SANDRA K. KING, EXECUTOR OF THE ESTATE OF BARRY L. KING, PLAINTIFF-APPELLANT, v. JENNIFER M. WACHAUF, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 2-12-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
June 17, 2013
2013-Ohio-2498
Appeal from Auglaize County Common Pleas Court Trial Court No. 2011 CV 0242 Judgment Affirmed
J. Alan Smith for Appellant
Robert B. Fitzgerald for Appellee, Hamilton Mutual Ins. Co.
{¶1} Plaintiff-appellant Sandra K. King (“Sandra“), the executor for the estate of Barry L. King, brings this appeal from the judgment of the Court of Common Pleas of Auglaize County granting summary judgment in favor of defendant-appellee, Hamilton Mutual Insurance Company (“Hamilton“). We affirm.
{¶2} On September 12, 2009, Sandra‘s husband, Barry L. King (“Barry“), was driving his motorcycle on County Road 25A. (Complaint, Doc. No. 1, ¶ 4). Defendant-appellee, Jennifer M. Wachauf (“Wachauf“), pulled into the path of Barry‘s motorcycle causing an accident. (Id.). Barry was injured and taken to a hospital for treatment where he subsequently died from his injuries on September 24, 2009. (Id. at ¶ 5-6, 12). At the time of the accident, both Barry and Sandra were named insureds on an automobile policy issued by Hamilton. (Id. at ¶ 17); (Id., Ex. 1, attached). The policy provided underinsured motorists (“UIM“) coverage. (Id., Ex. 1, attached). Barry also had a motorcycle insurance policy through defendant-appellee, Progressive Specialty Insurance Co. (“Progressive“) at the time of the accident. (Id., Ex. 2, attached).
{¶3} On September 9, 2011, Sandra filed a complaint individually and as the executor of Barry‘s estate against Wachauf, John Does 1 and 2, Progressive,
{¶4} Hamilton filed its answer on October 13, 2011. (Doc. No. 11). On February 8, 2012, Hamilton filed a motion for summary judgment arguing that the “other-owned auto exclusion” contained in their policy prohibited coverage in this case. (Doc. No. 25). The trial court granted Hamilton‘s motion for summary judgment on May 14, 2012 and certified the judgment as a final, appealable order pursuant to
{¶5} Sandra filed a notice of appeal on May 31, 2012. (Doc. No. 42). Sandra now appeals raising the following assignment of error:
Assignment of Error
The trial court erred by granting summary judgment in favor of [Hamilton], because although the “Other-Owned Auto Exclusion” contained in the [Hamilton] policy would exclude UIM motorist coverage for [Barry‘s] claim for bodily injuries, the “Other-Owned Auto Exclusion” contained in the [Hamilton] policy is ambiguous and when construed in favor of the insured
{¶6} The sole assignment of error challenges the granting of summary judgment. Specifically, Sandra argues that while the “other-owned automobile” exclusion prevents her husband, Barry, from recovering under the UIM portion of the Hamilton policy, it does not preclude her recovery. Sandra argues that the Hamilton UIM coverage language is ambiguous and subject to different interpretations, one of which entitles her to coverage. In particular, Sandra argues that she is an “insured” under the terms of the Hamilton policy legally entitled to recover from the owner/operator (Wachauf) of an underinsured motor vehicle for “bodily injury” sustained by “an insured,” her husband, Barry. Sandra argues that an ambiguity must be interpreted to her benefit and against Hamilton as the drafter; and therefore, she is entitled to UIM coverage under the policy.
{¶7} When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. The Lima News, 109 Ohio App.3d 408, 411-412 (3d Dist.1996). Before granting summary judgment, the court must determine that “(1) no genuine issues as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable
{¶8} The issue in this case is whether the language of Hamilton‘s UIM coverage is ambiguous. “An insurance policy is a contract whose interpretation is a matter of law.” Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917, ¶ 7, citing Sharonville v. Am. Employers Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, ¶ 6. To determine a contract‘s interpretation, a reviewing court must give effect to the parties’ intent upon examination of the contract as a whole, guided by the presumption that the parties’ intent is reflected by the language of the policy. Id., citing Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 11 and Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. “When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties.” Cincinnati Ins. Co. at ¶ 7, citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph two of the syllabus. A contract is
{¶9} While ambiguity in an insurance contract is construed against the insurer and in favor of the insured, a court should not apply this rule if it results in an unreasonable interpretation of the words of the policy. Cincinnati Ins. Co. at ¶ 8, citing King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (1988), syllabus and Morfoot v. Stake, 174 Ohio St. 506 (1963), paragraph one of the syllabus.
