Decker v. CNA Ins. Co.
| Decision Date | 04 June 1990 |
| Docket Number | No. 89-P-2106,89-P-2106 |
| Citation | 66 Ohio App.3d 576,585 N.E.2d 884 |
| Parties | DECKER, Exrx., et al., Appellants, v. CNA INSURANCE COMPANY et al., Appellees. * |
| Court | Ohio Court of Appeals |
Ralph Oates, Kent, for appellants.
Gary L. Nicholson and John B. Robertson, Cleveland, for appellees.
On May 2, 1987, Robert L. Decker was struck and killed by an automobile while jogging in Portage County, Ohio. The automobile was driven by Christopher R. Albert who, at the time of the accident, was insured by Federal Kemper Insurance Company, under a policy of insurance which carried a bodily injury liability limit of $25,000 for each person and $50,000 each occurrence.
The decedent had been employed by appellee, Envirodyne Industries. Envirodyne had provided the decedent with a company car, as well as insurance on the car, through the appellee, CNA Insurance Company.
Appellant, Laurie Decker, the executrix of decedent's estate, accepted $25,000 in full settlement from Federal Kemper Insurance Company. Further, appellant endeavored to make a claim against the underinsured provisions of Envirodyne's insurance policy with appellee. When appellee refused to recognize the claim, appellant commenced a declaratory judgment, on September 21, 1988, requesting a determination as to whether the decedent was an "insured," pursuant to the "uninsured/underinsured motorist" provisions contained in the appellee's policy.
Under the terms of the uninsured motorist policy drafted by appellee, the following persons/entities were insured under the policy:
Appellee's policy contains a provision defining certain terms of art contained in the policy. "You" or "your" is defined by the policy to be "the person or organization shown as the named insured * * *." The named insured in the policy in question was Envirodyne. The policy further defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household * * *." The uninsured motorist provision does not contain any special definitional wording which would limit the applicability of the policy to persons or family members in the scope of their employment. Instead, it would appear as if appellee utilized the same form for both corporate and personal automobile insurance policies.
Appellee, along with Envirodyne, filed a joint motion for summary judgment on April 3, 1989. Attached to this motion for summary judgment was an affidavit from an officer of Envirodyne which stated that it was not the intent of either Envirodyne or appellee that the decedent be covered for the accident at issue. On July 11, 1989, appellant filed a brief in support of declaratory judgment and in opposition to summary judgment. This brief did not dispute appellees' affidavit; instead, the brief asserted that the decedent was covered by the insurance company as a matter of law.
After oral arguments on the motion for summary judgment, the trial court, on July 28, 1989, issued an order stating:
"The Court finds that neither the Plaintiff, the Decedent nor the Decedent's Estate are insured under the Defendant's Insurance Policy, and that there is no dispute of material fact that the decedent was not in the scope of his employment at the time of his injury and death and was not operating a company owned vehicle."
Appellant timely filed a notice of appeal from this order and raises the following assignment of error:
"The trial court erred in sustaining the defendants' motion for summary judgment."
Prior to any consideration of the merits of appellant's assignment, however, this court must first consider the threshold issue of whether appellant's assignment is properly cognizable by this court. Appellees argue that the grant of summary judgment is proper because appellant failed to contradict, in any way, the allegations in their motion.
Appellees' argument is traditionally very compelling and would prevail in the case sub judice except that it assumes that appellant relied solely on a paper refutation of appellees' contentions. However, appellant also provided the court with the insurance policy in question. The provisions of the insurance policy itself contradict appellees' assertions and demonstrate genuine issues for trial. This court is, therefore, capable of considering appellant's argument.
The underlying issue in this case, which is the construction of an ambiguous insurance provision, has been the subject of considerable judicial scrutiny of late. Several courts, including this one, have addressed the question of who the insured party is in policies of uninsured/underinsured motorist coverage, where the form in question is used for both corporate and personal use. The interpretive difficulty in construing these provisions (which are all very similar to that in the case sub judice ) is in construing phrases such as "you" or "a family member." The dilemma that one reaches when interpreting these provisions was set forth in Aetna Cas. & Surety Co. v. Borden, Inc. (Sept. 15, 1989), Lake App. No. 88-L-13-163, unreported, at 8, 1989 WL 107031, as follows:
The starting point for the investigation of the question of whether decedent was covered by the appellee's insurance policy is King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380. In King, the Ohio Supreme Court heard a case in which the named insured was a community action agency and the injured party was one of the agency's employees. This employee was driving a co-worker's car (rather than the agency's) in the scope of his employment. The policy in question defined "you" exclusively in terms of the agency and also contained language defining "family member" in the same manner as the policy in the case sub judice.
At trial, the insurance company argued that the word "relatives" in the form was a nullity, resulting solely from the cross-pollination of insurance forms for individuals and business entities. The Ohio Supreme Court, however, held that "[w]here provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured." Id. at syllabus; Faruque v. Provident Life & Acc. Ins. Co. (1987), 31 Ohio St.3d 34, 31 OBR 83, 508 N.E.2d 949, at syllabus. The King court noted that interpreting phrases such as "[r]elatives living in your household" as relatives of the corporation was "manifestly absurd." King, supra, 35 Ohio St.3d at 212, 519 N.E.2d at 1384. The "relatives" phrase could also mean "the employees of the corporation," "the relatives of the employees of the corporation," or simply be construed as a nullity. Consequently, the court held that the phrase "a relative living in your household," in the business entity context, was inherently ambiguous and must be construed in such a way as to include the insured.
Five months after the release of King, the Ninth District Court of Appeals, in Simon v. Midwestern Indemn. Co. (Aug. 31, 1988), Lorain App. No. 4346, unreported, 1988 WL 93220, had occasion to construe an insurance policy similar to the one found in King. In Simon, the injured party, not within the scope of his employment, was struck and killed by an uninsured motorist. The decedent's employers had taken out uninsured motorist insurance, with the company designated as the named insured and with provisions in the policy extending coverage to the "relatives" of the named insured. The Simon court, applying King, held that the decedent was covered by the company's uninsured motorist policy, even though he had not been within the scope of his employment at the time of the accident. Since "[t]he automotive policy in controversy [did] not specifically provide that 'insureds' were only covered if they [were] acting within the scope of their employment at the time they [were] injured[,]" the Simon court found the trial court's construction of the policy in favor of the insurers to be clearly contrary to law. Simon, supra, at 5.
This court also had occasion to hear a case involving an uninsured motorist policy similar to the case sub judice, in Aetna, supra. In Aetna, the company in question, Carroll Glass, was designated as the named insured on the insurance policy, a policy which also contained language covering the "relatives of the same household." The daughter of one of the employees of Carroll Glass, who was not an employee of the company, was injured while driving in a car, not owned by the company and outside of any company business.
This court, examining the insurance policy in Aetna, and applying the logic of King and...
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