2004 Ohio 1546 | Ohio Ct. App. | 2004
{¶ 3} On March 27, 2002, Pacific Indemnity filed a motion for summary judgment on the parents' wrongful death claim, pointing out that the parents' policy contained an exclusion for vehicles owned by family members and not covered under the policy. Appellant filed a response and a cross-motion for summary judgment, arguing that the exclusion applied only to bodily injury and that the wrongful death claim revolved around the family's mental damages rather than bodily injury.
{¶ 4} On September 8, 2002, the trial court granted summary judgment in favor of Pacific Indemnity. The court explained that the parents' policy excluded coverage for bodily injury or death suffered while the insured was operating a vehicle owned by a resident relative if the vehicle was not specifically identified in the policy. This "other owned auto" exclusion is permitted under R.C.
{¶ 6} The primary policy has a general coverage clause, which states:
{¶ 7} "We will pay to a covered person damages for bodily injury that the person is legally entitled to receive from the owner or operator of an uninsured or underinsured motorized land vehicle. We cover these damages for bodily injury from a motor vehicle accident, unless stated otherwise or an exclusion applies. Exclusions to this coverage are described inExclusions." (Page P-1.) (Emphasis original).
{¶ 8} The first of such exclusions to the UM/UIM coverage is as follows:
{¶ 9} "Your other motor vehicles: We do not cover any person for bodily injury sustained while occupying, or when struck by, a vehicle or trailer owned by you or a family member that is not a covered vehicle." (Page P-2.) (Emphasis original).
{¶ 10} The primary policy defines a covered person as: you (the person named in the coverage summary and a spouse who lives with that person) or a family member, any person in your covered vehicle, and any person who is legally entitled to recover damages due to covered bodily injury sustained by you or a family member or any person in your covered vehicle. Family member means a relative who lives with you or any other person under 25 in your care. A covered vehicle is described as: a vehicle named in the coverage summary, an after-acquired vehicle only for the first thirty days, a trailer you own, and a vehicle you do not own but are using temporarily as a substitute for a covered vehicle. (Page P-1).
{¶ 11} It is not disputed that Daniel generally qualified as a covered person within the policy's definition of a family member. It is also not disputed that the car he owned and was driving at the time of the accident did not fit under the definition of a covered vehicle and thus the "other owned auto" exclusion applied to bar his survival claim. This leaves the issue of whether the wrongful death beneficiaries are barred from collecting under their policy merely because their son was precluded by the exclusion.
{¶ 13} "The trial court erred in ruling that the [policy] issued by pacific indemnity excluded the underinsured motorist claims of the decedent's parents and siblings."
{¶ 14} Appellant sets forth three subassignments of error, which he characterizes as interrelated. We will set out his arguments separately infra.
{¶ 16} "Whether the decedent's parents and siblings are entitled to UM/UIM coverage under the [Policy] because the policy attempts to provide lesser coverage than which is mandated by law."
{¶ 17} This argument focuses on the words "bodily injury" in the coverage clause on page P-1, quoted above. Appellant focuses here on the general requirements of R.C.
{¶ 18} In Moore, the decedent was killed by an uninsured motorist. The decedent's mother was not involved in the accident and did not sustain bodily injury. She was a named insured on a policy with UM coverage, but her son was not a named insured, was not a resident of her household, and was not occupying a vehicle covered by the policy. The decedent's mother filed a UM claim, which was denied by her insurer. She then filed suit alleging that under R.C.
{¶ 19} The insurer claimed the following policy language precluded her claim:
{¶ 20} "[We will pay] compensatory damages which an `insured' is legally entitled to recover from the owner or operator of an `uninsured motor vehicle' because of `bodily injury': 1. Sustained by an `insured'; and 2. Caused by an accident."
{¶ 21} The Ohio Supreme Court started by explaining that for a limit on coverage to be valid, it must not be contrary to coverage mandated by R.C.
{¶ 22} In interpreting legislative intent, the Court turned to R.C.
{¶ 23} Thus, the Court held that the version of R.C.
{¶ 24} First, we note that the version of R.C.
{¶ 25} Appellee claims that its coverage clause on Page P-1 does not limit coverage to cases where the insured suffers bodily injury as did the improper clause in Moore. The Moore policy states that bodily injury must be sustained by the insured. The policy before this court states that the covered person can collect damages for bodily injury that the covered person is legally entitled to receive. This clause does not actually state that the insured must be the one who suffered the bodily injury. Rather, it only requires the insured/covered person to be legally entitled to collect damages (including mental suffering) for what could be someone else's bodily injury. Thus, the premise ofMoore is not violated, and this subassignment of error is overruled.
{¶ 26} Even if the coverage clause were to be invalidated under Moore, this subassignment of error would still lack merit. Appellant incorrectly argues that if one sentence in the general coverage clause attempts to limit coverage to bodily injury, the entire paragraph (including reference to the exclusion) is invalid. Moore merely requires that we read the general coverage language as including wrongful death damages.Moore does not require the striking of a separate sentence referring to exclusions. Regardless, the exclusions to UIM coverage are listed elsewhere, and thus, they would still be applicable even if the entire coverage paragraph on page P-1 was invalidated. Either way, the main issue, dealing with the effect of the "other owned auto" exclusion, remains.
