Johnson v. Progressive Preferred Ins. Co. ( 2011 )


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  • [Cite as Johnson v. Progressive Preferred Ins. Co., 2011-Ohio-6448.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96068
    LILLIAN JOHNSON
    PLAINTIFF-APPELLANT
    vs.
    PROGRESSIVE PREFERRED INS. CO., ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-723296
    BEFORE: Jones, J., Stewart, P.J., and Cooney, J.
    RELEASED AND JOURNALIZED: December 15, 2011
    ATTORNEYS FOR APPELLANT
    Michael I. Shapero
    James A. Marx
    Shapero & Green LLC
    Signature Square II, Suite 220
    25101 Chagrin Boulevard
    Beachwood, Ohio 44122
    ATTORNEYS FOR APPELLEES
    Joseph R. Tira
    Kelly M. Jackson
    625 Alpha Drive
    Box #011B
    Highland Heights, Ohio 44143
    LARRY A. JONES, J.:
    {¶ 1} Plaintiff-appellant, Lillian Johnson, appeals from the trial court’s
    judgment     granting       defendant-appellee,    Progressive   Preferred   Insurance
    Company’s, motion for summary judgment.           We affirm.
    I.   Procedural History and Facts
    {¶ 2} At all relevant times, Johnson was an insured under an automobile
    insurance policy issued by Progressive.           The declarations page of the policy
    named Johnson’s son, Lavelle Randall, as an excluded driver.
    {¶ 3} The policy provided uninsured/underinsured motorist coverage for
    bodily injury as follows:
    {¶ 4} “If you pay the premium for this coverage, we will pay for damages that
    an insured person is legally entitled to recover from an uninsured motorist or
    underinsured motorist because of bodily injury:
    “1.   sustained by the insured person;
    “2. caused by an accident; and
    “3. arising out of the ownership, maintenance, or use of a motor
    vehicle by an uninsured motorist or underinsured motorist.”
    {¶ 5} The policy defined bodily injury as “bodily harm, sickness, or disease,
    including death that results from bodily harm, sickness, or disease.”        The policy
    provided the following relevant exclusion:
    “Coverage under [Part III - Uninsured/Underinsured Motorist Coverage]
    will not apply * * * to bodily injury sustained by an insured person if the
    bodily injury is caused by a motor vehicle operated by any person who
    is specifically excluded for bodily injury liability coverage under this
    policy as an excluded driver or under any other provision of this
    policy[.]”
    {¶ 6} In 2008, Randall was operating a motorcycle, which was not covered
    under the policy, when he was struck by a motor vehicle operated by a tortfeasor;
    Randall   died   as       a   result   of   the   accident.   The   tortfeasor   was   an
    uninsured/underinsured motorist.
    {¶ 7} In 2010, Johnson, individually and as administratrix of Randall’s estate,
    filed an action against Progressive, the tortfeasor, the owner of the vehicle driven by
    the tortfeasor, and several John Does. Default judgment was entered against the
    tortfeasor and the owner of the vehicle he was driving; the Doe defendants were
    dismissed from the action by Johnson.
    {¶ 8} For her complaint against Progressive, Johnson alleged that Randall
    was an insured under the policy and was entitled to uninsured/underinsured
    motorist coverage (fourth claim of complaint). Johnson further alleged that she
    “suffered sickness and disease and other bodily harm, and severe emotional
    distress,” for which the company was responsible to compensate her (sixth claim of
    complaint). Progressive answered and counterclaimed for a declaration that it did
    not owe coverage to Johnson for any claims submitted as a result of the accident.
    {¶ 9} Progressive moved for summary judgment. In its motion, Progressive
    sought judgment in its favor on the grounds that Johnson was not entitled to
    recover uninsured/underinsured benefits because she did not suffer bodily injury in
    the accident and because Randall was not an insured under the policy.         Johnson
    opposed the motion.        The trial court granted summary judgment in favor of
    Progressive, finding that the policy unambiguously excluded Randall as an insured.
    The trial court further found that Johnson did not suffer bodily injury as a result of
    the accident and, therefore, was not entitled to benefits.
    {¶ 10} Johnson raises the following two assignments of error for our review:
    “[I.]    The trial court erred in granting summary judgment to
    Progressive and denying UM coverage to Johnson, the named
    insured, for the bodily harm, sickness and/or disease she
    suffered due to her son’s death, which was caused by an
    uninsured driver, and further erred in ruling as a matter of law
    that Johnson’s medically diagnosed and treated major
    depressive disorder, which caused physical symptoms and
    manifestations, and post traumatic stress disorder, did not
    constitute bodily harm, sickness or disease[ ], and hence did not
    constitute bodily injury, where the policy specifically defined
    bodily injury as meaning not only bodily harm, but also sickness
    or disease.
    “[II.]   The trial court erred in granting summary judgment to
    Progressive and in denying UM coverage to the estate and
    beneficiaries of Johnson’s decedent son for wrongful death and
    bodily injury caused by an uninsured driver.”
    II. Law and Analysis
    A.   Summary Judgment
    {¶ 11} Appellate review of summary judgment is de novo.         Grafton v. Ohio
    Edison Co., 
    77 Ohio St. 3d 102
    , 105, 1996-Ohio-336, 
    671 N.E.2d 241
    . The Ohio
    Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club, 
    82 Ohio St. 3d 367
    , 369-370, 1998-Ohio-389, 
    696 N.E.2d 201
    , as follows:
    “Pursuant to Civ.R. 56, summary judgment is appropriate when
    (1) there is no genuine issue of material fact, (2) the moving party is
    entitled to judgment as a matter of law, and (3) reasonable minds can
    come to but one conclusion and that conclusion is adverse to the
    nonmoving party, said party being entitled to have the evidence
    construed most strongly in his favor.   Horton v. Harwick Chem. Corp.
    (1995), 
    73 Ohio St. 3d 679
    , 
    653 N.E.2d 1196
    , paragraph three of the
    syllabus.   The party moving for summary judgment bears the burden
    of showing that there is no genuine issue of material fact and that it is
    entitled to judgment as a matter of law. Dresher v. Burt (1996), 
    75 Ohio St. 3d 280
    , 292-293, 
    662 N.E.2d 264
    , 273-274.”
    {¶ 12} Once the moving party satisfies its burden, the nonmoving party “may
    not rest upon the mere allegations or denials of the party’s pleadings, but the
    party’s response, by affidavit or as otherwise provided in this rule, must set forth
    specific facts showing that there is a genuine issue for trial.”        Civ.R. 56(E);
    Mootispaw v. Eckstein, 
    76 Ohio St. 3d 383
    , 385, 1996-Ohio-389, 
    667 N.E.2d 1197
    .
    Doubts must be resolved in favor of the nonmoving party.                  Murphy v.
    Reynoldsburg, 
    65 Ohio St. 3d 356
    , 358-359, 1992-Ohio-95, 
    604 N.E.2d 138
    .
    B.   Insurance Policies
    {¶ 13} An insurance policy is a contract, and the relationship between the
    insurer and the insured is purely contractual in nature.   Nationwide Mut. Ins. Co. v.
    Marsh (1984), 
    15 Ohio St. 3d 107
    , 109, 
    472 N.E.2d 1061
    . The interpretation and
    construction of insurance policies is a matter of law to be determined by the court
    using rules of construction and interpretation applicable to contracts generally.
    Gomolka v. State Auto. Mut. Ins. Co. (1982), 
    70 Ohio St. 2d 166
    , 167-168, 
    436 N.E.2d 1347
    ; Value City, Inc. v. Integrity Ins. Co. (1986), 
    30 Ohio App. 3d 274
    , 276,
    
