Martin Hillyer, Etc. v. State Farm Mutual Auto Ins. Co.
| Decision Date | 14 January 1999 |
| Docket Number | 75073,99-LW-0283 |
| Parties | MARTIN HILLYER, ETC., ET AL., PLAINTIFFS-APPELLANTS v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, DEFENDANT-APPELLEE CASE |
| Court | United States Court of Appeals (Ohio) |
Civil appeal from Common Pleas Court, No. CV-332187.
For Plaintiffs-Appellants: Jeffrey H. Friedman, Esq., Friedman Domiano & Smith, Sixth Floor, Standard Building, 1370 Ontario Street, Cleveland, OH 44113-1701.
For Defendant-Appellee: Henry A. Hentemann, Esq., J. Michael Creagan, Esq., Meyers, Hentemann & Rea Co., L.P.A., 2100 The Superior Building, 815 Superior Avenue, N.E., Cleveland, OH 44114-2701.
This case came on for hearing upon the accelerated calendar of the court pursuant to App.R. 11 and Loc.R. 25.
Plaintiffs-appellants Martin Hillyer, individually and as administrator of the estate of Christina Hillyer, Gisela E. Hillyer, Sean F. Hillyer and Mark A. Hillyer ("appellants") appeal from the judgment entry of the Cuyahoga County Court of Common Pleas which denied their motion for summary judgment, granted the motion for summary judgment of defendant-appellee State Farm Insurance Company ("appellee") and declared that appellants were not entitled to recover UM benefits under the policies of insurance issued to them by appellees. For the reasons stated below, we affirm.
On November 6, 1994, sixteen-year-old Christina Hillyer was fatally injured while a passenger in a motor vehicle operated by her classmate Karen Snyder when Snyder lost control of the vehicle causing it to flip over and eject Christina. The Snyder vehicle was insured by Great American Insurance Company who paid its $100,000 liability limits to appellants. On the date of the accident, appellants held three automobile policies of insurance with State Farm relevant to this appeal.[1] Policy 604 2094-F05-35G ("604") issued in 1979 and policy 483 0860-F14-35J ("483") issued in 1981 (together "the underlying policies") are the subjects of this declaratory action. Originally, each underlying policy provided UM/UIM coverage. In March 1990, Martin and Gisela Hillyer applied for and were issued an umbrella policy with a $1,000,000 policy limit by State Farm. On April 4, 1990, Martin Hillyer signed the appropriate forms provided by State Farm indicating his rejection of UM/UIM coverage on each of the underlying policies. Then, on December 1, 1990, as named insureds on the umbrella policy, both Martin Hillyer and Gisela Hillyer executed a rejection of UM/UIM coverage on the umbrella policy.
On March 25, 1997, appellants initiated the within action seeking a declaration in their favor regarding UM/UIM coverage under the two underlying policies for their loss incurred on November 6, 1994. The parties filed cross-motions for summary judgment and briefed the issues. On July 30, 1998, the trial court entered its judgment wherein it denied appellants, motion, granted appellee's motion and declared that appellants were not entitled to underinsured motorist coverage under these policies. Appellants timely appeal and advance a single assignment of error for our review.
In their sole assignment of error, appellants complain that the trial court erred in its determination that they were not entitled to recover under the policies at issue in this case. Specifically, appellants contend that the waivers of UM/UIM coverage as executed by Martin Hillyer are unenforceable as to all insureds.
The issues advanced in this appeal constitute questions of law and as such, our review is de novo. Moreover, this court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court which test is set forth in Civ. R. 56(C), which specifically provides that before summary judgment may be granted it must be determined that:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United Inc. (1977), 50 Ohio St.2d 317, 327.
Further, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359.
The record demonstrates and it is uncontroverted that the underlying policies were originally issued with the corresponding amounts of UM/UIM coverage in place. Appellant Martin Hillyer initiated the rejection of these additional coverages and he discussed the matter with his insurance agent after reading a book entitled "Wealth Without Risk." The declaration page of each of these underlying policies designates only Martin Hillyer as the named insured. Martin Hillyer signed each form rejecting the UM/UIM coverage on the underlying policies on April 4, 1990. The underlying policies renewed in June 1991 and again in June 1993. Martin Hillyer did not request reinstatement of the UM/UIM insurance. The accident occurred on November 6, 1994 during the 1993 to 1995 renewal terms of the underlying policies.
In the trial court, appellants requested a declaration of their rights to underinsured coverage as to both underlying policies. In 1997, appellants had two hurdles to overcome in order to prevail on their claim for coverage. First, appellants were required to demonstrate that the waivers executed by Martin Hillyer were unenforceable and, second, appellant sought to show that although the accident occurred November 6, 1994, after the passage of Am.Sub.H.B. 20 on October 20, 1994, the scope of their coverage should be determined by the decision rendered in Savoie v. Grange Mutual Ins. Co. (1993), 67 Ohio St.3d 500 which went into effect in the middle of the Hillyer policy period. However, on July 1, 1998, our supreme court in Ross v. Farmers Ins. Group of Companies (1998), 82 Ohio St.3d 281, held "[f]or the purpose of determining the scope of coverage of an underinsured motorist claim the statutory law in effect at the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties." Ross, supra, at the syllabus.
In reliance on Ross, appellants assert that the statutory law in effect at the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties. We agree.
R.C. 3937.18 provides that the named insured may reject or accept UM/UIM coverage. Unless the named insured expressly rejects UM/UIM coverage under the mandatory provision of R.C. coverage is provided for by operation of law. See Abate v. Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 165. The differentiates between an "insured" and "named insured." In referring to the persons protected under an insurance policy, the statute R.C. 3937.18(A)(1) and (2), speaks of "insured(s)." However, the statute, in paragraph (C) states: "The named may only reject or accept both coverages offered under division (A) of this section." See Beckman et al. v. Prudential Ins. Co. et al. (1994), 69 Ohio Misc.2d 1. It is undisputed that Martin Hillyer executed two documents rejecting the UM/UIM coverage on the subject policies, each document which stated in pertinent part:
As a consequence, the resolution of the issues before us hinges upon an initial determination of whether Martin Hillyer was the sole "named insured" on the policies and, thus, whether the waivers as executed by Martin Hillyer on each of the underlying
policies are enforceable and prevent under insurance coverage for
all insureds from arising as a matter of law.
Appellants in their motion for summary judgment filed in the trial court advanced several theories to support their contention that they were entitled to UM/UIM coverage under the subject policies. They contend that the waivers of these benefits as signed solely by Martin Hillyer were invalid and unenforceable as to all the insureds. Upon a careful review of each of appellants' arguments, we conclude that each of appellants' arguments is without merit.
First, appellants assert that the rejection of the UM/UIM coverage on the underlying policies required the signature of Gisela Hillyer because they claim that she was a named insured on the underlying policies. We do not agree.
The question of whether a person is a named insured is a question of law. See Auto-Owners Mut. Ins. Co. v. Andrews (Dec. 20, 1991), Huron App. No. H-91-015, unreported. In order to be a named insured a person must be listed as such on the declarations page of the...
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