Plаintiffs-appellants, Sally J. Boso and Terry L. Perigo, appeal from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendants-appellees, Erie Insurance Company/Erie Insurance Exchange (“Erie”).
This case arises out of a December 7, 1991 hunting acсident in which plaintiff, Terry Perigo, fatally shot plaintiff Sally Boso’s husband, Bradley Boso. At the time of the accident, Terry Perigo was in possession of two separate insurance policies issued by Erie, a homeowner’s policy and an Ultrapack Business Policy (“Ultrapack Policy”). The Ultrapack Policy, which is the focus of the instant action, was originally issued on December 3, 1985. At the time of its issuance, the policy designated “Terry Perigo d/b/a Perigo Vision Centers” as the named insured. In October 1987, Terry Perigo, an optometrist, advised Erie that his business, Perigo Vision Centers, had beеn incorporated. When Erie renewed the Ultrapack Policy on December 3, 1987, it amended the policy declaration to reflect the business’s incorporation. The amended declaration designated “Terry Perigo Vision Centers, Inc., Terry Perigo d/b/a” as named insured under thе policy. The policy remained in essentially that form until December 3, 1991, when Erie amended the declarations to designate “Terry Perigo Vision Centers Inc., Terry Perigo ATIMA” as named insureds.
Following the death of Bradley Boso, Sally Boso filed a wrongful death action against Terry Perigo in the Franklin County Court of Common Pleas. In exchange for Sally Boso’s agreement to release Terry Perigo from personal liability in the wrongful death action, Erie paid Sally Boso the full liability limit of $500,000 under Terry Perigo’s homeowner’s policy. The wrongful death action was then stayed pending a determination as to whether Terry Perigo was covered for the accidental shooting of Bradley Boso under the Ultrapack Policy. On December 3, 1993, Terry Perigo and Sally Boso jointly filed the instant action in the Franklin County Court of Common Pleas seeking a declaratory judgment that Terry Perigo was covered under the Ultrapack Policy. On December 22, 1993, Erie filed its answer together with a counterclaim seeking a declaratory judgment that Terry Perigo was not covered under the Ultrapack Policy for the accidental shooting of Bradley Boso.
On September 9, 1994, рlaintiffs moved for summary judgment. In support of their summary judgment motion, plaintiffs offered the affidavit of insurance expert William Condon, Jr., and the depositions of Terry Perigo and Erie underwriter, Richard Semrau. On September 14, Erie moved for summary judgment. In support of its motion, Erie offered the affidavits of Tеrry Perigo and Richard Semrau.
“1. The trial corat erred in granting summary judgment in favor of appellee by going outside of the policy of insurance to find meaning for the cryptic initials ATIMA and using this meaning to construe the contract against the policyholder.
“2. The trial court erred in failing to grant summary judgment in favor of appellants and in failing to find that the Ultrapack Policy issued by appellee to appellant, Terry L. Perigo, covered his actions on December 7,1991.”
Preliminarily, as plaintiffs’ assignments of error arise in the context of summary judgment granted pursuant to Civ.R. 56, the evidеnce must be construed most strongly in favor of the nonmoving party; summary judgment should be granted only if no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come but to one conclusion, which is adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co.
(1978),
Plaintiffs’ two assignments of error -will be addressed together, as both raise the issue of whether the Ultrapack Business Policy covers Terry Perigo for accidentally shooting Bradley Boso while on a private hunting trip unrelated to the operation of his business.
The provisions of the Ultrapack Policy relevant to the resolution of this issue provide as follows:
“LIABILITY PROTECTION — SECTION II
“ Your policy provides liability protection for all operations and all locations. For coverage to apply, you must tell us about all your operations and locations you are aware of at the beginning of the policy period. If you acquire additional locations or perform any new operations during the policy period, they are automatically covered for the rest of the policy period. At renewal time you must tell us about these additional locations and new operations in order for coverage to continue. If you do not tell us about these аdditional locations and new operations, coverage for them stops at the end of the policy period.
u * * *
“We will pay for damages because of personal injury or property damage for which the law holds anyone we protect responsible and whiсh are covered by your policy. * * *
“DEFINITIONS
“ * * *
“•‘Anyone we protect’ and ‘Insured’ when used in Section II means:
“(1) you;
“ * * *
“(4) executive officers, trustees or directors if doing business as a corporation, association or other entity, but only while acting within the scope of their duties. * * *
“(5) your employeеs while in the course of their employment. * * *
“ * * *
“•‘You’, ‘your’ and ‘named Insured’ means the persons named on the Declarations under Named Insured.
“DECLARATIONS
“ITEM 1 NAMED INSURED AND ADDRESS
“PERIGO VISION CENTERS INC.
“TERRY PERIGO ATIMA
“3653 S HIGH STREET
“COLUMBUS OH 43207-4009” (Emphasis added.)
The dispute in this case centers around Erie’s inclusion of “Terry Perigo ATIMA” as a named insured in the Ultrapack Policy declarations. Although “ATIMA” is not defined in the policy, research reveals that the term is an acronym for the phrase “as their interest may appear.”
