Turek v. Vaughn
Citation | 154 Ohio App.3d 612,798 NE 2d 632 |
Decision Date | 25 August 2003 |
Docket Number | No. 13-03-20.,13-03-20. |
Parties | TUREK, Grdn., Appellant, v. VAUGHN et al., Appellees. |
Court | United States Court of Appeals (Ohio) |
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Jerome T. Linnen Jr., for appellant Craig Turek.
Thomas Antonini and Scott A. Haselman, for appellee Indiana Insurance Company.
Marc Meister, for appellee Cincinnati Insurance Company.
Paul E. Hoeffel and Marshall Guerin, for appellee Linda Vaughn.
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{¶ 1} Plaintiff-appellant, Craig Turek ("appellant"), as parent and natural guardian of his minor son, Skylar Turek, appeals a Seneca County Common Pleas Court judgment finding that Skylar did not qualify for underinsured motorist coverage or medical-payments coverage under a policy issued to his mother's employer by defendant-appellee Indiana Insurance Company ("Indiana") and, further, that Skylar did not qualify for underinsured motorist coverage under an umbrella policy issued to his father's employer by defendant-appellee Cincinnati Insurance Company ("Cincinnati"). Because rejections of uninsured/underinsured motorist (collectively, "UIM") coverage must be received prior to the commencement of the policy period for policies governed by the S.B. 20 version of R.C. 3937.18, we find that Cincinnati's rejection of UIM coverage under its umbrella policy was an error. As to the Indiana policy, we are required to find that Skylar qualifies as an insured for purposes of UIM coverage. However, we decline to extend the reasoning of Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 710 N.E.2d 1116, beyond the specific realm of UIM coverage to medical-payments coverage. Finding that issues of material fact remain with respect to the policies' notice and subrogation provisions, we remand this cause for further proceedings in accordance with this opinion.
{¶ 2} On July 3, 1996, Skylar suffered severe and permanent injuries when he was struck by a motor vehicle operated by Linda Vaughn as he attempted to cross South Marion Street in the village of Bloomville, Ohio. At the time of the accident, Vaughn was insured under an automobile liability policy issued by Nationwide Insurance, with per-person liability limits of $50,000. In addition, appellant, Skylar's father, had UIM coverage with Grange Mutual Casualty Company ("Grange"). On January 14, 2002, appellant filed a personal-injury action against Vaughn and a declaratory judgment and bad-faith action against Grange, seeking UIM coverage for Skylar.
{¶ 3} On the date of the accident, Skylar's mother was employed by the North Central Ohio Educational Service Center ("NCOESC"). NCOESC was the named insured on a policy issued by Indiana that included a UIM limit of $1,000,000 and a medical-payments limits of $10,000.
{¶ 4} Skylar's father was employed by Republic Roofing and Siding, Inc. ("Republic"). Republic was insured under a Cincinnati commercial automobile policy with a UIM limit of $300,000. Republic was also insured under a Cincinnati umbrella policy with a coverage limit of $1,000,000.
{¶ 5} On June 11, 2002, appellant filed an amended complaint adding Indiana and Cincinnati as defendants. Appellant subsequently settled his claims against Vaughn and Grange. Thereafter, appellant, Indiana, and Cincinnati filed motions for summary judgment. The matter came on for hearing on February 4, 2003. The trial court granted summary judgment in favor of Indiana, concluding that R.C. 3313.201 permitted NCOESC to purchase UIM coverage only for employees occupying NCOESC-owned vehicles. The court further concluded that Republic had validly rejected UIM coverage six months after the Cincinnati umbrella policy was issued. Appellant subsequently settled all claims with respect to the Cincinnati commercial automobile policy.
{¶ 6} Appellant appeals the entry of summary judgment in favor of Indiana and Cincinnati, presenting three assignments of error for review. Indiana crossappeals, pursuant to R.C. 2505.22, presenting two cross-assignments of error for review.
{¶ 7} Because this appeal arises from entries of summary judgment, we begin by setting forth the applicable standard of review.
{¶ 8} Summary judgment is appropriate when, looking at the evidence as a whole, the record demonstrates (1) that no genuine issue of material fact remains to be litigated, (2) that the moving party is entitled to judgment as a matter of law, and (3) that after construing the evidence most strongly in the nonmovant's favor, reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made.1 In ruling on a summary judgment motion, the trial court is not permitted to weigh evidence or choose among reasonable inferences; rather, the court must evaluate evidence, taking all permissible inferences and resolving questions of credibility in favor of the nonmovant.2 Appellate review of summary judgment is conducted independently of and without affording deference to the trial court's determination.3 Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court used different or erroneous reasons as the basis for its determination.4
"The Trial Court erred by finding that the Indiana Policy did not provide underinsured motorists coverage and medical payments coverage to Plaintiff-Appellant."
