Motorists Mut. Ins. Co. v. Bittler

• Decision Date: 20 February 1968
• Docket Number: No. 786792,786792
• Citation: 14 Ohio Misc. 23,235 N.E.2d 745
• Parties: , 43 O.O.2d 64 MOTORISTS MUT. INS. CO. v. BITTLER.
• Court: Ohio Court of Common Pleas

Page 23

14 Ohio Misc. 23

235 N.E.2d 745, 43 O.O.2d 64

MOTORISTS MUT. INS. CO. v. BITTLER.

No. 786792.

Court of Common Pleas of Ohio, Cuyahoga County.

Feb. 20, 1968.

Weston, Hurd, Fallon, Sullivan & Paisley and Thomas P.Curran, Cleveland, for plaintiff.

Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson and Leon M. Plevin, Cleveland, for defendant.

McMONAGLE, Judge.

On May 3, 1961, the plaintiff insurance company issued its automobile policy to Ralph A. Bittler, a defendant herein. The policy included a standard type endorsement for protection against uninsured motorists. The automobile described in the policy was a 1957 Ford convertible. The names of the insured were Ralph A. Bittler and Phyllis Bittler, husband and wife.

The action was submitted for a decision of the court on the amended petition of the plaintiff, the answer of the defendant, Mr. Bittler, the evidence (which by stipulation consists of the insurance policy, the Uninsured Motorists Endorsement and the deposition of Mr. Bittler), the brief and arguments of counsel.

On November 20, 1961, Ralph Bittler was injured while operating a 1961 Plymouth automobile which was owned by the Dornback Furnace & Foundry Company, his employer, when it was struck by an uninsured automobile operated by one James Stokes. Travelers Insurance Company had issued its automobile policy on the said Plymouth automobile. That policy did not contain an uninsured motorist's endorsement.

When the plaintiff refused to make payment for the injuries sustained by Mr. Bittler, he did, on May 13, 1963, transmit to the American Arbitration Association, defendant herein, a demand for arbitration under the provisions of said insurance policy. He claimed that the sum of $10,000 was due him from the plaintif as a result of his sustaining the injuries of November 20, 1961, and asked that the controversy be arbitrated in accordance with Item I of the Uninsured Motorists' Endorsement of his policy. Upon the filing of the demand for arbitration, the within action was filed with Motorists Mutual Insurance Company as plaintiff and Ralph A. Bittler and the American Arbitration Association as defendants. The action is one for injunction, declaratory judgment and relief. Both the plaintiff and the defendant, Ralph A. Bittler, ask this court to determine and declare whether or not the Uninsured Motorists' Endorsement of the automobile coverage policy issued to Ralph A. Bittler covered the injuries sustained by him in the automobile collision of November 20, 1961.

The plaintiff contends:

'1) that the uninsured motorists' protection only applied where injuries are sustained while an insured is operating or occupying an automobile, if such vehicle is an 'automobile to which the Bodily Injury Liability coverage of the policy applies.' Item II(b) of the Endorsement.

'2) That the Bodily Injury Liability coverage of the policy does not apply 'to any automobile * * * furnished for regular use to * * * the named insured.'

'3) that the Plymouth automobile was 'furnished for regular use to the named insured'; that therefore the Bodily Injury Liability coverage of the policy does not apply and therefore the uninsured motorist's coverage also does not apply.'

The insured, Mr. Bittler, contends:

'1) that the uninsured motorists' endorsement covers the insured in any 'automobile while being operated by the named insured.' He points out Section II (b)(3) of the endorsement.

or

'2) if the contention by the plaintiff that the endorsement does not apply when the insured is occupying a nonowned automobile furnished for (his) regular use, is valid, that the uninsured motorists protection is nonetheless available to him because in the instant case the vehicle he was operating was not an 'automobile furnished for regular use' to him.

