Maher v. United Ohio Ins. Co. ( 2022 )

[Cite as Maher v. United Ohio Ins. Co., 2022-Ohio-1015.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
ANDREW MAHER, :
: Case No. 20CA11
Plaintiff-Appellant, :
:
v. : DECISION AND JUDGMENT
: ENTRY
UNITED OHIO INSURANCE CO., et al., :
: RELEASED: 03/21/2022
Defendants-Appellees. :
APPEARANCES:
Douglas D. Brannon and Kevin A. Bowman, Brannon & Associates, Dayton,
Ohio, for Appellant.
Matthew R. Planey, Crabbe, Brown & James, LLP, Columbus, Ohio, for
Appellee.
Wilkin, J.
{¶1} Appellant, Andrew Maher, appeals the Highland County Court of
Common Pleas judgment granting United Ohio Insurance Company’s (“United
Ohio”) motion for summary judgment. Maher was a passenger in an Ecotec Rail
Buggy/ATV, when the driver, Bryan Collins, lost control of the vehicle, slid into a
ditch and hit a tree.1 At the time of the accident, Maher had a commercial
insurance auto policy with United Ohio. After United Ohio denied coverage for
Maher’s medical expenses maintaining the Buggy was not a covered auto under
the policy, Maher filed a complaint claiming breach of contract and bad faith
conduct by United Ohio. The trial court agreed with United Ohio that under the
terms of the insurance policy, Maher’s medical payment and uninsured/
1 Bryan Collins is not a party to this appeal.
Highland App. No. 20CA11 2
underinsured motorist (“UM/UIM”) coverage provisions were limited to a covered
auto. The only auto listed was a 2006 Nissan Titan. The trial court ruled in favor
of United Ohio on all claims.
{¶2} Maher presents two assignments of error for our review. First, Maher
asserts the trial court erred in failing to apply as written the language in the policy
pertaining to the endorsements for the medical payment and UM/UIM provisions.
According to Maher, that language expanded coverage beyond “covered auto”
and allows for coverage when Maher is occupying “any auto.” We overrule
Maher’s arguments as the policy language is clear with regard to the intent of the
parties to provide coverage solely for the 2006 Nissan Titan. The endorsements
did not modify Maher’s selection of coverage in the business auto form. Maher
paid a premium amount reflective of coverage being limited to the 2006 Nissan
Titan. The medical payment endorsement definition of insured applies when
Maher is occupying a covered auto and is struck by “any auto.” For the UM/UIM
endorsement, it expressly states that it applies to “covered auto.”
{¶3} In the second assignment of error, Maher contends the trial court
erred in granting United Ohio’s motion for summary judgment on the bad faith
claim without first bifurcating the claim and before providing him with the
opportunity to view his claims file. We reject both arguments. The trial court did
not abuse its discretion for failing to bifurcate the bad faith claim. Moreover,
Maher failed to request review of his claims file, and he failed to demonstrate the
trial court abused its discretion by not staying discovery. United Ohio did not act
arbitrarily or capriciously when investigating Maher’s claim and ultimately denying
Highland App. No. 20CA11 3
it. We thus affirm the trial court’s decision granting United Ohio’s motion for
summary judgment.
FACTS AND PROCEDURAL BACKGROUND
{¶4} On January 12, 2019, at approximately 5:11 p.m., Andrew Maher was
riding as a passenger in an Ecotec Rail Buggy/ATV being driven by Defendant
Bryan Collins traveling northbound on Strain Road in the city of Hillsboro. Collins
lost control of the Buggy and slid off the roadway into a ditch and hit a tree.
Maher sustained severe and permanent injuries to his neck, back, aorta, ribs and
lungs, as well as other parts of his body. Maher proclaims his injuries were so
severe that he incurred medical expenses in excess of $300,000 and will
continue to incur additional expenses due to the accident.
{¶5} Maher’s commercial auto policy with United Ohio was active at the
time of the accident. Under the policy, Maher paid a yearly premium of $779
based on the selected coverage. For liability coverage, Maher selected coverage
with numerical symbols 7, 8, and 9. Maher, on the other hand, for auto medical
payments, and coverages for UM/UIM solely selected numerical symbol 7.
Based on those selections, the premium was $404 for liability coverage, $24,
$10, and $66, respectively for the medical payment, UM and UIM coverages.
Each numerical symbol represents a different level of coverage and as relevant
here, symbols 1, 7, 8, and 9 are defined as follows:
Highland App. No. 20CA11 4
Description of Covered Auto Designation
Symbol Symbols
1 Any “Auto”
Only those “autos” described in Item
Three of the Declarations for which a
7 Specifically Described premium charge is shown (and for
“Autos” Liability Coverage any “trailers” you don’t
own while attached to any power unit
described in Item Three).
Only those “autos” you lease, hire, rent
or borrow. This does not include any
“auto” you lease, hire, rent or borrow
8 Hired “Autos” Only from any of your “employees”, partners
(if you are a partnership), members (if
you are a limited liability company) or
members of their households.
Only those “autos” you do not own,
lease, hire, rent or borrow that are used
in connection with your business. This
9 Non-owned “Autos” Only includes “autos” owned by your
“employees”, partners (if you are a
partnership), members (if you are a
limited liability company) or members of
their households but only while used in
your business or your personal affairs.
{¶6} Maher reported a claim under his commercial business auto
insurance policy with United Ohio on February 13, 2019, and requested payment
for his medical bills. David Weithman, claims adjuster with United Ohio, first
confirmed that at the time of the accident, Maher’s policy was active and that it
provided coverage for medical payments and UM/UIM. Weithman concluded
that the coverage was limited to “Symbol 7,” which meant it applied to only those
“autos” described in Item Three of the Declaration for which a premium was
shown. Donna Elliott, Weithman’s manager, also reviewed the policy and
Highland App. No. 20CA11 5
deduced that “since the ATV was not specifically listed as a covered auto on the
commercial policy, no coverage would be in effect.” On July 12, 2019, United
Ohio sent a letter to Maher advising him that “the Dune Buggy/ATV was not a
covered auto under the commercial policy Mr. Maher had with United Ohio
Insurance Company.”
