Washington v. Evans , 2021 Ohio 587 ( 2021 )

[Cite as Washington v. Evans, 2021-Ohio-587.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jazmine Washington, :
Plaintiff-Appellant, :
No. 20AP-305
v. : (C.P.C. No. 19CV-1251)
Decorey Evans et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 4, 2021
On brief: Kisling, Nestico and Reddick, LLC, Douglas J.
Blue, and Taylor P. Waters, for appellant.
Argued: Douglas J. Blue.
On brief: Dinsmore & Shohl LLP, and Gregory A. Harrison,
for appellee State Farm Mutual Automobile Company.
Argued: Jason Goldschmidt.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Jazmine Washington, appeals from the judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of
defendant-appellee, State Farm Mutual Automobile Insurance Company. For the reasons
that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 24, 2017, uninsured motorist, Decorey Evans, struck appellant
with his vehicle at or near 1726 Piedmont Avenue. Appellant alleges injuries to her person
and lost income as a result of the collision.
No. 20AP-305 2
{¶ 3} At the time of the accident, appellant was residing with her grandmother,
Mattie Micken. Micken was insured by appellee for automobile insurance with uninsured
motorist limits of $100,000 and $5,000 in medical payment coverage. The State Farm
Mutual Automobile Insurance Company automobile insurance policy ("policy") lists a 2012
Suzuki Kizashi as the only covered vehicle. Appellant separately leased a 2008 Mercury
Mountaineer, which she purportedly had a minimum limits SR-22 insurance certificate of
financial responsibility for the automobile. Appellant's coverage for the Mercury did not
include uninsured motorist coverage or medical payment coverage.
{¶ 4} Subject to the remaining terms and conditions, the policy covers "medical
expenses incurred because of bodily injury that is sustained by an insured and caused
by a motor vehicle accident." (Emphasis sic.) (Ex. A. Policy at 10., attached to Nov. 26, 2019
Def.'s Mot. for Summ. Jgmt.) "Insured" is defined as:
1. you and resident relatives:
a. while occupying:
(1) your car;
(2) a newly acquired car;
(3) a temporary substitute car;
(4) a non-owned car; or
(5) a trailer while attached to a car described in (1), (2), (3), or (4)
above.
(Emphasis sic.) (Ex. A. Policy at 9-10.)
{¶ 5} The policy also provides coverage to an insured that sustains bodily injury as
a result of an uninsured motorist. The policy includes an exclusion that precludes
uninsured motorist coverage for damages incurred while occupying a vehicle not covered
under the policy. Policy Exclusion 2 states:
THERE IS NO COVERAGE:
***
2. FOR DAMAGES ARISING OUT OF AND RESULTING
FROM BODILY INJURY TO ANY INSURED WHILE ANY
INSURED IS OPERATING OR OCCUPYING A MOTOR
VEHICLE OWNED BY, FURNISHED TO, OR AVAILABLE
FOR THE REGULAR USE OF YOU OR ANY RESIDENT
RELATIVE IF THAT MOTOR VEHICLE IS NOT YOUR
No. 20AP-305 3
CAR, A NEWLY ACQUIRED CAR, OR A TEMPORARY
SUBSTITUTE CAR.
(Emphasis sic.) (Ex. A Policy at 16.)
{¶ 6} There is no dispute that appellant qualifies as a "resident relative"1 as she was
residing with her grandmother at the time of the accident. There is also no dispute that the
Mercury does not constitute "your car," "a newly acquired car," "a temporary substitute
car," or "a non-owned car" as defined under the policy. (Ex. A Policy at 9-10.) The parties
agree that whether the uninsured motorist coverage applies depends on whether appellant
was "occupying" the vehicle at the time of the accident. The policy defines "Occupying"
to mean "in, on, entering, or exiting." (Emphasis sic.) (Ex. A Policy at 4.)
{¶ 7} On February 11, 2019, appellant filed her complaint in the Franklin County
Court of Common Pleas alleging causes of action for negligence against Decorey Evans,
uninsured/underinsured and medical payment coverage against appellee, and subrogation
interest against the Ohio Department of Medicaid. Relevant to the instant appeal, appellee
filed its answer to the complaint on February 26, 2019. On August 9, 2019, appellant filed
a motion for leave to amend the complaint to assert a new cause of action for bad faith,
which the trial court granted on September 11, 2019. Appellee filed an amended answer on
September 25, 2019.
