Bowen v. Stewart, 2006 Ohio 831 (OH 2/16/2006), No. 05CA32.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHarsha
Citation2006 Ohio 831
Decision Date16 February 2006
Docket NumberNo. 05CA32.
PartiesLola Bowen, et al., Plaintiffs-Appellants, v. Harry D. Stewart, et al., Defendants-Appellees.

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2006 Ohio 831
Lola Bowen, et al., Plaintiffs-Appellants,
v.
Harry D. Stewart, et al., Defendants-Appellees.
No. 05CA32.
Court of Appeals of Ohio, Fourth District, Washington County.
Released February 16, 2006.

Todd O. Rosenberg, Elk & Elk Co., L.P.A., Mayfield Heights, Ohio, for Appellants.

J. Stephen Teetor and Paul A. MacKenzie, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, for Appellee Westfield Insurance Company.

Andrew J. Mollica and George P. McCarthy, Mollica, Gall, Sloan & Sillery Co., LPA, Athens, Ohio, for Appellee Cincinnati Insurance Company.

DECISION AND JUDGMENT ENTRY

HARSHA, P.J.


{¶1} In this dispute over insurance coverage, Charles and Roger Jeffers (the Jeffers) appeal the summary judgment in favor of Westfield Insurance Company (WIC) and The Cincinnati Insurance Company (CIC). The trial court concluded recent amendments to Ohio's uninsured/underinsured motorist (UM/UIM) statute changed the law to allow insurance companies to preclude coverage for wrongful death beneficiaries under their own UM/UIM

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policies. We agree that 1997 H.B. 261 removed the ambiguity that previously existed in R.C. 3937.18. Thus, the statute now permits insurance carriers to limit UM/UIM recovery to claims in which the insureds themselves suffer bodily injury or death.

I. FACTS

{¶2} The parties do not dispute the underlying facts. In December of 2000, Bubbie Jeffers died in an automobile accident when an intoxicated driver collided with his car. He was survived by his two brothers, Charles and Roger Jeffers, as well as other relatives not involved in this appeal. At the time of the accident, Charles Jeffers carried an automobile liability policy with CIC that provided UM/UIM coverage in the amount of $300,000. CIC originally issued this policy on September 22, 1999 and renewed it on September 22, 2000. The relevant portion of the uninsured motorist section of the policy states: "[w]e will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of: 1. An uninsured motor vehicle as defined in Sections 1., 2., and 4. of the definition of an uninsured motor vehicle because of bodily injury: a. sustained by a covered person; and b. caused by an accident." Charles Jeffers is pursuing a claim under the UM/UIM policy for alleged

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mental/emotional losses relating to the death of his brother.

{¶3} Likewise, Roger Jeffers carried a commercial automobile policy with WIC in the name of Roger Jeffers, dba Ohio Cabinet Installers. This policy provided UM/UIM coverage in the amount of $1,000,000. WIC originally issued this policy in 1995 and renewed it on November 27, 2000. The relevant portion of this policy states: "[w]e will pay all sums the `insured' is legally entitled to recover as compensatory damages from the owner or operator of: a. An `uninsured motor vehicle' as defined in Paragraphs F.3.a., b. and c. because of `bodily injury': (1) sustained by the `insured'; and (2) caused by an `accident'." Roger Jeffers is now pursuing a claim under this UM/UIM policy.

{¶4} CIC and WIC both denied coverage contending that the express terms of the policies restrict the UM/UIM coverage to bodily injury suffered by the insureds themselves. The success of this argument depends upon whether H.B. 261 as enacted on September 3, 1997 amended R.C. 3937.18 to permit this type of a restriction in coverage.

{¶5} After Charles and Roger Jeffers filed their complaint, all four parties moved for summary judgment.

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The trial court denied the brothers' motions and granted the motions of CIC and WIC, finding they have no duty to provide UM/UIM coverage to Charles and Roger Jeffers.

II. ASSIGNMENT OF ERROR

{¶6} The Jeffers appealed and their sole assignment of error states:

THE TRIAL COURT HELD INCORRECTLY THAT THE 1997 AMENDMENTS TO OHIO'S UM/UIM STATUTE CHANGED THE LAW OF OHIO SO AS TO ALLOW UM/UIM CARRIERS TO EXCLUDE RECOVERY BY WRONGFUL DEATH BENEFICIARIES UNDER THEIR OWN UM/UIM POLICIES.

The Jeffers assert that the trial court misconstrued the meaning of the 1997 H.B. 261 amendment to R.C. 3937.18.

{¶7} An appellate court independently reviews a trial court's decision to grant summary judgment. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. In doing so, we apply the standard contained in Civ.R. 56, which states: summary judgment is appropriate when: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the non-moving party, that reasonable minds can come to a conclusion only in favor of the moving party. See Grafton, supra. Here there are no disputed historical facts. Furthermore, the interpretation of an automobile liability insurance policy

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presents a question of law that an appellate court reviews without deference to the trial court." Nationwide Mut. Fire Ins. Co. v. Gunman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684, 686.

III. DETERMINING WHICH STATUTE APPLIES

{¶8} Before addressing H.B. 261, CIC first argues that it renewed its policy with Charles Jeffers after the effective date of S.B. 267, which expressly permits insurers to limit UM/UIM coverage to situations in which the insured suffered bodily injury, went into effect. Thus, CIC asserts that S.B. 267 should control this policy and not H.B. 261. The Ohio Supreme Court held that when an issue of coverage arises vis-á-vis the statute, the issue is determined by the version of R.C. 3937.18 in effect when the insurance contract was formed. Ross v. Farmer's Ins. Group of Companies (1998), 82 Ohio St.3d 281, 289, 695 N.E.2d 732, 738. Furthermore, "commencement of each (two year) policy period mandated by R.C. 3937.18(A) brings into existence a new contract of automobile...

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