{¶7} Maher also attempted to get compensation for his medical expenses
by having Collins submit a claim under Collins’ auto and homeowners insurance
policies with Allstate. Allstate on January 9, 2020, denied coverage finding:
The recreational vehicle that Mr. Collins was driving is not an
“auto” and therefore not an “insured auto” under the auto policy. In
addition, the recreational vehicle is a motor vehicle, and therefore its
use falls within the motor vehicle exclusion in Allstate’s homeowners
policy. Consequently, no coverage is available under either policy
for Mr. Maher’s claim.
{¶8} On January 27, 2020, Maher filed a complaint for personal injury
against Bryan Collins and for breach of contract and bad faith against United
Ohio.2 Maher requested declaratory judgment that United Ohio breached its
contract with Maher by refusing to negotiate in good faith and declining coverage
under the medical payment and UM/UIM provisions.
{¶9} United Ohio filed an answer, a counterclaim, and requested
declaratory judgment in its favor. Similar to its position when it initially denied
coverage, United Ohio asserted the Buggy was not a covered auto under the
policy. United Ohio maintained that Maher elected to pay a premium for
“covered autos” only under the medical payment and UM/UIM provisions, and
2The complaint incorrectly named Ohio Mutual Insurance Group as the defendant insurance
company. A stipulation was entered into in February 2020, correcting the insurance company’s
name to United Ohio Insurance Company.
Highland App. No. 20CA11 6
since the Buggy was not listed as a covered auto, Maher was not entitled to
coverage.
{¶10} Maher filed an answer to United Ohio’s counterclaim denying
several of the insurance company’s allegations and argued that the policy speaks
for itself. Approximately three months later, in June 2020, Maher filed a motion
for summary judgment on his claims. Maher submitted there was no genuine
issue of material fact and that he was entitled to coverage under the medical
payment and UM/UIM endorsement provisions.
{¶11} The endorsement provision for medical payment identified an
insured as “You while ‘occupying’ or, while a pedestrian, when struck by any
‘auto’.” Maher reads the endorsement provision to include payments for medical
expenses arising from an accident while the insured (he) is occupying any auto.
In his opinion, limiting the endorsement to pedestrians or passengers who are
struck by their own covered auto would be absurd. Thus, United Ohio’s refusal
to provide Maher with the benefits per the policy was in bad faith.
{¶12} Maher similarly argued that the UM/UIM endorsement coverage
language is controlling and as read means that coverage is available for any
accident whether in a covered auto or not. The language Maher relies on is that
United Ohio “Will pay all sums the ‘insured’ is legally entitled to recover as
compensatory damages from the owner or driver of an ‘uninsured motor vehicle’
or ‘underinsured motor vehicle’ because of ‘bodily injury’ sustained by the
‘insured’ and caused by an ‘accident’.”
Highland App. No. 20CA11 7
{¶13} United Ohio filed its own motion for summary judgment and
opposed Maher’s request for relief. In the motion, United Ohio emphasized that
the declaration provision is controlling. Maher elected to solely have coverage
under the medical payment and UM/UIM provisions for “covered autos” and the
only auto listed is the 2006 Nissan Titan. United Ohio also challenged Maher’s
bad faith claim in that the company was not unreasonable in reviewing and
investigating his request for payment under the policy.
{¶14} Both Maher and United Ohio filed reply memoranda and reiterated
their previous positions. The trial court on September 30, 2020, granted United
Ohio’s motion for summary judgment and denied Maher’s motion. The trial court
held:
Plaintiff’s argument is that the provisions of the endorsements
referring to “autos” should be interpreted to include the dune buggy
in which he was a passenger. This would ignore the other provisions
of the policy which clearly delineate that the Plaintiff was only
covering the 2006 Nissan Truck and no other vehicles. Had Plaintiff
purchased and paid a premium for []Any “auto” under symbol 1, he
would have been entitled to collect under those coverages.
Unfortunately, he did not and is therefore not entitled to payments
under any of them.
***
Therefore, it is hereby ordered and adjudged that the
Plaintiff’s motion for summary judgment be and is hereby denied, and
that the Defendant’s motion for summary judgment is hereby
granted, and Defendant is granted judgment in its favor as to all of
the claims against it set forth in the complaint. The claims against
Defendant Bryan Collins are not affected by this judgment.
Pursuant to Civ. R. 54(B), the trial court certified its entry granting United Ohio’s
motion for summary judgment as a final appealable order and indicated there
Highland App. No. 20CA11 8
was no just reason for delay. The trial court’s decision is now before us on
appeal.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT UNITED OHIO
INSURANCE COMPANY ON APPELLANT ANDREW MAHER’S
CLAIMS FOR COVERAGE UNDER HIS POLICY.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT UNITED OHIO
INSURANCE COMPANY ON APPELLANT ANDREW MAHER’S
CLAIM FOR BAD FAITH.
I. FIRST ASSIGNMENT OF ERROR
{¶15} Under the first assignment of error, Maher challenges the trial
court’s finding that the medical payment and UM/UIM coverage provisions were
limited to a covered auto. Maher claims the trial court ignored the endorsement
section of the policy; especially the writing at the top that “[t]his endorsement
changes the policy.” Each endorsement has its own definition of an insured and
coverage. Based on the specific wording in each endorsement, Maher asserts
the endorsements allow for coverage when he is occupying “any” auto.
{¶16} For medical payment coverage, Maher in support of his argument
relies on the “insured” definitions of “You while ‘occupying’ or, while a pedestrian,
when struck by any ‘auto,’ ” and “anyone else ‘occupying’ a covered ‘auto’ or a
temporary substitute for a covered ‘auto’.” According to Maher, the use of
covered auto when defining an insured who is “anyone else” supports his claim
that the policy could have limited coverage for the individual insurer to covered
auto but instead used the word “any auto.” Thus, the trial court’s interpretation of
Highland App. No. 20CA11 9
“any auto” to still be limited to the 2006 Nissan Titan was erroneous and ignored
the express language in the endorsement.
