Brown v. Ohio Cas. Ins. Co.

• Decision Date: 12 October 1978
• Docket Number: No. 37667,37667
• Citation: 409 N.E.2d 253,63 Ohio App.2d 87,17 O.O.3d 267
• Parties: , 17 O.O.3d 267 BROWN, Appellee, v. OHIO CASUALTY INSURANCE CO., Appellant.
• Court: Ohio Court of Appeals

Page 87

63 Ohio App.2d 87

409 N.E.2d 253, 17 O.O.3d 267

BROWN, Appellee, v. OHIO CASUALTY INSURANCE CO., Appellant.

No. 37667.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 12, 1978.

Syllabus by the Court

1. A validly executed endorsement to an automobile insurance policy is incorporated into the insurance contract, and an inclusion of the endorsement in subsequent renewal notices is unnecessary to continue the endorsement's effect.

2. When ruling on a motion for summary judgment, the trial court in its discretion may consider documents other than those specified in Civil Rule 56(C) in support of the motion where no objection has been raised.

3. An operator of an automobile, for purposes of an endorsement to an insurance policy which states that coverage is effective only when the vehicle is being operated by the named insured, means one who is in actual physical control of the vehicle; however, the term "operator" cannot be so broadly defined to include the power to entrust the vehicle to another person.

Jack N. Turoff, Cleveland, for appellee.

William E. Armstrong, Cleveland, for appellant.

CORRIGAN, Chief Justice.

This is an appeal from an order of the trial court granting a motion for summary judgment in favor of the plaintiff-appellee, Helen Brown. The record shows that the plaintiff applied for an automobile insurance policy from the defendant-appellant, The Ohio Security Insurance Company, ^* on March 9, 1970. On the application form, the plaintiff requested that her husband, John Brown, be excluded from coverage. The policy was subsequently issued. The policy also contained a general endorsement which stated:

"It is hereby understood and agreed that coverage is in force and is effective when the insured vehicle is being operated by the named insured only."

This endorsement was signed by the plaintiff. Thereafter, the policy was renewed by the parties every six months.

On March 13, 1975, the plaintiff's husband was involved in an auto collision while driving the plaintiff's car. Subsequently, on August 18, 1975, Ralph and Estella Cramer, the victims of the auto collision, together with their insurer, State Automobile Insurance Company, initiated a negligence action in Common Pleas Court against the plaintiff and her husband. The plaintiff notified the defendant of the suit, but it determined that the coverage of the policy did not apply to this situation and therefore declined to defend the plaintiff in the action.

On February 4, 1976, the plaintiff initiated this action by filing a complaint for declaratory judgment. The defendant filed a motion to dismiss on the grounds that the plaintiff failed to attach a copy of the insurance policy to the complaint, pursuant to Civil Rule 10(D). A supplemental complaint was filed by the plaintiff on May 12, 1976. In her complaint, the plaintiff stated that the insurance policy contained an omnibus provision, by which all persons using the automobile specified were covered by the policy. Copies of the insurance policy and the complaint in the lawsuit initiated by the Cramers against the plaintiff and her husband were attached to the supplemental complaint. No answer, to either the plaintiff's first or supplemental complaint, was filed by the defendant.

The plaintiff filed a motion for summary judgment on December 1, 1976. In the brief accompanying the motion, the plaintiff stated that the defendant contracted to provide coverage for any accident arising out of the ownership, maintenance, or use of the automobile. She further stated the she had been named in the lawsuit by the Cramers as a defendant as a result of her negligent entrustment of the automobile to her husband. Attached to the plaintiff's motion for summary judgment was a copy of the insurance policy, copies of the semi-annual renewal forms, and a copy of the complaint in the Cramer lawsuit.

The defendant filed a motion for summary judgment on December 17, 1976. It argued in the accompanying brief that the policy and the endorsement were designed to cover only the plaintiff's use of the automobile, and therefore, because the accident arose out of her husband's use of the car, the defendant was not obliged to defend the plaintiff. The defendant also attached a copy of the plaintiff's application for insurance to the motion for summary judgment.

