Case Information
*1
[Cite as
Roush v. Butera
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97463
CHARLES W. ROUSH, ET AL. PLAINTIFFS-APPELLANTS vs.
JOANN BUTERA, ET AL.
DEFENDANTS-APPELLEES JUDGMENT:
AFFIRMED Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-490493
BEFORE: Cooney, J., Celebrezze, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 7, 2012 *2 ATTORNEY FOR APPELLANTS
David L. Meyerson
Seaman Garson, LLC
1600 Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
National Union Fire Insurance Co.
Steven G. Janik
Crystal L. Maluchnik
Janik LLP
9200 South Hills Blvd., Suite 300
Cleveland, OH 44147-3521
Nationwide Mutual Insurance Co.
Aaron M. Minc
James A. Sennett
Sennett Fisher, LLC
One Chagrin Highlands
2000 Auburn Dr., Suite 200
Beachwood, OH 44122
Also listed:
Joann Butera, pro se
3608 West 133rd Street
Cleveland, Ohio 44111
COLLEEN CONWAY COONEY, J.:
{¶1} Plaintiffs-appellants, Charles Roush (“Roush”) and Dorothy Roush (collectively referred to as “appellants”), appeal the trial court’s grant of summary judgment in favor of National Union Fire Insurance Company (“National Union”) and Nationwide Insurance Company (“Nationwide”), on their claims for uninsured/underinsured motorist (“UM/UIM”) coverage. We find no merit to the appeal and affirm. In January 2001, Roush was driving a truck owned by U.S. Freightways
Corp. (“USF”), a parent corporation of his employer, USF Holland, Inc. (“Holland”). The truck was insured under two National Union policies: Trucker’s Liability Policy No. 527-32-99, effective June 30, 2000 to June 30, 2001, with liability limits of $2 million (the “Trucker’s Policy”); and Umbrella Liability Policy No. BE 932-25-54, effective June 30, 1997 to June 30, 2002, with liability limits of $8 million in excess of the Trucker’s Policy limits (the “Umbrella Policy”). The Trucker’s Policy contained a deductible in the amount of $1,750,000. Roush also had his own individual insurance with Nationwide. While driving the truck within the course and scope of his employment,
Roush was involved in a motor vehicle accident in January 2001. It is undisputed that Joann Butera (“Butera”), an uninsured driver, proximately caused the accident. Roush *4 sued Butera for injuries sustained in the accident. He also sued National Union and Nationwide for UM/UIM coverage. Dorothy Roush alleged a loss of consortium claim.
{¶4} National Union filed a motion for summary judgment, claiming appellants were not entitled to UM/UIM coverage because the policyholders, Holland and USF, waived UM/UIM coverage when they accepted their insurance policies. To prove the waiver, National Union presented an Ohio UM/UIM rejection form and alleged that Thomas Clarke (“Clarke”), USF’s Vice President of Risk Management, signed the form in March 1999. Roush disputed the credibility of National Union’s rejection form and Clarke’s affidavit testimony on the grounds that the rejection form does not have a policy number, or a receipt or file stamp of the agency or insurer, and is not referenced in any other policy or lists of policies. Roush also asserted that the signature on the rejection form is not dated. In his affidavit, Clarke stated that he had written authority from Holland to waive UM/UIM coverage on Holland’s behalf. Nationwide also filed a motion for summary judgment, arguing that
appellants’ insurance policy with Nationwide excluded UM/UIM coverage because Roush was operating an unlisted vehicle that was “furnished” to him and “available for regular use” at the time of the accident. On April 28, 2004, at National Union’s request, the trial court stayed the
case pending the Ohio Supreme Court’s ruling in
Gilchrist v. Gonsor
, 118 Ohio St.3d
1511,
{¶7} Appellants now appeal and raise eight assignments of error.
Standard of Review
An appellate court reviews a trial court’s decision on a motion for summary
judgment de novo.
Grafton v. Ohio Edison Co.,
Waiver of UM/UIM Coverage
In the first and second assignments of error, appellants argue the trial court erred in finding that USF and Holland rejected UM/UIM coverage. They contend that because the offer of UM/UIM coverage failed to contain the elements required under Linko v. Indemn. Ins. of N. Am., 90 Ohio St.3d 445, 739 N.E.2d 338 (2000), USF’s rejection of UM/UIM coverage is invalid and coverage arises by operation of law.