{¶17} Similarly for the UM/UIM endorsement language, Maher bases his
claim on the definition of insured that includes the “named insured,” in this case
him, while when defining an insured as “anyone else” there is the additional
language that the person must be “ ‘occupying’ a covered ‘auto’ or a temporary
substitute for a covered ‘auto’.” Further, Maher recites the language in the
coverage section of the endorsement: “We will pay all sums the ‘insured’ is
legally entitled to recover as compensatory damages from the owner or driver of
an ‘uninsured motor vehicle’ or underinsured motor vehicle’ because of ‘bodily
injury’ sustained by the ‘insured’ and caused by an ‘accident’.” Maher interprets
these provisions as allowing payment for his medical expenses for occupying the
Buggy. He argues then that the trial court’s contrary finding was erroneous.
{¶18} In summary, Maher submits that the business auto coverage form
that defines the selection of what auto is covered does not control. Rather, the
endorsements control since they include language that they “change[] the policy.”
Further, when applying the definitions of insured and coverage within the
endorsements, the only conclusion is that “any” auto is covered.
{¶19} United Ohio responds by maintaining that the parties entered into a
contract in which medical payment and UM/UIM coverages were purchased for a
specific automobile. The intent of the parties is clear by the express language of
the policy that is unambiguous. The wording and definition of what covered auto
Maher selected in the business auto declaration and form control. And in this
Highland App. No. 20CA11 10
case, the Buggy was not listed as a covered auto. United Ohio is of the opinion
that the endorsements only apply to a “covered auto,” which is in the introductory
language of the UM/UIM endorsement.
A. Summary judgment standard of review
{¶20} We review de novo a decision granting or denying a motion for
summary judgment based on an insurance contract. Ohio N. Univ. v. Charles
Constr. Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11.
“De novo review means that this court uses the same standard that the trial court
should have used, and we examine all the Civ.R. 56 evidence, without deference
to the trial court, to determine whether, as a matter of law, no genuine issues
exist for trial.” EMOI Servs., LLC v. Owners Ins. Co., 2d Dist. Montgomery No.
29128, 2021-Ohio-3942, ¶ 21, citing Ward v. Bond, 2d Dist. Champaign No.
2015-CA-2, 2015-Ohio-4297, ¶ 8. In order to obtain summary judgment, the
movant must demonstrate
(1) there is no genuine issue of material fact; (2) the moving party is
entitled to judgment as a matter of law; and (3) it appears from the
evidence that reasonable minds can come to but one conclusion
when viewing evidence in favor of the nonmoving party, and that
conclusion is adverse to the nonmoving party. State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217,
219, 631 N.E.2d 150, 152.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d
241.
{¶21} In the matter at bar, the parties both submit there is no genuine
issue of material fact. Maher was a passenger in a Buggy that was involved in
an accident, and he sustained bodily injury. Their arguments are based on the
Highland App. No. 20CA11 11
language in the policy, including Maher’s selection of coverage and the wording
in the medical payment and UM/UIM endorsement provisions. Thus, the issue
comes down to whether the expressed language in the policy allows for coverage
beyond what is specifically listed as a “covered auto” in the declaration, or
whether the wording in the endorsement provisions expanded coverage to “any”
auto.
B. Insurance policies are contracts
{¶22} “An insurance policy is a contract; in interpreting contracts, courts
must give effect to the intent of the parties, and that intent is presumed to be
reflected in the plain and ordinary meaning of the contract language.” Granger v.
Auto-Owners Ins., 144 Ohio St.3d 57, 2015-Ohio-3279, 40 N.E.3d 1110, ¶ 20,
citing Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-
4917, 875 N.E.2d 31, ¶ 7. “And when a written contract’s language is clear, we
look no further than the writing itself to determine the parties’ intent.” Charles
Constr. Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11,
citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146(1978), paragraph two of the syllabus. But if a contract is “reasonably
susceptible of more than one interpretation,” then the contract is ambiguous and
must be construed in favor of the insured. Wayne Mut. Ins. Co. v. McNabb,
2016-Ohio-153, 45 N.E.3d 1081, ¶ 22 (4th Dist.). “This rule, however, will not be
applied to create an unreasonable interpretation of the policy provisions.” Id.,citing Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio-3308,
41 N.E.3d 1224, ¶ 9.
Highland App. No. 20CA11 12
C. Maher’s insurance policy - medical payment
{¶23} Maher and United Ohio entered into a commercial auto insurance
policy that was in effect at the time of the Buggy accident. The policy document
begins with a declaration summary page outlining in “Item One” the description of
Maher’s business, carpentry, and the type of business, individual. Next, the
policy includes in “Item Two” an auto declaration page in which it lists in a table
the coverage type, the selected auto for that coverage, the limit of coverage, and
finally the premium associated with the coverage selection. For medical payment
coverage, the table indicates Maher’s selection of the numerical symbol “7” as
the type of auto coverage. The associated yearly premium is $24. On the
second page of the declaration is “Item Three” which includes the schedule of
covered autos Maher owns and solely lists a 2006 Nissan Titan.
{¶24} The business auto coverage form begins by stating:
Item Two of the Declarations shows the “autos” that are
covered “autos” for each of your coverages. The following numerical
symbols describe the “autos” that may be covered “autos”. The
symbols entered next to a coverage on the Declarations designate
the only “autos” that are covered “autos”.
Numerical Symbol 7 is defined as “Only those ‘autos’ described in Item Three of
the Declarations for which a premium charge is shown (and for Liability Coverage
any ‘trailers’ you don’t own while attached to any power unit described in Item
Three).”