    508 N.E.2d 184
    .
    {¶ 14} In insurance policies, as in other contracts, words and phrases are to
    be given their plain and ordinary meaning unless there is something in the contract
    that would indicate a contrary intention.    Olmstead v. Lumbermen’s Mut. Ins. Co.
    (1970), 
    22 Ohio St. 2d 212
    , 216, 
    259 N.E.2d 123
    . Where the provisions of an
    insurance policy are clear and unambiguous, courts may not indulge themselves in
    enlarging the contract by implication in order to embrace an object distinct from
    that contemplated by the parties.    Gomolka at 168.
    {¶ 15} However, where the 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.   King v. Nationwide
    Ins. Co. (1988), 
    35 Ohio St. 3d 208
    , 
    519 N.E.2d 1380
    , paragraph one of the
    syllabus.
    C.    Johnson and Bodily Injury
    {¶ 16} Johnson claims that she suffered from post-traumatic stress disorder
    and major depressive disorder as a result of Randall’s death and, therefore, that
    she suffered bodily injury.     In opposition to Progressive’s summary judgment
    motion, Johnson submitted her medical records detailing her diagnoses and
    treatment. She also submitted publications from the American Psychiatric
    Association and the United States Department of Health and Human Services,
    National Institutes of Health, stating that post-traumatic stress disorder and major
    depressive disorder are serious medical illnesses.
    {¶ 17} Progressive does not dispute that Johnson may have suffered from
    these disorders, or that they are a sickness or disease, but contends that they were
    not caused by the accident, as required under the policy.     We agree.
    {¶ 18} The record before us demonstrates that Johnson was not present at
    the time of the accident or otherwise involved in the accident. We therefore find
    that she did not suffer “bodily injury * * * caused by [the] accident[,] and arising out
    of the ownership, maintenance, or uses of a motor vehicle by [the tortfeasor,]” as
    required under the policy.
    {¶ 19} In Tomlinson v. Skolnik (1989), 
    44 Ohio St. 3d 11
    , 
    540 N.E.2d 716
    , the
    Ohio Supreme Court defined bodily injury as “commonly and ordinarily used to
    designate an injury caused by external violence * * *.”         The Tomlinson court
    considered a claim under an insurance policy for loss of consortium and stated that
    “[a]lthough the wife of a husband who has been incapacitated suffers great pain
    and endures constant anguish * * * such physical manifestations do not render a
    claim for loss of consortium a ‘bodily injury’ as that term is commonly understood.”
    
