McGuire v. Motorists Mut. Ins. Co.

• Decision Date: 05 November 2021
• Docket Number: No. 29165,29165
• Citation: 180 N.E.3d 90
• Parties: Joan Jones MCGUIRE, et al., Plaintiffs-Appellants v. MOTORISTS MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees
• Court: Ohio Court of Appeals

180 N.E.3d 90

Joan Jones MCGUIRE, et al., Plaintiffs-Appellants

v.MOTORISTS MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees

No. 29165

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 5, 2021

PHILLIP W. WIEHE, Atty. Reg. No. 0095968, 2215 Arbor Boulevard, Moraine, Ohio 45439, Attorney for Plaintiffs-Appellants.

MERLE D. EVANS, III, Atty. Reg. No. 0019230, P.O. Box 35459, 4684 Douglas Circle N.W., Canton, Ohio 44735, Attorney for Defendants-Appellees.

OPINION

TUCKER, P.J.

{¶ 1} Joan Jones McGuire and William McGuire appeal from the trial court's entry of summary judgment against them on their complaint seeking uninsured-motorist benefits from Motorists Mutual Insurance Company.¹ The appellants contend their Motorists Mutual automobile insurance policy extended uninsured-motorist coverage to Joan McGuire, who was shot by an occupant of an unidentified motor vehicle. The trial court found that no coverage existed. For the following reasons, we affirm.

Factual and Procedural History

{¶ 2} On February 3, 2018, Joan McGuire was a passenger in a vehicle driven by her husband, William McGuire. The vehicle was covered by a Motorists Mutual insurance policy. William was the named insured under the policy, which included uninsured-motorist coverage. As the McGuires were traveling on Third Street in Dayton, the occupants of two other cars exchanged gunfire. Joan McGuire sustained serious injuries when a stray bullet struck her head. The other vehicles fled the scene, and their occupants were not identified.

{¶ 3} Following the shooting, Joan McGuire sought uninsured-motorist benefits under the Motorists Mutual policy. The insurance company denied her claim. The McGuires then filed the present lawsuit, alleging breach of contract, seeking declaratory judgment and specific performance, and asserting a claim for unjust enrichment. Following discovery, the trial court sustained a summary-judgment motion filed by Motorists Mutual and denied the McGuires’ competing motion. In its December 28, 2020 ruling, the trial court found no uninsured-motorist coverage for three related reasons: (1) the shooting was an intervening cause of Joan McGuire's injury, unrelated to the use of an uninsured vehicle; (2) the instrumentality that caused her injury was a firearm, not an uninsured motor vehicle; and (3) her injury did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle. This appeal followed.

Analysis

{¶ 4} The McGuires’ sole assignment of error states:

THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF THE PLAINTIFFS, BY OVERRULING THE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND BY GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

{¶ 5} Under Civ.R. 56, summary judgment is proper when: (1) a case presents no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) construing the evidence most strongly in favor of the non-moving party, reasonable minds can reach only one conclusion, which is adverse to the non-moving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) ; Dalzell v. Rudy Mosketti, L.L.C. , 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-3197, 2016 WL 3032733, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The substantive law of the claim being litigated determines whether a fact is "material." Herres v. Millwood Homeowners Assn., Inc. , 2d Dist. Montgomery No. 23552, 2010-Ohio-3533, 2010 WL 2990731, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995). We review a trial court's ruling on a summary-judgment motion de novo. Dalzell at ¶ 6, citing Schroeder v. Henness , 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42.

