778 N.E.2d 594 | Ohio Ct. App. | 2002
{¶ 2} Mr. Enyart was insured by Grange Mutual Casualty Co. Mr. Enyart's policy had liability limits of $50,000 per person and $100,000 per accident and also provided uninsured motorist coverage in the same amounts. Julie Roberts was the named insured on an automobile policy and a tenant policy issued by Cincinnati. Julie Roberts's automobile insurance included UIM coverage with limits of $100,000 per person and $300,000 per accident. Donald and Mary Ann Roberts were insured under an automobile policy and a homeowner's insurance policy issued by Cincinnati. The Robertses' automobile policy had UIM coverage with limits of $100,000 per person and $300,000 per accident.
{¶ 3} On October 13, 1998, the Robertses filed a first amended complaint adding as a defendant the Board of Education for the Reynoldsburg City School District ("Reynoldsburg"). At the time of the accident, Julie Roberts was employed by Reynoldsburg as a school teacher. The Robertses sought payment from Reynoldsburg for medical expenses pursuant to certain insurance benefits provided to employees.
{¶ 4} On November 24, 1998, a second amended complaint was filed, adding as a defendant Eric R. Roberts (no relation to the plaintiffs). Eric Roberts was driving an automobile on the night of the accident and was allegedly a joint tortfeasor with Mr. Enyart. The automobile driven by Eric Roberts was insured by American National Insurance Company with liability limits of $100,000 per person and $300,000 per occurrence.
{¶ 5} On June 24, 1999, Cincinnati filed a motion for summary judgment arguing, in part, that the UIM coverage under Julie Roberts's automobile policy was not available because the tortfeasors' liability limits were equal to or in excess of such UIM coverage.
{¶ 6} On December 28, 1999, the same plaintiffs plus Mark D. Roberts, Julie's brother, filed a complaint in the Franklin County Court of Common Pleas against Wausau Business Insurance Company ("Wausau"), Nationwide Mutual Fire Insurance Company, and Nationwide Mutual Insurance Company (collectively referred to as "Nationwide"). Mark Roberts was the named insured on an automobile policy issued by Cincinnati which contained UIM coverage with limits of $100,000 per person and $300,000 per accident. In addition, he had homeowner's insurance through Cincinnati.
{¶ 7} At the time of the accident, Wausau insured Reynoldsburg under a business automobile policy. The Wausau policy provided UIM coverage with a $7,000,000 limit. In addition, Reynoldsburg was insured by Wausau under an umbrella liability policy with a UIM limit of $2,000,000. The Robertses claimed, *616
in part, that they were entitled to UIM coverage under the Wausau policies pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999),
{¶ 8} Nationwide was eventually dismissed from the action(s).
{¶ 9} On April 21, 2000, the two cases were consolidated.
{¶ 10} Various motions for summary judgment were filed. On March 23, 2000, the court rendered a decision on Cincinnati's June 24, 1999 motion for summary judgment. The trial court found that under Am.Sub.S.B. 20 and (former) R.C.
{¶ 11} On May 1, 2001, the trial court rendered a decision on various other motions for summary judgment. The trial court concluded that pursuant to Scott-Pontzer, Julie Roberts was an insured under Wausau's business automobile policy issued to Reynoldsburg. Therefore, the plaintiffs were entitled to UIM coverage up to the $7,000,000 limit, subject to actual damages.
{¶ 12} The trial court further found that Julie Roberts was an insured under Wausau's umbrella policy issued to Reynoldsburg. Therefore, the plaintiffs were entitled to additional UIM coverage up to the $2,000,000 limit, subject to actual damages.
{¶ 13} The trial court also concluded that the plaintiffs were entitled UIM coverage under Donald and Mary Ann Robertses' automobile policy issued by Cincinnati, as already determined in its March 23, 2000 decision, and further found that the limit of such coverage would be $200,000 (representing $100,000 each). The trial court also found that Mark Roberts was entitled to UIM coverage under his automobile policy issued by Cincinnati.
