Johnston v. Johnston

• Decision Date: 25 October 2001
• Docket Number: No. 00 CV 001494.,00 CV 001494.
• Citation: 2001 Ohio 4387,119 Ohio Misc.2d 143,774 N.E.2d 1249
• Parties: JOHNSTON, Admr. v. JOHNSTON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Ohio Court of Common Pleas

774 N.E.2d 1249

119 Ohio Misc.2d 143

2001 Ohio 4387

JOHNSTON, Admr. v. JOHNSTON et al.^*

No. 00 CV 001494.

Court of Common Pleas of Ohio, Lake County.

Decided October 25, 2001.

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Clifford C. Masch and Robert D. Warner, Cleveland, for plaintiff.

Joseph R. Tira, Cleveland, for defendant Daniel Johnston.

J. Stephen Teetor, Columbus, and Samuel H. Simon, Gahanna, for defendant G.R. Osterland Co.

Michael A. Paglia, Cleveland, for defendant Allstate Insurance Company.

Paul H. Eklund, for defendant Cincinnati Insurance Company.

Daniel Richards and Randy L. Taylor, Cleveland, for defendant Westfield Insurance Company.

EUGENE A. LUCCI, Judge.

{¶ 1} This matter came on to be heard on the following filings:

{¶ 2} 1. Plaintiffs motion for summary judgment and declaratory relief against defendants, Allstate Insurance Company ("Allstate"), Cincinnati Insurance Company ("Cincinnati"), and Westfield Insurance Company ("Westfield"), filed May 11, 2001;

{¶ 3} 2. Defendant Cincinnati's motion for summary judgment, filed May 14, 2001;

{¶ 4} 3. Defendant Cincinnati's memorandum contra plaintiffs motion for summary judgment, filed May 18, 2001;

{¶ 5} 4. Defendant Allstate's brief in opposition to plaintiffs declaratory relief and motion¹ for summary judgment, filed May 24, 2001;

{¶ 6} 5. Defendant Westfield's motion to dismiss, or alternatively, combined brief in opposition to plaintiffs motion for summary judgment and cross-motion for summary judgment, filed May 29, 2001;

{¶ 7} 6. Plaintiff's reply brief in support of its motion for summary judgment and in opposition to motion for summary judgment filed by defendants Cincinnati, Westfield, and Allstate, filed June 6, 2001;

{¶ 8} 7. Defendant Westfield's brief in response to plaintiff's reply brief in support of its motion and in opposition to motion for summary judgment filed by Westfield, etc., filed June 15, 2001;

{¶ 9} 8. Defendant Allstate's reply brief to plaintiff's brief in opposition to defendant Allstate's motion for summary judgment, filed June 18, 2001;

{¶ 10} 9. Defendant G.R. Osterland Company's ("Osterland") motion for summary judgment, filed June 25, 2001; and

{¶ 11} 10. Plaintiff's brief in opposition to motion for summary judgment filed by defendant Osterland, filed June 16, 2001.

PROCEDURAL HISTORY

{¶ 12} Plaintiff Kathleen Johnston, in her individual capacity and as the administrator of her son's estate, filed the complaint in this action on September 20, 2000. The complaint named the following defendants: (1) Daniel Johnston (plaintiff's husband and the father of the decedent), (2) Osterland, (3) Allstate, (4) Cincinnati, and (5) Westfield. Plaintiff alleges that on August 31, 1999, her 17-year-old son, David Johnston, was injured and killed in a single-vehicle motorcycle accident as a proximate result of the negligence of defendants Osterland and Daniel Johnston. In her "First Cause of Action," plaintiff asserts a negligence claim for the injuries to David Johnston. In her "Second Cause of Action," plaintiff asserts a negligence claim for plaintiff's loss of consortium. In her "Third Cause of Action," plaintiff asserts a wrongful death claim for the death of David Johnston. And in her "Fourth Cause of Action," plaintiff asserts a claim for declaratory judgment concerning the existence, scope, and extent of insurance coverage under the various primary and excess insurance policies² that allegedly provided uninsured/underinsured motorist and liability coverage.

{¶ 13} Specifically, with respect to the insurance coverage that existed at the time of the motor vehicle accident, plaintiff alleges:

{¶ 14} 1. Allstate issued an automobile liability insurance policy containing UM/UIM coverage to, among others, Kathleen Johnston and David Johnston; that Kathleen Johnston and/or David Johnston were insureds under the Allstate policy; and that the various claims of the plaintiffs substantially exceed the aggregate limits of the Allstate policy.