{¶25} The auto medical payment endorsement begins with “This
endorsement changes the policy. Please read it carefully.” Then it states “This
endorsement modifies insurance provided under the following: business auto
Highland App. No. 20CA11 13
coverage form.” But then clarifies “With respect to coverage provided by this
endorsement, the provisions of the Coverage Form apply unless modified by the
endorsement.” The endorsement continues with defining:
A. Coverage
We will pay reasonable expenses incurred for necessary medical
and funeral services to or for an “insured” who sustains “bodily injury”
caused by “accident”. We will pay only those expenses incurred, for
services rendered within three years from the date of the “accident”.
B. Who Is An Insured
1. You while “occupying” or, while a pedestrian, when struck by any
“auto”.
2. If you are an individual, any “family member” while “occupying” or,
while a pedestrian, when struck by any “auto”.
3. Anyone else “occupying” a covered “auto” or a temporary substitute
for a covered “auto”. The covered “auto” must be out of service
because of its breakdown, repair, servicing, loss or destruction.
{¶26} Maher submits that the ultimate issue here is the definition of
insured, and he asserts that he is an insured because he was occupying the
Buggy, which meets the “any auto” requirement. We disagree with Maher’s
interpretation that the medical payment endorsement changes the policy to now
provide him coverage when he is occupying “any” auto. We reject this argument
because it is clear from the language of the policy and the amount of premium
paid that the intent of the parties is to limit coverage to “covered auto” only.
Expanding the policy to now provide coverage for Maher’s medical expenses
when he was occupying the Buggy beyond what Maher selected is not a
reasonable interpretation.
{¶27} When comparing the definition of “insured” in the business coverage
form and the definition in the endorsement, we find that the endorsement yields
situations in which coverage applies as opposed to expanding coverage to all
Highland App. No. 20CA11 14
autos. The definition of insured in the business coverage form includes, in
relevant part, the following: “a. You for any covered “auto”. b. Anyone else while
using with your permission a covered “auto” you own, hire, or borrow[.]” The
definition in the business coverage form is all encompassing and has no
restrictions when involving Maher in a covered auto. Thus, Maher is covered if
he is the driver or the occupier of the covered auto and is involved in a one-
vehicle accident or multi-vehicle accident. Similarly, for “anyone else,” the
business coverage form provides that the person is covered if driving the covered
auto with Maher’s permission.
{¶28} The endorsement with regard to “anyone else” expanded coverage
by providing it for “anyone else” who is also occupying the covered auto. On the
other hand, for the insured it simply provided specific scenarios when coverage
applies such as when Maher is occupying a covered vehicle “when struck by any
auto” or is a pedestrian “when struck by any auto.” The phrase “when struck by
any auto” is continuous and is not separated by any comas. By using the
ordinary rules of grammar and common usage, the word “any” modifies the auto
striking Maher, not the vehicle Maher is occupying. Therefore, the endorsement
did not deviate from the coverage provided in the business auto form. Per the
business auto form language, Maher selected and is paying for coverage for the
2006 Nissan Titan as the only listed “covered auto.”
{¶29} As a matter of law therefore, Maher’s claim for coverage for medical
payments under the terms of the policy cannot succeed. There being no genuine
issue of material fact and there being only one reasonable interpretation of the
Highland App. No. 20CA11 15
policy, we affirm the trial court’s decision granting United Ohio’s motion for
summary judgment and overrule Maher’s argument.
D. Maher’s insurance policy - UM/UIM
{¶30} Maher selected numerical symbol 7 for both UM and UIM
coverages, thus limiting coverage to covered auto, the 2006 Nissan Titan. The
yearly premium for each is $10 and $66, respectively. The endorsement
provision within the policy applies to both UM and UIM and begins by stating
“This endorsement changes the policy. Please read it carefully.” But then has
the following: “For a covered ‘auto’ licensed or principally garaged in, or ‘auto
dealer operations’ conducted in, Ohio, this endorsement modifies insurance
provided under the following: * * * business auto coverage form.” It clarifies “With
respect to coverage provided by this endorsement, the provisions of the
Coverage Form apply unless modified by the endorsement.” It then defines:
A. Coverage
We will pay all sums the “insured” is legally entitled to recover as
compensatory damages from the owner or driver of an “uninsured
motor vehicle” or “underinsured motor vehicle” because of “bodily
injury” sustained by the “insured” and caused by an “accident”.
The owner’s or operator’s liability for these damages must result from
the ownership, maintenance, or use of the “uninsured motor vehicle”
or “underinsured motor vehicle”.
B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
1. An individual, then the following are “insureds”:
a. The Named Insured and any “family members”.
b. Anyone else “occupying” a covered “auto” or a temporary
substitute for a covered “auto”. The covered “auto” must be
out of service because of its break-down, repair, servicing,
“loss”, or destructions. However, no coverage is provided for
anyone occupying an “auto” which is not a covered auto for
Uninsured Motorists and/or Underinsured Motorists
Coverage under this Coverage Form.
Highland App. No. 20CA11 16
{¶31} Contrary to Maher’s claim, there is nothing in the UM/UIM
endorsement that modifies coverage as outlined in the business auto form to now
include any auto Maher occupies. Maher is hung up on the wording in the
endorsement of “all sums the ‘insured’ is legally entitled to[.]” The same wording
is used in the business auto form when defining coverage: “We will pay all sums
an ‘insured’ legally must pay[.]” Thus, the words “all sums” and “legally” are not
unique to the endorsement provision.
{¶32} Similarly, there is nothing in the definition of insured as it relates to
Maher that has been modified. Under the business auto coverage form, insured
is defined as “You for any covered ‘auto’.” In the endorsement it defines insured
as “[t]he named insured[,]” which in this case is Maher. The endorsement does
not include any language that would permit coverage for any auto. It simply
reiterates that Maher is the insured. The written policy language is clear and we
cannot look beyond the writing itself and add words to it. See Charles Constr.
Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11.
