{¶ 2} Based upon the Ohio Supreme Court's decision in WestfieldIns. Co. v. Galatis,
{¶ 3} In the appeal numbered C-030088, we reverse the judgment based upon the syllabus law of Marshall v. Aaron (1984),
{¶ 5} Eric Meece asserted claims for UM benefits under three policies issued to the Meece household by State Farm. One of the policies was issued to his father, Raymond, and had UM coverage limits of $100,000 for "each person" and $300,000 for "each accident"; the second policy was issued to both Raymond and Darlene, his mother, and had identical UM coverage limits; and the third policy was issued to his brother, Raymond II, and had UM coverage limits of $50,000 for "each person" and $100,000 for "each accident."
{¶ 6} State Farm did not contest that Eric Meece was entitled to UM benefits — but it did dispute that he could claim such benefits under all three policies, or "stack" the policies as that term is used. State Farm paid Eric Meece $100,000 in benefits with an express reservation of its right to litigate the issue of whether the other two policies could be "stacked."
{¶ 7} The Meeces filed suit against State Farm on April 2, 1997, to resolve the stacking issue. The trial court granted summary judgment to State Farm based upon its interpretation of R.C.
{¶ 8} On remand to the trial court, the Meeces added as a defendant the American Foreign Insurance Company, against whom they asserted a claim for UM coverage under the Ohio Supreme Court's intervening decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co.,
{¶ 9} On September 19, 2002, the Meeces filed their response to State Farm's motion for summary judgment. As will be later discussed more fully, although both the Meeces and State Farm refer to this response as a cross-motion for summary judgment, the response is not styled as such, and it states in its preamble only that State Farm's motion for summary judgment should be denied because "there are issues of material fact and questions of law."
{¶ 10} Also on September 19, 2002, the Meeces filed a "combined motion for summary judgment and memorandum in opposition" to American Foreign Insurance Company's motion for summary judgment, arguing that Scott-Pontzer and its progeny did apply to the company's commercial automobile policy with The Cincinnati Gear Company.
{¶ 11} On November 21, 2002, the trial court entered an order "granting [the Meeces'] motion for summary judgment against State Farm" and overruling State Farm's motion for summary judgment. On that same date, in a separate entry, the trial court granted American Foreign Insurance Company's motion for summary judgment against the Meeces and denied the Meeces' motion for summary judgment against the same company.
{¶ 13} As we have noted, both the Meeces and State Farm have taken the position for the purposes of this appeal that the Meeces responded to State Farm's motion for summary judgment on the issue of stacking by filing a cross-motion for identical relief. However, the filing to which both parties refer1 is not captioned a cross-motion, but merely a response, and states in the preamble only that State Farm's motion should be denied because questions of material fact and law remain. The memorandum in support of the response adopts the same argument — that summary judgment is improper because of unresolved factual issues. Nowhere in the conclusion section of the memorandum do the Meeces ever request summary judgment in their favor.
{¶ 14} We raise this issue not for the purpose of being overly technical or picayune. In Marshall v. Aaron, supra, the Ohio Supreme Court expressly held that it was reversible error for the trial court to grant summary judgment in the absence of a motion for such relief. The court interpreted the language of Civ.R. 56(C) as requiring a motion with evidence and stipulations attached as a necessary precondition to the court granting summary judgment, thus precluding a court from sua sponte granting such relief. Id. at 50,
{¶ 15} Concededly, the court in Aaron was concerned with a lack of notice to the opposing party and of the opportunity to demonstrate the existence of a genuine issue of fact. Here, State Farm, by earlier filing its own motion for summary judgment, had already briefed the issues. Were not the holding of Aaron and the syllabus law of the case so unequivocal, we might agree that this case should be distinguished. But the court in Aaron expressly stated, "Although Civ.R. 56(C) does not expressly so state, we rule that a party who has not moved for summary judgment is not entitled to such an order * * *." Id. Elsewhere, the court states its holding categorically, "For the following reasons, we hold that Civ.R. 56 does not authorize courts to enter summary judgment in favor of a party who has not moved therefore." Id. at 51,
{¶ 16} Because the trial court in this case had no authority to grant summary judgment to the Meeces, we have no choice but to reverse the trial court. While State Farm has appealed the trial court's order both granting summary judgment to the Meeces and denying it the same relief, it is well settled that "[t]he denial of a motion for summary judgment generally is considered an interlocutory order not subject to immediate appeal. See Stevens v. Ackman,
{¶ 17} State Farm's second assignment is predicated upon the applicability of Scott-Pontzer coverage. As we discuss infra, however,Scott-Ponzer coverage does not exist in this case under the recent Ohio Supreme Court decision in Galatis, supra, and therefore this assignment fails in its premise.