CROSS-ASSIGNMENT OF ERROR NO. I
"The Trial Court erred when it failed to find that Appellant did not qualify as an `insured' under the terms of the Indiana Policy, and the Trial Court should have granted Indiana's motion for summary judgment on this issue as well."
{¶ 9} In his first assignment of error, appellant argues that the trial court erred in concluding that school boards are statutorily precluded from purchasing contracts that provide UIM coverage for employees who are not operating a school-owned vehicle or acting within the scope of their employment at the time of the accident.
{¶ 10} As mentioned above, the trial court found the Sixth Circuit's decision in Nationwide Agribusiness Ins. v. Roshong,5 to be persuasive. Relying thereon, the trial court concluded that R.C. 3313.201(A) only provided NCOESC authority to purchase UIM coverage for school employees while operating or occupying school-owned vehicles while in the scope of employment. However, we recently rejected Roshong and the arguments presented by Indiana in Finn v. Nationwide Agribusiness Ins. Co.,6 concurring with decisions released by Ohio's Eighth, Ninth, and Tenth Appellate Districts.7 Accordingly, we proceed to examine the terms of the Indiana policy to determine whether Skylar qualifies for coverage.
{¶ 11} It is well settled that an insurance policy is a contract and that the relationship between the insured and the insurer is purely contractual in nature.8 Insurance coverage is determined by reasonably construing the contract "in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language employed."9 "Where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured." 10 However, where the intent of the parties to a contract is evident from the clear and unambiguous language used, a court must not read into the contract a meaning not contemplated or placed therein by the parties to the contract.11
{¶ 12} Appellant argues that Skylar qualifies as an insured under the Indiana UIM coverage provisions on the basis of the Ohio Supreme Court's pronouncements in Scott-Pontzer v. Liberty Mut. Fire Ins. Co.,12 and Ezawa v. Yasvda Fire & Marine Ins. Co. of Am.13
{¶ 13} In Scott-Pontzer, the Ohio Supreme Court held that a plaintiffs decedent, who had been killed in an automobile accident that was caused by an underinsured motorist, was entitled to UIM coverage under his employer's commercial automobile liability policy.14 The decedent's employer, a corporation, was the named insured under the policy, which defined an "insured" for purposes of UIM coverage as including "you," and "if you are an individual, any family member."15 The court determined that the policy language concerning who was an insured was ambiguous, because the word "you," while referring to the corporation, also could be interpreted to include the corporation's employees, "since a corporation can act only by and through real live persons."16 Citing the principle that ambiguous language in an insurance policy is to be construed liberally in favor of the insured and against the insurer, the court concluded that plaintiffs decedent was an insured under the policy for purposes of UIM coverage.17 The court also concluded that the decedent was entitled to UIM coverage even though he was not acting within the scope of his employment at the time the accident occurred, because the Liberty Mutual Fire policy did not so limit UIM coverage.18 In Ezawa, the court granted insured status to corporate employee family members on the authority of Scott-Pontzer.19
{¶ 14} Indiana argues in its first cross-assignment of error that because the boards that run education service centers are made up of individual persons who can occupy motor vehicles, there is no ambiguity as to who is an insured.20 However, our inquiry must necessarily focus upon the named insured, NCOESC, and whether an educational service center is an entity separate from its governing board.
{¶ 15} R.C. 3311.05 defines educational service center as follows:
"The territory within the territorial limits of a county, or the territory included in a district formed under section...
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... ... 14. In a parenthetical to a citation to Turek v. Vaughn, 154 Ohio App.3d 612, 798 N.E.2d 632 (2003), the insurers state that the court observed that, "as a matter of public policy, the validity ... ...
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Peters v. Tipton, 2008 Ohio 1524 (Ohio App. 3/19/2008)
...opined that H.B. 261's changes rejected Gyori's holding that the parties are precluded from executing mid-term rejections. Turek v. Vaughn, 154 Ohio App.3d 612, 2003-Ohio-4473, ¶42-43 (but utilizing Gyori in that case due to application of pre-1997 amendment S.B. 20 version to the policy at......
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