The following are the provisions of the Uninsured Motorists' Endorsement and of the policy proper which are relied upon by either the insurer or the insured or both:

'ENDORSEMENT

'Protection Against Uninsured Motorists

'(Automobile Bodily Injury Liability)

'In consideration of the payment of the premium for this endorsement, the company agrees with the named insured, subject to the limits of liability, exclusions, conditions and other terms of this endorsement and to the applicable terms of the policy:

'INSURING AGREEMENTS

'I. Damages for Bodily Injury Caused by Uninsured Automobiles.

'To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured caused by accident while this endorsement is in effect and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company, or if they fail to agree by arbitration.

'II Definitions

'(a) Insured. The unqualified word 'insured' means

'(1) the named insured as stated in the policy and any person designated as named insured in the schedule and, while residents of the same household, the spouse of any such named insured and relatives of either; provided, if the named insured as stated in the policy is other than an individual or husband and wife who are residents of the same household, the named insured for the purposes of this endorsement shall be only a person so designated in the schedule;

'(2) any other person while occupying an insured automobile, and

'(3) any person, with respect to damages he is entitled to recover for care or loss of services because of bodily injury to which this endorsement applies.

'The insurance applies separately with respect to each named insured under this endorsement and residents of the same household, but neither this provision nor application of the insurance to more than one insured shall operate to increase the limits of the company's liability.

'(b) Insured Automobile. The term 'insured automobile' means an automobile to which the Bodily Injury Liability coverage of the policy applies, provided such automobile is:

'(1) an automobile which is owned by the insured named in the declarations of the policy, or by his spouse if a resident of the same household;

'(2) an automobile while temporarily used as a substitute for an insured automobile as described in subparagraph (1) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction; or

'(3) an automobile while being operated by the named insured, or by his spouse if a resident of the same household.'

'The term 'insured automobile' shall not include:

'(i) an automobile while used as a public or livery conveyance;

'(ii) under subparagraphs (1) and (2) above an automobile unless being used by or with the permission of the named insured or such spouse; or

'(iii) under subparagraphs (2) and (3) above, an automobile owned by the named insured or by any resident of the same household.'

'POLICY PROPER

'INSURING AGREEMENTS

'I. COVERAGES A and B-Bodily Injury and Property Damage Liability.

'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of the automobile, including the loading or unloading thereof and resulting in:

'(A) Bodily injury, sickness or disease including death at any time resulting therefrom sustained by any person;

'(B) Damage to or destruction of property, including its loss of use.'

'V. USE OF OTHER AUTOMOBILES

'If the first named insured is an individual, such insurance as is afforded by this policy with respect to said automobile applies to any other automobile, subject to the following provisions:

'(a) Under coverages A and B, the unqualified word 'insured' includes (1) such first named insured, and spouse if a resident of the same household, and (2) any other person or organization legally responsible for the use by such first named insured or spouse of an automobile not owned or hired by such other person or organization. Insuring Agreement III does not apply to this insurance.

'(b) (Not applicable.)

'(c) This insuring agreement does not apply:

'(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse;

'(2) to any occurrence arising out of the operation of an automobile repair shop, storage garage, sales agency, service station or public parking place;

'(3) under coverages A and B to any automobile while used in the business or occupation of the named insured or spouse except a private passenger automobile operated or occupied by such nemed insured, spouse, private chauffeur or domestic servant.'

Provision V(c)(1) is included in the policy so that the parties understand there is only one automobile of the insured to which the policy proper applies. If the insured owns two cars he must have specific coverage for each car. Payment of the insurance premium for one automobile will not provide protection from liability of the insured for claims arising out of the use or operation of any other automobiles owned by him nor for comprehensive or collision losses to a car. The provision specifically excludes like automobile insurance to the insured while operating a nonowned automobile (for which, of course, he has not paid a specific insurance premium) if the automobile is being 'furnished for (his) regular use.' Probably he could procure insurance, providing such protection while he is in the use of a car furnished for his regular use, upon paying a premium therefor.

Said Item V(c)(1) has no application to...