{¶ 8} On August 8, 2019, appellee deposed appellant regarding the events leading
up to the collision. Appellant testified as follows:
Q: Okay. So you're walking around the rear of the vehicle, and
you're intending to get into the car, correct?
A: (Indicates affirmatively.)
Q: Is that a yes?
A: Yes.
Q: Okay. And the plan was to get into your car and to drive away
to get your children?
A: Yes.
Q: Okay. How far did you get around the car when you were
hit?
1 The policy defines "Resident Relative" as "a person, other than you, who resides primarily with the first
person shown as a named insured on the Declaration Page and who is * * * related to the named insured or
his or her spouse by blood, marriage, or adoption." (Emphasis sic.) (Ex. A Policy at 5.)
No. 20AP-305 4
A: Okay, so I was just about to be at the driver's door.
Q: Were you facing your car?
A: (Indicates affirmatively.)
Q: Is that a yes?
A: Yes.
Q: Okay. Were you reaching for the handle?
A: Yes.
(Ex. B, Washington Dep. at 70-71, attached to Def.'s Mot. for Summ. Jgmt.)
{¶ 9} Appellant continued stating that when she heard the tires immediately before
the collision, she turned to "push[] off the car." (Washington Dep. at 73.)
{¶ 10} On November 26, 2019, appellee filed a motion for summary judgment as to
all claims alleged against it in the amended complaint. Appellee argued the claim for
medical payments should be dismissed because appellant did not qualify as an "insured"
under the policy. Appellee also argued that appellant was excluded from uninsured
motorist coverage because under the terms of the policy, she was "occupying" the Mercury
at the time of the collision. Finally, appellee stated that the bad faith claim should be
dismissed as appellant was not covered under the policy, so its denial of coverage was
appropriate.
{¶ 11} On April 15, 2020, the trial court granted appellee's motion for summary
judgment. The trial court stated that appellant was not entitled to medical payments
because she did not meet the definition of "insured" as there is no dispute that the Mercury
does not constitute "your car," "a newly acquired car," or "a non-owned car" under the
policy. (Apr. 15, 2020 Decision at 4.) Regarding the uninsured motorist claim, the trial
court concluded that appellant's actions fell under exclusion No.2 of the policy as she was
"occupying" the Mercury at the time of the accident. Finally, the trial court found that
because appellee had properly denied uninsured motorist and medical payments coverage,
it was entitled it to summary judgment on appellant's bad faith claim.
{¶ 12} On April 28, 2020, appellant filed a notice of partial dismissal of defendants,
Decorey Evans and the Ohio Department of Medicaid, pursuant to Civ.R. 41(A). The trial
court issued a final judgment entry in favor of appellee on April 30, 2020.
{¶ 13} Appellant filed a timely appeal.
No. 20AP-305 5
II. ASSIGNMENT OF ERROR
{¶ 14} Appellant assigns the following as trial court error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT-PLAINTIFF WHEN IT GRANTED
APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
III. STANDARD OF REVIEW
{¶ 15} Pursuant to Civ.R. 56(C), summary judgment is appropriate when the
moving party establishes that: (1) no genuine issue of material fact remains to be litigated,
(2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence
in favor of the nonmoving party, reasonable minds can come to but one conclusion, which
is adverse to the nonmoving party. U.S. Speciality Ins. Co. v. Hoffman, 10th Dist. No. 19AP-
189, 2020-Ohio-4114, ¶ 17, citing Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-
Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29.
"When seeking summary judgment on grounds that the non-moving party cannot prove its
case, the moving party bears the initial burden of informing the trial court of the basis for
the motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact on an essential element of the non-moving party's claims."
Lundeen v. Graff, 10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). Once the moving party meets its initial burden, the nonmoving
party must set forth specific facts that demonstrate a genuine issue of fact for trial. Id.,citing Civ.R. 56(E); Dresher at 293.
