Santana v. Auto Owners Ins. Co.

• Decision Date: 30 April 1993
• Docket Number: No. L-92-262,L-92-262
• Citation: 91 Ohio App.3d 490,632 N.E.2d 1308
• Parties: SANTANA, Appellee and Cross-Appellant, v. AUTO OWNERS INSURANCE COMPANY, Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 490

91 Ohio App.3d 490

632 N.E.2d 1308

SANTANA, Appellee and Cross-Appellant, v. AUTO OWNERS INSURANCE COMPANY, Appellant and Cross-Appellee. ^*

No. L-92-262.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided April 30, 1993.

[632 N.E.2d 1309] John B. Fisher, Toledo, for appellee and cross-appellant.

Keith J. Watkins, Toledo, for appellant and cross-appellee.

ABOOD, Judge.

These are cross-appeals from a judgment of the Lucas County Court of Common Pleas entered in favor of appellee/cross-appellant, Pamela Santana ("appellee"), on cross-motions for summary judgment in an action brought by Santana to declare her rights under the uninsured motorist provision of an insurance policy issued to her mother, Marilyn Windnagle, by appellant/cross-appellee, Auto Owners Insurance Company ("Auto Owners").

Appellant sets forth the following single assignment of error:

"The court below erroneously determined, to the prejudice of Appellant, that Appellee was entitled to un[der]insured motorist coverage, and should have determined under its own reasoning that Appellee was not entitled to un[der]insured motorist coverage under the insurance policy provision at issue."

Appellee sets forth the following as "assignments of error" in support of her cross-appeal:

"Assignment of Error No. 1

"The trial court erred in finding that the term 'car' was not ambiguous.

"Assignment of Error No. 2 "The trial court did not err in finding that appellee/cross-appellant Pamela Santana's car was permanently disabled."

The facts that are relevant to a determination of the issues raised by these appeals are undisputed. On December 19, 1988, appellee, Pamela Santana, was injured in an automobile accident. At the time, Santana was driving a car owned by her then-finance, Joseph Owens, and was living with her mother, Marilyn Windnagle. The other car in the accident was uninsured. After exhausting the limits of Owens' insurance coverage, she notified her mother's insurance company, Auto Owners, of her intent to pursue an underinsured claim under the policy that it had issued to her mother and that was in effect on the day of the accident. Auto Owners denied coverage to Santana based on the following policy language:

"If you are an individual, we extend this coverage. We will pay bodily injury damages which you are legally entitled to recover from the owner or driver of any uninsured motor vehicle. We give this same protection to any relative living with you who does not own a car." (Emphasis added.)

At the time of her accident, Santana owned an inoperable 1979 Trans Am. On November 13, 1991, Santana filed a complaint for declaratory judgment which " * * * prays for this Court to issue a judgment declaring that the Defendant is obligated to provide coverage to the Plaintiff for her injuries, pursuant to the terms of the subject automobile insurance policy * * *." On November 22, 1991, Auto Owners filed its answer and a counterclaim for declaratory judgment which " * * * demands a judgment declaring that Plaintiff is not an insured under the Auto-Owners insurance policy at issue herein, and that there is no coverage for the claims asserted by Plaintiff * * *." Thereafter, the parties filed cross-motions for summary judgment. In support of the motions, the parties filed Santana's deposition taken September 11, 1991, her affidavit and her responses to Auto Owners' request for admissions which contain the following undisputed facts as to the ownership and condition of the 1979 Trans Am. Several years before her accident, Santana had purchased the Trans Am and obtained liability insurance for it. Between the summer of 1987 and April 14, 1988, however, the Trans Am was without an engine and Santana did not carry the liability insurance on it. After the engine was replaced in April, Santana again purchased insurance but cancelled it one month later, on May 18, 1988. Either at that time or in September 1988, the engine was again removed from the Trans Am which remained on blocks at Windnagle's house until after the accident. The engine was put back in the car in June 1989.