{¶10}
The statutory law in effect at the time of entering into a contract for
automobile liability insurance determines the rights and duties of the contracting parties.
Ross v. Farmers Ins. Group
, 82 Ohio St.3d 281,
rejected UM/UIM coverage because there is no evidence that National Union’s offer of
UM/UIM coverage complied with the requirements set forth in
Linko
and
Gyori v.
Johnston Coca-Cola Bottling Group, Inc.
,
December 12, 1990 and sued his employer’s insurance carrier for UM/UIM coverage. The insurer argued that Gyori was not entitled to UM/UIM benefits because it had rejected UM/UIM coverage. The Ohio Supreme Court disagreed and held that pursuant to R.C. 3937.18, as it existed at that time, there could be no rejection absent a written offer of UM/UIM coverage from the insurance provider. Gyori at 568. In Linko , the high court further held that:
To satisfy the offer requirements of R.C. 3937.18, the insurer must inform the insured of the availability of UM/UIM coverage, set forth the premium for UM/UIM coverage, include a brief description of the coverage, and expressly state the UM/UIM coverage limits in its offer.
Linko at 447-448. If the insurer failed to meet any one of these requirements, the insured’s
rejection of coverage was invalid and UM/UIM coverage arose by operation of law equal to the policy’s liability limits. Id. As previously stated, the Trucker’s Policy was effective from June 30, 2000
to June 30, 2001. It is governed by R.C. 3937.18, as amended by H.B. 261 and S.B. 57,
which became effective on September 3, 1997 and November 2, 1999, respectively.
Gyori
and
Linko
were both decided before the General Assembly passed H.B. 261 and
S.B. 57. In
Hollon v. Clary
,
affidavit of the insured, attesting that:
Before approving and signing these rejection forms, I was informed, aware, and understood: (a) that UM/UIM coverage was available; (b) the amount of the premium that would be charged for UM/UIM coverage if I selected UM/UIM coverage, or of the reduced premium if I selected reduced UM/UIM limits; (c) what UM/UIM coverage was; and (d) that I was rejecting UM/UIM coverage in its entirety.
Id. at ¶ 6. Based on this affidavit, the Hollon court concluded that the insured had
made “an express, knowing rejection of UM/UIM coverage, under H.B. 261,” and that the court could presume that a valid offer had been made. Id. at ¶ 13. This court followed Hollon in Bossin v. Groves , 8th Dist. No. 92975,
with Viacom’s director of insurance, and the other from a Viacom manager. The Viacom manager attested that
the rejection was consistent with Viacom’s policy to reject UM/UIM coverage whenever possible, that Viacom was aware that an increase in premiums would be charged for such coverage and that Viacom made a *9 knowing business decision to reject UM/UIM coverage for the state of Ohio.
Id. at ¶ 17. Based on this evidence, this court found that “the extrinsic evidence offered
by Travelers was sufficient to demonstrate that Viacom was aware that additional coverage premiums would be charged and, that consistent with its company policy, made a knowing rejection of UM/UIM coverage.” Id. at ¶ 18. In support of its motion for summary judgment, National Union submitted
the affidavit of Thomas Clarke, USF’s risk manager, which provided, in pertinent part:
3. Attached hereto as Exhibit A-1 is an authentic copy of ISO Form No. 62582 (5/95), titled “REJECTION OF UNINSURED/ UNDERINSURED MOTORISTS COVERAGE OR SELECTION OF LOWER LIMIT OF LIABILITY (Ohio) (“Rejection Form”) which I executed on behalf of U.S. Freightways Corporation (“USF”) on March 19, 1999; 4. At the time I executed the Rejection Form, I was employed by USF in the capacity of Vice President of Risk Management. By reason of this position, I was familiar with USF’s insurance program, and duly authorized to act on behalf of USF including, but not limited to, the execution of the rejection of uninsured/underinsured (“UM/UIM”) coverage; 5. The Rejection Forms are part of Trucker’s Liability Policy No. 527-32-99 effective July 1, 2000 to July 1, 2001 (“Policy”), and manifests the intent of USF to reject UM/UIM coverage in Ohio.
