Debra Gaye Davis v. Harold Richard Evans

• Decision Date: 23 November 1983
• Docket Number: C-820987,83-LW-2717,TRIAL NO. A-8105333
• Parties: DEBRA GAYE DAVIS, Administratrix of the estate of WILLIS RAY DAVIS, and individually as the surviving spouse of Willis Ray Davis, deceased, Plaintiff-Appellee, v. HAROLD RICHARD EVANS, Defendant, ALLSTATE INSURANCE COMPANY, Defendant-Appellant, OHIO SECURITY INSURANCE COMPANY, Defendant-Appellee. APPEAL
• Court: Ohio Court of Appeals

DEBRA GAYE DAVIS, Administratrix of the estate of WILLIS RAY DAVIS, and individually as the surviving spouse of Willis Ray Davis, deceased, Plaintiff-Appellee, v. HAROLD RICHARD EVANS, Defendant, ALLSTATE INSURANCE COMPANY Defendant-Appellant, OHIO SECURITY INSURANCE COMPANY Defendant-Appellee.

No. C-820987, TRIAL NO. A-8105333.

83-LW-2717 (1st)

Court of Appeals of Ohio, First District Hamilton

November 23, 1983

Civil Appeal from Court of Common Pleas.

Messrs Kelley, Grossheim & Bavely, E. Hanlin Bavely of counsel, 604 Tri-State Building, Cincinnati, Ohio 45202, for Plaintiff-Appellee.

Messrs. McCaslin, Imbus & McCaslin, Robert J. Imbus, Jr. of counsel, 1200 Gwynne Building, 602 Main Street, Cincinnati, Ohio 45202, for Defendant.

Messrs. McIntosh, McIntosh & Knabe, Robert C. McIntosh and Thomas R. Schoenfeld of counsel, 3312 Carew Tower, Cincinnati, Ohio 45202, for Defendant-Appellant.

Messrs. Gustin & Lawrence, James W. Gustin of counsel, 201 Second National Building, Cincinnati, Ohio 45202, for Defendant-Appellee.

DECISION.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the transcript of the proceedings, the briefs and arguments of counsel.

This is an appeal from a declaratory judgment issued by the Court of Common Pleas of Hamilton County, Ohio, in favor of plaintiff (who was administratrix of her deceased husband's estate) and against defendant-appellant Allstate Insurance. The trial court based its findings on the stipulation of the parties.

In relevant part, the parties agree that on May 6, 1981 at 9:30 P.M. Willis Ray Davis was a passenger in a 1977 Ford Fairmont station wagon proceeding northbound on the Clay Wade Bailey Bridge. At the same time defendant Evans was driving his Ford Econoline van in a southerly direction on the bridge. There was a head on collision between the two vehicles while both were still in Hamilton County, Ohio. As a result of the collision, Willis Ray Davis died.

The parties agree that plaintiff's amended complaint alleges that the station wagon was driven in a lawful manner and that defendant Evans' van crossed left of the center line and caused the collision.

Likewise the parties agree that defendant Evans was insured at the time of the collision by defendant Ohio Security Insurance Company and that the car in which decedent Davis was riding (owned by Maples, who is not a party to this suit) was insured by defendant Allstate Insurance Company.

As a result of the collision, plaintiff commenced suit against the three named defendants. There are six causes of action in plaintiff's suit. The first three seek recovery from defendant Evans personally for the wrongful death, conscious pain and suffering, and funeral expenses of decedent. The fourth seeks recovery from Evans for the loss of consortium and familial relationship plaintiff Debra Davis has suffered as a result of her husband's death. The fifth and sixth, with which this appeal is concerned, seek declaratory relief with regard to the rights of the parties under the respective insurance policies issued by Allstate and Ohio Security.

The trial court has to this point heard only the two causes of action seeking declaratory relief, which involve the interpretation of the terms of the Allstate and Ohio Security policies. Evans, a Kentucky resident whose car was principally garaged in Kentucky, was insured at the time of the collision by Ohio Security Insurance. Under the terms of his policy with Ohio Security Evans had insurance to the extent of $10,000 per person injured and $20,000 per accident (the minimum financial security requirements under Kentucky law). The minimum financial security requirements for cars principally garaged in Ohio is $12,500 per person injured and $25,000 per accident. R.C. 4509.20.

Appellant Allstate contends that two clauses in Evans' insurance policy with Ohio Security raise Evans' $10,000/$20,000 coverage to the minimum Ohio financial security requirements of $12,500/$25,000.®1¯

Footnote 1 . The two clauses state:

CONDITIONS

9. Financial Responsibility Laws - Coverages A and B. When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.

and

Automobile

OUT-OF-STATE INSURANCE ENDORSEMENT

It is agreed that, subject to all the provisions of the policy except where modified herein, the following provision is added:

If, under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company's liability and the kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province; provided that the insurance under this provision shall be reduced to the extent that there is other valid and collectible insurance under this or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same elements of loss.

If appellant Allstate is correct in its interpretation of the Ohio Security policy, Evans has the minimum financial security required by Ohio and Allstate is not liable to plaintiff under Maples' policy. However, if the trial court's interpretation of the Ohio Security policy is correct, Evans (whose vehicle was garaged in Kentucky) did not meet the minimum Ohio financial security requirements, and under the terms of the uninsured motorist's endorsement in Maples' Allstate policy, Evans could be said to be uninsured. Resultantly, Allstate could be held liable to plaintiff. Actually, as already explained, Evans was not uninsured, but his 10,000/20,000 policy with Ohio Security amounted to underinsurance. We are required to measure whether or not Evans was insured for purposes of the Allstate policy by the 12,500/25,000 amounts required by Ohio R.C. 4509.20.

In its single assignment of error Allstate claims that the trial court committed reversible error by granting declaratory judgment in favor of plaintiff-appellee and against defendant-appellant (Allstate). Appellant would have us read the two cited provisions of...