{¶10} The Hamilton UIM coverage provides, in pertinent part:
Insuring Agreement
A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury“:
1. Sustained by an “insured“; and
2. Caused by an accident
The owner‘s or operator‘s liability for these damages must arise out of the ownership, maintenance or use of the “underinsured motor vehicle“.
* * *
B. “Insured” as used in this endorsement means:
1. You or any “family member“.
2. Any other person “occupying” “your covered auto“.
3. Any person for damages that person is entitled to recover because of “bodily injury” to which this coverage applies sustained by a person described in 1. or 2. above. * * *
Exclusions
A. We do not provide Underinsured Motorists Coverage for “bodily injury” sustained:
1. By an “insured” while “occupying“, or when struck by, any motor vehicle owned by that “insured” which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
2. By any “family member” while “occupying“, or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy.
(Doc. No. 1, Ex. 1, Hamilton Policy, UIM Endorsement at 1-2) (Emphasis added).
{¶11} For purposes of the summary judgment motion, Hamilton and Sandra stipulated to the following basic facts. First, Wachauf negligently caused the accident. Second, Barry was the sole owner of the motorcycle. Third, the motorcycle was not covered by the Hamilton policy. Fourth, Sandra was not a passenger on the motorcycle and was not struck by the motorcycle or Wachauf‘s vehicle. Fifth and finally, the parties agreed that Barry would not be entitled to recover under the UIM policy because of the “other automobile exclusion.” The question is whether the UIM policy is ambiguous and would allow Sandra to recover under it.
{¶13} Likewise, the Court of Appeals for the Fifth Appellate District was presented with a similar case in Siciliano v. Natl. Mut. Ins. Co., 5th Dist. No. 06CA61, 2007-Ohio-6508. The husband in that case, like Barry herein, died as a result of an accident while he was driving a motorcycle. Id. at ¶ 1. At the time of the accident, the husband was a named insured on an automobile policy issued by National Mutual Insurance Company, which had UM/UIM coverage. Id. at ¶ 2. The motorcycle the husband was driving at the time of the accident was not listed as a covered vehicle under this policy. Id. Like Sandra herein, the wife filed a wrongful death claim against the tortfeasor and declaratory action against National Mutual for coverage under the UM/UIM portion of the policy. Id. at ¶ 3. The trial court granted summary judgment in favor of National Mutual. Id. On appeal, the Court of Appeals determined that the wife was not entitled to UM/UIM coverage under the National Mutual insurance policy, because the husband was operating a motorcycle which was not covered under the policy, and the policy contained an other-owned automobile exclusion, which was valid and enforceable under
{¶14} This Court was presented with an analogous case in Tuohy v. Taylor, 3d Dist. No. 4-06-23, 2007-Ohio-3597. In that case, a mother and father sought
{¶16} The cases Sandra relies upon are not persuasive. Jones v. Progressive Preferred Ins. Co. involved UM/UIM coverage language that was substantially different than the UM/UIM coverage language in the Hamilton policy, and Jones
{¶17} Likewise, Aldrich v. Pacific Indemn. Co. was decided under a prior version of
{¶18} Finally, Sandra cites to Am. Modern Home Ins. Co. v. Safeco Ins. Co. of Illinois, 11th Dist. No. 2007-L-044, 2007-Ohio-6247. Admittedly, the facts of the case are analogous and the UM/UIM coverage language and other-owned auto exclusion in the insurance policy at issue in that case are identical to that provided in the Hamilton policy. However, we decline to follow Am. Modern Home Ins. Co. because it errantly relies upon Jones, supra, which did not involve an other-owned auto exclusion and had different policy language, and errantly relies upon Aldrich, supra, which we have already explained was based upon old case law. Id. at ¶ 44. Judge Grendell in her concurring opinion also relies upon Brunn, which has since been called into question and also involved a prior version of
{¶19} Upon review of the Hamilton UIM coverage language and the other-auto exclusion, we conclude that Sandra is precluded from coverage because her
{¶20} Sandra‘s assignment of error is, therefore, overruled.
{¶21} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, J., concurs.
/jlr
WILLAMOWSKI, J., Concurring Separately.
{¶22} I am writing separately because I fully agree with the majority that the contract before us is unambiguous. I concur that with the current direction of the case law, we can infer that the intent of the parties was to prevent recovery for any claim arising from an accident in an “other owned auto“. However, this intent is inferred by the courts from the fact that the parties refused coverage for the other vehicle, not because the actual language of the contract states such. A review of the language of the contract itself specifies that coverage for bodily injury as a result of an accident while operating or occupying an “other owned auto” is excluded. The plain language of the contract does not specify that any