{¶ 14} Further, the trial court concluded that the plaintiffs were entitled to UIM coverage under their tenant's/homeowners' insurance policies issued by Cincinnati.
{¶ 15} The trial court lastly concluded that the first or primary policies for Julie Roberts's estate were the Wausau business automobile policy with the $7,000,000 limit and Julie Roberts's $100,000 tenant's policy with Cincinnati. The trial court further found that the Wausau umbrella policy was in excess to the above coverages but primary to any other applicable policy issued by Cincinnati. *617
{¶ 16} On May 30, 2001, the trial court rendered a decision on Wausau's and Cincinnati's motions for reconsideration. The trial court determined that based on the Supreme Court's recent decision in Davidson v. Motorists Mut. Ins. Co. (2001),
{¶ 17} The trial court rejected Wausau's argument that under the Scarpelli case, the UIM coverages in Julie Roberts's and Roy Enyart's automobile policies were triggered. The trial court concluded that because Roy Enyart's insurer had offered its liability limit of $50,000 and because Eric Roberts's insurer had offered its liability limit of $100,000, the total liability limits ($150,000) exceeded Julie Roberts's UIM limit ($100,000) under her Cincinnati automobile policy and, therefore, the plaintiffs were not entitled to UIM coverage under Julie's automobile policy. The trial court rejected other arguments set forth by Wausau.
{¶ 18} Also on May 30, 2001, the trial court denied Wausau's motion to compel joinder of certain other insurance companies which allegedly provided UIM coverage under Scott-Pontzer. The trial court also denied Wausau's alternative motion to dismiss.
{¶ 19} Cincinnati then settled with the plaintiffs for $10,000 and was dismissed from the action on June 12, 2001.
{¶ 20} A trial on the issue of liability was held on June 4 through June 13, 2001. Wausau was the only remaining defendant. The jury found that Roy Enyart and Eric Roberts had been negligent and that such negligence had been the proximate cause of the death of Julie Roberts. The jury found damages of $1,275,000 against Wausau. This award was reduced by $150,000, representing the amount given to the plaintiffs from the tortfeasors' liability carriers.
{¶ 21} On June 20, 2001, the plaintiffs filed a motion for prejudgment and postjudgment interest. On June 29, 2001, the trial court rendered a decision granting plaintiffs' motion. The trial court determined that the plaintiffs were entitled to prejudgment interest calculated as of the date of the automobile collision.
{¶ 22} On August 7, 2001, the trial court rendered a decision on Wausau's July 11, 2001 motion for an additional credit against the judgment. Wausau had argued that it was entitled to a $10,000 credit against the jury verdict based on *618 Cincinnati's settlement with the plaintiffs. The trial court concluded that Wausau was not entitled to this credit.
{¶ 23} On August 21, 2001, the trial court journalized a final judgment entry, incorporating all of its previous decisions on motions and the jury verdict, with the setoff of $150,000. On August 31, 2001, Wausau filed a motion for judgment notwithstanding the verdict ("JNOV") and a motion for a new trial. On December 7, 2001, the trial court filed a decision and entry denying Wausau's motions for JNOV and a new trial.
{¶ 24} Wausau (hereinafter "appellant") has appealed to this court, assigning the following errors for our consideration:
{¶ 25} "1. It was error for the trial court to grant Plaintiffs' motion for summary judgment.
{¶ 26} "2. It was error for the trial court to grant Cincinnati Insurance Company's * * * [motion for summary judgment].
{¶ 27} "3. It was error for the trial court to deny Wausau's [motion for summary judgment] and to find UM coverage for the Plaintiffs under Wausau's policies.
{¶ 28} "4. It was error for the trial court to deny Wausau's motion for reconsideration.
{¶ 29} "5. It was error for the trial court to assess prejudgment interest without a hearing.
{¶ 30} "6. It was error for the trial court to assess prejudgment interest from the date of the accident.
{¶ 31} "7. It was error for the trial court to deny Wausau a credit for Plaintiffs' settlement with Cincinnati.