{¶ 15} 2. Cincinnati issued a commercial liability insurance policy containing UM/UIM coverage (Policy No. 0638871) and an umbrella policy providing UM/UIM coverage (Policy No. CCC 438115) to, among others, Kathleen Johnston and David Johnston; that Kathleen Johnston and David Johnston were insureds for purposes of UM/UIM coverage under the Cincinnati policies; that the Cincinnati policies will be deemed by operation of Ohio law to provide UM/UIM coverage up to the available limits of the policies; and that the various claims of the plaintiffs substantially exceed the aggregate limits of the Cincinnati policies; and {¶ 16} 3. Westfield issued a commercial automobile liability insurance policy containing UM/UIM coverage (Policy No. CWP 3 557)³ and an umbrella policy (Policy No. CWP 3557 704) providing UM/UIM coverage to, among others, Kathleen Johnston and David Johnston; that Kathleen Johnston and David Johnston⁴ were insureds under the Westfield Commercial Auto Policy; that the Westfield policies will be deemed by operation of Ohio law to provide UM/UIM coverage up to the available limits of the respective policies; and that the various claims of the plaintiffs substantially exceed the aggregate limits of the Westfield commercial policies.

{¶ 17} On March 30, 2001, plaintiff filed her first amended complaint, which added allegations that defendant Allstate had issued a homeowner's insurance policy containing UM/UIM coverage, and added "John Doe Corporation" as a party defendant. The amended complaint alleged that John Doe Corporation issued policies of insurance containing UM/UIM coverage to The Family Christian Bookstore, which employed plaintiff's decedent, David Johnston, on the date of the accident. The amended complaint further alleged that "Defendants [sic] Kathleen Johnston and David Johnston were insureds under John Doe Corporation insurance policies which provided UM/UIM coverage," and that the plaintiffs' claims substantially exceed the aggregate limits of John Doe Corporation policies.

{¶ 18} The defendants responded to the complaint as follows:

{¶ 19} 1. Allstate filed its answer and cross-claim⁵ against defendant Osterland (for contribution and/or reimbursement) on December 4, 2000, admitting⁶ that it issued an automobile liability insurance policy containing UM/UIM coverage to Kathleen Johnston as the named insured but denying that Daniel⁷ Johnston is a named insured in the policy. Allstate denied the substance of the rest of the allegations against Allstate and set forth several affirmative defenses.⁸ On April 12, 2001, Allstate filed a "separate answer of Allstate Insurance Company as it relates to the auto policy."

{¶ 20} 2. Cincinnati filed its answer and jury demand on October 23, 2000, denying the substance of the plaintiffs allegations against Cincinnati.⁹ Cincinnati also raised the affirmative defense that the uninsured/underinsured motorist coverage was validly rejected with respect to Cincinnati Policy No. CCC 438 11 15. On April 12, 2001, Cincinnati filed its answer to plaintiffs first amended complaint in which it added the following affirmative defenses: (1) failure to join necessary parties, (2) plaintiff is not an insured under the subject policy, and (3) the Cincinnati policy is excess over all other applicable insurance.

{¶ 21} 3. Westfield filed its answer, counterclaim for declaratory judgment, and cross-claim¹⁰ for subrogation against defendant Daniel Johnston on November 17, 2000. In its answer, in addition to denying the substance of the plaintiffs allegations, Westfield stated that it issued a commercial general liability policy (Policy No. 3557704)¹¹ to Contour Tool, Inc. with Contour Tool, Inc. as the only named insured. The policy included umbrella coverage and UM/UIM coverage "subject to the terms, conditions, limitations, exclusions, and provisions of the policy." And even though Westfield admitted that the policy was in full force and effect on the date of the accident, Westfield specifically denied that the policy provided UM/UIM coverage for plaintiffs claims. A certified copy of the Westfield policy (No. 3557704) was labeled "appendix" and was attached to Westfield's answer, cross-claim, and counterclaim.¹² On May 16, 2001, Westfield filed its answer to plaintiffs first amended complaint (and reasserted its cross-claim against defendant Johnston¹³ and its counterclaim for declaratory judgment), adding the affirmative defense that plaintiff was estopped from relying on the Ohio Supreme Court's decisions in Scott-Pontzer, Ezawa, Wolfe, and Linko, and their progeny, because "said decisions are unconstitutional in violation of (1) the right of freedom of contract under Ohio Const. Art. II, Section 28, and under U.S. Const. Art. I, Section 10, (2) procedural and substantive due process, (3) prohibitions against ex post facto and retrospective laws, (4) the regulatory takings provisions, (5) equal protection of the laws, and (6) other provisions of the Ohio and U.S. Constitutions."

{¶ 22} 4. Osterland filed its answer on October 27, 2000, denying each and every allegation in the plaintiffs complaint. On November 3, 2000, Osterland filed its amended answer¹⁴ and crossclaim¹⁵ against defendant Daniel Johnston for contribution and indemnification. On April 27, 2001, defendant Osterland filed its answer to the first amended complaint, together with Osterland's cross-claim¹⁶ against defendant Daniel Johnston. Osterland's amended answer added an allegation in paragraph 4 asserting that defendant Daniel Johnston "drove his motorcycle left of center, across a double-yellow line, and was careless and negligent in his operation of that vehicle, thereby causing or contributing to cause said accident." Osterland's amended answer also asserted several affirmative defenses for the first time.¹⁷

{¶ 23} 5. Daniel Johnston filed his answer¹⁸ on December 7, 2000, denying the substance of the...