    Id. at 14.
    {¶ 20} The Eleventh Appellate District reached the same conclusion about
    bodily injury in Vance v. Sang Chong, Inc. (Nov. 9, 1990), Lake App. No.
    88-L-13-188.    There, an insured suffered fatal injuries when he was involved in a
    car accident caused by a company’s employee.        The insured’s surviving wife, who
    was not present for, or otherwise involved in the accident, sought to recover for her
    bodily injury under the company’s insurance policy.        The policy defined bodily
    injury as “sickness or disease including death.”
    {¶ 21} The Eleventh District declined to find that the surviving wife’s
    emotional distress and mental anguish constituted bodily injury under the policy.
    The Eleventh District found that the wife “was not present at the time of the
    accident and her emotional distress was in reaction to her husband’s bodily injury.”
    {¶ 22} In light of the above, Johnson did not suffer bodily injury as a result of
    this accident and, therefore, was not entitled to recover under the policy.    The first
    assignment of error is therefore overruled.
    D.   Randall — An Insured or Not?
    {¶ 23} Progressive contends that Randall was not an insured under the
    policy, while Johnson contends that he was.           In support of her contention,
    Johnson cites the policy’s definition of an insured person as “[y]ou or a relative.”   It
    is not disputed that Randall was Johnson’s relative.        Nonetheless, we have to
    determine whether an exclusion applies; it does.
    {¶ 24} “Ohio courts have upheld the validity of named driver exclusions as
    express rejections of uninsured/underinsured motorist coverage if the exclusions
    were sufficiently clear.”    Nichols v. Progressive Ins. Co., Franklin App. No.
    01AP-899, 2002-Ohio-3058, ¶40. Randall is clearly named on the declarations
    page as an “excluded driver.” The declarations page is defined as the “document
    showing your coverages, limits of liability, covered autos, premium, and other
    policy-related information. The declarations page may also be referred to as the
    Auto Insurance Coverage Summary.”          On the four corners of the document,
    Randall was not an insured under the policy.
    {¶ 25} Johnson further cites the following exclusion under the policy in
    support of her position: uninsured/underinsured coverage will not apply “to bodily
    injury sustained by an insured person if the bodily injury is caused by a motor
    vehicle operated by any person who is specifically excluded for bodily injury liability
    coverage under this policy as an excluded driver * * *.” According to Johnson,
    because Randall did not cause the accident, he should not be precluded from
    coverage.    We disagree.     The provision relates to “an insured person.”         As
    discussed, Randall was not an insured person, and therefore, for purposes here, it
    is irrelevant whether he was at fault in causing the accident.
    {¶ 26} R.C. 3937.18 governs uninsured/underinsured recovery in Ohio. The
    statute has evolved over the years, but under the current version, an insurance
    company may limit uninsured/underinsured motorist coverage to instances where
    an insured has suffered bodily injury, including death.   Hedges v. Nationwide Mut.
    Ins. Co., 
    109 Ohio St. 3d 70
    , 2006-Ohio-1926, 
    846 N.E.2d 16
    , ¶25.                  The
    declarations page of Progressive’s policy lists Randall as an excluded driver.
    Thus, under the plain language of the contract, Randall was not an insured entitled
    to coverage.
    {¶ 27} Moreover, Johnson is not entitled to uninsured benefits for the death
    of Randall. In her brief, Johnson relies on Dickerson v. State Farm Mut. Auto. Ins.
    Co., Defiance App. No. 4-03-12, 2003-Ohio-6704, to support her contention that
    she is entitled to coverage.         In Dickerson, a mother sought to recover
    underinsured motorist benefits for the wrongful death of her son, who was a
    passenger in a vehicle driven by her daughter, an excluded driver under the policy.
    The Third Appellate District decided the case before the Ohio Supreme Court’s
    decision in Hedges and held that, under the then version of R.C. 3937.18, an
    insurer could only limit uninsured/underinsured motorist coverage to exclude an
    insured’s bodily injury or death, and because the insured mother’s injury was the
    loss of her son and not her own bodily injury or death, she was entitled to
    underinsured motorist coverage.
