Snedegar v. Midwestern Indem. Co.

• Decision Date: 18 February 1988
• Docket Number: No. 87AP-465,87AP-465
• Citation: 541 N.E.2d 90,44 Ohio App.3d 64
• Parties: SNEDEGAR, Admx., Appellant, v. MIDWESTERN INDEMNITY COMPANY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 64

44 Ohio App.3d 64

541 N.E.2d 90

SNEDEGAR, Admx., Appellant, v. MIDWESTERN INDEMNITY COMPANY et al., Appellees. ^*

No. 87AP-465.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 18, 1988.

Syllabus by the Court

1. For insurance purposes, a minor child may be a resident of a household where he spends less than a majority of his time. (Farmers Ins. of Columbus, Inc. v. Taylor [1987], 39 Ohio App.3d 68, 528 N.E.2d 968, followed.)

2. Where a unilateral mistake affects an insurance policy to such an extent that the contract is not a correct integration of the agreement of the parties, reformation is a proper remedy.

Bradley & Farris Co., L.P.A., Richard D. Topper; and Christopher J. Minnillo, Columbus, for appellant.

Lane, Alton & Horst and Karen Krisher Rosenberg, Columbus, for appellee Midwestern Indem. Co.

Earl, Warburton & Adams and Thomas L. Davis, Columbus, for appellee Hartford Acc. and Indem. Co.

HOFSTETTER, Judge.

This is an appeal from the Franklin County Common Pleas Court's denial of appellant's partial summary judgment motions against appellees and granting of the summary judgment motions of appellee Midwestern Indemnity Company and appellee Hartford Accident and Indemnity Company.

Appellant, Phyllis L. Snedegar, is the administratrix of the estate of her deceased son, Cam Michael Whalen. Cam was struck by a hit-and-run driver on January 6, 1984 and died on January 7, 1984 at thirteen years of age. Appellant states in her affidavit that Cam was struck by a car driven by an uninsured motorist when Cam was returning to appellant's Pontiac after telephoning his stepfather from a pay telephone to tell his stepfather that the car had mechanically malfunctioned. She also states that Cam's stepfather arrived at the scene driving his company car, a Lincoln Town Car, shortly after Cam had been hit. As administratrix of Cam's estate, appellant then brought a declaratory judgment action against appellee Midwestern Indemnity Company and appellee Hartford Accident and Indemnity Company for a declaration of the rights of the decedent's estate and the wrongful death beneficiaries under the uninsured motorist coverage of the two separate auto insurance policies issued by appellees.

The Midwestern auto policy was purchased by Cam's natural father, James Whalen. Appellant requested in her action a declaration that Cam was an insured under the Midwestern policy, that Cam's estate should receive survivorship benefits and that Cam's beneficiaries should receive wrongful death benefits.

The Midwestern policy, submitted with the pleadings, affords protection under uninsured motorist coverage "for bodily injury which an insured person is legally entitled to recover." The policy defines an "insured" to include "a relative." A "relative" is defined as "a person living in your household related to you [the named insured or spouse living in the same household] by blood, marriage, or adoption including a ward or foster child." An insured also includes "[a]ny person for damages that person is legally entitled to recover because of bodily injury to you [the named insured or spouse living in the same household], a relative or another occupant of your insured car."

According to the record, Cam's natural mother, appellant, and natural father, James Whalen, were divorced in 1975 when Cam was four years old. Appellant was awarded custody of Cam and his sister. Cam lived with his mother since 1975 and beginning in 1977, when his mother remarried, he also lived with his stepfather, William Snedegar. James Whalen also remarried to Michele Whalen and appellant asserts that in addition to being a member of the Snedegar household, Cam was a member of the Whalen household.

Although the dissolution decree only provided that Mr. Whalen receive biweekly visitation, according to the affidavits and interrogatories submitted, Cam stayed at the Whalen house approximately one to two nights a week. Mr. Whalen and appellant state that Cam had his own room at the Whalen home, he kept clothing and other belongings there, he received some mail and telephone calls there, and Mr. and Mrs. Whalen participated in many activities with Cam. Appellant states in her interrogatories that the dissolution decree required Mr. Whalen to pay $25 per week support for Cam (plus a five-percent increase each year from the date of dissolution), to pay Cam's health insurance and half of Cam's other medical and dental expenses, to pay $100 a year to a joint savings account for Cam, and to maintain a life insurance policy with Cam as the beneficiary. The affidavits and interrogatories also indicate that Mr. Whalen purchased some clothing, toys and educational items for Cam. According to appellant's answers to interrogatories, Cam's address for school and church purposes was the Snedegar residence and he spent five to six days a week in the Snedegar household.

