2003 Ohio 5237 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 3} At the time of the accident, McKean, the tortfeasor, was insured under a policy issued by Nationwide Insurance Company with liability limits of $12,500.00. Appellant's employer, Tribune Company, Inc., had in effect at the time of the accident a business auto insurance policy with a single liability limit of $1,000,000.00 per accident. The policy, which had an effective date of March 1, 1999, had been issued by appellee American Motorists Insurance Company, aka Kemper Insurance Company (hereinafter "AMICO").
{¶ 4} Subsequently, on November 30, 2001, appellant filed a complaint against appellee AMICO and McKean. Appellant specifically sought underinsured motorist (UIM) coverage under the policy appellee AMICO had issued to Tribune Company, Inc., her employer. On June 24, 2002, appellee AMICO filed a Motion for Summary Judgment to which appellant responded by filing a "Cross-Motion for Partial Summary Judgment and Memorandum in Support Thereof and in Opposition to Motion of Defendant for Summary Judgment." Via a Stipulation for Partial Dismissal and Judgment Entry filed on October 29, 2002, appellant's claim against McKean was dismissed with prejudice after Nationwide Insurance Company, McKean's insurer, offered the limits of its policy.
{¶ 5} As memorialized in a Decision and Judgment Entry filed on November 25, 2002, the trial court granted appellee AMICO's Motion for Summary Judgment while denying the Cross-Motion for Partial Summary Judgment filed by appellant. The trial court, in its entry, specifically held, in part, that "[t]he commercial automobile policy in question here defines an insured as `you for any covered auto.' This is significantly different that (sic) the `you' deemed ambiguous in Scott-Pontzer .In the within action, Plaintiff [appellant] was not operating a `covered auto' as defined herein, and therefore is not covered by these policies." The trial court further held that, pursuant to R.C.
{¶ 6} It is from the trial court's November 25, 2002, Decision and Judgment Entry that appellant now appeals, raising the following assignments of error:
{¶ 7} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE BASED ON ITS HOLDING THAT DEFENDANT-APPELLEE'S POLICY DID NOT HAVE THE AMBIGUITY IDENTIFIED INPONTZER.
{¶ 8} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE REQUIREMENTS SET OUT IN LINKO, TO DEFENDANT-APPELLEE'S PURPORTED REJECTION OF UM/UIM.
{¶ 9} "III. THE TRIAL COURT ERRED WHEN IT HELD THAT UM/UIM COVERAGE WHICH ARISES BY OPERATION OF LAW IS LIMITED TO `COVERED AUTOS' ONLY.
{¶ 10} "IV. THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF-APPELLANT WAS NOT ENTITLED TO UNINSURED/UNDERINSURED MOTORIST COVERAGE UNDER THE DEFENDANT-APPELLLEE'S BUSINESS AUTO POLICY.
{¶ 11} "V. THE TRIAL COURT ERRED IN DENYING CROSS-MOTION OF PLAINTIFF-APPELLANT FOR SUMMARY JUDGMENT."
{¶ 13} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall,
{¶ 14} It is pursuant to this standard that we review appellant's assignments of error.
{¶ 16} At issue in the case sub judice is whether appellant is entitled to UIM coverage under the business auto insurance policy1 issued to Tribune Company, Inc. her employer, by appellee AMICO.
{¶ 17} In the case sub judice, an "Uninsured/underinsured Motorist Coverage Selection/Rejection" form purportedly rejecting UIM coverage was signed by appellee's representative. The rejection is governed by R.C.
{¶ 18} Upon review, we find that the rejection form in the case sub judice does not comply with Linko, supra, since it does not sufficiently state the premium for UM/UIM coverage. A review of the rejection form, on its face, does not indicate the premium for the coverage being rejected. Furthermore, the rejection form does not disclose that UM/UIM coverage would be available up to the limits of the liability coverage. Since the rejection form did not comply with the requirements of Linko, supra., UM/UIM coverage therefore arose by operation of law in an amount equal to the $1,000,000.00 liability limits contained in the policy. See Morrison v. Emerson, Stark App. No. 2002 CA 00414, 2003-Ohio-2708.
