632 N.E.2d 1333 | Ohio Ct. App. | 1993
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *530
On June 1, 1991, while driving a Lincoln Town Car leased by Stephen Brewer from the Hertz Rent-A-Car Company ("Hertz"), Kramer struck another vehicle. Brewer's liability insurance carrier, Cincinnati Insurance Company ("CIC"), filed a complaint for declaratory judgment in which it requested a declaration that CIC did not have a duty to indemnify Kramer. Kramer counterclaimed against CIC and cross-claimed against Brewer, Hertz, and Leader.
The trial court on motion by Hertz and Brewer dismissed them both as parties. The trial court also granted CIC's motion for summary judgment. Subsequently, the trial court granted Leader's motion for summary judgment and dismissed Kramer's cryptic motion for summary judgment. The trial court declared that *531 Leader had no duty to defend Kramer or to indemnify him for the damage caused in the accident described in CIC's original complaint. Kramer appeals only the trial court's declaration in the order granting Leader's motion for summary judgment.
Civ.R. 56(C) prohibits a trial court from granting summary judgment when a genuine issue of material fact remains in dispute. Davis v. Loopco Industries, Inc. (1993),
The established rule in Ohio is that courts enforce insurance policies using the rules of construction that apply to contracts generally. Gomolka v. State Auto. Mut. Ins. Co. (1982),
The burden of proof is on Kramer to establish that he comes within the coverage of Leader's policy. Security Mut. Cas. Co.v. Hoff (1978),
In this case, the Hertz rental agreement expressly prohibited Brewer (original permittee) from granting permission to Kramer (second permittee). Furthermore, Leader's policy clearly and unambiguously excluded coverage to Kramer when he was operating an automobile without the permission of the owner. Because Hertz, not Brewer, was the owner of the Lincoln Town Car, Brewer could not give Kramer the owner's permission to operate the vehicle.
Kramer argues that permission is a disputed factual issue. Brewer stated by affidavit that he did not give permission to Kramer to use the automobile. Kramer, however, submitted an affidavit by Gilbert Schneider, who said, "Mr. Brewer told both of us at that time that the keys were in and to park it in the driveway when we get back." Because Brewer, as a matter of law, did not have authority under the rental agreement to give Kramer permission to drive the automobile, this dispute is not a genuine issue of material fact within the contemplation of Civ.R. 56(C). See, generally, Turner v. Turner (1993),
B. Certified Insurance Contract
Kramer next argues that Leader was obligated to "certify" his insurance contract. Therefore, he contends that the policy provided coverage even when he did not have permission to drive the Hertz automobile. The General Assembly has mandated that every "operator's policy" of liability insurance shall cover the insured against loss rising out of the use "of any motor vehicle not owned by him." R.C.
Kramer's policy states:
"If you are required to show proof of financial responsibility for the future because of auto accidents, traffic violations or other state motor vehicle requirements, we will certify this policy as proof."
This language is unambiguous. It simply provides that if, in the future, Kramer must meet the financial responsibility requirements of R.C.
C. Ohio Public Policy
Kramer argues, in the alternative, that the trial court's construction of Leader's insurance contract violated Ohio public policy as set forth in the Financial Responsibility Act. Kramer maintains that the nonpermissive-use/non-owned automobile provision of R.C.
Kramer has offered no proof that Leader was required to certify his insurance contract as an "operator's policy" under R.C.
Judgment affirmed.
SHANNON, P.J., and HILDEBRANDT, J., concur. *534