6. Before approving and executing the Rejection forms, USF and I were informed, were aware, and understood:
a. that UM/UIM coverage was available in increments up to an amount equal to the Policy’s liability limits;
b. the method of calculating premiums for coverage under the Policy, the amount of additional premium that would be charged for UM/UIM coverage if USF selected full UM/UIM coverage, and the amount of *10 premium that would be charged if USF selected a reduced limit of UM/UIM coverage;
c. the purpose of UM/UIM coverage; and that by signing the Rejection Form, USF was rejecting Ohio UM/UIM coverage in its entirety.
7. USF intended to reject UM/UIM coverage in all states where such coverage is not mandatory and intended to select the lowest limit of UM/UIM coverage required in the jurisdictions where UM/UIM coverage is mandatory, so as to avoid the payment of additional premium for such coverage. In a supplemental affidavit, Clarke explained that it was USF’s policy to
reject UM/UIM coverage whenever possible for two reasons. First, National Union issued the insurance policies as part of a fronting agreement under which USF had agreed to reimburse National Union for all amounts paid under its Trucker’s policy. Thus, if USF selected UM/UIM coverage, it would be responsible for both general liability damage and UM/UIM benefits to its employees, as well as additional premiums. Second, USF did not see the need to purchase UM/UIM coverage when its employees were already protected within the scope of their employment under a state worker’s compensation law. USF’s purchase of UM/UIM coverage would duplicate this protection at additional cost to USF. In addition to Clarke’s affidavits, National Union submitted documentary
evidence showing that: (1) USF had rejected UM/UIM coverage every year as far back as 1989, when it was insured by a different carrier; (2) USF repeatedly informed National Union over a period of six years that it wanted to reject such coverage in all states where *11 permitted; and (3) for the policy year in question, USF signed rejection forms for every state where it did business, including Ohio. Appellants argue that Clarke’s affidavit should be rejected as self-serving
because USF’s substantial deductible would render it personally liable for appellants’ damages up to $1,750,000. Appellant also claims there are suspicious inconsistencies in USF’s documentation that cast doubt on Clarke’s credibility. However, the documentary evidence unequivocally demonstrates USF’s
intent to reject UM/UIM coverage. The evidence also shows that Clarke, as the risk manager of a trucking fleet, was familiar with UM/UIM coverage and understood the ramifications of any rejection of that coverage. Like Viacom in Bossin , USF made a knowing business decision to reject UM/UIM coverage in Ohio. Based on this evidence, we agree with the trial court’s finding that National Union made a valid offer of UM/UIM coverage, which was properly rejected.
Holland’s Rejection
Appellants argue that even if USF rejected UM/UIM coverage, the rejection
does not apply to its subsidiary, Holland. However, this court has recognized that the
General Assembly altered the common law under post-H.B. 261 versions of R.C.
3937.18, and held that a parent corporation’s rejection of UM/UIM coverage is binding
upon its subsidiary where the parent corporation was the named insured.
Bossin
, 8th
Dist. No. 92975,
negotiate automobile insurance coverage and reject UM/UIM coverage on its behalf. Absent an express, statutory provision requiring a power of attorney, a parent corporation’s authority to act on behalf of its subsidiary can be established through extrinsic evidence. Lee v. Hennick , 52 Ohio St. 177, 181, 39 N.E. 473 (1894). Evidence in the record shows that Holland has relied on USF to negotiate insurance on its behalf for eleven years. This fact, coupled with Clarke’s affidavit, demonstrates that USF had authority to reject UM/UIM coverage on behalf of Holland.
The Umbrella Policy
Appellants argue that even if USF rejected UM/UIM coverage under the
Trucker’s Policy, they are entitled to drop down coverage from the Umbrella Policy.
[1]
However, appellants never stated a claim for coverage under the Umbrella Policy in their
complaint. Although they attempted to amend their complaint to assert a claim for
coverage under the Umbrella Policy, the trial court denied the motion to amend as
*13
untimely. Thus, the trial court never determined whether there was coverage under the
Umbrella Policy. As an appellate court, we do not consider arguments that the trial court
did not address. In
Murphy v. Reynoldsburg
, the Ohio Supreme Court explained that “[a]
reviewing court, even though it must conduct its own examination of the record, has a
different focus than the trial court. If the trial court does not consider all the evidence
before it, an appellate court does not sit as a reviewing court, but, in effect, becomes a
trial court.”
Id.
,
Collateral Estoppel
Appellants contend that National Union should be estopped from arguing
that the UM/UIM rejection form is valid because the First District Court of Appeals has
already held that this rejection form is unenforceable as a matter of law.