{¶ 32} "8. It was error for the trial court to deny Wausau's motion to compel joinder.
{¶ 33} "9. It was error for the trial court to deny Wausau's motion for JNOV."
{¶ 34} As they are interrelated, we will address appellant's first, second, third, fourth and ninth assignments of error together. In essence, appellant's arguments center on the trial court's determination, by way of summary judgment, that the plaintiffs (hereinafter "appellees") were entitled to UIM coverage under appellant's business automobile policy issued to Reynoldsburg, the decedent's employer. Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law, *619
and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998),
{¶ 35} The first issue we address is whether or not this case is distinguishable from Scott-Pontzer. Appellant contends that the policy at issue here is distinguishable from the policy interpreted in Scott-Pontzer and, therefore, the reasoning underlying the decision in Scott-Pontzer is not applicable to the case at bar. Specifically, appellant asserts that the basis for the Scott-Pontzer decision was the ambiguity of the word "you," as found in the policy at issue. Appellant also emphasizes that the policy in Scott-Pontzer was issued to a for-profit corporation.
{¶ 36} In Scott-Pontzer, the Supreme Court addressed the issue of whether the decedent was an "insured" under his employer's commercial automobile policy which contained UIM coverage. Interpreting policy language identical to the language used in appellant's policy, the Supreme Court determined that the policy language could be interpreted to include company employees. Id. at 664. The Supreme Court reiterated that uninsured/UIM motorist coverage, mandated by R.C. 3738.18, was designed to protect persons, not vehicles. Id. The Supreme Court stated that it was reasonable to conclude that "you," while referring to the corporation itself, would also include the corporation's employees, since a corporation itself cannot occupy an automobile, suffer bodily injury or death, or operate a motor vehicle. Id. Because the language in the policy concerning the identity of "insureds" was ambiguous, the Supreme Court concluded that the employee was insured under the policy for purposes of UIM coverage. Id. at 665.
{¶ 37} In addition, the Supreme Court concluded that because the policy had no language requiring that employees be in the scope of employment in order to receive UIM coverage, the fact that the decedent was not in the scope of his employment at the time of the automobile collision did not preclude coverage. Id. at 665-666.
{¶ 38} Appellant argues that in contrast to the policy at issue inScott-Pontzer, the policy here specifically made school employees insureds when they were acting in the scope and course of employment. Therefore, appellant contends there is no ambiguity in appellant's policy as to who was an insured, as persons — school employees acting in the scope and course of their employment with Reynoldsburg — were actually made insureds, as opposed to merely an entity as was the case inScott-Pontzer. Hence, appellant asserts that *620 the basis for the decision in Scott-Pontzer is not applicable to the policy at issue here.
{¶ 39} Appellant makes a novel argument. However, it is not well-taken, as the provisions of which appellant speaks apply, by express terms, only to liability coverage and not to UIM coverage. As in Scott-Pontzer, there are no provisions in appellant's policy which limit UIM coverage to employees who are within the scope and course of their employment. Therefore, the analysis set forth in Scott-Pontzer applies to the policy at issue here.
{¶ 40} Appellant also contends that Scott-Pontzer was based on a former version of R.C.
{¶ 41} Appellant next argues that its policy only provides UIM coverage to persons who occupied automobiles owned by Reynoldsburg and that Julie Roberts was not occupying a vehicle owned by herself or Reynoldsburg at the time of the collision. The relevant portions of the policy state:
{¶ 42} "Business Auto Declarations
{¶ 43} "* * *
{¶ 44} "ITEM TWO — SCHEDULE OF COVERAGES AND COVERED AUTOS.
{¶ 45} "* * * Each of these coverages will apply only to those `autos' shown as covered `autos.' `Autos' are shown as covered `autos' for a particular coverage by the entry of one or more of the symbols from the COVERED AUTOS Section of the Business Auto Coverage Form next to the name of the coverage."
{¶ 46} The UIM coverage was given the symbol "2" which is defined in "SECTION I — COVERED AUTOS" as:
{¶ 47} "2 = OWNED `AUTOS' ONLY. Only those `autos' you own * * *."
