Kaiser v. Goff

• Docket Number: C-220097
• Decision Date: 29 December 2022
• Citation: 204 N.E.3d 1203
• Parties: Donna KAISER, and Merl Kaiser, Plaintiffs-Appellants, v. Troy D. GOFF, Jr., et al., Defendants, and Safeco Insurance Company of Illinois, Defendant-Appellee.
• Court: Ohio Court of Appeals

204 N.E.3d 1203

Donna KAISER, and Merl Kaiser, Plaintiffs-Appellants,

v. Troy D. GOFF, Jr., et al., Defendants,andSafeco Insurance Company of Illinois, Defendant-Appellee.

NO. C-220097

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: December 29, 2022

The Offices of Blake R. Maislin, LLC, and Blake R. Maislin, Cincinnati, for Plaintiffs-Appellants.

Freund, Freeze & Arnold and Anne P. Keeton, Dayton, for Defendant-Appellee.

OPINION.

Zayas, Judge.

{¶1} The plaintiffs-appellants Donna Kaiser ("Donna") and her husband Merl Kaiser (collectively referred to as the "Kaisers") appeal from the trial court's entry of summary judgment for defendant-appellee Safeco Insurance Company of Illinois ("Safeco"). The Kaisers asserted a claim against Safeco for uninsured motorist/underinsured motorist ("UM/UIM") coverage potentially triggered by any fault of Donna's daughter for injuries Donna sustained while a passenger in her own car while her daughter was driving. For the reasons that follow, we affirm.

{¶2} The undisputed facts relevant to this appeal are as follows. On November 8, 2016, Donna sustained serious injuries as a passenger in her own car, a Toyota Solara, that was driven by Donna Williams ("Williams"), Donna's daughter. The injuries were sustained when Donna's car and a car driven by defendant Troy Goff, an employee of Pizza Hut, collided.

{¶3} Donna had automobile insurance for herself and the Toyota Solara with Safeco. Because liability for the November 8 collision was disputed, Donna sued both Williams and Goff/Pizza Hut. Donna also sued Safeco for UM/UIM benefits to cover any percentage of fault assessed to Williams and Goff, alleging that Williams and Goff were "uninsured motorist[s]" and/or "underinsured motorist[s]" as defined in Donna's policy with Safeco.

{¶4} Safeco moved for summary judgment on Donna's UM/UIM motorist claim tied to Williams's negligence, arguing that the policy did not afford UM/UIM coverage because the vehicle Williams was driving did not constitute an "uninsured vehicle" as defined under the Kaisers’ insurance policy with Safeco ("Safeco Policy"), regardless of the available limits of Williams's liability insurance or the fault of Williams. Safeco submitted with its motion an authenticated copy of the Safeco Policy in effect at the time of the accident that removed a car owned by Donna from the definition of an uninsured motor vehicle.

{¶5} The Kaisers filed a memorandum opposing summary judgment for Safeco on the claim for UM/UIM benefits. They argued the Safeco Policy was unenforceable as written because Safeco offered Donna a policy with both liability coverage and UM/UIM coverage, yet that policy contained a gap in coverage when Donna was a passenger in her own car and injured by the negligence of her driver. Characterizing the Safeco Policy as a contract of adhesion with an "odious, unintended, unexpected" "passenger seat defense" that was contrary to "public policy," the Kaisers contended the policy terms were unenforceable. The Kaisers additionally argued that the Safeco Policy should not be enforced as written because the policy terms "did not reflect the parties’ intent when entering into the contract." The Kaisers did not place in evidence any material facts with respect to the making of the contract, including evidence that the Safeco Policy terms did not reflect the intent of one or both of the parties.

{¶6} On September 9, 2021, the trial court granted summary judgment to Safeco on the UM/UIM claim. That decision became final on February 16, 2022, when, after the Kaisers settled their claims against Goff, the trial court entered a final judgment disposing of all the remaining claims.¹

Analysis

{¶7} Though the Kaisers have set forth four separate assignments of error, all challenge the trial court's grant of summary judgment to Safeco on the claim for UM/UIM coverage tied to Williams's alleged negligence while operating Donna's car. We review the grant of summary judgment de novo, applying the standards set forth in Civ.R. 56. See Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. To prevail on a motion for summary judgment, the movant must demonstrate that there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

UM/UIM Coverage

{¶8} At issue in this case is the scope of UM/UIM coverage in the Kaisers’ 2016 Safeco Policy.² Generally, the purpose of UM/UIM coverage is "to put the insured in the same position as if the tortfeasor were insured." LexisNexis Practice Guide: New Appleman Insurance Law 2023 Edition Section 2.03 (accessed Dec. 14, 2022).