{¶33} Moreover, in the business auto form, one of the definitions for
“insureds” is “Anyone else while using with your permission a covered ‘auto’ you
own, hire, or borrow[.]” The endorsement modified this definition of insured by
now including “anyone else ‘occupying’ a covered ‘auto’[.]” This modification
expanded coverage to now include anyone else occupying the covered auto and
not simply a person driving it with permission. No such modification was added
to the definition of “The Named Insured.” We disagree with Maher’s
interpretation that simply because the insured definition of “anyone else” includes
Highland App. No. 20CA11 17
the words “covered auto” is indicative of an inference to exclude it from the
definition of “The Named Insured.” As the Supreme Court of Ohio recently
reiterated:
“a court cannot create ambiguity in a contract where there is none,”
Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008- Ohio-4838, 896
N.E.2d 666, ¶ 16. This includes creating an ambiguity by asking
whether the parties could have included different or more express
language in their agreement. See 11 Lord, Williston on Contracts,
Section 30:4 (4th Ed.2021).
AKC, Inc. v. United Specialty Ins. Co., Ohio St.3d , 2021-Ohio-3540, N.E.
3d , ¶ 12.
{¶34} When reviewing Maher’s insurance policy as written, we cannot
conclude that the UM/UIM endorsement grants Maher the highest level of
coverage while paying a premium for a lower coverage. That, to us, is not a
reasonable interpretation. This conclusion is further supported by the
introductory language in the endorsement “For a covered ‘auto’ ” and in the
matter at bar, the only covered auto based on Maher’s selection is the 2006
Nissan Titan. In addition, our interpretation of the policy is consistent with the
lead and concurring opinions from the Second District Court of Appeals in
Kirkwood v. Motorist Mut. Ins. Co., 2d Dist. Miami No. 2011-CA-23, 2012-Ohio-
23.
{¶35} In Kirkwood, the Second District affirmed the trial court’s summary
judgment in favor of the insurance company. Id. at ¶ 1. The lead opinion
outlined the basic policy language in which Kirkwood selected UM/UIM coverage
for “covered auto” only and the introductory language in the UM/UIM
endorsement that it applies “For a covered ‘auto’ licensed.” Id. at ¶ 17. Based
Highland App. No. 20CA11 18
on the specific wording in the policy, the lead opinion held that the “modifications
to coverage in this endorsement, upon which the Kirkwoods rely, only apply with
respect to a covered auto.” Id. at ¶ 17. The concurring opinion agreed that the
“result here is logical and should have been reasonably contemplated by the
parties,” because “the subject provisions are unambiguous as written[.]” Id. at ¶
23, 31 (Cannon, J., concurring). The dissenting opinion without providing an
analysis concluded that the policy as written was ambiguous. Id. at ¶ 34
(Froelich, J., dissenting).
{¶36} Maher in addition to citing to some of the language in Kirkwood,
relies on cases from other jurisdictions to support his argument that the policy is
ambiguous and should be read in his favor as providing coverage when he
occupies any auto. We do not find any of the cases persuasive.
{¶37} In Haberman v. The Hartford Insurance Group, Dr. Joann
Haberman was a passenger in an SUV driven by Tamara Mooney. 443 F.3d
1257, 1259 (10th Cir.2006). Mooney lost control of the SUV and spun off the
highway. Id. Haberman sustained a fractured pelvis and multiple contusions. Id.Haberman is the sole shareholder of a professional corporation that had a
commercial auto policy with Hartford. Id. Haberman filed a claim for coverage
under the policy’s UM/UIM provision even though the SUV driven by Mooney
was not a covered auto. Id. at 1260. The Tenth Circuit in affirming the jury’s
verdict and finding Haberman’s injuries were covered under the policy focused
on the first sentence of the UM/UIM endorsement language that “[t]his
endorsement changes the policy.” Id. at 1267. Based on that language, the
Highland App. No. 20CA11 19
court held that the endorsement “modified the entire policy” and did not expressly
limit coverage to only covered autos. Id. at 1268. The Tenth Circuit, however,
made no reference as to whether or not the UM/UIM endorsement provision
included language that it applies “For a covered ‘auto’ licensed” as we have here.
We find this distinction critical because it corroborates the limited coverage in the
business auto form to “covered auto” only.
{¶38} The Seventh Circuit in Grinnell Mutual Reinsurance Co. v. Haight,
affirmed the summary judgment granted to Haight. 697 F.3d 582 (7th Cir.2012).
Nicole Haight was a passenger in a car driven by Brian Day that was involved in
a single-vehicle accident. Id. at 584. Haight’s medical bills exceeded the amount
covered under Day’s policy so she made a UM/UIM claim under the commercial
auto policy issued to her father with Grinnell. Id. The Seventh Circuit focused on
the definition of insured under the UM/UIM endorsement to determine whether
Nicole was covered under her father’s policy. Id. at 586-587. The policy defined
insured:
If the Named Insured is designated in the Declarations as:
1. An individual then the following are “insureds”:
a. The named Insured and any “family members”.
b. Anyone else “occupying” a covered “auto” or a
temporary substitute for a covered “auto”[.]
***
[I]f the named insured is “a partnership, limited liability company,
corporation, or any other form of organization,” then “insureds”
include:
a. Anyone “occupying a covered “auto” or a temporary
substitute for a covered “auto”. The covered auto must
be out of service because of its breakdown, repair,
servicing, “loss” or destruction.
b. Anyone for damages he or she is entitled to recover
because of “bodily injury” sustained by another
“insured”.
Highland App. No. 20CA11 20
Id. at 586-587.
The court concluded that the lack of the qualifying term “covered auto” within the
definition of family members as insured was indicative of Grinnell’s intention to
distinguish categories. Id. at 588. Therefore, the court held that the UM/UIM
endorsement provides coverage for an insured and his family with “no
requirement that they occupy a covered auto.” Id. at 590. We do not find the
Seventh Circuit’s interpretation persuasive and disagree with such an
interpretation that requires adding words to a policy. It is not this court’s place to
ask “whether the parties could have included different or more express language
in their agreement.” AKC, Inc., Ohio St.3d , 2021-Ohio-3540, N.E. 3d ,¶
12.
{¶39} The Maryland Court of Appeals in Bushey v. Northern Assurance
Co. of America, also considered the UM/UIM endorsement language involved in
a commercial auto insurance policy issued to the grandfather, Earl Weeks, of the
vehicle driven by the victim and resulted in her death and that of the passenger.