{¶ 16} Appellate review of a trial court's ruling on a motion for summary judgment
under Civ.R. 56(C) is de novo. Hudson at ¶ 29. De novo review requires the reviewing court
to conduct an independent analysis without deference to the trial court's determination.
Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12,
citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935,
¶ 5, citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
IV. LEGAL ANALYSIS
{¶ 17} In her sole assignment of error, appellant argues the trial court erred by
granting appellee's motion for summary judgment.
{¶ 18} In its April 15, 2020 decision, the trial court concluded that appellant was not
entitled to coverage for medical payments and uninsured motorist coverage under the
No. 20AP-305 6
policy. In the present case, appellant has not alleged in her brief that the trial court erred
as to the denial of coverage for medical payments. Pursuant to App.R. 16(A)(7), appellant
shall include in his or her brief "[a]n argument containing the contentions of the appellant
with respect to each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities * * * parts of the record on which appellant
relies." This court may also disregard assignments of error that appellant fails to identify
in the applicable portions of the record from which the error would be based. App.R.
12(A)(2). " 'It is the duty of the appellant, not the appellate court, to construct the legal
arguments necessary to support the appellant's assignments of error.' " Cook v. Ohio Dept.
of Job & Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966, ¶ 40, quoting Bond v.
Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16, citing Whitehall v.
Ruckman, 10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 20. Because appellant did not raise
in her brief whether the trial court erred in denying her claim for medical payments, the
issue was not preserved on appeal and is therefore waived.
{¶ 19} Regarding appellant's claim for the uninsured motorist coverage, whether the
exclusion applies turns on whether appellant was "occupying" the Mercury at the time of
the accident as defined under the policy. Because no factual disputes exist, the resolution
of this question is a legal determination. Burgess v. Erie Ins. Group, 10th Dist. No. 06AP-
896, 2007-Ohio-934, ¶ 10, citing Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73
Ohio St.3d 107, 108 (1995) ("Settled law dictates that interpretation of an automobile
liability insurance policy presents a question of law.").
{¶ 20} When reviewing an insurance policy, we are required to construe the
language of the policy consistent with the same rules of construction as other written
contracts. Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657, 665 (1992),
citing Universal Underwriters Ins. Co. v. Shuff, 67 Ohio St.2d 172 (1981); Rhoades v.
Equitable Life Assur. Soc. of the United States, 54 Ohio St.2d 45 (1978). In construing a
written instrument, the primary objective is to give effect to the parties' intent, which is
presumed to rest in the language of the agreement. In re All Kelley & Ferraro Asbestos
Cases, 104 Ohio St.3d 605, 2004-Ohio-7104, ¶ 29, citing Saunders v. Mortensen, 101 Ohio
St.3d 86, 2004-Ohio-24, ¶ 9, citing Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987),
paragraph one of the syllabus. " 'Common words appearing in a written instrument will be
No. 20AP-305 7
given their ordinary meaning unless manifest absurdity results, or unless some other
meaning is clearly evidenced from the face or overall contents of the instrument.' " In re
All Kelley at ¶ 29, quoting Alexander v. Buckeye Pipeline Co., 53 Ohio St.2d 241 (1978),
paragraph two of the syllabus.
{¶ 21} When the terms of the agreement are clear and unambiguous, a reviewing
court need not go beyond the plain and ordinary meaning of the agreement to determine
the rights and obligations of the parties. In re All Kelley at ¶ 29, citing Aultman Hosp. Assn.
v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989). Conversely, ambiguity in the
language of a contract must be "construed strictly against the insurer and liberally in favor
of the insured." (Citations omitted.) King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (1988),
syllabus.
{¶ 22} Ohio courts have attempted to determine whether a claimant is "occupying"
a vehicle under a variety of factual scenarios. As this court has set forth previously,
"determining whether a person is 'occupying' a vehicle is not as easy as it might appear at
first blush." Robson v. Lightning Rod Mut. Ins. Co., 59 Ohio App.2d 261, 263 (10th
Dist.1978). While the terms of an insurance policy can appear unambiguous on its face, it
can become ambiguous when determining whether coverage should be applied based on
certain factual situations. Willis v. Gall, 4th Dist. No. 14CA9, 2015-Ohio-1696, ¶ 16, citing
Etter v. Travelers Ins. Cos., 102 Ohio App.3d 325 (2d Dist.1995); see also Williams v. Safe
Auto Ins. Co., 8th Dist. No. 83882, 2004-Ohio-3741, ¶ 10.