The plaintiff's motion for summary judgment was granted by the court on February 17, 1977. The court ordered the defendant to defend the plaintiff in the action between the plaintiff and the Cramers. The court also ordered the defendant to reimburse the plaintiff for reasonable attorney fees. The trial court also overruled the defendant's motion for summary judgment. From those orders, defendant filed a notice of appeal. Two assignments of error have been raised:

"I. The rendering of summary judgment for Helen Brown is erroneous as a matter of law because it ignores the intent of the parties and the plain language of the contract itself.

"II. The trial court erroneously rendered summary judgment for plaintiff appellee based upon unverified documents which accompanied said motion for summary judgment contrary to the provisions of Civil Rule 56(C)."

Because of the nature of the assigned errors, they will be handled in reverse order. In assignment of error number two, the appellant argues that the trial court erred by granting the motion for summary judgment based on the documents filed with the motion. The record reflects that none of the papers filed with either motion for summary judgment were certified.

Civil Rule 56(C) sets out the types of documents which may be used to support a motion for summary judgment. This rule states, in part:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

In the present case, the papers attached to the summary judgment motions do not fall into any of the categories set out above. In Morris v. First Natl. Bank & Trust Co. (1968), 15 Ohio St.2d 184, 239 N.E.2d 94, the court stated that the list of documents contained in the summary judgment rule is exclusive. Although Morris was decided before the adoption of the Ohio Rules of Civil Procedure, the language of R.C. 2311.041, the predecessor of Civil Rule 56, which was considered by the court, is identical to that portion of Civil Rule 56(C) set out above.

In concluding, the court stated:

"Section 2311.041, Revised Code, as amended, now limits determination of the motion for summary judgment to all the papers on file previous to the hearing. No other evidence may be considered." Id., at 188, 239 N.E.2d at 96.

An affidavit is a written declaration under oath made without notice to the adverse party. R.C. 2319.02. In the present case, there was no certification by the parties that, based on their personal knowledge, the papers filed with the motions were genuine. Thus, the documents were not admissible as evidence. Olverson v. Butler (1975), 45 Ohio App.2d 9, 12, 340 N.E.2d 436.

A review of the record, however, indicates that neither party objected to the other's use of unverified documents to support the summary judgment motions. No reported Ohio cases have been discovered which discuss whether or not the failure to raise an objection at the trial level to the use of such documents constitutes a waiver. In United States v. Dibble (C.A. 9, 1970), 429 F.2d 598, it was stated:

"Inadmissible affidavits are no different from inadmissible evidence. They may be stricken in the discretion of the trial judge, but will support a judgment if he elects to consider them and no objection is made." (Concurring Opinion.) Id., at 603.

See, also, Lacey v. Lumber Mutual Fire Ins. Co. (C.A. 1, 1977), 554 F.2d 1204.

Therefore, because no objection was raised, it cannot be held that the trial court erred by considering the documents attached to the motion for summary judgment when ruling on the motion. Accordingly, this assignment of error is not well taken.

As assignment of error number one, the appellant argues that the trial court's ruling granting summary judgment for the plaintiff was erroneous. Civil Rule 56(C) states that summary judgment should be granted if there is no genuine issue of material fact before the court, and reasonable minds could come to only one conclusion, which is adverse to the nonmoving party, after construing the evidence most strongly in favor of that party. See, also, Beebe Constr. Corp. v. Circle R Co. (1967), 10 Ohio App.2d 127, 226 N.E.2d 573. In the present case, no answer to the plaintiff's complaint was filed by the appellant. As the court stated in Tiefel v. Gilligan (1974), 40 Ohio App.2d 491, 321 N.E.2d 247, " * * * the practical result of choosing not to answer amounts to an admission of the validity of the facts alleged by the complainants." Id., at 494, 321 N.E.2d at 250.

The omission of an answer, however, does not mean that the plaintiff was automatically entitled to a judgment as a matter of law. Tiefel...