362 Md. 626, 766 A.2d 598 (2000). In the declaration provision of the policy,
Weeks elected coverage under UM/UIM for covered autos only. Id. at 633. The
UM/UIM endorsement language included wording that it changes the policy and
then provided several definitions for who is insured and liability coverage. Id. at
634-636. The court concluded the policy is ambiguous because the UM/UIM
endorsement, although had “For covered ‘auto’ ” in its heading, it also included
modifying language of “occupying a covered auto” when defining insured, and
when excluding coverage for bodily injury sustained by a family member in “any
Highland App. No. 20CA11 21
vehicle owned by that family member that is not a covered ‘auto.’ ” Id. The court
held the clarifying language was unnecessary if the “For covered” wording was
intended to be applied uniformly, making the policy ambiguous. Id.
{¶40} We do not find Maryland Court of Appeals’ decision in Bushey
persuasive in which it based its conclusion on the inference that inclusion of
“covered auto” in certain parts of the endorsement equated to exclusion from
other parts. We do not find that conclusion to be a reasonable interpretation.
{¶41} In Reisig v. Allstate Ins. Co., Raymond Reisig was a passenger in a
1985 Chevrolet pickup truck when the driver lost control on an ice-covered
portion of the highway and went off the roadway into a ditch. 264 Neb. 74, 75,
645 N.W.2d 544 (2002). Reisig submitted a claim for recovery of medical
expenses under his commercial auto policy with Allstate. Id. at 75. Similar to the
situation here and the previous case, Reisig selected coverage for “covered auto”
under UM/UIM and the policy had UM/UIM endorsement provisions. Id. at 76-78.
The endorsement provision included introductory language that “This
endorsement changes the policy,” and the phrase “For a covered ‘auto.’ ” Id. at
81. The endorsement then defines insured as simply “you.” The Nebraska
Supreme Court held the endorsement was ambiguous because the word “you” is
susceptible to different interpretations based on what modified word in the
endorsement is used. Id. at 81-82. That is, if the court focuses on the language
that the endorsement changes the policy, then the coverage is not limited to
covered auto. Id. If the “For covered ‘auto’ ” is used, as it is in the matter at
hand, then coverage is limited to covered auto. Id.Highland App. No. 20CA11 22
{¶42} As we previously concluded, the only reasonable interpretation of
Maher’s insurance policy is that the premium paid is for the 2006 Nissan Titan.
The UM/UIM endorsement did not modify the coverage when it expressly stated
“For a covered ‘auto’ ” and reiterated that Maher is the insured individual. The
language that “This endorsement changes the policy” does not automatically
mean all previous definitions and provisions stated in the business auto coverage
form should now be discounted, especially when the endorsement includes the
caveat language: “the provisions of the Coverage Form apply unless modified by
the endorsement.” The business auto coverage form specifically provides that
UM/UIM coverage is limited to numerical symbol 7, a “covered auto,” and the
only listed auto is the 2006 Nissan Titan.
{¶43} Accordingly, we affirm the trial court’s decision granting United
Ohio’s motion for summary judgment and overrule Maher’s first assignment offer.
E. Definition of “Auto”
{¶44} We begin by acknowledging that the trial court did not grant United
Ohio’s motion for summary judgment based on the policy’s definition of auto;
however, as we review the case de novo, we want to note that there is no
evidence the Buggy meets the definition of auto.
{¶45} The business auto coverage form includes the following introductory
language: “Other words and phrases that appear in quotation marks have special
meaning.” As our previous references to several provisions within the insurance
policy demonstrate, the word “auto” always appears in quotation marks. This is
because it has a special meaning:
Highland App. No. 20CA11 23
1. A land motor vehicle, “trailer” or semitrailer designed for travel on
public roads; or
2. Any other land vehicle that is subject to a compulsory or financial
responsibility law or other motor vehicle insurance law where it is
licensed or principally garaged.
{¶46} United Ohio in its counterclaim for declaratory judgment averred that
at “the time of said accident, Defendant Bryan K. Collins was operating a vehicle
that was designed for use mainly off public roads.” In addition, when Allstate
denied coverage under Collins’ auto policy it maintained that “The recreational
vehicle that Mr. Collins was driving is not an ‘auto’ and therefore not an ‘insured
auto’ under the auto policy.” While there is no other argument at the lower court
for this position, Maher stated in his appellate brief that the Buggy is a
recreational vehicle. Pursuant to the clear definition of “auto” in the insurance
policy, and the evidence that is before us, we conclude that the Buggy is not a
vehicle designed for public roadway. This finding supports our holding affirming
the trial court’s summary judgment decision and overruling Maher’s first
assignment of error.
II. SECOND ASSIGNMENT OF ERROR
{¶47} In the second assignment of error, Maher makes several arguments
in support of his claim that the trial court erred in granting United Ohio’s motion
for summary judgment on all claims, including bad faith. First, Maher contends
the trial court erred by failing to bifurcate the case per United Ohio’s request
since R.C. 2315.21 mandates bifurcation once a motion is filed. Second, Maher
asserts he was denied the opportunity to review his claims’ file prior to the trial
Highland App. No. 20CA11 24
court’s decision. Thus, Maher avers it was premature for the trial court to have
granted United Ohio’s motion for summary judgment on the bad faith claim.
{¶48} In response, United Ohio maintains that it acted with reasonable
justification in denying Maher’s demand for coverage under the medical payment
and UM/UIM provisions.
{¶49} We overrule Maher’s assignment of error because the trial court did
not abuse its discretion in denying the motion to bifurcate, Maher did not request
to view his claims file, and the evidence before us demonstrates United Ohio did
not act in an arbitrary or capricious manner.
{¶50} On July 9, 2020, after the parties filed their respective motions for
summary judgment, United Ohio filed a motion to bifurcate pursuant to Civ.R.