{¶ 23} In Joins v. Bonner, 28 Ohio St.3d 398 (1986), the Supreme Court of Ohio
interpreted the term "occupying" for the purpose of coverage after a minor was struck by
an uninsured vehicle while crossing the street.2 The Joins court found that under the facts
of the case, the minor was "alighting from" the vehicle at the time of the accident and
therefore an insured person occupying the vehicle as defined under the policy. Id. at 401.
The Joins court wrote:
In construing uninsured motorist provisions of automobile
insurance policies which provide coverage to persons
"occupying" insured vehicles, the determination of whether a
vehicle was occupied by the claimant at the time of an accident
should take into account the immediate relationship the
2In Joins, "occupying" was defined in the insurance policy as "in or upon or entering into or alighting from."
Joins at syllabus.
No. 20AP-305 8
claimant had to the vehicle, within a reasonable geographic
area.
Id., citing Robson at 264.
{¶ 24} Ohio courts have also applied other factors to resolve whether there is a
sufficient relationship between the claimant and automobile to allow coverage. See Morris
v. Continental Ins. Co., 71 Ohio App.3d 581, 587 (10th Dist.1991) (finding performance of a
task related to the operation of a vehicle was adequate basis for a relationship between the
vehicle and claimant); Renter v. Anthony, 8th Dist. No. 81233, 2003-Ohio-431, ¶ 51;
Yoerger v. Gen. Acc. Ins. Co. of Am., 98 Ohio App.3d 505, 507 (10th Dist.1994) (concluding
that there is a sufficient relationship to the insured vehicle if the insured's conduct is
"foreseeably identifiable" to the typical use of the vehicle); Halterman v. Motorists Mut.
Ins. Co., 3 Ohio App.3d 1, 4 (8th Dist.1981) (finding a relationship exists if the insured's
actions are "vehicle-oriented" versus "highway-oriented" when the accident occurred).
{¶ 25} While Ohio courts have liberally construed "occupying" under a variety of
circumstances, all the above cases have interpreted "occupying" when considering whether
to provide coverage, not whether coverage should be excluded. As such, interpreting
"occupying" under Joins3 and other broad tests when reviewing the application of an
insurance policy's exclusion would preclude far more activity than the policy intended.4
Such an interpretation would be in contravention to the Supreme Court's language in
Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818. "[A]n exclusion in an
insurance policy will be interpreted as applying only to that which is clearly intended to be
excluded." (Emphasis sic.) (Citations and quotations omitted.) Hunter at ¶ 11. It is well-
settled law that an ambiguous provision in an insurance policy must be strictly construed
against the insurer and liberally construed in favor of the insured. Hunter at ¶ 11.
"However, the rule of strict construction does not permit a court to change the obvious
intent of a provision just to impose coverage." Hybud Equip. Corp. at 665. As such, our
3 In fact, Joins expressly noted the analysis is limited to cases where the court is "construing uninsured
motorist provisions of automobile insurance policies which provide coverage to persons 'occupying' insured
vehicles." Joins at 401.
4 A similar distinction was drawn in Darno v. Davidson, 9th Dist. No. 27546, 2015-Ohio-2619, which stated,
"[a]pplying these tests in situations like this one, where being an occupant of a vehicle excludes a claimant
from coverage, would be self-defeating and would contradict the well-settled rule of liberal construction in
favor of an insured and against the insurer." Id. at ¶ 15.
No. 20AP-305 9
review must look at whether the factual scenario at issue is the type of event clearly intended
to be excluded from coverage under the policy.
{¶ 26} The Ninth District Court of Appeals has also considered whether an exclusion
under an automobile insurance policy should preclude coverage based on whether a
claimant was "occupying" a vehicle. Darno v. Davidson, 9th Dist. No. 27546, 2015-Ohio-
2619. In Darno, claimant's vehicle had stalled while attempting to cross the southbound
lane to the northbound lane. Claimant and two friends exited the vehicle trying to push it
off the road. One of the claimant's friends observed another vehicle coming for Darno and
yelled for him to run. Darno began running away from the vehicle but was struck by an
uninsured motorist several feet away from the vehicle.
