803 N.E.2d 863 | Ohio Ct. App. | 2004
{¶ 2} Plaintiffs-appellants Jamie Corson and the city of Cincinnati appeal the entry of summary judgment for defendant-appellee Safe Auto Insurance Company. We affirm.
{¶ 4} Safe Auto, probably surprised at being involved at all, did not send Corson a check. Not satisfied that it should pay, it sued both Corson and the city in a declaratory-judgment action, seeking to have the court tell the city to pay up and to stop bothering Safe Auto. A day later, Corson sued Safe Auto — but not the city — for payment of her claim. Later, in her answer to Safe Auto's lawsuit, Corson finally included a claim against the city. Now that three parties to a two-party accident were in court, the trial court consolidated the cases.
{¶ 6} The city, just like every other entity, is liable for damages when its employees negligently injure someone else.2 There is an exception if a police officer is on an emergency call, and then the city is immune.3 That was not the case here — the officer was simply driving in traffic like everyone else. The law does exempt the cityemployee from individual liability,4 on the very reasonable grounds that the employer — the city — must and will pay damages. In other words, the individual officer should not be sued, only the city.
{¶ 7} But the city did not buy insurance to cover these damages. Neither did it comply with the rules to be a "self-insurer" under the UM/UIM statutes.5 It simply chose to pay damages or judgments out of the city coffers, which is perfectly proper.
{¶ 8} The city somehow concocted the theory that someone else should pay. That someone else was Safe Auto. This was evidently because Safe Auto was the only insurance company involved. But why should Safe Auto — the insurance company for the innocent driver — pay damages the city of Cincinnati owes?
{¶ 9} Safe Auto, perhaps as confused as is this court as to why it was even in this case, made many arguments. The one that the trial court bought was that the city was self-insured in practical fact. There is certainly caselaw to support that theory.6 If the city was self-insured under the UM/UIM law, then even it admits that it had to pay the damages, and it could not claim to be uninsured. We do not disagree with this analysis, but we do not see why it is necessary.
{¶ 10} The city's argument — that it was "uninsured" — might be clever; but how that fact released it from liability for damages escapes us. If an uninsured millionaire had hit Corson, could the millionaire have simply said, "I'm uninsured so I don't have to pay — your own insurance has to pay for my negligence," and blithely continued down the road unsued? *739
{¶ 11} Now if that same millionaire had followed the statutory requirements to certify himself as a self-insurer,7 he would no doubt have been liable for his actions. And the insurance company would not.
{¶ 12} But the city of Cincinnati was not required to follow the self-insurance certification methods prescribed by the financial responsibility law.8 Because it was presumed to be responsible, it did not have to file papers with the state guaranteeing that it was able to pay damages. The city was allowed pay out of city coffers. Somehow, the city interpreted this to mean that it was uninsured, unself-insured, and unliable. The city's argument is that, by not complying with a law it does not have to comply with, it can escape paying what it owes.
{¶ 14} There are no factual disputes in this case. The city admitted that the officer's negligence had caused the accident and that the officer was acting in the scope of her employment at that time. It also admitted that it owned the police vehicle involved in the accident, and that the vehicle was registered in Ohio. The only question that remains is whether Safe Auto was entitled to judgment as a matter of law. And of course it was.
{¶ 16} But because Corson and the city make a fuss about whether the policy applied, we address their concerns.
{¶ 17} The Safe Auto UM/UIM coverage did not apply to any vehicle "owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law, or similar law." Therefore, if the city was self-insured, Safe Auto was not liable under the policy.
{¶ 18} The relevant UM/UIM provision in effect at the time of the insurance contract between Corson and Safe Auto was R.C.
{¶ 19} The city admitted that it owned the vehicle involved in the accident. The immunity question is all that remains. The city and Corson claim that the officer had immunity here. Again, correct but irrelevant.15 But the code gave — and still gives — immunity to a political subdivision only when the officer was responding to an emergency call.16 This was not the case here.
{¶ 20} Under the previous version of R.C.
{¶ 21} Because the city owned the officer's vehicle, and this case did not involve a suit against the operator of the vehicle, the Safe Auto policy simply did not apply, and did not need to apply, and summary judgment was appropriate.
{¶ 23} Self-insurance is the retention of the risk of loss by the one bearing the original risk under the law or contract.17 An entity may be self-insured in a practical sense for the purposes of UM/UIM law.18
{¶ 24} Corson now argues that the city was not required to purchase insurance. She is correct. A political subdivision may use public funds to contract for insurance to cover its and its officers' potential liability.19 It may also establish and maintain a self-insurance program.20 But the city admitted that it paid all judgments and settlements arising out of the negligence of its police officers from its own funds. This was self-insurance in the practical sense.
{¶ 25} Had the city purchased insurance from an independent company, Safe Auto's UM/UIM coverage would not have applied. The city wants to avoid purchasing liability insurance, but wants also to avoid paying claims out of its own pockets when an insurance policy would arguably cover the damage. The city cannot have it both ways.
{¶ 26} Because the city owned the officer's vehicle, because this was not an action against the officer, and because the city was self-insured in a practical sense, the officer's vehicle was not uninsured or underinsured for the purposes of UM/UIM law.
{¶ 28} Ohio courts have rejected exclusions of government vehicles from uninsured-motorist coverage as being against public policy.21
These cases have voided the exclusion language based on an earlier version of R.C.
{¶ 29} We agree that Safe Auto's policy might pose a problem in certain fact scenarios. But such a scenario was not involved here, so we need not decide the public-policy issue in this case.
{¶ 30} Summary judgment was appropriate. We therefore overrule Corson's and the city's assignments of error and affirm the trial court's judgment.
Judgment affirmed.
Winkler, P.J., and Gorman, J., concur.
