Ohio Farmers Ins. Co. v. Wright

• Decision Date: 26 March 1969
• Docket Number: No. 68-354,68-354
• Parties: , 46 O.O.2d 404 OHIO FARMERS INS. CO., Appellee, v. WRIGHT, Appellant, et al.
• Court: Ohio Supreme Court

Page 73

17 Ohio St.2d 73

246 N.E.2d 552, 46 O.O.2d 404

OHIO FARMERS INS. CO., Appellee, v. WRIGHT, Appellant, et al.

No. 68-354.

Supreme Court of Ohio.

March 26, 1969.

Syllabus by the Court

1. An endorsement to an automobile insurance policy by which the insurer agrees to pay to the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile, in the absence of specific language of limitation, is not restricted in coverage to cases where the named insured, at the time of his injury, is using an 'insured automobile' as defined in the endorsement.

2. In the absence of specific language of limitation in an automobile insurance policy or in an uninsured motorist endorsement thereto, providing that the benefits of such endorsement shall not be received by a named insured if using another vehicle owned by him, coverage thereunder is not excluded merely because at the time of injury the named insured was using a second motor vehicle, owned by him, which was included as an insured automobile under other provisions of the automobile insurance policy but was not included under the endorsement, and for which no extra premium had been paid for uninsured motorist coverage.

William Wright allegedly sustained personal injuries in 1964 when strick by an automobile being driven by an uninsured motorist. At the time of the accident, Wright was engaged in loading a Ford truck, owned by him, which was parked on a public street. In addition to the Ford truck, Wright also owned an Oldsmobile. Wright was the named insured in a policy of automobile insurance issued by appellee, which policy provided certain enumerated coverages with reference to the two motor vehicles and to the named insured.

The insurance policy listed various coverages for a Ford truck, referred to as 'Car 1,' and an Oldsmobile, referred to as 'Car 2,' and set out separate premium charges for the various types of coverage as to each vehicle. Immediately above such listings, the policy provided that 'the insurance afforded is only with respect to such and so many of the following coverages as are indicated by specific premium charge or charges. * * *'

The Ford truck, Car 1, was listed for coverage only as to bodily injury liability and property damage liability. The Oldsmobile, Car 2, was listed for coverage as to bodily injury liability; property damage liability; comprehensive; collision, with $100 deductible; and for 'family protection.'

The 'Family Protection Coverage Endorsement,' the interpretation of which is at issue herein, provided in pertinent part:

'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 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

'* * *

'(b) Insured Automobile. The term 'insured automobile' means an automobile '(1) 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) 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) while being operated by the named insured, or by his spouse if a resident of the same household; but 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, if the insured named in the declarations of the policy is an individual or husband and wife who are residents of the same household, an automobile unless being used by or with the permission of such named insured or such spouse or, if the named insured is a person so designated in the schedule, an automobile unless being operated by such named insured or his spouse if a resident of the same household; or

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

'* * *

'EXCLUSIONS

'This endorsement does not apply:

'(a) to bodily injury to an insured while occupying an automobile owned by the named insured and principally garaged in a state which has not authorized the issuance of this insurance;

'* * *

'CONDITIONS

'1. Policy Provisions.

'None of the Insuring Agreements, Exclusions or Conditions of the policy shall apply to the insurance afforded by this indorsement except the Conditions 'Notice' or 'Notice of Accident,' 'Assistance and Cooperation of the Insured,' 'Changes,' 'Assignment,' 'Cancellation' and 'Declarations."

Wright filed a demand with defendant American Arbitration Association for arbitration as to recovery under the family-protection endorsement. The insurer then brought action in the Common Pleas Court of Hamilton County, seeking a declaratory judgment that the coverage provided by that endorsement did nto apply to the accident in question, and seeking an injunction against arbitration proceedings.

The Common Pleas Court found that by the terms of such endorsement Wright was 'protected only against injuries which are the result of the use, at the time, of a specific automobile covered by the policy'; that, since he was injured while 'engaged in the use of 'Car 1," and 'no premium was paid by defendant for coverage on 'Car 1," there is no justiciable issue between the parties to be submitted to arbitration. Judgment was rendered in favor of the insurance company.

The Court of Appeals affirmed on the more limited basis that while Wright 'conceivably could be insured while standing beside his truck but not 'using' it * * * when an injury to the insured occurs while he is using...