See Oblinger v.
State Auto Ins. Co
.,
Union, the Oblinger court held the UM/UIM rejection was invalid because extrinsic *14 evidence did not satisfy the Linko requirements. Because the First District determined that National Union’s rejection of UM/UIM coverage was invalid in Oblinger , appellants argue the doctrine of collateral estoppel precludes National Union from relitigating this issue here.
{¶30} Collateral estoppel, also referred to as the doctrine of issue preclusion, holds that a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different.
Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd.,
where all of the parties to the prior proceeding in which the judgment is relied upon were
bound by the judgment.
Goodson v. McDonough Power Equip., Inc.,
Dist.), was styled as a declaratory judgment action. Pursuant to R.C. 2721.12(A), only parties to a declaratory judgment action are bound by the judgment. Hence, appellants would not have been bound by Oblinger if the First District had reached a decision adverse to their interests. Without mutuality upon which the trial court could apply the doctrine of collateral estoppel, National Union was free to assert the validity of its rejection of UM/UIM coverage.
{¶33} Based on the foregoing, we find the trial court properly found that appellants were not entitled to UM/UIM coverage as a matter of law. The first and second assignments of error are overruled.
Insurance Expert Report
In the third assignment of error, appellants argue the trial court erred in granting National Union’s motion to strike the affidavit and report of their expert, Daniel N. Sutherin (“Sutherin”). Appellants contend their expert report did not constitute discovery and should not have been subject to the discovery deadline. Appellants produced Sutherin’s report for the first time to support their brief
in opposition to National Union’s motion for summary judgment. They never produced the expert report prior to the discovery or expert report deadlines.
{¶36}
If an opposing party requires additional time to produce facts essential to the
opposition motion, the party may seek a continuance under Civ.R. 56(F).
Gates Mills
Invest. Co. v. Pepper Pike
,
{¶37} Appellants argue their insurance expert report should have been admissible to support their opposition to National Union’s motion for summary judgment because they did not realize they would need an expert until National Union had produced all of its responses to their discovery requests. However, it is undisputed that appellants did not produce the expert report prior to filing their brief in opposition to National Union’s motion for summary judgment. It is also undisputed that they did not produce their expert report before the discovery or expert report deadlines had passed, and they never sought leave to produce an expert report under Civ.R. 56(F). Therefore, they failed to preserve this issue on appeal, and we find no abuse of discretion in the court’s striking appellants’ expert report. The third assignment of error is overruled.
Supplemental Evidence
In the fourth and fifth assignments of error, appellants argue the trial court abused its discretion when it granted National Union’s motions for leave to file supplemental evidence. In the sixth assignment of error, they also argue the court abused its discretion in denying their motion to strike Clarke’s supplemental affidavit as untimely. Civ.R. 56(E) states that a “court may permit affidavits to be supplemented or
opposed by depositions or by further affidavits.”
McGuinness v. Hooper
, 2d Dist. App.
No. 16551,
including Clarke’s supplemental affidavit, as required by Civ.R. 56(E) and (F). In the
motion, National Union explained that appellants raised for the first time the issue that
National Union was collaterally estopped from arguing the validity of the rejection form
pursuant to
Oblinger
,
{¶42} The Ohio Supreme Court has determined that a continuance, or extension of time, is based on a party’s right to have his case heard upon the merits. State ex rel. Buck v. McCabe , 140 Ohio St. 535, 537, 45 N.E.2d 763 (1942). Appellants’ response brief raised new issues that National Union had not addressed in its motion for summary judgment. Granting leave to supplement the record to respond to the new issues allowed the trial court to consider all the evidence and hear the case on its merits. Furthermore, National Union did not delay in seeking leave and complied
with Civ.R. 56(E) and (F) by explaining its need to submit additional evidence. National Union needed Clarke’s supplemental affidavit and other documentary evidence to address the new issues raised in appellants’ response brief. For these reasons, we find the trial court did not abuse its discretion in denying appellants’ motion to strike Clarke’s supplemental affidavit or in granting National Union leave to submit supplemental evidence.
{¶44} The fourth, fifth, and sixth assignments of error are overruled.
Amended Complaint
In the seventh assignment of error, appellants argue the trial court abused its discretion in denying their motion to amend their complaint. A trial court’s decision whether to grant a motion for leave to amend a
complaint will not be reversed on appeal absent an abuse of discretion.