    {¶ 28} But, as noted, Dickerson was decided prior to Hedges and under a
    prior version of R.C. 3937.18.     Under the current version of R.C. 3937.18, an
    insurer may limit uninsured/underinsured motorist coverage to instances where an
    insured suffers bodily injury or death. Thus, Dickerson is not instructive for this
    case.    Further, in Dickerson, no recovery was sought for the injuries sustained by
    the mother’s daughter, who was listed as an excluded driver under the policy.
    {¶ 29} We find another Third Appellate District case instructive: McDaniels v.
    Rollins, Allen App. No. 1-04-82, 2005-Ohio-3079. There, the trial court granted
    summary judgment in favor of Progressive Insurance Company on the plaintiffs’
    uninsured/underinsured motorist coverage claim for the wrongful death losses they
    suffered as a result of the death of their son. The trial court ruled in Progressive’s
    favor because the son was not an insured under the policy.                       The
    uninsured/underinsured motorist language in the policy at issue in McDaniels was
    identical to the policy language in this case. In construing the policy language, the
    Third District held as follows:
    {¶ 30} “The clear and unambiguous language of the Progressive policy states
    that the insured person seeking coverage under the policy’s UM/UIM provision
    must have suffered bodily injury.     This is a permissible limitation on UM/UIM
    coverage * * *. The [plaintiffs’] claims against Progressive are based solely on
    their wrongful death losses and on any bodily injury sustained by an insured.
    Accordingly, recovery for their wrongful death losses associated with [their son’s]
    death was properly excluded from their UM/UIM coverage, and Progressive was
    properly granted summary judgment * * *.” 
    Id. at ¶35.
    {¶ 31} The relevant facts in McDaniels and this case were substantially the
    same. The uninsured/underinsured motorist coverage provisions in the two cases
    were identical. For the same reasoning articulated by the Third Appellate District,
    we affirm the trial court’s judgment granting summary judgment in favor of
    Progressive. In sum, Johnson was not entitled to uninsured coverage for her own
    injuries or the wrongful death of Randall under the policy because Randall was not
    an insured under the policy at the time of the accident.
    {¶ 32} In light of the above, both assignments of error are overruled and the
    trial court’s judgment is affirmed.
    {¶ 33} It is ordered that appellees recover of appellant costs herein taxed.
    {¶ 34} The court finds there were reasonable grounds for this appeal.
    {¶ 35} It is ordered that a special mandate issue out of this court directing the
    Cuyahoga County Court of Common Pleas to carry this judgment into execution.
    {¶ 36} A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    LARRY A. JONES, JUDGE
    COLLEEN CONWAY COONEY, J., CONCURS
    MELODY J. STEWART, P.J., CONCURRING
    AND DISSENTING IN PART WITH SEPARATE
    OPINION
    MELODY J. STEWART, P.J., CONCURRING IN PART; DISSENTING IN PART:
    {¶ 37} I agree that Johnson’s emotional distress and mental anguish do not
    constitute a “bodily injury” under the Progressive policy. However, I disagree with
    the majority when it concludes that Johnson’s son, Randall, was excluded from
    coverage. The policy at issue here does not clearly put Johnson on notice that
    Randall would not have uninsured motorist coverage under a scenario where he
    was operating a non-listed vehicle and killed, through no fault of his own, by
    another driver. I would construe this ambiguity against Progressive and hold that
    the court erred as a matter of law by finding that Randall was excluded from
    uninsured motorist coverage.
    {¶ 38} Ohio law presumes insurance coverage, so an exclusion to coverage
    must be clearly expressed. Sharonville v. Am. Emps. Ins. Co., 
    109 Ohio St. 3d 186
    , 2006-Ohio-2180, 
    846 N.E.2d 833
    , ¶ 6.
    {¶ 39} Part III of the Progressive policy states the uninsured/underinsured
    motorists coverage. It provides:
    {¶ 40} “If you pay the premium for this coverage, we will pay for damages
    that an insured person is legally entitled to recover from an uninsured motorist or
    underinsured motorist because of bodily injury;
    “1. sustained by the injured person;
    “2. caused by an accident; and
    “3.   arising out of the ownership, maintenance, or use of a motor
    vehicle   by   an   uninsured    motorist   or   underinsured   motorist.”