{¶ 18} Accordingly, based upon the syllabus law of Aaron, supra, we must reverse the entry of summary judgment for the Meeces on the issue of stacking and remand this case to the trial court for further proceedings.
{¶ 20} While this appeal was pending, however, the court inGalatis, supra, acknowledged the fallacy inherent in its judicial extension of UM/UIM coverage under a commercial automobile policy to include coverage that had absolutely no connection to the business itself. Citing cases from other jurisdictions that had used words such as "mysterious" and "preposterous" to describe the holdings inScott-Pontzer and Ezawa, the court acknowledged that under no sane analysis could the corporate insured have ever intended to contract for coverage against risks that had nothing to do with its commercial enterprise. Galatis, supra, at ¶ 39. Such a construction as it had imposed, the court acknowledged, constituted a remaking of the insurance contract and violated both state and federal constitutional provisions protecting the freedom of contract. Id.
{¶ 21} The court in Galatis therefore limited its earlier holdings so that "[a]bsent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope ofemployment." Id., paragraph two of the syllabus (emphasis supplied). In so doing, the court acknowledged that Scott-Pontzer had "ignored the intent of the parties" because, unless indicated otherwise in the policy, "it is doubtful that either an insurer or a corporate policy holder ever conceived of contracting for coverage for off-duty employees occupying noncovered autos, let alone the family members of the employees." Id. at ¶ 39. Moreover, the court noted thatScott-Pontzer and its progeny had defied "practical workability." Id. at ¶ 50. As stated by the court, "The multitude of post-Scott-Pontzer issues before this court, the widespread criticism of the decision from other jurisdictions, and the numerous conflicts emanating from the lower courts indicate that the decision muddied the waters of insurance coverage litigation, converted simple liability suits into complex multiparty litigation, and created massive and widespread confusion — the antithesis of what a decision of this court should do." Id.
{¶ 22} Significantly, the court rejected the argument that those who may have benefited from the Scott-Pontzer largesse could claim any reliance interest sufficient to maintain its viability. Id. at ¶ 59. As the court noted, "The overwhelming majority of Scott-Pontzer cases are resurrected claims from the years prior to the Scott-Pontzer decision," thus precluding any claim of reliance. Id. This is exactly the situation here, where the unfortunate accident that led to Eric Meece's injuries occurred well before Scott-Pontzer and its progeny made a claim against American Foreign Insurance Company even remotely conceivable.
{¶ 23} Based upon the holding of Galatis, therefore, we hold that the trial court did not err in granting summary judgment to the American Foreign Insurance Company. Nothing in the record supports the conclusion that the injury to Eric Meece, who was not an employee of The Cincinnati Gear Company, occurred within the scope of anything that could even be remotely argued was employment with his father's company, nor do we perceive any question of fact, let alone material fact, as to this issue created by the record.
{¶ 24} The Meeces' assignment of error is, therefore, overruled, and the judgment entered by the trial court against them is affirmed.
Judgment accordingly.
Sundermann, P.J., Gorman and Winkler, JJ.