Cselpes v.
Cleveland Catholic Diocese
,
Policy and a bad faith claim. Appellants alleged that National Union acted in bad faith
by failing to admit coverage and pay their claims pursuant to
Oblinger,
163 Ohio App.3d
266,
claim under the Umbrella Policy in their merit brief. Pursuant to App.R. 12(A)(2), we may disregard any assigned errors if the party raising them “fails to identify in the record *20 the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R.16(A).” App.R. 12(A)(2). Accordingly, the seventh assignment of error is overruled.
Nationwide Policy
In the eighth assignment of error, appellants argue the trial court erred in
granting Nationwide’s motion for summary judgment because Roush had UM/UIM
coverage under his individual policy with Nationwide. Appellants contend the trial court
erroneously found that Roush was excluded under his Nationwide policy because this
conclusion is contrary to the parties’ intent and violates former versions of R.C. 3937.18.
The sole issue raised in this assignment of error is the interpretation of an
exclusion in Roush’s Nationwide policy. Insurance policies are contracts and their
interpretation is a matter of law for the court.
Sharonville v. Am. Emps. Ins. Co.
, 109
Ohio St.3d 186, 187,
Coverage Exclusions:
This coverage does not apply to:
* * *
3. Bodily injury suffered while occupying a motor vehicle: a) owned by you;
b) furnished to; or
c) available for the regular use of; you or a relative, but not insured for Auto Liability Coverage under this policy. It is undisputed that at the time of the accident, Roush was driving a truck
his employer furnished to him for his regular use in his job as a truck driver. It is also undisputed that the truck he was driving was not insured under Roush’s Nationwide policy. Under the plain and unambiguous language of the exclusion, Roush was excluded from coverage under his policy. The exclusion in Roush’s Nationwide policy, which was issued on
September 14, 2000, is enforceable under the applicable version of R.C. 3937.18, which was amended by H.B. 261. In H.B. 261, the General Assembly mandated that all automobile insurance policies offer UM/UIM coverage for loss due to bodily injury or death suffered by an insured. However, it also added a provision that UM/UIM coverage may include terms and conditions that would preclude coverage for bodily injury or death *22 suffered by an insured. For example, R.C. 3937.18(J)(1) provides that coverage may be precluded:
While the insured is operating or occupying a motor vehicle owned by, furnished to, or available for the regular use of a named insured, a spouse, or a resident relative of a named insured, if the motor vehicle is not specifically identified in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy under which the uninsured and underinsured motorists coverages are provided. The language contained in R.C. 3937.19(J)(1) is unambiguous. Kyle v.
Buckeye Union Ins. Co.
, 103 Ohio St.3d 170,
{¶56} The eighth assignment of error is overruled. Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS IN JUDGMENT ONLY; EILEEN A. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
EILEEN A. GALLAGHER, J., DISSENTING:
{¶58} Because I conclude that USF failed to validly reject UM/UIM coverage in this case and that the trial court erred in striking appellants’ expert report, I respectfully dissent, in part and concur, in judgment only, in part, from the majority opinion.
{¶59} In their first and second assignments of error, appellants co-mingle several arguments as to why the trial court erred in granting defendant appellee National Union’s motion for summary judgment. The majority opinion addresses each of these arguments in turn, ultimately overruling each claim. It is only with respect to the majority’s analysis of appellants’ claim that USF failed to validly reject UM/UIM coverage offered in National Union’s policy, that I dissent. I find no issue with the remainder of the majority’s disposition of appellants’ remaining arguments contained within their first and second assignments of error. In the present case, there is no dispute as to the material facts concerning the
accident. The parties agree that there remains the legal issue of whether the appellees’ owed coverage under R.C. 3937.18, as amended in 1997 by H.B. No. 261 and S.B. 57, which was in effect at the time of the accident. In granting summary judgment, and in affirming that grant on appeal, the trial court and the majority opinion, respectively, *24 determined that no coverage existed as National Union made a valid offer of UM/UIM coverage, which USF properly rejected. I disagree.
{¶61}
The requirements for a valid rejection of UM/UIM coverage are enumerated
in
Linko v. Indemn. Ins. Co. of N. Am.,
{¶62}
Applying this case law to the facts at hand, the majority concluded that the
documentary evidence, which included the affidavits of Thomas Clarke, USF’s risk
manager, unequivocally demonstrated USF’s intent to reject UM/UIM coverage.
