person/$500,000 per accident, whereas, under S.B. No. 97, UM/UIM coverage is limited to $50,000 per person/$100,000 per accident, as set forth in the policy declarations.
{¶ 26} We reject appellant's position that S.B. No. 97 could be incorporated into the Allstate policy only by endorsement. The incorporation of the S.B. No. 97 changes to R.C.
{¶ 27} The Twelfth District Court of Appeals recently rejected an argument similar to that which appellant makes here. In Burton v. Allstate Ins. Co., Butler App. No. CA2004-10-247,
* * * First, "[a]n insurer has no duty to inform an insured about changes in insurance laws." Ryan v. The Hartford Co. (June 25, 2001), Butler App. No. CA2000-10-210[,2001 WL 705709 ]. Second, there was no change in the UM/UIM coverage limits of the renewal policy. The Burtons concede that the policy originally issued to them on December 6, 1997 included UM/UIM coverage in the amounts of $25,000 per person and $50,000 per occurrence. These amounts are identical to those declared in the renewal policy that went into effect on December 6, 2001. Thus, notice of a change in UM/UIM coverage was not required.
Id. at ¶ 16.
{¶ 28} Similarly, in Arn, the appellants argued that the S.B. No. 97 changes were not incorporated into their policy, under which UM/UIM coverage would have otherwise been imposed by operation of law. There, the renewal certificate issued with the post-S.B. No. 97 renewal informed the insureds that UM/UIM coverage had been declined and instructed the insureds to contact their insurance agent if they wished to purchase UM/UIM coverage. The appellants argued that because their prior rejections of UM/UIM coverage were invalid under the pre-S.B. No. 97 versions of R.C.
* * * In our opinion, prior rejections or coverage imposed by operation of law were irrelevant, because State Farm had no obligation to offer UM coverage and there was no need for either a written offer or a rejection when the policy was renewed in February, 2002. On its face, the policy did not contain UM/UIM coverage and, in fact, had never contained UM/UIM coverage. The only way such coverage might have been in effect previously was through a legal fiction adopted by courts — a fiction that was no longer viable in February 2002. Whether one wants to consider the statement on the renewal certificate a change or simply a return of the policy to what it always was before the many amendments to the UM statutes, the fact is that the insured was clearly informed that the policy did not contain UM/UIM coverage.
Arn at ¶ 41.
{¶ 29} Like the policy at issue inBurton, the Allstate policy at issue here has always provided in its declarations for reduced UM/UIM coverage limits. Since its inception, the Allstate policy has provided UM/UIM coverage with limits of $50,000 per person/$100,000 per accident. The only way additional UM/UIM coverage might previously have been available to appellant "was through a legal fiction adopted by court — a fiction that was no longer viable." Id. Additional *330 coverage imposed by operation of law was, by definition, never explicitly included in the Allstate policy. Accordingly, there was no policy provision for Allstate to amend by endorsement. As the Burton court noted, an insurer has no duty to inform its insureds about changes in insurance law. Nevertheless, Allstate instructed its insureds to review the UM/UIM coverage expressly listed in their policy declarations and informed them how to make changes to that coverage if desired. Allstate also explicitly informed the Advents that their chosen UM/UIM limits were less than their liability coverage limits. Because the incorporation of the S.B. No. 97 changes to the insurance statutes occasioned no change in the terms of the Allstate policy, Allstate was not required to issue a policy endorsement to incorporate those changes into the policy.
{¶ 30} In support of its position that a policy endorsement was required to make changes to the policy, appellant cites the fact that Allstate issued an endorsement, in addition to a notice, to enlarge the statute of limitations for UM/UIM claims from two to three years. Allstate sent its notice regarding the extension of the statute of limitations at the same time it sent notice regarding the changes to the process for selecting UM/UIM coverage. We find Allstate's issuance of an endorsement changing the statute of limitations irrelevant. The enlargement of the statute of limitations involved a change to the express terms of the Allstate policy, which previously required that "[a]ny legal action against Allstate must have been brought within two years of the date of the accident." Unlike the change to the statute of limitations, application of amended R.C.
{¶ 31} For the foregoing reasons, we find that the S.B. No. 97 changes to R.C.
Judgment affirmed.
BRYANT and TRAVIS, JJ., concur.
