Love v. Motorists Mut. Ins. Co.

• Decision Date: 16 February 1993
• Citation: 620 N.E.2d 987,86 Ohio App.3d 394
• Parties: LOVE, Appellant, v. MOTORISTS MUTUAL INSURANCE COMPANY, Appellee. * CA 1514.
• Court: Ohio Court of Appeals

Page 394

86 Ohio App.3d 394

620 N.E.2d 987

LOVE, Appellant, v. MOTORISTS MUTUAL INSURANCE COMPANY, Appellee. ^*

CA 1514.

Court of Appeals of Ohio, Fourth District, Athens County.

Decided Feb. 16, 1993.

Rogers & Godbey Co., L.P.A., and George C. Rogers, Toledo, for appellant.

Theisen, Brock, Frye, Erb & Leeper Co., L.P.A., Paul T. Theisen and Colleen E. Cook, Marietta, for appellee.

HARSHA, Judge.

Ronald Love, as next friend of his minor child, Jason Love, appeals from a judgment which dismissed his complaint against Motorists Mutual Insurance Company for uninsured motorist coverage.

Appellant Love assigns the following errors:

"1. The trial court erred in denying plaintiff's motion for summary judgment and motion for reconsideration on August 21, 1990 and November 2, 1990, respectively.

"2. The trial court erred in entering judgment for defendant after a court trial finding that an insurance policy may be cancelled even though the notice was not sent in the time required by statute and without requiring proof that such nonstatutory notice was ever actually received by the insured.

"3. The trial court erred in entering judgment for defendant after a trial to the court when there was no evidence submitted that a concellation [sic ] notice containing the appeal rights required under 3937.32(F) R.C. was ever sent to the insured." (Emphasis sic.)

In March 1986, appellant and his wife, Jill A. Love, purchased an automobile liability insurance policy from appellee Motorists Mutual. The insurance policy, as subsequently amended, provided:

"TERMINATION

"A. Cancellation. This policy may be cancelled during the policy period as follows:

" * * *

"2. We may cancel, subject to paragraph 3 below, by mailing to the named insured shown in the Declarations at the address shown in this policy:

"a. at least 10 days notice:

"(1) if cancellation is for nonpayment of premium[.]

" * * *

"D. Other Termination Provisions.

"1. If the law in effect in your state at the time this policy is issued, renewed or continued:

"a. requires a longer notice period;

"b. requires a special form of or procedure for giving notice; or

"c. modifies any of the stated termination reasons;

"we will comply with those requirements.

"2. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice.

" * * *

"4. The effective date of cancellation stated in the notice shall become the end of the policy period."

The insurance policy also provided $50,000 of uninsured motorist coverage.

On March 22, 1988, appellee received late payment from appellant for the March 12, 1988 renewal of the automobile insurance policy. On May 24, 1988, appellee sent a notice to appellant and his wife, indicating that a premium in the amount of $134.80 was due on the policy by June 12, 1988. No payment was received from appellant and his wife by June 12, 1988. On June 20, 1988, appellee mailed an installment-lapse notice to appellant and his wife which stated:

"ATTENTION POLICYHOLDER

"PREMIUM PAYMENT WAS DUE ON 6/12/88. YOUR POLICY WILL BE CANCELLED IF PREMIUM PAYMENT IS NOT RECEIVED BY THE COMPANY AS OF 12:01 A.M., S.T. ON 06/30/88."

No payment was received by appellee on the specified date and appellant and his wife's insurance policy was canceled. On August 23, 1988, Jason Love was struck while riding a bicycle by a pickup truck driven by Melvin E. Lewis, an uninsured motorist. Appellant brought suit on behalf of his son and obtained a default judgment in the amount of $355,000 from Lewis. After being unable to collect any part of the judgment from Lewis, appellant demanded payment from appellee of $50,000, i.e., the limit of the uninsured motorist coverage provided by the policy. Appellee, by letter dated May 25, 1989, rejected appellant's demand on the basis that the insurance policy had been canceled prior to his son's accident.

On December 11, 1989, appellant filed a complaint seeking to recover $50,000 from appellee pursuant to the uninsured motorist provision of the policy. Appellee filed an answer which asserted that the policy had been canceled prior to Jason Love's accident. Appellant amended his complaint to add a bad faith claim. On February 23, 1990, appellant filed a motion for summary judgment, attaching an affidavit of his attorney. Appellee subsequently filed a memorandum in opposition, attaching affidavits of several of its employees. The trial court overruled appellant's motion for summary judgment as well as a subsequently filed motion for reconsideration of the same.

After a bench trial, the court issued a decision determining that appellee had properly canceled the insurance policy for nonpayment of premiums prior to appellant's son's accident. The trial court subsequently filed a judgment entry finding in favor of appellee and dismissing appellant's complaint and a nunc pro tunc entry determining "no just reason for delay of any appeal."

Appellant's first assignment of error asserts that the trial court erred in overruling his motions for summary judgment and reconsideration. Initially, we note the appropriate rule of law concerning interlocutory orders such as orders denying motions for summary judgment:

"Since they are not final orders, as defined in R.C. 2505.02, interlocutory orders are not appealable under R.C. 2505.03. This does not mean that they are not appealable at all--claimed prejudicial error with respect to an interlocutory order may be reviewed on appeal after a judgment, decree, or final order is entered in the case in which the interlocutory order was entered."

In Balson v. Dodds (1980), 62 Ohio St.2d 287, 16 O.O.3d 329, 405 N.E.2d 293, at paragraph one of the syllabus, the Supreme Court of Ohio explicitly held that a "trial court's denial of a motion for summary judgment is reviewable on appeal by the movant from a subsequent adverse final judgment." See, also, Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 91-93, 554 N.E.2d 1292, 1294-1296 (denial of summary judgment is not effectively unreviewable on appeal from a final judgment). In this regard, the dissent would hold, contrary to the foregoing authorities, that the denial of a motion for summary judgment becomes moot and can never be reached on appeal. However, if an appellant was entitled to summary judgment, the overruling of his or her summary judgment motion clearly prejudices him or her and this prejudice is not abated by an opportunity to have a trial in the case. The issue is not moot because summary judgment and judgment following a trial are based on different evidence and are guided by different legal standards. Additionally, none of the parties contends on appeal that the issues raised under appellant's first assignment of error are moot and unreviewable. Finally, if we were to adopt the position expressed by the dissent, there would be less incentive for trial courts to apply Civ.R. 56 correctly, i.e., they could overrule all summary judgment motions with the knowledge that their holdings in this regard could never be reviewed on appeal. Consequently, we now turn to the merits of appellant's first assignment of error.

In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883; State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Additionally, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.

Appellant contends that the summary judgment evidence indicated that appellee's notice of cancellation did not comply with R.C. 3937.32(E) because it did not provide at least ten days' notice of cancellation from the date of mailing. Thus, he argues that the attempted cancellation was not effective, with the result that the policy remained operational. R.C. 3937.32 provides:

"No cancellation of an automobile insurance policy is effective, unless it is pursuant to written notice to the insured of cancellation. Such notice shall contain:

" * * *

"(E) Where cancellation is for nonpayment of premium at least ten days notice from the date of mailing of cancellation accompanied by the reason therefore shall be given[.]" (Emphasis added).

In construing a statute, the court's paramount concern is the legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1322. Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457, 461. In interpreting a statute, the words must be taken in their usual, normal or customary meaning. Independent Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314, 587 N.E.2d 814, 817. Courts may not delete words used or insert words not used. Cline...