{¶ 6} With regard to the Motorists Mutual policy, we note that "[t]he interpretation of an automobile liability insurance policy presents a question of law that an appellate court reviews without deference to the trial court." Jackson v. Pub. Entities Pool of Ohio , 2d Dist. Montgomery No. 23049, 2009-Ohio-1772, 2009 WL 1002877, ¶ 13, citing Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm , 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). In construing the terms of an insurance policy, we are guided by rules of contract interpretation. "Where 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." King v. Nationwide Ins. Co. , 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus. This rule cannot be used to create ambiguity where none exists. Hacker v. Dickman , 75 Ohio St.3d 118, 119-120, 661 N.E.2d 1005 (1996). Ambiguity exists only when a provision is susceptible of more than one reasonable interpretation. Id. at 120, 661 N.E.2d 1005. "Also, ‘[t]he fundamental goal in insurance policy interpretation is to ascertain the intent of the parties from a reading of the contract in its entirety and to settle upon a reasonable interpretation of any disputed terms in a manner calculated to give the agreement its intended effect.’ " Selective Ins. Co. of Am. v. Arrowood Indemn. Co. , 2d Dist. Montgomery No. 23400, 2010-Ohio-557, 2010 WL 580984, ¶ 11, quoting 57 Ohio Jurisprudence 3d (2005) 394, Insurance, Section 315.

{¶ 7} As relevant here, the Motorists Mutual policy provided:

Part C – Uninsured Motorists Coverage – Ohio

INSURING AGREEMENT

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

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

a. Sustained by an 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 .

The owner or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle . * * *

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

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

2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit for bodily injury liability must be either:

a. Less than the limit of liability for this coverage; or

b. Reduced by payments to others injured in the accident to an amount which is less than the limit of liability for this coverage.

3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits or which causes bodily injury without hitting:

a. You or any family member ;

b. A vehicle which you or any family member are occupying ; or

c. Your covered auto .

The facts of the accident or intentional act must be proved. We will only accept independent corroborative evidence.

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

a. Denies coverage; or

b. Is or becomes insolvent.

{¶ 8} Here Sections 1, 2, and 4 of the definition of an uninsured motor vehicle do not apply because the vehicles involved in the shooting were not identified and the owners or operators are unknown. That being so, the only potentially applicable definition of an uninsured motor vehicle is found in Section 3. To obtain coverage under the policy, the McGuires were required to establish that the unknown owner or operator's liability arose out of the ownership, maintenance, or use of a hit-and-run vehicle which hit or which caused bodily injury without hitting the vehicle Joan McGuire was occupying.

{¶ 9} On appeal, the McGuires argue that the phrase "ownership, maintenance, or use" is ambiguous and must be construed broadly in their favor. They assert that the word "use" reasonably may be interpreted to apply where a hit-and-run vehicle was used to convey gunmen to and from the scene and to facilitate the shooting of Joan McGuire from the hit-and-run vehicle.

{¶ 10} Although the McGuires cite cases from various jurisdictions, they fail to address Howell v. Richardson , 45 Ohio St.3d 365, 544 N.E.2d 878 (1989), which we find to be dispositive of the "ownership, maintenance, or use" issue.² In Howell , a tortfeasor negligently discharged a firearm from his vehicle into another vehicle, striking one of the occupants. After obtaining a judgment against the tortfeasor, the victim sued the tortfeasor's insurer. The trial court directed a verdict for the insurer, finding that the act of shooting from a vehicle fell outside of policy language covering bodily injury "caused by accident resulting from the ownership, maintenance or use" of a motor vehicle. Id. at 368, 544 N.E.2d 878. The Ohio Supreme Court agreed that reasonable minds could not find the shooting resulted from the "use" of a motor vehicle. It upheld the directed verdict, finding "that bodily injury to an insured resulting from the discharge of a firearm by a tortfeasor is not encompassed within the terms of a policy of insurance which limits coverage to injuries ‘caused by accident resulting from the ownership, maintenance or use of’ an automobile." Id. at 369, 544 N.E.2d 878.

{¶ 11} In reaching its conclusion, the Ohio Supreme Court applied Kish v. Central Natl. Ins. Group of Omaha , 67 Ohio St.2d 41, 424 N.E.2d 288 (1981). Kish was an uninsured-motorist case. The plaintiff's decedent was involved in a car accident. After both drivers exited their vehicles, the driver of the other car shot and killed Kish. His wife sought uninsured-motorist coverage under Kish's policy. The Ohio Supreme Court upheld the entry of summary judgment in favor of the insurer. The issue was whether the shooting arose out of the "ownership, maintenance, or use" of a motor vehicle. Id. at 49, 424 N.E.2d 288....