{¶ 28} "Whether the decedent's parents and siblings are entitled to recover their statutory damages because Pacific Indemnity's `other owned auto' exclusion fails to clearly and unambiguously exclude coverage for the types of damages set forth in R.C.
{¶ 29} The legislature expressly permits UM/UIM policies to contain an "other owned auto" exclusion. Specifically, R.C.
{¶ 30} Accordingly, the policy herein contains an "other owned auto" exclusion worded as follows: "Your other motorvehicles: We do not cover any person for bodily injury sustained while occupying, or when struck by, a vehicle or trailer owned by you or a family member that is not a covered vehicle." (Page P-2)
{¶ 31} From this, it becomes clear that we are not only interpreting the policy, but we are also called upon to interpret the statute.
{¶ 32} Under this subassignment, appellant generally argues that because the policy's "other owned auto" exclusion only mentions bodily injury, it does not exclude coverage for a wrongful death claim, which seeks damages other than bodily injury such as mental anguish. Appellant also specifically notes that a different section of the policy defines personal injury as encompassing bodily injury and mental suffering. Thus, appellant concludes that the insurer would have used the words "personal injury" in the "other owned auto" exclusion if it meant to exclude more than just bodily injury. Appellant points out that where language of an insurance policy is reasonably susceptible to more than one meaning, it should be construed in favor of the insured.
{¶ 33} The insurance company counters that the definition of "personal injury" is in a different and separate section of the policy unrelated to UM/UIM coverage. The insurer then notes the undisputed fact that the decedent, who suffered bodily injury, was excluded from coverage because his vehicle was not identified in the policy. The insurer concludes that since the decedent is excluded from coverage and since wrongful death is a derivative claim, the family is also excluded.
{¶ 34} Resolution of this subassignment is facilitated by the contemporaneous discussion of appellant's third subassignment of error and the arguments therein.
{¶ 36} "Whether the decedent's parents and siblings are entitled to UM/UIM coverage under the [Policy] for the claims brought pursuant to Moore v. State Auto (2000),
{¶ 37} Appellant relies on the case of Gaines v. State FarmMut. Auto. Ins. Co., 10th Dist. No. 01AP-947, 2002-Ohio-2087. In that case, the decedent-husband was killed by an uninsured motorist while on his motorcycle, which was not listed as a covered vehicle on the policy issued to him and his wife. The policy had coverage language (similar to that in the case before us) stating that the insurer will pay damages for bodily injury an insured is legally entitled to collect. The policy also contained an "other owned auto" exclusion, precluding coverage for bodily injury to an insured while operating a car owned by the insured or a relative if it is not a listed vehicle.
{¶ 38} The trial court found that the exclusion precluded the wife from recovering. The Tenth Appellate District, however, reversed. The court noted that the wife was not the one operating the vehicle, and the exclusion only applied to bar the husband from recovering for injuries sustained while using the "other owned auto." Id. at ¶ 33. The court also held that the "bodily injury" language in the main coverage clause was an insufficient basis to deny wife's claim due to Moore. Id. at ¶ 35. Thus, the court concluded that even if the husband was not entitled to coverage due to the "other owned auto" exclusion, the wife still had a viable cause of action in her own right for wrongful death. Id. at ¶ 32.
{¶ 39} The Third Appellate District also decided a case on point. Adams v. Crider, 3d Dist. No. 10-02-18, 2004-Ohio-535. In that case, the husband owned a vehicle that was barred from coverage under the "other owned auto" exclusion in the family's insurance policy because it was not a listed vehicle. The wife was driving this vehicle containing her two sons when they were struck by an uninsured motorist. One son died.
{¶ 40} The court found that those who suffered bodily injury (the wife and her sons) were barred from collecting for their injuries due to the "other owned auto" exclusion in their policy. Id. at ¶ 16. The court held, however, that the family members (including the wife and the injured son) could collect for the wrongful death of the deceased child notwithstanding the "other owned auto" exclusion. The court reasoned that R.C.
{¶ 42} R.C.
{¶ 43} The language of the statute means that the insured who was occupying the non-covered family-owned vehicle is barred from collecting for his own bodily injury or death; it does not mean that other insureds, who are damaged in their own right by a wrongful death, are barred merely because the decedent was occupying a non-covered vehicle. Under the plain language of the statute, an "other owned auto" exclusion cannot prohibit a wrongful death beneficiary from collecting for their mental anguish. Thus, the wrongful death claims in this case are not excludable under R.C.
{¶ 44} For the foregoing reasons, the judgment of the trial court is hereby reversed and this case is remanded for further proceedings according to law and consistent with this Court's opinion.
Donofrio, J., concurs.
DeGenaro, J., concurs.