{¶ 27} Darno filed a complaint seeking coverage for uninsured motorist coverage
under his father's insurance policy. The insurer filed a motion for summary judgment
arguing that claimant was "occupying" the vehicle at the time of the accident excluding him
from coverage.5 The trial court granted the insurer's motion for summary judgment, which
was subsequently appealed. Darno v. Davidson, 9th Dist. No. 26760, 2013-Ohio-4262,
¶ 10. After the case was remanded for additional discovery, the case returned to the Ninth
District to resolve whether Darno was "occupying" the vehicle under the policy. Darno,
2015-Ohio-2619, at ¶ 7. The Darno court concluded under the facts, the policy language
was ambiguous, and the policy exclusion did not apply as appellant was not "occupying"6
the vehicle.
{¶ 28} While Darno presents similar legal issues to the instant case, the facts are
distinguishable in several important ways. The Darno court noted that claimant was
running away from the vehicle and was several feet away at the time of the accident. While
in proximity to the vehicle, the insurer's intention to enter the vehicle had shifted to
retreating from the oncoming vehicle. Here, while appellant stated she turned away from
her vehicle immediately before impact, appellant conceded that prior to the collision she
was approaching her vehicle, reaching for the door, and intended to enter the vehicle.
Appellant acknowledged that she had no warning that the uninsured vehicle was
approaching and was looking in the opposite direction. (Washington Dep. at 72.) Appellant
5In Darno, there was no dispute that claimant's vehicle was not covered under his father's insurance policy.
6The insurance policy in Darno defined "occupying" as "in, upon, getting in, on, out or off." Darno, 2015-
Ohio-2619, at ¶ 13.
No. 20AP-305 10
also stated that "it just happened to[o] fast" and wanted to run but "didn't have time."
(Washington Dep. at 73.) While Darno, 2015-Ohio-2619, and several other courts have
concluded that the definition of "occupying" is ambiguous, the factual circumstances create
the ambiguity, not the definition on its face. Darno, 2015-Ohio-2619, at ¶ 13 (stating that
when "[a]pplying this definition to the facts of this case, the only question is whether
[claimant] was still 'occupying' the [vehicle] at the same time he was running away from
it."); see also Etter, 102 Ohio App.3d at 328, citing Robson, 59 Ohio App.2d at 263 (stating
that the term "occupying" can "become[] ambiguous when determining whether insurance
coverage should be extended in certain factual circumstances.") (Emphasis added.); Willis,
2015-Ohio-1696, at ¶ 16, citing Etter at 328 (noting the definition of "occupying" can
become "ambiguous when determining whether insurance coverage should be extended in
certain factual circumstances."). (Emphasis added.)
{¶ 29} After a careful review of the record and applicable case law, we find appellant
was "entering" the vehicle as defined under the policy's definition of "occupying." Appellant
testified that prior to the accident, she intended to get into her car and drive away to pick
up her children. When appellant was facing the car and reaching for the handle, she was
struck by the uninsured vehicle. Appellant was in the immediate vicinity of her automobile
as evidenced by testifying she was pushed into the Mercury by the uninsured motorist's
vehicle. (Washington Dep. at 74.) Even applying a narrow reading of the policy, there is
little doubt that the act of reaching for the handle of a vehicle with the intent to get into the
vehicle and drive away was encompassed under the policy's definition of "entering." While
we are cognizant that the policy exclusion must be read narrowly, we cannot create
ambiguity where none exists. Accordingly, we find appellant was "occupying" the insured
vehicle precluding coverage under the policy.
{¶ 30} Appellant argues that she had not begun the process of "entering" because
she was not touching the vehicle. We find this argument unpersuasive. While Williams v.
Safe Auto Ins. Co., 8th Dist. No. 83882, 2004-Ohio-3741, concerned the application of
coverage, and not an exclusion, the facts demonstrate a particularly narrow interpretation
of "occupying" that is informative on this issue. A brief review is instructive.