Chmielewski v. Aetna Cas. & Sur. Co.
(1991),
Plaintiffs argue however that because “ATIMA” is not defined in the policy, and is not readily understood outside the insurance industry, the words “Terry Perigo ATIMA” are ambiguous.
“The test for determining whether language used in an insurance policy is ambiguous is whether that language is ‘ * * * reasonably susceptible of more than one interpretation * * *’”
Santana v. Auto Owners Ins. Co.
(1993),
Here, the term “ATIMA” does not have a plain and ordinary meaning. The term is not defined in any commonly used references, nor can its meaning, be fоund in the leading insurance law treatises. In fact, a LEXIS search revealed no Ohio cases in which the term “ATIMA” appears, and in order to find the definition of “ATIMA,” we had to search the case law of other states. See Chmielewski and Pappas, supra. Because the meaning of the term “ATIMA” is not commonly understood and cannot be readily ascertained, the words “Terry Perigo ATIMA” in the Ultrapack Policy declarations are ambiguous.
Plaintiffs argue that the words “Terry Perigo ATIMA” can reasonably be understood as listing Terry Perigo as a named insured for all purposes under the Ultrapack Policy, and that under the rule of construction requiring ambiguous terms in an insurance policy to be construed in favor of the insured, we must so construe the Ultrapack Policy.
Plaintiffs are correct that, as a general rule, where language in an insurance policy is unclear or ambiguous the language must be liberally construed in favor of the insured.
Faruque v. Provident Life & Acc. Ins. Co.
(1987), 31
The intent of the parties to an insurance policy is to be ascertained from language of the policy in its entirety
(Burris,
supra), аnd cannot be ascertained by relying on one provision in a policy to the exclusion of the others.
Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Shane & Shane Co., L.P.A.
(1992),
When the Ultrapack Policy is read in its entirety, it is clear that Terry Perigo and Erie intended for the policy to provide liability coverage only for incidents related to thе operation of Perigo Vision Centers, Inc., and never contemplated that the policy would cover Mr. Perigo personally for incidents unrelated to his duties as company president. The title of the policy, “Ultrapack Business Policy,” is itself revealing in this respect. Further, the liability protection provision of the policy speaks in terms of providing “liability protection for all operations and all locations,” rather than for individuals or persons.
In addition, because we have determined that the words “Terry Perigo ATIMA” are ambiguous, we may look tо extrinsic evidence in attempting to ascertain the intent of the parties with respect to the coverage of the Ultrapack Policy.
Kelly v. Med. Life Ins. Co.
(1987),
“5. In procuring and maintaining the policy on behalf of Perigo Vision Center, Inc., it has never been my intention to maintain or secure coverage which would provide liability coverage with respect to my persоnal actions outside the course and scope of my duties and employment with Perigo Vision Centers, Inc.”
Plaintiffs argue that Terry Perigo subsequently retracted this statement in his deposition when he testified that “it was always my intention that the liability
There is also the evidence of Erie that it was the standard procedure of the company to utilize such a term when a sole proprietorship is subsequently incorporated in order to render coverage for loss of real or personal property where their interests may appear.
Given the language of the Ultrapack Policy taken as a whоle, and Terry Perigo’s uncontroverted statement that he did not intend for the Ultrapack Policy to provide liability coverage for his actions outside the course and scope of duties with Perigo Vision Centers, Inc., reasonable minds could only conclude that the policy was not intended to provide Terry Perigo with liability coverage for incidents unrelated to the operation of Perigo Vision Centers, Inc. Consequently, construing the words “Terry Perigo ATIMA” in the manner urged by plaintiffs would produce results in direct conflict with the manifest intention of the parties. This we decline to do.
Plaintiffs also appear to argue that Erie’s amendment of the named insured from “Perigo Vision Center, Inc., Terry Perigo ATIMA” on December 3, 1991, just four days prior to the hunting accident, somehow “deprived” Terry Perigo of prior rights and “curtailed” his personal liability coverage withоut conditions in the form of reduced premiums. Although appellants did not allege or argue that the policy failed for lack of consideration or lack of mutual consent in the trial court, which would preclude the argument being considered here,
Thompson v. Preferred Risk Mut. Ins. Co.
(1987),
Although it is not clear what Erie intended by including, for a period of time, “Terry Perigo d/b/a” as a named insured following Perigo Vision Center, Inc., we must conclude that the change to Terry Perigo ATIMA does not operate to exclude coverage, or othеrwise affect coverage in a negative manner. Rather, as argued by Erie, it would seem to expand coverage to include the former sole proprietorship owner Perigo as a loss payee to the extent he may have had any interest as an individual in any reаl or personal property used in the business.
Thus, even if we were to determine the coverage provided by the Ultrapack Policy using the prior policy declaration, we would still have to examine the policy in its entirety, as well as the extrinsic evidence, and would reach the same result.
In light of the foregoing discussion, plaintiffs’ first and second assignments of error are overruled.
Judgment affirmed.