Peters v. Tipton, 2008 Ohio 1524 (Ohio App. 3/19/2008)
| Decision Date | 19 March 2008 |
| Docket Number | No. 07 HA 3.,07 HA 3. |
| Citation | 2008 Ohio 1524 |
| Parties | Thomas Peters, Plaintiff-Appellant, v. Pamela Tipton, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
{¶1} Plaintiff-appellant Thomas Peters appeals the decision of the Harrison County Common Pleas Court which granted summary judgment in favor of defendant-appellee Liberty Mutual Fire Insurance Company. The threshold issue on appeal is whether Liberty Mutual presented appellant's employer with a meaningful offer from which that employer could knowingly reject uninsured motorist's coverage where no recent premiums had been disclosed to the employer. We hold that the offer of coverage was sufficient, and thus, the rejection was valid. As such, the trial court's decision is affirmed as uninsured motorist's coverage did not arise by operation of law.
{¶2} On January 9, 2002, appellant was working for Pike Electric, Inc. He was repairing lights on a trailer attached to a Pike truck which was parked on the side of the road. His co-workers began raising a live electric line onto a utility pole above the trailer. Out of safety concerns, appellant stopped his repair work and moved to the side of the Pike truck. At that time, a vehicle owned by former defendant Douglas Grim and driven by defendant Pamela Tipton struck appellant pinning him against the Pike truck.
{¶3} The Pike truck was covered by a business auto policy issued on August 1, 2001 by Liberty Mutual. Appellant was also issued a company vehicle, which was insured under this policy. The policy had three million dollars worth of bodily injury liability coverage with a $500,000 deductible. Pike rejected uninsured/underinsured motorist (hereinafter collectively referred to as UM) coverage.
{¶4} On January 12, 2004, appellant filed a complaint against Tipton, Grim, Pike, and Liberty Mutual. Motions for summary judgment were filed. Originally, on November 16, 2004, the trial court held that a valid offer and rejection of UM coverage was not established by the four corners of the insurance policy and that under Seventh District precedent, it could not view extrinsic evidence on the matter. See Branch v. Lapushansky, 153 Ohio App.3d 170, 2003-Ohio-3465 (). The trial court granted summary judgment to appellant, holding that UM coverage arose by operation of law on the Pike policy pursuant to R.C. 3937.18. However, the court granted partial summary judgment to Liberty Mutual on the grounds that the policy provided a $500,000 deductible for UM coverage that arose by operation of law.
{¶5} New summary judgment motions were permitted after Liberty Mutual cited a new Supreme Court case holding that the writing requirements for the offer of UM coverage had been relaxed by the statutory amendments applicable to the case at bar. See Hollon v. Clary, 104 Ohio St.3d 526, 2004-Ohio-6772 (). Cf. Linko v. Indemnity Ins. Co. of N.Am. (2000), 90 Ohio St.3d 445 (). As an alternative ground for summary judgment, Liberty Mutual added an argument that appellant did not qualify as an insured under the Pike policy. Appellant responded and sought reconsideration of the decision regarding the application of a deductible to UM coverage that arose by operation of law.
{¶6} On March 5, 2007, the trial court issued a decision granting full summary judgment to Liberty Mutual. The court noted that a valid offer and rejection need no longer be established on the face of the rejection form. The court concluded that Pike made a knowing and valid rejection of UM coverage and thus UM coverage did not arise by operation of law. The court alternatively stated that even if UM coverage arose by operation of law, appellant did not qualify as an insured under the definition of insured contained in the liability section of the policy. The court also concluded that even if appellant were an insured and even if UM coverage arose by operation of law, any UM coverage would be subject to a $500,000 deductible.
{¶7} After dismissing the remaining parties, appellant filed notice of appeal from the trial court's grant of summary judgment in favor of Liberty Mutual. See Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596-597 ().1
{¶8} Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Thus, even if there is shown to be some genuine issue of fact, if that issue is not dispositive due to the lack of a genuine issue on a threshold legal matter, summary judgment is still appropriate. See, e.g., Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304 ().
{¶9} Summary judgment can be rendered if, after construing the evidence in a light most favorable to the non-movant on the material facts, it appears that reasonable minds can only come to a conclusion adverse to the non-movant. Civ.R. 56(C). We review the propriety of granting summary judgment de novo. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶8. As such, pure legal issues on certain undisputed factual matters are properly addressed by use of summary judgment. Here, we are presented with various legal issues affecting the field of UM coverage and the interpretation of an insurance contract.
{¶10} If the terms of an insurance policy are unambiguous, the interpretation of the policy is a matter of law that is reviewed de novo on appeal. Dorsey v. Federal Ins. Co., 154 Ohio App.3d 568, 2003-Ohio-5144, ¶12 (7th Dist.). As with all contracts, we look to the plain language to determine the parties' intent regarding coverage. Id. Typically, if the terms of the policy are reasonably susceptible to more than one interpretation, they are construed strictly against the insurer. Id., citing Lane v. Grange Mut. Cos. (1989), 45 Ohio St.3d 63, 65. However, in cases such as this, the terms are construed in favor of the policyholder-employer, not the claimant-employee. Galatis v. Westfield, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶35.
{¶11} Appellant's sole assignment of error provides:
{¶12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, THOMAS D. PETERS, IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE, LIBERTY MUTUAL INSURANCE COMPANY, ON APPELLANT'S ASSERTED UNINSURED MOTORIST CLAIM AGAINST LIBERTY MUTUAL BUSINESS AUTO POLICY * * *."
{¶13} Currently, Ohio does not require mandatory offering of UM coverage or imposition of UM coverage by operation of law. See S.B. 97 version of R.C. 3937.18 (eff. Oct. 31, 2001). However, the policy in this case was issued on August 1, 2001. Thus, this case is governed by the S.B. 267 version of former R.C. 3937.18.
{¶14} Pursuant to S.B. 267, an automobile liability policy cannot be delivered or issued for delivery unless UM is offered to the insured. R.C. 3937.18(A). The insured can reject UM coverage in a signed writing. R.C. 3937.18(C). A named insured's signed rejection of the offered coverage shall be effective on the day signed, shall create a presumption of an offer of coverages consistent with division (A) and shall be binding on all other named insureds, insureds or applicants. Id. If the offer and rejection are lacking, then UM coverage arises by operation of law. Abate v. Pioneer Mut. Cas. Co. (1970), 22 Ohio St.2d 161, 163. However, unless the insured requests it in writing, UM coverage need not be offered in a renewal policy that provides continuing coverage where the insured rejected such coverage in a prior policy. R.C. 3937.18(C).
{¶15} Initially we note that although Pike had generally been insured by Liberty Mutual since 1987, there was a three-year period just prior to the August 1, 2001 policy period at issue where Pike utilized a different insurer. Thus, the policy at issue is not a renewal policy for purposes of the exception contained in R.C. 3937.18(C).
{¶16} We next address appellant's suggestion that there is a genuine issue of material fact as to whether Liberty Mutual received the signed rejection form prior to the commencement of the policy period and whether Pike's Secretary-Treasurer may have backdated the form. The rejection form purports to have been signed on July 25, 2001, which is prior to the commencement of the August 1, 2001 policy period. Pike's Secretary-Treasurer confirmed in his affidavit and in his deposition that he signed the rejection on July 25, 2001. To dispute this date, appellant points to the deposition of Liberty Mutual's underwriter, who identified a letter to Pike's Secretary-Treasurer from a Liberty Mutual...
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