{¶9} R.C. 3937.18 governs UM/UIM coverage in Ohio, and that statute has a turbulent legislative history that became more stable after 2001. See, e.g., State Farm Mut. Auto. Ins. Co. v. Grace , 123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 19-29 ; Snyder v. Am. Family Ins. , 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574, ¶ 13-23. In 2001, the General Assembly, through the enactment of Am.Sub.S.B. No. 97 ("S.B. 97"), amended this statute to eliminate the requirement that insurers must offer UM/UIM coverage. See Grace at ¶ 23. At that same time, the General Assembly also modified a provision, first added in 1997, that allowed an insurer to "include terms and conditions that preclude [UM/UIM] coverage" for bodily injury or death suffered by an insured. See id. at ¶ 24.

{¶10} The 2001 amendment expanded the circumstances under which an insurer could limit the scope of the UM/UIM coverage in a policy, eliminating the requirement that any terms and conditions precluding UM/UIM coverage had to conform to those limitations specifically stated in former R.C. 3937.18. See R.C. 3937.18(I), interpreted in Grace at ¶ 26-30 ; Snyder at ¶ 28. As noted by the court in Grace , the General Assembly in the uncodified language of the implementing legislation expressed "the public policy of this state to not only eliminate the mandatory offer of UM/UIM coverage, but also to permit insurers to incorporate exclusionary or limiting provisions in their policies to limit or exclude UM/UIM coverage." Grace at ¶ 29.

{¶11} A 2012 amendment varied the language in R.C. 3937.18(I) in a way that affects intrafamily claims for wrongful death. Pursuant to that 2012 amendment, the limitations and exclusions for UM/UIM coverage are subject to the terms of R.C. 3937.46, which was also enacted in 2012. R.C. 3937.46 renders unenforceable an "intrafamily liability exclusion" in a policy that precludes liability coverage for an intrafamily wrongful-death claim unless the policy includes UM/UIM coverage that does not contain an intrafamily exclusion. See R.C. 3937.46. "Intrafamily liability exclusion" is specifically defined as "any provision included in an automobile insurance policy that excludes liability insurance coverage for the owner or operator of a motor vehicle against a claim for injury or death suffered by a family member of that owner or operator." R.C. 3937.46(C)(1).

{¶12} In summary, R.C. 3937.18(I) now contains examples of provisions limiting and excluding UM/UIM coverage, but allows for policies that include any terms and conditions precluding coverage as long as these circumstances are specified in the policy and do not conflict with the content of R.C. 3937.46 regarding wrongful-death claims. It is undisputed that the Safeco Policy at issue in this case is governed by the current version of R.C. 3937.18 and that the provision Safeco cited as precluding UM/UIM coverage is not set forth as an example in R.C. 3937.18(I).

Policy Provisions

{¶13} The Safeco Policy provided coverage in the amount of $250,000 per person and $500,000 per accident in both the liability and UM/UIM portions of the policy. With respect to liability coverage, the Safeco Policy contained a clause that excluded liability coverage for bodily injury sustained "by any named insured or resident family member." This section of the policy additionally explained that Safeco had no duty to defend any suit or settle any claim for bodily injury not covered under the liability coverage of the policy.

{¶14} In support of summary judgment on the claim for UM/UIM coverage, Safeco cited several provisions in Part C of the policy, labeled UNINSURED MOTORIST COVERAGE and governing both UM and UIM coverage. Safeco began with the paragraph on the general provision of coverage:

A. We will pay damages which an insured is legally entitled to recover from the owner or operator of:

1. An uninsured motor vehicle as defined in Section 1., 2., and 4. of the definition of an uninsured motor vehicle because of bodily injury :

a. sustained by that insured ; and

b. caused by an accident.

2. An uninsured motor vehicle as defined in Section 3. of the definition of an uninsured motor vehicle because of bodily injury sustained by an insured .

{¶15} Safeco then identified the provision defining what does, and does not constitute an uninsured vehicle:

C. "Uninsured motor vehicle " means a land motor vehicle or trailer of any type:

1. To which no bodily injury liability or policy applies at the same time of the accident.

2. To which a bodily injury liability bond or policy applies at the same time of the accident if its limit for bodily injury liability is less than minimum limits for bodily injury liability.

3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits or causes bodily injury * * *[.]

4. To which a bodily injury liability bond or policy applies at the time of the accident, but the bonding or insuring company:

a. denies coverage; or

b. is or becomes insolvent.

However, "uninsured motor vehicle " does not include any vehicle or equipment:

1. Owned by or furnished or available for the regular use of you, a family member or any other rated

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