{¶ 48} Appellees argue that it is axiomatic that the purpose of UIM coverage under R.C.
{¶ 49} In Martin v. Midwestern Group Ins. Co. (1994),
{¶ 50} "1. Pursuant to R.C.
{¶ 51} "2. The validity of an insurance policy exclusion of uninsured motorist coverage depends on whether it conforms to R.C.
{¶ 52} In determining whether a policy's so-called "other owned vehicle" exclusion was valid, the Supreme Court looked to the then-version of R.C.
{¶ 53} Appellant correctly points out that the legislature amended R.C.
{¶ 54} "(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state * * * unless both of the following coverages are offered to persons insured under the policy for loss due to bodily injury or death suffered by such insureds:
{¶ 55} "* * *
{¶ 56} "(2) Underinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for insured thereunder against loss for bodily injury, sickness, or disease, including death, suffered by any person insured under the policy * * *.
{¶ 57} "* * *
{¶ 58} "(J) The coverages offered under division (A) of this section or selected in accordance with division (C) of this section may include terms and conditions *622 that preclude coverage for bodily injury or death suffered by an insured under any of the following circumstances:
{¶ 59} "(1) While the insured is operating or occupying a motor vehicle owned by, furnished to, or available for the regular use of a named insured, * * * if the motor vehicle is not specifically identified in the policy under which a claim is made * * *[.]" (Emphasis added.)
{¶ 60} The exclusion in appellant's policy states that UIM coverage only applies to autos "you" own. However, former R.C.
{¶ 61} Appellant next sets forth arguments relating to the fact that Julie Roberts was employed by, and the insurance policy was issued to, a board of education. First, appellant asserts that a board of education may only obtain UIM coverage for employees who are acting within the course and scope of their employment with the school board. Appellant cites to certain sections of the Revised Code in support of its argument. Appellant cites to former R.C.
{¶ 62} Appellant also contends that Julie Roberts was not an "employee" under R.C.
{¶ 63} Further, because of the precedent of Scott-Pontzer and in light of R.C.
{¶ 64} Appellant's next argument is that the trial court should have found that there was UIM coverage under Roy Enyart's automobile policy and Cincinnati's policies with appellees. Appellant asserts that the limits of liability coverage for the two tortfeasors was $150,000 and that appellees had in excess of this in UIM coverage through Roy Enyart's uninsured motorist coverage, various automobile and homeowners' policies with Cincinnati, and two other Scott-Pontzer insurance policies.
{¶ 65} First, the trial court found that under former R.C.
{¶ 66} "For the purpose of setoff, the `amounts available for payment' language in R.C.
{¶ 67} Roy Enyart's and Julie Roberts's automobile policies contained provisions valid under R.C.
{¶ 68} As to the Cincinnati tenant's/homeowners' policies, the Supreme Court's decision in Davidson, supra, makes it clear that such policies did not provide UIM coverage: *624
{¶ 69} "A homeowner's insurance policy that provides limited liability coverage for vehicles that are not subject to motor vehicle registration and that are not intended to be used on a public highway is not a motor vehicle liability policy and is not subject to the requirement of former R.C.
{¶ 70} Hence, appellant's arguments regarding the available UIM coverages under other policies is not well-taken.
{¶ 71} Appellant's final argument is that the trial court erred in finding that appellant's policy was primary. Appellant asserts that Cincinnati's automobile policies are primary. As indicated above, Cincinnati issued automobile insurance policies to Julie Roberts's father and mother and her brother. The trial court found that because appellant's policies insured the decedent herself and therefore the estate, appellant's policies were the primary UIM coverages as compared to Cincinnati's automobile policies issued to the individual beneficiaries. We agree with the trial court.
{¶ 72} As appellees aptly point out, their UIM coverages are triggered only when and if the decedent's UIM coverage is exhausted. Here, Julie Roberts was an insured under appellant's policies. Thus, her UIM coverage is primary. The jury verdict was for $1,275,000. Appellant's business automobile policy limit of $7,000,000 easily covered this amount. Hence, there was no need to look to the individual beneficiaries' UIM coverages.