{¶ 19} This Court has previously looked to the language of the auto liability policy to determine who is an insured when the UM/UIM coverage arises by operation of law. See Huzyak v. Nationwide Ins. Co., Stark App. No. 2003CA00019, 2003-Ohio-4044. See also, Scott-Pontzer v.Liberty Mut. Fire Ins.,
{¶ 20} The business auto policy, in Section II captioned "LIABILITY COVERAGE" states, in part, as follows: "[w]e will pay all sums an `insured' legally must pay as damages because of `bodily injury' or `property damage' to which this insurance applies, caused by an `accident' and resulting from the ownership, maintenance or use of a covered' auto'".
{¶ 21} The named insured listed on the Declarations page is "Tribune Company." In addition, the business auto policy contains the following definition of an "insured" under Section II — Liability Coverage:
{¶ 22} "Who Is An Insured
{¶ 23} "The following are `insureds':
{¶ 24} "a. You for any covered `auto'.
{¶ 25} "b. Anyone else while using with your permission a covered `auto' you own, hire or borrow except:
{¶ 26} "1) The owner or anyone else from whom you hire or borrow a covered `auto'. This exception does not apply if the covered `auto' is a `trailer' connected to a covered `auto' you own.
{¶ 27} "2) Your `employee' if the covered `auto' is owned by that `employee' or a member of his or her household.
{¶ 28} "3) Someone using a covered `auto' while he or she is working in a business of selling, servicing, repairing, parking or storing `autos' unless that business is yours.
{¶ 29} "4) Anyone other than your `employees,' partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their "employees," while moving property to or from a covered `auto'.
{¶ 30} "5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered `auto' owned by him or her or a member of his or her household.
{¶ 31} "c. Anyone liable for the conduct of an `insured' described above but only to the extent of that liability."
{¶ 32} The policy further states the word "you" and "your" refer to the Named Insured shown in the Declarations. Thus, the word "you" refers to Tribune Corporation.
{¶ 33} The trial court, in its Judgment Entry, held the phrase "you for any covered auto" was not ambiguous and, since appellant was not occupying a "covered auto" at the time of the accident, she was not entitled to UM/UIM coverage under the subject policy. Appellant, in her brief, now argues she is an insured under the AMICO business auto policy pursuant to Scott-Pontzer, supra. because the phrase "you for any covered auto" contains the word "you" and, therefore, is ambiguous. In short, appellant argues the same ambiguity that existed in Scott-Pontzer exists in the policy in the case sub judice. We agree.
{¶ 34} On the Declarations page of the policy, the symbol identifying "covered autos" for liability coverages is "I." Symbol "I" is defined in the policy as "any `auto.'" Because appellant was operating "any `auto,'" she is entitled to UIM coverage created by operation of law under AIMCO's policy.2
{¶ 35} Appellant's assignments of error are sustained.
{¶ 36} The judgment of the Ashland County Court of Common Pleas is reversed.
By: Hoffman, P.J., Farmer, J. concur.
Dissenting Opinion
{¶ 1} I respectfully dissent from the disposition of this case by the majority.
{¶ 2} I would find that the appellant is not an insured under the liability portion of the business auto policy and, therefore, is not an insured under UM/UIM coverage which arises by operation of law.
{¶ 3} The named insured listed on the Declarations page is "Tribune Company." In addition, the business auto policy contains the following definition of an "insured" under Section II — Liability coverage:
{¶ 4} "Who Is An Insured
{¶ 5} "The following are `insureds':
{¶ 6} "a. You for any covered `auto'."3
{¶ 7} The policy further states that the word "you" and "your" refer to the Named Insured shown in the Declarations. Thus, the word "you" refers to Tribune Corporation.
{¶ 8} The trial court, in its Judgment Entry, held that the phrase "you for any covered auto" was not ambiguous and that, since appellant was not occupying a "covered auto" at the time of the accident, she was not entitled to UM/UIM coverage under the subject policy. Appellant, in her brief, now argues that she is an insured under the AMICO business auto policy pursuant to Scott-Pontzer, supra. because the phrase "you for any covered auto" contains the word "you" and, therefore, is ambiguous. In short, appellant argues that the same ambiguity that existed inScott-Pontzer exists in the policy in the case sub judice.
{¶ 9} We find that the "you" in the liability portion of the subject policy is not ambiguous since a corporation can be liable for causing bodily injury or death. There is, therefore, no reason in the liability portion of the subject policy to expand the definition of "you" to include a corporation's employees.
{¶ 10} Thus, if "you" does not include a corporations' employees, then appellant would not be an insured under the liability portion of the policy, and, therefore, not an insured for UM/UIM coverage which arises by operation of law. (See ORC Sec.