{¶ 31} In Williams, the claimant had parked her vehicle to speak with other drivers
pulled over to the side of the road. After concluding the conversation, the claimant was
No. 20AP-305 11
struck by debris from another car that collided with her vehicle and another parked vehicle.
At the time of the accident, claimant was "right at the car." Id. at ¶ 2. Claimant filed suit
for negligence and sought uninsured motorist coverage. The parties filed cross-motions
concerning the interpretation of "occupying"7 under the policy. The trial court granted
claimant's motion for summary judgment finding she was "occupying" the vehicle at the
time of the accident. In affirming the judgment of the trial court, the Eighth District Court
of Appeals concluded that claimant had an "immediate relationship" to the vehicle as she
was the driver and returning the vehicle at the time of the accident. Id. at ¶ 17. The Williams
court reasoned that the "act of leaving the other parked car and returning to her own car
demonstrates that she was 'getting in' the car."8 Id. Moreover, the Williams court stated
claimant was within the geographic area as she was "right at the car" at the time of the
accident. Id.
{¶ 32} Ohio courts have repeatedly found claimants "occupying" vehicles for
purposes of allowing coverage in far more removed geographic areas. See, e.g., Anderson
v. Nationwide Mut. Fire Ins. Co., 6th Dist. No. L-04-1251, 2005-Ohio-3043 (concluding a
surveyor was "occupying" the insured vehicle while surveying for an engineering firm on
the roadway 20 to 25 feet from the parked van); State Farm Mut. Auto. Ins. Co. v.
Cincinnati Ins. Co., 8th Dist. No. 62930 (June 17, 1993) (finding "[i]t is irrelevant whether
or not claimants were in actual contact with the vehicle" when a man was walking along a
highway retrieving two-liter soda bottles 100 to 110 feet from the insured vehicle);
McCallum v. Am. States Ins. Co., 6th Dist. No. L-90-354 (Nov. 15, 1991) (concluding
claimant was occupying the vehicle after he was walking back to his truck after setting flares
for an overturned vehicle on the side of the road).
{¶ 33} Conversely, when considering whether a claimant should be excluded from
coverage, we are required to look at whether the policy clearly intended to exempt the
activities at issue. While we must undertake a narrower analysis, we are not required to
find an exclusion applies under a single set of facts but instances that are clearly
7 The insurance policy in Williams defines "occupying" as "in, on, getting in, or getting out of a covered auto."
Williams at ¶ 11.
8 The Williams court bolstered its position by citing to language in Renter, 2003-Ohio-431, that posited that
the claimant in that case would have been "occupying" the vehicle if she had attempted to return to the vehicle
versus standing by another vehicle at the time of the accident. Id. at ¶ 17.
No. 20AP-305 12
contemplated under the policy. As there is no basis in the language of the policy or prior
case law that appellant must have physical contact with the vehicle for the exclusion to
apply, we decline to create such a requirement.
{¶ 34} Finally, appellant argues that the trial court erred in dismissing her cause of
action for bad faith.9 As this court has set forth previously, if the basis for denial of coverage
is correct, it is per se reasonable. Hahn's Elec. Co. v. Cochran, 10th Dist. No. 01AP-1391,
2002-Ohio-5009, ¶ 42. As such, if the denial of coverage was proper, appellant's claim for
bad faith cannot be maintained. Pasco v. State Auto. Mut. Ins. Co., 10th Dist. No. 99AP-
430 (Dec. 21, 1999), quoting GRE Ins. Group v. Internatl. EPDM Rubber Roofing Sys. Inc.,
6th Dist. No. L-98-1387 (Apr. 30, 1999). In the instant case, we have concluded that the
policy's exclusion applies as appellant was "occupying" the vehicle at the time of the
collision. Therefore, because appellant was not entitled to coverage under the policy, the
trial court did not err in dismissing appellant's bad faith claim.
{¶ 35} Accordingly, appellant's sole assignment of error is overruled.
V. CONCLUSION
{¶ 36} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and BEATTY BLUNT, JJ., concur.
_____________
9As set forth previously, appellant failed to raise the trial court's decision to grant appellee's denial of medical
payments in her appellate brief. Pursuant to App.R. 16(A)(7), the argument is waived.