42(B) claiming bifurcation of the bad faith claim is necessary to avoid prejudice
from Maher having access to its internal claims file. Maher did not oppose the
motion nor did he file a separate motion for bifurcation. The trial court did not
rule on United Ohio’s bifurcation request before issuing its decision granting
United Ohio’s motion for summary judgment on September 14, 2020.
{¶51} We presume the trial court overruled United Ohio’s bifurcation
motion. See State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692
N.E.2d 198 (1998) (“when a trial court fails to rule on a pretrial motion, it may
ordinarily be presumed that the court overruled it.”) The trial court has the
discretion to grant or deny a motion to bifurcate, a decision reviewed by an
appellate court under the abuse of discretion standard. Am. Family Ins. Co. v.
Hoop, 4th Dist. Adams No. 13CA983, 2014-Ohio-3773, ¶ 50, citing Prokos v.
Highland App. No. 20CA11 25
Hines, 4th Dist. Athens Nos. 10CA51 and 10CA57, 2014-Ohio-1415, ¶ 81. An
abuse of discretion “is more than a mere error of law or judgment; it implies that a
trial court’s decision was unreasonable, arbitrary or unconscionable.” State v.
Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 27, citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶52} Maher relies solely on R.C. 2315.21(B) to claim the trial court erred
in denying United Ohio’s motion to bifurcate because according to him, R.C.
2315.21(B) mandates automatic bifurcation as soon as the motion is filed. First,
United Ohio’s motion to bifurcate was requested per Civ.R. 42(B) and the motion
made no reference to R.C. 2315.21. Second, R.C. 2315.21(B) applies when the
action is tried to a jury. R.C. 2315.21(B)(1) states:
In a tort action that is tried to a jury and in which a plaintiff
makes a claim for compensatory damages and a claim for punitive
or exemplary damages, upon the motion of any party, the trial of the
tort action shall be bifurcated as follows:
(a) The initial stage of the trial shall relate only to the
presentation of evidence, and a determination by the jury, with
respect to whether the plaintiff is entitled to recover
compensatory damages for the injury or loss to person or
property from the defendant. During this stage, no party to the
tort action shall present, and the court shall not permit a party
to present, evidence that relates solely to the issue of whether
the plaintiff is entitled to recover punitive or exemplary
damages for the injury or loss to person or property from the
defendant.
(b) If the jury determines in the initial stage of the trial that the
plaintiff is entitled to recover compensatory damages for the
injury or loss to person or property from the defendant,
evidence may be presented in the second stage of the trial,
and a determination by that jury shall be made, with respect
to whether the plaintiff additionally is entitled to recover
punitive or exemplary damages for the injury or loss to person
or property from the defendant. (Emphasis added.)
Highland App. No. 20CA11 26
{¶53} Maher demanded a jury trial when he filed his complaint, but the
matter was resolved at summary judgment and no evidence was presented to a
jury. See Ford Motor Credit Co. v. Ryan & Ryan, Inc., 10th Dist. Franklin Nos.
17AP-304 and 17AP-375, 2018-Ohio-3960, ¶ 24 (R.C. 2315.21(B)(1) does not
apply when the matter is tried to the bench since it only applies when the action
is tried to a jury.) We find that R.C. 2315.21(B) is inapplicable here. As Maher
fails to present any additional argument, we conclude that the trial court did not
abuse its discretion when it denied United Ohio’s motion to bifurcate.
{¶54} We further overrule Maher’s assertion that he was denied the
opportunity to review his insurance claims file. Maher in his memorandum
opposing United Ohio’s motion for summary judgment stated that he did not
request his claims file and that he would be entitled to it “only after the coverage
issue under the insurance contract is determined.” But then in that same
memorandum Maher “formally move[s] that a 56(F) stay be granted until after
[he] has received the claims file to which he is entitled under the rule of Boone.”
Maher, however, failed to submit an affidavit with his filing opposing United
Ohio’s motion for summary judgment as required in Civ. R. 56(F). The rule
provides:
Should it appear from the affidavits of a party opposing the
motion for summary judgment that the party cannot for sufficient
reasons stated present by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or discovery
to be had or may make such other order as is just.
{¶55} The trial court did not rule on Maher’s in-passing request to stay
discovery. By granting United Ohio’s motion for summary judgment on all claims,
Highland App. No. 20CA11 27
we presume the trial court denied Maher’s request to stay discovery. Maher fails
to present any argument that the trial court’s denial was an abuse of discretion
and we do not find the trial court’s decision to be arbitrary, unreasonable or
unconscionable. See Lawless v. Bd. of Educ. of Lawrence Cty. Educ. Serv. Ctr.,
2020-Ohio-117, 141 N.E.3d 267, ¶ 29 (4th Dist.), appeal not accepted, 159 Ohio
St. 3d 1464, 2020-Ohio-3882, 150 N.E.3d 118 (“The court did not abuse
its discretion when it denied the motion to stay discovery.”)
{¶56} We also hold that the trial court’s decision granting United Ohio’s
motion for summary judgment should be affirmed.3 Maher maintains that “the
case remains at too premature a stage to consider issues of bad faith” and relies
on the Fifth District Court of Appeals case in Brown v. Nationwide Property &
Gas Ins. Co., 5th Dist. Stark No. 2014CA00037, 2014-Ohio-5057. In Brown,
unlike the case at bar, the trial court granted the motion to bifurcate and stayed
the bad faith claim pending resolution of the breach of contract claim. Id. at ¶ 31.
Here, we have no discovery request for the claims file, no stay as to discovery,
and no bifurcation. What we have is United Ohio’s motion for summary judgment
claiming it acted in good faith supported by an affidavit from its claims adjuster,
David Weithman.
3 On the bad faith claim, the trial court did not provide any analysis and simply held that it grants
United Ohio’s motion on all claims. We find the lack of any analysis harmless since we review
the trial court’s decision de novo. See Phillips v. Dayton Power & Light Co., 93 Ohio App. 3d 111,
115, 637 N.E.2d 963 (2d Dist.1994) (“although a reasoned analysis by the trial court in
rendering summary judgment would be helpful, the lack of any analysis is
necessarily harmless since an appellate court's review of a summary judgment is de novo.”)