Midwestern has not disputed the facts as stated by appellant, nor are the Midwestern policy provisions in dispute. Midwestern has also agreed that as insureds, James and Michele Whalen may recover uninsured motorist coverage under the policy to the extent of their legal entitlement. However, Midwestern moved for summary judgment asserting that, according to the legal interpretation of the policy provisions, Cam was not an insured because he was not living in the Whalen household; therefore, his estate and the other beneficiaries cannot recover damages under the policy. The trial court granted Midwestern's motion for summary judgment and denied appellant's partial motion for summary judgment against Midwestern as it pertained to coverage for Cam Whalen's estate and the beneficiaries other than Mr. and Mrs. Whalen.

The Hartford auto policy in question, which was submitted with the pleadings, was purchased in the name of William Snedegar, Cam's stepfather. According to affidavits submitted, Diamond Energy leased a Lincoln Town Car for Mr. Snedegar's business and personal use as a part of Mr. Snedegar's employment benefits. Diamond Energy paid the rental and insurance payments and Mr. Snedegar paid to maintain the auto.

The Hartford policy provides uninsured motorist coverage to family members of the named insured and occupants of the Lincoln Town Car. Appellant contended in her declaratory judgment complaint that there was a mutual mistake made as to whom the parties intended the named insured to be; that instead of Diamond Energy the intent was to make the named insured William Snedegar. In her declaratory judgment action, appellant requested reformation of the contract to show the named insured as William Snedegar. Because Cam was a family member of the Snedegar household, appellant asserted in her declaratory judgment action that Cam's estate and beneficiaries would be entitled to damages under the uninsured motorist coverage of the policy. Hartford, however, contended in its summary judgment motion that there was no mutual mistake in making Diamond Energy the named insured and that as business auto insurance the policy does not protect William Snedegar's family members, in this case Cam, when they are not occupying the car.

Darrough Diamond, the Chief Executive Officer of Diamond Energy, stated in his deposition that during a telephone conversation he told the certified Hartford agent, who was employed by an insurance brokerage firm, that the insurance on the Lincoln was to provide coverage for William Snedegar's business, personal and family use. The Hartford agent stated in his affidavit that he believed the intent was to make Diamond Energy the named insured. Hartford's underwriter also stated in his affidavit that the intent was to make Diamond Energy the named insured. The computerized declarations page for the policy, submitted with the pleadings, shows that the Lincoln is to be used for personal use, in addition to business use. The Hartford binder and policy listed Diamond Energy as the named insured, although Darrough Diamond stated that the did not read the policy when he received it. A letter from the Hartford agent to Darrough Diamond, attached to Mr. Diamond's deposition, also advised Diamond Energy to place a statement in the corporation minutes regarding the employee to which the auto would be assigned and regarding the auto's use (including use by an employee's spouse and dependents). Appellant asserts that Hartford knew that William and Phyllis Snedegar were the principal drivers of the Lincoln because they completed driver information sheets which were given to Hartford. Appellant has attached these driver information sheets to the complaint.

The trial court sustained Hartford's summary judgment motion and overruled appellant's partial motion for summary judgment against Hartford.

Appellant has timely appealed the trial court's decision granting Hartford's and Midwestern's summary judgment motions and overruling appellant's partial summary judgment motion against Midwestern. Appellant has not appealed the trial court's overruling of appellant's partial summary judgment motion against Hartford. On appeal, appellant asserts the following assignments of error:

"I. The trial court erred in finding that Appellant's decedent, Cam Michael Whalen, was not insured under the uninsured motorists provision of his father, James Whalen's automobile insurance policy with the Appellee, Midwestern Indemnity Company and thereby overruling Appellant's motion for summary judgment and granting the motion for summary judgment of Appellee, Midwestern Indemnity Company.

"II. The trial court erred in granting summary judgment in favor of the Hartford Accident and Indemnity Company in that there existed genuine issues of material fact whether the Hartford automobile insurance policy insuring Diamond Energy Corporation should be reformed, on the grounds of mutual mistake, to include William Snedegar, Cam Whalen's stepfather, as a named insured."

In appellant's first assignment...