2003 Ohio 6519 | Ohio Ct. App. | 2003
{¶ 2} PEIC argues that Doyle Brown is not an insured pursuant toScott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999),
{¶ 3} Pursuant to the Supreme Court of Ohio's recent decision inWestfield Ins. Co. v. Galatis,
{¶ 4} Therefore, we conclude that the trial court erred when it decided that the Browns were insureds. That error is harmless, because the trial court properly rendered summary judgment in favor of PEIC, albeit for reasons different from those cited by the trial court. Because there is no loss sustained by an employee of the corporation while acting within the course and scope of employment, the summary judgment rendered in favor of PEIC is affirmed, under the authority of Westfield Ins. Co.v. Galatis, supra.
{¶ 6} At the time of the accident, Kelly Brown, son of Doyle and Catherine Brown, was residing with his parents and was employed by Van Leer Holdings, Inc., in Ohio. Van Leer was insured by Pacific Employers Insurance Company (PEIC) under a business automobile insurance policy with the effective dates of coverage being January 1, 2000 through January 1, 2001. The PEIC policy contained UM/UIM coverage with a liability limit of $1,000,000.
{¶ 7} The Browns brought this action against PEIC seeking UM/UIM coverage. The Browns and PEIC both filed motions for summary judgment. The trial court granted PEIC's motion for summary judgment finding that although the Browns were insureds, the PEIC policy excluded UM/UIM coverage, because Doyle Brown was not operating an automobile covered by the policy. From the summary judgment rendered against them, the Browns appeal.
{¶ 9} "The trial court erred in finding that the subject policy validly restricted underinsured motorist coverage to certain `Covered Autos'; said finding being contrary to the holding of the ohio supreme court in Martin v. Midwestern Group Ins. Co. (1994),
{¶ 10} "The trial court erred in finding that the subject Pacific Employers Insurance Company policy excluded underinsured motorist coverage for insureds as to Sexton claims."
{¶ 11} Both assignments of error essentially contend that the trial court erred in rendering summary judgment in favor of PEIC, holding that although the Browns were insureds, the PEIC policy excluded UM/UIM coverage, because Doyle Brown was not operating an automobile covered by the policy. We review the appropriateness of summary judgment de novo and follow the standards set forth in Civ.R. 56. Koos v. Cent. OhioCellular, Inc. (1994),
{¶ 12} The Browns contend that UM/UIM coverage cannot be restricted to the use of any specific automobile pursuant to the holding in Martin. The Browns further contend that their Sexton claims for UM/UIM coverage are not subject to the exclusions listed in the PEIC policy, because Catherine and Kelly Brown were not occupying a vehicle.
{¶ 13} The first issue is whether the Browns are insureds under the PEIC policy for purposes of UM/UIM coverage. PEIC argues that Doyle Brown is not an insured pursuant to Scott-Pontzer, because he is not an employee of Van Leer, the named insured in the PEIC policy. PEIC further contends that Doyle does not qualify as a family member, as defined in the PEIC policy, because Doyle was not a resident of Kelly's household. PEIC also argues that the Browns are not insureds, because theScott-Pontzer ambiguity of the meaning of the pronoun "you," in defining who is an insured, is resolved, since the PEIC policy contains a Drive Other Car Coverage-Broadened Coverage for Named Individuals in Endorsement #9, which lists individual names of those who are insureds entitled to UM/UIM coverage.
{¶ 14} The PEIC policy provides UM/UIM coverage to an insured and defines who is an insured, in pertinent part, in Endorsement #85, Ohio Uninsured Motorists Coverage-Bodily Injury, effective January 1, 2000, as follows:
"B. Who Is An Insured
"1. You.
"2. If you are an individual, any `family member.'"
{¶ 15} The PEIC policy defines "you" as the named insured shown in the declarations, which provides that Van Leer is the named insured. The PEIC policy also defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child."
{¶ 16} The PEIC policy also contains a Drive Other Car Coverage-Broadened Coverage for Named Individuals, effective January 1, 2000, in Endorsement #9, which provides as follows:
"C. Changes in auto medical payments and uninsured and underinsured Motorists Coverages
"The following is added to WHO IS AN INSURED:
"Any individual named in the Schedule and his or her `family members' are `insured' while `occupying' or while a pedestrian when being struck by any `auto' you don't own except:
"Any `auto' owned by that individual or by any `family member'."
{¶ 17} The individuals named in the Schedule are "[a]ll managers, supervisors, salesmen and officers regularly furnished a private passenger vehicle."
{¶ 18} The portion of the PEIC policy in Endorsement # 85, Ohio Uninsured Motorists Coverage-Bodily Injury, defining who is an insured is similar to the policy language in Scott-Pontzer,
{¶ 19} The Ohio Supreme Court has recently limited the scope of the holding in Scott-Pontzer "to apply only where an employee is within the course and scope of employment." Westfield,
{¶ 20} Here, Doyle Brown was fatally injured in an accident in Indiana while driving a motorcycle he owned. Doyle Brown's death was not related to Kelly Brown's employment with Van Leer, so that Kelly Brown's loss, as Doyle Brown's son, cannot be said to have occurred within the course and scope of Kelly Brown's employment with Van Leer. Therefore, the PEIC policy issued to Van Leer does not provide UM/UIM coverage.
{¶ 21} Although the trial court erred when it determined that the Browns were insureds, summary judgment is nevertheless appropriate, because there is no loss sustained by an employee of the corporation while acting within the course and scope of employment. Accordingly, the Browns' First and Second Assignments of Error are overruled.
Wolff and Glasser, JJ., concur.