Highland App. No. 20CA11 28
{¶57} As we previously outlined in the first assignment of error, we review
de novo the trial court’s decision on a motion for summary judgment. Gerken v.
State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, ¶ 35 (4th Dist.)
“Accordingly, we afford no deference to the trial court’s
decision and independently review the record to determine whether
summary judgment is appropriate.” Snyder v. Stevens, 4th Dist.
Scioto No. 12CA3465, 2012-Ohio-4120, ¶ 11.
Under Civ.R. 56(C), summary judgment is appropriate only if
“‘(1) no genuine issue of any material fact remains, (2) the moving
party is entitled to judgment as a matter of law, and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion, and construing the evidence most strongly in favor of the
nonmoving party, that conclusion is adverse to the party against
whom the motion for summary judgment is made.’” DIRECTV, Inc. v.
Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15,
quoting State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d
372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9.
Id. at ¶ 35-36.
{¶58} To prevail on his claim of bad faith, Maher must demonstrate that
United Ohio “ ‘lacked a reasonable justification for the manner in which it handled
[his] claims[.]’ ” Id. at ¶ 47, quoting Captain v. United Ohio Ins. Co., 4th Dist.
Highland No. 09CA14, 2010-Ohio-2691, ¶ 22.
“An insurer lacks reasonable justification when it acts in an
arbitrary or capricious manner.” Captain at ¶ 30, citing Hoskins v.
Aetna Life Ins. Co., 6 Ohio St.3d 272, 277, 452 N.E.2d 1315 (1983).
The term “arbitrary” means “[w]ithout fair, solid, and substantial
cause and without reason given; without any reasonable cause; in
an arbitrary manner * * * fixed or done capriciously or at pleasure;
without adequate determining principle; not founded in the nature of
things; nonrational; not done or acting according to reason or
judgment depending on the will alone; absolutely in power;
capriciously; tyrannical; despotic.” Thomas v. Mills, 117 Ohio St. 114,
121, 157 N.E. 488 (1927); Captain at ¶ 30. Similarly “caprice” is
defined as “ ‘ “[w]him, arbitrary, seemingly unfounded in motivation *
* *.” ’ ” Captain at ¶ 30, quoting 4D Investments, Inc. v. City of Oxford,
Highland App. No. 20CA11 29
12th Dist. Warren. No. CA98-04-082, 1999 WL 8357, *2, in turn
quoting Black’s Law Dictionary 192 (5th Ed.1979).
Id. at ¶ 48.
{¶59} When considering the merit of the bad faith claim, there is no
genuine issue of material fact since the only evidence outlining the investigation
of Maher’s claim by United Ohio was Weithman’s uncontradicted affidavit. In his
affidavit, Weithman confirmed that Maher reported a claim under the policy on
February 13, 2019, and that a denial letter dated July 12, 2019, was mailed that
same day to Maher’s counsel. Weithman detailed the progress of the
investigation during that five-month period.
{¶60} On the same day that Maher requested coverage under the policy,
Weithman reviewed the policy and contacted Maher’s counsel’s office.
Weithman was advised that Maher was a passenger in the Buggy and that the
Buggy was not insured. During that phone conversation, Weithman requested a
copy of the accident report and advised counsel’s office that coverage may not
be available since it is a commercial auto policy. Weithman that same day also
contacted Maher’s insurance agent and requested a certified copy of Maher’s
commercial auto insurance policy and a copy of any auto policy under Maher’s
name. On February 15, 2019, Weithman received a certified copy of Maher’s
commercial auto insurance policy and emailed Maher’s counsel’s office with a
duplicate. Weithman also telephoned counsel’s office and left a voice message
requesting information regarding Maher’s personal auto insurance.
{¶61} Weithman asked his unit manager, Donna Elliott, to review the file.
She agreed that under the coverage selection of symbol 7, the Buggy would not
Highland App. No. 20CA11 30
be covered under Maher’s commercial auto policy. She also questioned whether
Maher had a personal auto insurance policy. After not hearing back from
Maher’s counsel’s office, on May 1, 2019, Weithman contacted counsel and
spoke with staff member Karen. Weithman reiterated that the commercial auto
policy was limited to a covered auto and the Buggy was not a listed auto in the
policy. Karen confirmed that Maher did not have any other auto policies.
{¶62} Discussions between Weithman and Maher’s counsel’s office
continued and on June 28, 2019, Weithman advised Maher’s counsel that the
claim will be reviewed with management at United Ohio and a decision as to
coverage will be forthcoming. On July 12, 2019, Weithman prepared a letter
denying coverage concluding that the Buggy was not a covered auto under the
policy. The letter was mailed to Maher’s counsel’s office that same day.
{¶63} Applying the standards set forth for granting a motion for summary
judgment and Maher’s burden to demonstrate United Ohio acted arbitrarily or in a
capricious manner on his claim for bad faith, we hold that United Ohio as a
matter of law is entitled to judgment on the bad faith claim. There is no evidence
United Ohio’s denial of coverage was without a fair review of the claim and
without substantial cause. To the contrary, Weithman’s affidavit establishes that
several of United Ohio’s staff members reviewed the policy in light of Maher’s
request for medical expenses. United Ohio also maintained contact with Maher’s
counsel and kept him advised of the investigation. Moreover, our holding under
the first assignment of error that Maher was not entitled to coverage supports the
conclusion that United Ohio did not arbitrarily deny his claim.
Highland App. No. 20CA11 31
{¶64} Accordingly, Maher’s second assignment of error is overruled and
we affirm the trial court’s decision granting United Ohio’s motion for summary
judgment on the bad faith claim.
CONCLUSION
{¶65} Having overruled Maher’s two assignments of error, we affirm the
trial court’s judgment entry granting United Ohio’s motion for summary judgment.
JUDGMENT AFFIRMED.
Highland App. No. 20CA11 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall
pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Highland County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the
date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hess, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.