{¶ 73} For all of the reasons set forth above, the trial court did not err in its decisions on the various motions for summary judgment relating to UIM coverage in this case. Accordingly, appellant's first, second, third, fourth and ninth1 assignments of error are overruled.
{¶ 74} In its fifth and sixth assignments of error, appellant contends the trial court erred in not holding an oral hearing on the issue of prejudgment interest and in granting prejudgment interest as of the date of the collision. As to the oral hearing, R.C.
{¶ 75} "In cases other than those provided in sections
{¶ 76} There is no requirement in the above provision which mandates an oral hearing on the issue of prejudgment interest. See Polek v. Tillimon (Mar. 1, 2002), Lucas App. No. L-01-1354; Shampton v. Springboro (Nov. 13, 2001), Warren App. No. CA2000-08-080. Accordingly, the trial court did not err in determining the issue on the written arguments of the parties.
{¶ 77} Appellant next argues that the trial court erred in awarding prejudgment interest calculated as of the date of the automobile collision. In Landis v. Grange Mut. Ins. Co. (1998),
{¶ 78} Whether prejudgment interest should be calculated from the date coverage was demanded or denied, from the date of the automobile collision, or some other time based on when the insurance company should have made payment is for the trial court to determine. Id. at 342. Determinations regarding prejudgment interest rest within the sound discretion of the trial court. Lovejoy v. Westfield Natl. Ins. Co. (1996),
{¶ 79} In the case at bar, the trial court awarded appellees prejudgment interest from the date of the automobile collision, stating that the date coverage was demanded had no relevancy because appellant would have denied appellees' claim. The trial court determined that in order to fully compensate appellees, interest should be calculated from the date of the collision. Appellant has not pointed to any and, under the circumstances of this case, we can find no abuse of discretion in such a determination.
{¶ 80} For the forgoing reasons, appellant's fifth and sixth assignments of error are overruled.
{¶ 81} In its seventh assignment of error, appellant contends the trial court should have granted it a credit for appellees' settlement with *626 Cincinnati. As indicated above, appellees settled with Cincinnati for $10,000, and Cincinnati was dismissed from the action. On July 11, 2001, appellant moved for a $10,000 credit against the judgment, which was denied.
{¶ 82} Appellees argue that no such credit should be given because it is not mandated under R.C.
{¶ 83} Former R.C.
{¶ 84} Lastly, appellant's policies did not contain any provision which clearly called for a setoff as requested by appellant.
{¶ 85} For these reasons, the trial court did not err in denying appellant's motion for a credit due to appellees' settlement with Cincinnati. Accordingly, appellant's seventh assignment of error is overruled.
{¶ 86} In its eighth assignment of error, appellant contends that the trial court erred in not granting its May 2, 2001 motion to compel joinder of Donald and Mary Ann Robertses' employers' insurance carriers. Appellant argued that these insurance carriers were other Scott-Pontzer insurers who supplied UIM coverage to Donald and Mary Ann Roberts and that they were necessary parties.
{¶ 87} The trial court found first that the motion was untimely, as it was filed after the dispositive motion deadline and a mere month before the scheduled trial date. Further, the trial court found that appellant was aware of Donald and Mary Ann Robertses' employers since July 13, 2000 and that appellant was aware as of November 9, 2000 that these employers would not be added as parties. The trial court stated that had appellant believed such insurance carriers were indispensable parties, it should have filed its motion by those dates. In addition, the trial court stated that appellant would be free to file contribution/indemnification claims against such carriers if it so chooses.
{¶ 88} Contrary to appellant's assertion, these insurance carriers are not indispensable or necessary parties under Civ.R. 19.1. As indicated earlier, *627 appellant is the primary UIM carrier. There was no need for appellees to include these insurance companies in this case.
{¶ 89} Accordingly, appellant's eighth assignment of error is overruled.
{¶ 90} Having overruled each of appellant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and PETREE, JJ., concur.