42 Ohio St. 2d 94 | Ohio | 1975
Lead Opinion
This appeal involves the proper meaning of the term “regular use,” as used in appellant’s garage insurance policy issued to Greenwood Auto.
Appellant contends that this court should be guided by past decisions in which a use was found to be “regular” if it was frequent, steady or constant over a substantial period of time. See Kenney v. Employers’ Liability Assurance Corp. (1966), 5 Ohio St. 2d 131, 214 N. E. 2d 219; Oberdier v. Kennedy Ford (1970), 23 Ohio App. 2d 168, 261 N. E. 2d 348; Motorists Mutual Ins. Co. v. Sandford (1966), 8 Ohio App. 2d 259, 221 N. E. 2d 596. However, the above cases dealt with the phrase as used in a family insurance policy. It is our conclusion that a like criterion would be improper when construing the meaning of the term in a garage insurance policy.
In light of the above factors, we construe the term “regular use,” in this garage policy, to provide coverage of loaned automobiles when used within the scope of the permission given by the insured.
In the ease at bar, Greenwood Auto placed no conditions on the use that Thomas Berry, Jr., was to make of the automobile during the time it was loaned to him. The ear was loaned to Berry for his usual and customary use and, therefore, the insured furnished the loaner for Berry’s regular use within the terms of the policy. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
In the present case, the family policy issued by Ohio Casualty to Thomas Berry, Jr.’s father, in part, provides:
“Part I—Liability
“* * * rpQ pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“* * * bodily injury, sickness or disease * * *;
“* * * arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile * * *.
<<* * $
“Definitions—Under Part I:
$ *
“* * * ‘non-owned automobile’ means an automobile or trailer not owned or furnished for the regular use of either the named insured or any relative * * (Emphasis added.)
It was agreed during oral argument that although no premiums are paid for “regular use” coverage in a family policy, premiums are paid for such coverage in a garage policy.
A contract of insurance which is ambiguous is generally construed in favor of the insured. Allstate Ins. Co. v. Boggs (1971), 27 Ohio St. 2d 216, 271 N. E. 2d 855; Butche v. Ohio Cas. Ins. Co. (1962), 174 Ohio St. 144, 187 N. E. 2d 20; Home Indemnity Co. v. Plymouth (1945), 146
Appellant’s policy, in part, states:
“Persons insured—Each of the following is an insured under Part I, except as provided below:
“(4) With respect to an automobile to which the insurance applies under paragraph 1(b) of the Automobile Hazards, any person while using such automobile with the permission of the person or organization to whom such automobile is furnished, provided such person’s actual operation * * * is within the scope of such permission.” (Emphasis added.)
Dissenting Opinion
dissenting. To sustain its allegation that Thomas Berry, Jr., is primarily covered by a garage liability policy issued to Greenwood Auto, Inc., by the Travelers Indemnity Company, appellee, The Ohio Casualty Insurance Company, relies upon Sections 1(a) and 1(b) of the “automobile hazards” portion of that policy.
Section 1(a) provides coverage for any automobile used for garage operations; for any automobile, principally used in garage operations, which is occasionally used for other business purposes; and for any automobile, principally used in garage operations, which is used for non-business purposes. The parties agree that Section 1(a) under proper circumstances covers, among other things, one-shot, short-term “loaners,” including, but not limited to, automobiles loaned to persons whose automobiles are being repaired.
However, appellee offered no evidence which indicates that the 1968 Javelin was loaned to Thomas Berry, Jr., in the course of Greenwood’s garage operations, or that the automobile, whether loaned for a business or nonbusiness purpose, was “used principally in garage operations.” Bather, appellee relies on ten meager stipulations, none of which present facts sufficient to constitute such a showing.
Clearly, the one-shot, two-day loan in the present case was not the loan of an automobile “furnished for regular use,” as that technical language has been defined in past Ohio insurance cases. See Kenney v. Employers’ Liability Assurance Corp. (1966), 5 Ohio St. 2d 131; Oberdier v. Kennedy Ford (1970), 23 Ohio App. 2d 168; Motorists Mutual Ins. Co. v. Sandford (1966), 8 Ohio App. 2d 259. Regular use, as the majority notes, requires frequent, steady, or constant use over a substantial period of time. Only by persuading the majority to redefine this concept in the context of a garage policy does appellee limit its liability to providing “excess” coverage.
The upshot, of course, is that Ohio now defines “regular use” differently when used in a garage liability policy than when used in the standard family automobile policy. Absent policy language justifying this difference, it cannot be rationalized or justified. Further, the majority’s definition of “regular use” reduces the garage liability policy herein to an absurdity, providing coverage for short-term loans where none was contemplated, reducing technical language to redundant verbiage.
Many courts have held that “regular use” is not ambiguous, and hence not subject to construction. See Liggett v, Fahey (1972), 30 N. Y. 2d 680, 283 N. E. 2d 610;
A single period of use consisting of two days, the purpose of which is unexplained, can not constitute a regular use, under either a standard automobile or a garage liability policy.
Nor can I agree, as the majority contends, that “the insurer offers the ‘regular use’ provision in a garage policy to implement the intent to protect the insured from liability in circumstances involving a loaned vehicle.” No liability of the insured can ever be predicated upon the mere loan of a vehicle. Coverage (which alone is in question here) must be grounded upon policy language.
I find judicial tampering with the unambiguous terms of an insurance policy no less onerous than the “judicial legislating” this eourt so often deplores. The judgment of the Court of Appeals should be reversed.