    (Emphasis omitted.)
    {¶ 41} For purposes of uninsured motorists coverage, the policy defines an
    “insured” person as, among other things, “you or a relative.” (Emphasis omitted.)
    {¶ 42} The declarations page of the policy, under the heading “drivers and
    household residents,” lists Johnson as a “named insured” and lists Lavelle Randall
    as an “excluded driver.”    Randall is clearly and unambiguously excluded as a
    “driver” of the listed vehicles insured under the policy, none of which he was driving
    at the time of the accident. However, according to the policy’s definition, because
    Randall is Johnson’s son who lived in the household, he is a relative and thus an
    insured.
    {¶ 43} Progressive does not actually dispute that Randall is an insured under
    the policy but argues that he was not an insured at the time of the accident
    because he was driving a vehicle—regardless of the fact that the vehicle he was
    driving was not one in which he was excluded from driving under the policy.
    Tellingly, in response to a question posed to Progressive during oral argument,
    counsel for Progressive conceded that Randall would have been covered as an
    insured under the policy if his injuries had occurred in the same manner but as a
    passenger on the motorcycle. This is a tortured interpretation of the policy. If the
    accident and Randall’s fatal injuries were caused by an uninsured motorist, his
    status as a passenger or driver seems irrelevant. Progressive’s interpretation of
    the policy cannot work both ways: either Randall is an insured or he is not.
    {¶ 44} As previously noted, Johnson’s policy defines an insured as “you or a
    relative.” This definition clearly designates Randall, as a relative of Johnson, an
    insured.   No provision of the policy indicates that Randall is not an insured.
    Specifically, no provision of the policy states that he is excluded as an insured by
    virtue of his being listed as an excluded driver of Johnson’s vehicles. I would find,
    therefore, that he is an insured and can be denied coverage subject only to
    limitations set forth in the policy.
    {¶ 45} In addition to the clear language on the declarations page of the policy
    that excludes Randall as a driver of the vehicles listed on the same page,
    Progressive specifically limited uninsured/underinsured coverage in instances
    where Randall, as an excluded driver under the policy, was driving a vehicle and
    caused   an    accident.      The   “EXCLUSIONS”      section   under    Part   III   -
    Uninsured/Underinsured motorist coverage of the policy provides in pertinent part:
    “Coverage under this Part III will not apply: *** 3. To bodily injury sustained by an
    insured person if the bodily injury is caused by a motor vehicle operated by any
    person who is specifically excluded for bodily injury liability coverage under this
    policy as an excluded driver or under any other provision of this policy[.]”
    (Emphasis omitted.)    A plain reading of this provision of the policy precludes
    uninsured/underinsured motorists coverage when an accident is caused by an
    excluded driver. Neither this provision nor the declarations page of the policy puts
    Johnson on notice that Randall would be excluded from uninsured/underinsured
    motorists coverage under the circumstances of the accident in this case. Had
    Progressive wanted an all-encompassing exclusion policy, it could easily have
    written one. See, e.g., Fruit v. State Farm Auto. Ins. Co., 8th Dist. No. 87294,
    2006-Ohio-4121 (where we held that an all-inclusive exclusion policy clearly
    prohibited uninsured motorist coverage when an excluded driver was operating a
    motor vehicle).
    {¶ 46} “[A]n exclusion is interpreted narrowly in order not to defeat coverage
    that would apply absent the exclusion.       The general presumption in favor of
    coverage operates to make an exclusion barring coverage applicable only if it is
    clearly expressed.”        Westfield Ins. Co. v. Hunter, 
    128 Ohio St. 3d 540
    ,
    2011-Ohio-1818, 
    948 N.E.2d 931
    , ¶32, citing Sharonville, 109 Ohio St.3d at ¶6.
    Because the exclusion was not clearly expressed, I would construe the exclusion
    against Progressive and find that Randall’s estate is entitled to recover under the
    uninsured motorists provisions of the policy.
    

Document Info

Docket Number: 96068

Judges: Jones

Filed Date: 12/15/2011

Precedential Status: Precedential

Modified Date: 10/30/2014