However, in
Oblinger v. State Auto Ins. Co.
, 163 Ohio App.3d 266,
court of appeals, however, reversed the decision and held that this UM/UIM rejection form was invalid, and that there was coverage as a matter of law. Id . In particular, the Oblinger court determined that the rejection form and the extrinsic evidence did not satisfy the Linko requirements for a valid rejection of UM/UIM coverage. More specifically, the court found that the rejection form, while it declared the availability of UM/UIM coverage and described in general terms the nature of such coverage, was utterly silent as to the premium costs of such coverage or the policy limits. Then, as held by the Ohio Supreme Court in Hollon , the Oblinger court
looked to the affidavit of Thomas Clarke, which National Union provided to supplement the terms of the rejection form. The court quoted from Clarke’s affidavit, which stated that “Within the four corners of the *** Policy, the Rejection Form describes the UM/UIM coverage, gives premium cost and expressly state [sic] the coverage limits.” Id . The First District determined that despite the recitation in Clarke’s affidavit that the rejection form included the Linko requirements, the form manifestly did not. Id .
[T]he form was completely silent as to premium cost and coverage limits. Clarke’s assertion that the form included that information did not make it *26 so. And because Clarke did not aver that he had been informed of the Linko elements by any source other than the rejection form itself, the evidence did not support the trial court’s holding that U.S. Freightways had validly rejected UM/UIM coverage.
Id . at ¶ 23. In the present case, I agree with the First District’s conclusion that the
rejection form supplied by National Union fails to satisfy the Linko requirements for rejection of UM/UIM coverage. The form does not describe the premium costs of UM/UIM coverage or the policy limits of such coverage. Thus, I am unable to determine whether USF made a meaningful rejection of the coverage. Next, I would look to the extrinsic evidence supplied by National Union. Similar to Oblinger , the affidavit supplied by National Union in the present case does not include the Linko requirements either. The affidavit does not specify the coverage premiums, it does not describe the coverage nor does it state the coverage limits in the offer. While National Union does supplement this affidavit with further evidentiary materials in an attempt to prove USF’s intent to reject UM/UIM coverage, I cannot ignore that the most basic elements of that offer are not included in those materials. As such, I cannot conclude that USF made a meaningful rejection of UM/UIM coverage. I am aware of this court’s decision in Bossin, and I find this case factually
distinguishable. It is my opinion that, while not requiring form over substance, an entity wishing to validly reject UM/UIM coverage must make it clear that there was a meaningful offer of said coverage. This simply cannot be done without a detailing of the premium costs, a description of the coverage and the limits that coverage provides. *27 As these elements were missing in both the rejection form and the extrinsic evidence provided by National Union, I would find that the trial court erred in deciding that there had been a valid rejection of UM/UIM coverage under the National Union policy. Thus, I would conclude that coverage arose by operation of law.
{¶69} Accordingly, I would affirm, in part, and overrule, in part, appellants’ first and second assignments of error. Lastly, while I cannot ignore that appellants failed to move for a
continuance under Civ.R. 56(F), which would have preserved their issue of the stricken expert report for appeal, I concur in judgment only as to the majority’s resolution of the third assignment of error.
{¶71} This case involves complex issues of law, and the record reveals the parties thoroughly litigated and defended their positions. The record also reveals that the trial court, on several occasions, extended the discovery deadlines to accommodate the parties in their need to examine additional evidence. I find the trial court’s sudden rigidness to enforce discovery deadlines and outdated expert report cut-off dates to be arbitrary in light of its past practice. Based on the foregoing, I find it unreasonable that the trial court struck the
affidavit and report of National Union’s expert, Daniel N. Sutherin. I, therefore, concur in judgment only with respect to this portion of the majority’s opinion.
Notes
[1] Umbrella policies are different from standard excess insurance policies in
that they are meant to fill gaps in coverage both vertically, by providing excess
coverage, and horizontally (by providing primary coverage). The vertical coverage
provides additional coverage above the limits of the insured’s underlying primary
insurance, whereas the horizontal coverage is said to “drop down” to provide
primary coverage for situations where the underlying insurance provides no
coverage at all.
Sarka v. Love
8th Dist. No. 85960,