Custer v. CusterCuster v. Custer
APPEARANCES:
For
For Defendants-Appellees Attorney Edwin J. Hollern 77 North State Street Westerville, Ohio 43081
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb
DONOFRIO, P.J.
{¶1} Plaintiff-appellant, Michelle Custer, appeals from a Harrison County Common Pleas Court judgment granting summary judgment in favor of defendant-appellee, Allstate Fire and Casualty Insurance Company.
{¶2} On May 22, 2010, Mrs. Custer was the passenger in her husband John Custer‘s vehicle. Mr. Custer lost control of the vehicle and ran into a tree. Mrs. Custer suffered injuries as a result of the accident.
{¶3} At the time of the accident, Mr. Custer‘s vehicle was insured for liability coverage and uninsured/underinsured (UM/UIM) coverage under a policy with Allstate (the policy). Mrs. Custer made a claim with Allstate to cover her medical expenses, however, her medical expenses exceeded the $2,000 automobile medical payment coverage she had under the policy. Allstate denied liability coverage and UM coverage, citing an intra-family exclusion contained in the policy.
{¶4} Consequently, Mrs. Custer filed a complaint against her husband and Allstate seeking damages and a declaration that she was entitled to coverage under the policy. Allstate filed an answer and counterclaim for a declaratory judgment that the policy did not cover the damages sustained by Mrs. Custer.
{¶5} Allstate then filed a motion for summary judgment. It asserted that the intra-family exclusion set forth in the policy was valid and enforceable and precluded liability coverage for Mr. Custer. It further asserted the vehicle Mr. Custer operated did not meet the definition of “uninsured motor vehicle” and, therefore, Mrs. Custer was not entitled to UM coverage.
{¶6} Mrs. Custer filed a competing summary judgment motion. She alleged that she was entitled to UM coverage because the policy language concerning UM coverage violated
{¶7} The trial court found no genuine issues of material fact existed. It denied Mrs. Custer‘s summary judgment motion and granted Allstate‘s summary judgment motion. The court further entered a declaration that Allstate did not owe a defense to Mr. Custer for the underlying complaint and did not owe indemnification for any judgment that might arise as a result of the allegations in the underlying complaint.
{¶8} Mrs. Custer filed a timely notice of appeal on June 1, 2015. She now raises a single assignment of error.
THE TRIAL COURT ERRED IN GRANTING ALLSTATE SUMMARY JUDGMENT DECLARING THAT MRS. CUSTER IS NOT ENTITLED TO UNINSURED MOTORIST COVERAGE BY REASON OF THE INTRA-FAMILY EXCLUSION AND IN DENYING MRS. CUSTER‘S MOTION FOR SUMMARY JUDGMENT, BECAUSE THE INTRA-FAMILY EXCLUSION CONFLICTS WITH REVISED CODE SECTION 3937.18‘S DEFINITION OF AN UNINSURED MOTORIST, AND IS INCONSISTENT WITH THE PERMISSIBLE NON-OWNED AUTO EXCLUSION.
{¶10} An appellate court reviews the granting of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.
{¶11} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist. No. 27799, 2015-Ohio-4167, ¶8;
{¶12} As to liability coverage, the pertinent policy provisions read:
General Statement of Coverage
If a premium is shown on the Policy Declarations for Bodily Injury Liability Coverage and Property Damage Liability Coverage, Allstate will pay damages which an insured person is legally obligated to pay because of:
1. Bodily injury sustained by any person, and
2. damage to, or destruction of, property.
* * *
We will defend an insured person sued as a result of a covered accident involving an insured auto. * * * We will not defend an insured person sued for damages arising out of bodily injury or property damage which are not covered by this policy.
* * *
Exclusions – What Is Not Covered
Allstate will not pay for any damages an insured person is legally obligated to pay because of:
* * *
8. bodily injury to any person related to an insured person by blood, marriage, or adoption and residing in that person‘s household.
(Policy pages 7-8).
{¶13} There is no dispute in this case that Mr. Custer was an insured person under the policy. In determining that it would not pay Mrs. Custer‘s claim under the liability coverage, Allstate relied on the above exclusion. Specifically, Allstate would not pay damages that Mr. Custer,
{¶14} Since Allstate denied liability coverage due to the intra-family exclusion, Mrs. Custer asserted she was entitled to recover under the UM coverage because the insurer denied liability coverage rendering Mr. Custer‘s vehicle an uninsured auto.
{¶15} As to UM coverage, the policy provides:
General Statement of Coverage
If a premium is shown on the Policy Declarations for Uninsured Motorists Insurance, we will pay those damages which an insured person or an additional insured person:
1. is legally entitled to recover from the owner or operation of an uninsured auto
* * *
because of bodily injury sustained by an insured person or an additional insured person.
The bodily injury must be caused by accident and arise out of the ownership, maintenance, or use of an uninsured auto. * * *
An Uninsured Auto Is:
* * *
3. a motor vehicle for which the insurer, other than Allstate under this policy, denies coverage or becomes insolvent.
* * *
An Uninsured Auto Is Not:
* * *
2. a motor vehicle which is insured under the Automobile Liability Insurance of this policy.