On June 22, 1992, the trial court filed its opinion and judgment entry which granted appellee's motion for summary judgment, denied appellant's motion for summary judgment and declared that Santana is entitled to coverage under the underinsured provisions of the Auto Owners policy purchased by her mother. In so doing, the trial court found: (1) " * * * the term 'car' is not ambiguous and includes a temporarily inoperable car"; (2) " * * * a car which is permanently inoperable is not a 'car' for purposes of the policy provision at issue here * * * "; (3) Santana's Trans Am " * * * was, for all practical purposes, permanently disabled"; and (4) " * * * it follows that Ms. Santana's Trans Am was not a 'car' and that she is, therefore, entitled to coverage * * *." In finding that the term "car" is not ambiguous, the trial court stated that in "[a]pplying these [general contract] principles, the courts in Miller v. Shelby Mut. [Ins. Co. (1969), 20 Ohio App.2d 323, 49 O.O.2d 451, 253 N.E.2d 801], and Harshbarger [v. Meridian Mut. Ins. Co. (1974), 40 Ohio App.2d 296, 69 O.O.2d 272, 319 N.E.2d 209], both found that the term 'automobile' in an insurance policy was not ambiguous. It included, at the very least, temporarily inoperable automobiles." In finding that the Trans Am was permanently inoperable, the trial court stated as follows:

"These facts indicate that the car was completely inoperable for a period of somewhere between eight and eleven months surrounding the date of the accident. They also indicate that when the car was inoperable, Ms. Santana carried automobile insurance, but that when the car was not operable, she did not. Thus, this case is different from that of someone whose car is in the repair shop for a day or even a week or two. For long stretches of time, Ms. Santana simply did not own a car in any sense other than maintaining title."

It is from this judgment that appellant brings its appeal and appellee brings her purported cross-appeal.

In support of its assignment of error, Auto Owners argues: (1) " * * * the word 'car' as used in its policy of insurance is not ambiguous * * * "; (2) the definition of "car" clearly includes vehicles that are temporarily disabled; (3) Santana's Trans Am was only temporarily disabled because it was being repaired at the time of the accident and she intended to use it after repairing it; and (4) Santana owned a car on the day of her accident and is not entitled to underinsured coverage under the policy provision of her mother's insurance which only extends coverage to " * * * any relative living with you who does not own a car."

In support of her assignments of error, appellee argues: (1) the word "car" is ambiguous because "[t]he policy at issue herein does not address whether operability of a vehicle affects its status as a 'car' under its terms"; (2) ambiguous terms must be construed strictly against the insurer and in favor of the insured; (3) the purpose or intent of the "own-other-cars" provision is to prevent " * * * insuring more than one insurable risk for only one premium"; (4) an auto that is disabled for all "practical" purposes poses no insurable risk; and (5) the condition of the Trans Am posed no insurable risk and was, therefore, not a "car." Santana also " * * * believes that this Court could find that the term 'car' is not ambiguous and that it clearly does not include an incapacitated object having no engine, or an historical display piece posing no liability insurance risk."

This court will address all assignments of error together since they all relate to the broad issue of whether, and on what basis, Santana is or is not covered under the underinsured motorist provision of her mother's Auto Owners insurance policy. In particular, this court must determine whether Santana's 1979 Trans Am was a "car" as that word is defined in the underinsured motorist provision of the Auto Owners policy.

" 'The first general maxim of interpretation * * * is, that it is not allowable to interpret what has no need of interpretation.' " Lawler v. Burt (1857), 7 Ohio St. 340, 350. If a term is clear and unambiguous, " * * * this court cannot in effect create a new contract by finding an intent not expressed in the clear language employed by the parties." Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 246, 7 O.O.3d 403, 406, 374 N.E.2d 146, 149. In the absence of ambiguity, therefore, the terms of the policy must simply be applied " ' * * * according to its terms without engaging in construction * * *.' " Hartford Ins. Co. v. Occidental Fire & Cas. Co. (C.A.7, 1990), 908 F.2d 235, 238, quoting Arkwright-Boston Mfrs. v. Wausau Paper Mills Co. (C.A.7, 1987), 818 F.2d 591, 594.

The test for determining whether language used in an insurance policy is ambiguous is whether that language is " * * * reasonably susceptible of more than one interpretation * * *." King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380, syllabus. In making that determination, this court must generally give the words and phrases used their plain, ordinary, natural or commonly accepted meaning. Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168, 24 O.O.3d 274, 275-276, 436 N.E.2d 1347, 1348; Alexander, supra, paragraph two of the syllabus.

In applying these general contract principles, it is important to emphasize the relationship between the usual meaning of the language used in the contract and the factual situation to which that meaning is to be applied. On the one hand, we must be careful not to find ambiguity merely because the factual situation presents difficulty in applying the common meaning of a word or term used in a contract. "The fact that contractual language may, on occasion, pose difficult factual applications does not make that language ambiguous." Hartford Ins....