Napier v. Banks

Decision Date21 January 1967
Citation9 Ohio App.2d 265,38 O.O.2d 320,224 N.E.2d 158
Parties, 38 O.O.2d 320 NAPIER, Appellee, v. BANKS et al., Appellants.
CourtOhio Court of Appeals

Volkema, Redmond & Wolske and Finneran, Finneran & Finneran, Columbus, for appellee.

Charles D. Richmond, London, and Dresbach, Crabbe, Newlon, Bilger, Brown & Jones, Columbus, for appellant, Nationwide Mut. Ins. Co.

CRAWFORD, Judge.

Plaintiff, appellee herein, William J. Napier, recovered a judgment against the defendant Delores M. Banks for damages resulting from an automobile collision. The judgment was upon five causes of action, for: (1) personal injury to the plaintiff; (2) damages to plaintiff from injury to his wife, Wanda Napier, by way of medical expense, loss of services and consortium; and (3), (4) and (5) medical expense and loss of services of plaintiff's three minor children.

The judgment was paid, except for the sum of $10,000 consequential damages awarded plaintiff under his second cause of action, for expense, loss of services and consortium of his wife.

Wanda Napier, plaintiff's wife, recovered a judgment for her injuries in the sum of $25,000, which was paid.

Plaintiff filed a supplemental petition against the defendant Nationwide Mutual Insurance Co., defendant Banks' insurer, for the $10,000 unpaid portion of his judgment against the insured, defendant Banks. Summary judgment was entered for the plaintiff.

In this appeal on questions of law from that summary judgment, defendant insurer contends that the $25,000 paid by it to Wanda Napier exhausts the limit of its liability for damages resulting from her personal injury. Plaintiff says that the $10,000 represents property damage and is, therefore, payable under the portion of the insurance policy dealing with that subject.

The parties presented to the Court of Common Pleas a stipulation of fact, and have further stipulated that the same shall constitute a bill of exceptions here.

In the Court of Common Pleas, the defendants moved for a summary judgment. That motion was overruled and summary judgment entered for the plaintiff.

Hence we encounter at the outset a question of procedure. Our search of the record does not reveal a motion by plaintiff for summary judgment upon the supplemental petition. Section 2311.041, Revised Code, provides that such a judgment may be entered upon motion of a party, after notice and hearing, and only when the court, after construing the case most strongly in favor of the party against whom the motion is made, has determined that reasonable minds can come to but one conclusion, and that conclusion is favorable to the movant.

The statute does not empower the court to enter a summary judgment sua sponte, nor does it subject a party who moves for summary judgment to the peril of suffering such a judgment to be entered against him without the formality of a motion by the adverse party, notice and hearing, and determination as specified above.

Nevertheless, we shall proceed to examine the merits. The stipulation of fact constituting the bill of exceptions confirms the facts already stated and, in addition, purports to include a true copy of the insurance policy which, it says, has been 'filed with the court.' We have experienced difficulty in trying to locate this copy. However, the provisions of the policy determinative of the present issues, as set forth in the brief of defendants, have not been challenged, and we therefore accept them as correct. Dearbaugh v. Dearbaugh (1959), 110 Ohio App. 540, 170 N.E.2d 262.

That portion of defendant Nationwide's brief reads:

'The Policy Declarations in question under Item 5 state '* * * The limit of the Company's liability under each such coverage shall be subject to all the terms of this policy referring thereto' and further states:

'Under 'Insuring Agreements, 1. Coverages' on page one is stated:

"C. PROPERTY DAMAGE & BODILY INJURY-LIABILITY.

'To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:

"(1) destruction or damage of property including loss of use thereof; (2) bodily injury, sickness, disease or death of any person * * *.'

'Under 'Conditions 5. Limits of Liability' on page 8 appears the following:

"Coverage C(2):

"The limit of bodily injury liability stated in the Declarations as applicable to 'each person' is the limit of the Company's liability for all damages sustained because of the injury to one person in any one occurrence. * * * Such limits of liability for all damages include damages for care and loss of services arising out of bodily injury, sickness or disease, including death at any time resulting therefrom."

In our opinion, these provisions are clear and free from ambiguity. The insured is protected against two types of liability: (1) that for destruction or damage and loss of use of property; and (2) that for bodily injury, sickness, disease or death of any person. It is unnecessary to expand the meaning of the second type in order to entitle plaintiff to the kinds of recovery which he seeks in his second cause of action. Had the first type, property damage liability, not been included in the coverage, plaintiff would not for that reason fail in his claim; and any claimant in the position of plaintiff would doubtless be the first so to argue.

The words must be given their common, ordinary and customary meaning. 30 Ohio Jurisprudence 2d 222, Insurance, Section 211; Bobier v. National Casualty Co. (1944), 143 Ohio St. 215, 54 N.E.2d 798; Wood v. Aetna Life Insurance Co. (1960), ...

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