House v. State Auto. Mut. Ins. Co., 86AP-958

• Decision Date: 11 February 1988
• Docket Number: No. 86AP-958,86AP-958
• Citation: 44 Ohio App.3d 12,540 N.E.2d 738
• Parties: HOUSE, Admr., Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 12

44 Ohio App.3d 12

540 N.E.2d 738

HOUSE, Admr., Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, et al., Appellees. ^*

No. 86AP-958.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 11, 1988.

Syllabus by the Court

1. A commercial umbrella liability policy constitutes automobile liability insurance within the contemplation of R.C. 3937.18 and thus affords uninsured motorist coverage to an insured under the policy.

2. In the absence of a clear definition to the contrary, the words "additional insured" in an insurance policy mean any person who is an insured under the policy in addition to the named insured. Necessarily, this includes not only persons who may be indicated by name to be an insured, but also any person who is a member of a class which is specifically indicated to be an insured under the policy.

Lamkin, Van Eman & Trimble and William W. Lamkin, Columbus, for appellant.

Baker & Hostetler, John M. Mahota and Gary A. Gillett, Columbus, for appellee State Auto. Mut. Ins. Co.

Crabbe, Brown, Jones, Potts & Schmidt and William H. Jones, Columbus, for appellee Nationwide Ins. Co.

Wiles, Doucher, Van Buren & Boyle and Thomas J. Keener, Columbus, for appellee Auto Owners Ins. Co.

WHITESIDE, Judge.

Plaintiff, Donna House, Administrator of the Estate of Ernest Charles House, appeals from a judgment of the Franklin County Court of Common Pleas and raises a single assignment of error as follows:

"The trial court erred in holding that the commercial umbrella liability policy number CSX 695 932, issued by defendant appellee State Automobile Mutual Insurance Company, has no application to the accident in question and does not provide uninsured/underinsured coverage to plaintiff-appellant."

This case involves construction of an insurance policy as to two issues: (1) whether plaintiff's decedent was an insured under a policy issued by defendant, State Automobile Insurance Company, to Teramana Trucking Inc. and, if so, (2) whether uninsured motorist coverage is afforded by that policy.

Plaintiff's decedent was killed while operating a truck owned by his employer, Bradford L. Davis, as a result of a collision with a vehicle driven by an uninsured motorist. Plaintiff's decedent was operating the truck under an agreement between Davis and defendant, State Auto's insured, Teramana, under which the truck, together with a driver, was hired by Teramana to transport coal. Defendant, State Auto, had issued two policies to Teramana. One was an ordinary automobile policy, as to which there is no dispute but that the policy provided plaintiff's decedent with uninsured motorist coverage. The second policy, the subject of the controversy herein, is referred to as a commercial umbrella policy and is designated number CSX 695 932. There were also policies issued by other defendant insurance companies, as to which no issue is raised herein, making said defendant insurance companies at most nominal appellees herein.

In finding for defendant State Auto, the trial court, in addition to the stipulations of the parties, made only the finding of fact that "[t]he Commercial Umbrella Liability Policy issued by State Automobile Insurance Company has no application to the accident in question and likewise does not provide any uninsured coverage whatsoever." The only conclusion of law pertinent to that policy states, "[t]here is no requirement that umbrella business liability policies must contain uninsured/underinsured motorist coverages pursuant to uninsured/underinsured coverage statute," the trial court citing only out-of-state cases without comparing those state statutes with the Ohio statute.

It is undisputed that defendant, State Auto, neither offered nor provided uninsured motorist coverage to Teramana Trucking. R.C. 3937.18 provides in pertinent part that:

"(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following are provided:

"(1) Uninsured motorist coverage * * *."

The issue as to uninsured motorist coverage depends upon whether the policy is an automobile or motor vehicle liability policy. Defendant, State Auto, contends it is not because the policy is a comprehensive umbrella liability policy. Plaintiff contends that it is because the policy provides that coverage is afforded under the "umbrella" only to the extent that insurance is afforded by an underlying policy, and one of the two underlying policies to which the umbrella coverage applies is conceded to be an automobile liability policy.

The only Ohio authority supports plaintiff's position, the Sixth District Court of Appeals having so concluded in Cincinnati Ins. Co. v. Siemens (1984), 16 Ohio App.3d 129, 16 OBR 137, 474 N.E.2d 655. Defendant, State Auto, concedes that the Ohio authority, including Cincinnati Ins. Co. and what is referred to as "dicta" in Duriak v. Globe American Cas. Co. (1986), 28 Ohio St.3d 70, 28 OBR 168, 502 N.E.2d 620, tends to support plaintiff's position. However, defendant, State Auto, relies upon authority from other states and based thereon contends that a contrary result to that of Ohio case authority should be reached. Again, there is no comparison between the statutes of those states relied upon by defendant and R.C. 3937.18. The court in Cincinnati Ins. Co. expressly rejected out-of-state case authority relied upon by the trial court and held that the umbrella endorsement to the policy therein constituted automobile liability insurance within the contemplation of R.C. 3937.18. Although the words of the policies are different, there, as here, coverage is afforded with respect to liability arising out of the ownership or use of a motor vehicle. The Supreme Court holding in the per curiam opinion in Duriak is not dicta as contended, the Supreme Court stating:

"Clearly, under the express terms of R.C. 3937.18, no exception is made with respect to excess insurance coverage. If the legislature desires to exempt excess liability carriers, they are free to do so. In the meantime, however, we are compelled to hold that excess liability insurance must comport with R.C. 3937.18. In this holding we approve of Cincinnati Ins. Co. v. Siemens (1984), 16 Ohio App.3d 129 [16 OBR 137, 474...