(Policy pages 12-13).
{¶16} Mrs. Custer is also an insured under the policy. But Allstate denied her UM claim because Mr. Custer‘s vehicle did not meet the policy‘s definition of an “uninsured auto.” The policy specifically states that a vehicle insured under the Automobile Liability Insurance of the policy is not an uninsured auto. And because Mr. Custer‘s vehicle was insured under the Automobile Liability Insurance of the policy, it was not an uninsured vehicle under the terms of the policy.
{¶17} Mrs. Custer argues that
{¶18} In 2001, the General Assembly amended
{¶19}
{¶20} Mrs. Custer goes on to rely on
{¶21}
{¶22} Mrs. Custer next argues that while
{¶23} Moreover, Mrs. Custer argues this statutory construction is supported by the legislature‘s action in not reenacting
{¶24} Pursuant to
[w]hile the insured is operating or occupying a motor vehicle owned by, furnished to, or available for the regular use of a named insured, a spouse, or a resident relative of a named insured, if the motor vehicle is not specifically identified in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy under which the uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages are provided[.]
(Emphasis added);
{¶25} Under Mrs. Custer‘s interpretation of this section, the inclusion of the circumstance where the vehicle is not specifically identified in the policy under which the claim is made operates to exclude the circumstance where the vehicle is specifically identified in the policy under which the claim is made. Under Allstate‘s interpretation, the use of the words “including but not limited to” means that the circumstance where the vehicle is specifically identified in the policy under which the claim is made can be a permissible term to preclude coverage.
{¶27} In O‘Connor-Junke v. Estate of Junke, 8th Dist. No. 91225, 2008-Ohio-5874, O‘Connor-Junke was injured in an accident that her husband negligently caused. The couple was insured by a liability policy that also included UM coverage. The pertinent provisions were identical to those in the present case. The vehicle Junke was operating at the time of the accident was covered by the policy. Allstate was the insurer. It denied coverage to O‘Connor-Junke and she filed a complaint. On competing motions for summary judgment, the trial court granted summary judgment to Allstate with respect to the liability portion of the policy but denied summary judgment regarding the application of the exclusion for UM coverage. Allstate appealed.
{¶28} On appeal, the Eighth District found that the trial court did not err in granting summary judgment to Allstate on the liability portion of the policy, which included the intra-family exclusion. Id. at ¶12. It then went on to analyze whether the intra-family exclusion in the liability section of the policy combined with the definition of what “an uninsured auto is not” in the UM section acted to defeat coverage when the tortfeasor is a family member and whether this is permitted under
{¶29} The Junke policy specifically provided that for purposes of UM coverage “an uninsured auto is not” a vehicle that is insured under the Automobile Liability Insurance of the policy. Id. at ¶14. The court noted that the Junke vehicle was an insured vehicle under the liability section of the policy, thereby UM coverage was precluded under the policy. Id. at ¶15.
{¶30} O‘Connor-Junke argued that the UM policy conflicted with
{¶31} The Eighth District pointed out that in 2001, the legislature extensively amended
in reference to
R.C. 3937.18(I) , the Supreme Court explained that for the first time,R.C. 3937.18 permits policies with UM coverage [“]to limit or exclude coverage under circumstances that are specified in the policy even if those circumstances are not also specified in the statute.” (Emphasis added.) Id., citingR.C. 3937.18(I) .
{¶32} The court went on to note that the phrase “including but not limited to” in
{¶33} The court
{¶34} Moreover, the court found that the fact that the legislature removed language from
{¶35} Therefore, the Eighth District found the trial court erred when it denied Allstate‘s summary judgment motion regarding UM coverage. Id. at ¶29.
{¶36} And in Howard v. Howard, 4th Dist. No. 06CA755, 2007-Ohio-3940, ¶15, Mrs. Howard argued on appeal that the legislature‘s action in not re-enacting a provision similar to former
{¶37} Similarly, in Wertz v. Wertz, 6th Dist. No. H-06-036, 2007-Ohio-4605, Mrs. Wertz was injured in an accident while she was a passenger in a vehicle owned and operated by her husband. Mr. Wertz and the vehicle were insured under a policy issued by American Standard that included UM coverage with an intra-family exclusion. The exclusion provided that an “uninsured motor vehicle” does not include a vehicle “Owned by or furnished or available for the regular use of you or any resident of your household.” Id. at ¶¶9-10. Mrs. Wertz filed a complaint against American Standard and the parties filed summary judgment motions. The trial court held that the intra-family exclusion in the policy was against Ohio‘s public policy and was unenforceable under
{¶38} The Sixth District reversed. In doing so, it relied in part on Howard, 4th Dist. No. 06CA755, and Snyder, 114 Ohio St.3d 239. It pointed to Howard‘s finding that the legislature could have determined that a provision similar to former
{¶39} Other appellate districts have also held that
{¶40} We agree with our sister districts that have addressed this issue.
{¶41} Accordingly, Mrs. Custer‘s assignment of error is without merit.
{¶42} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
DeGenaro, J., concurs.
Robb, J., concurs.