Allstate Insurance v. Eyster , 189 Ohio App. 3d 640 ( 2010 )

[Cite as Allstate Ins. Co. v. Eyster, 189 Ohio App.3d 640, 2010-Ohio-3673.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
ALLSTATE INSURANCE COMPANY,
APPELLANT, CASE NO. 9-10-01
v.
EYSTER ET AL., OPINION
APPELLEES.
Appeal from Marion County Common Pleas Court
Trial Court No. 2008 CV 0157
Judgment Reversed and Cause Remanded
Date of Decision: August 9, 2010
APPEARANCES:
Adam E. Carr, for appellant.
Scott E. Wright, for appellees.
ROGERS, Judge.
Case No. 9-10-01
{¶1} Plaintiff-appellant, Allstate Insurance Company (“Allstate”), appeals
the judgment of the Court of Common Pleas of Marion County denying its motion
for summary judgment and granting summary judgment in favor of Jon, Penny,
Keisha, and Kaley Eyster (“the Eysters”). On appeal, Allstate argues that the trial
court erred in granting summary judgment to the Eysters when the trial court
improperly interpreted the resident-relative exclusion in the automobile insurance
policy as not prohibiting liability coverage to Keisha for her sister Kaley’s injuries
sustained during an accident in which Keisha was the vehicle operator.
Additionally, Allstate argues that the trial court abused its discretion in overruling
its motion to strike certain hearsay testimony and parol evidence offered by the
Eysters in support of their motion for summary judgment. Based on the
following, we reverse the judgment of the trial court.
{¶2} In February 2008, Allstate filed a complaint for declaratory
judgment against the Eysters, stating that it had provided personal-liability
automobile insurance coverage to the Eysters through an insurance policy issued
to them on July 27, 2007; that Jon is the father of Keisha and Kaley; that Jon and
Penny resided together in Marion, Ohio, and Keisha and Kaley also resided
together at the same Marion, Ohio address as their parents, or at an address in
Tucson, Arizona; that on July 27, 2007, in Arizona, Keisha negligently operated
an automobile resulting in bodily injury to Kaley, who was a passenger in the
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vehicle; that Kaley sought recovery for her injuries from Keisha as a result of the
accident; that Keisha demanded that Allstate indemnify her against Kaley’s claim
on the basis that such indemnification was required by the liability coverage under
the Allstate policy; that the Allstate policy excludes liability coverage for “bodily
injury to any person related to an insured person by blood, marriage, or adoption
and residing in that person’s household”; and that consequently, Allstate has no
obligation to indemnify Keisha against the claims of Kaley. Attached to the
complaint was the Allstate policy, which set forth the liability-coverage exclusion
as stated in the complaint. Additionally, the “named insured(s)” under the policy
were “Jon & Penny Or Keisha Eyster,” and at the beginning of the policy was a
section providing that “the following definitions apply throughout the policy
unless otherwise indicated”:
5. “Insured Auto” means any auto or utility auto you own which is
described on the Policy Declarations. * * *
***
8. “Resident” means a person who physically resides in your
household with the intention to continue residence there. * * * Your
unmarried dependent children while temporarily away from home
will be considered residents if they intend to resume residing in your
household.
***
11. “You” or “Your” means the policyholder named on the Policy
Declarations and that policyholder’s resident spouse.
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12. “Your Insured Auto” means an insured auto you own.
Furthermore, the policy contained an “Additional Definition for Part 1,” wherein
the resident-relative liability exclusion was contained, stating that an “insured
person” means “[w]hile operating your insured auto: a) you, b) any resident
relative, c) and any other person operating it with your permission.”
{¶3} In July 2009, both Allstate and the Eysters filed a joint stipulation of
the parties, stating as follows:
(1) Defendants Jon and Penny Eyster have lived for the past
sixteen years at 1937 Chapel Heights Road, Marion, Ohio 44302. *
**
(2) Defendant Kaley Eyster and Keisha Eyster are daughters of
Jon and Penny Eyster. Keisha Eyster is twenty-two years old.
Kaley Eyster is twenty years old.
(3) Keisha Eyster lived with her parents until July 2005, shortly
after her graduation from high school. She then moved in with a
girlfriend in Columbus, Ohio following a dispute with her parents.
(4) In September 2005 Keisha moved to Pittsburgh, Pennsylvania
to attend classes at Pennsylvania Culinary Institute. Keisha Eyster
remained in Pittsburg until September 2006, when she completed
her classes.
(5) In September 2006 Keisha Eyster moved to Arizona for a four-
month externship with Marriott as an assistant baker. She
successfully completed the externship, received her associate
degree, and was hired by Marriott as a line cook at the same facility
where she had worked as an extern.
(6) From December 2006 until June 2008 Keisha Eyster lived in
an apartment at 1528 North Dodge Boulevard, Tuscon, AZ 85716.
This is where she was living on July 27, 2007, the date of the
accident at issue.
(7) Keisha was a little homesick in Arizona so she asked her sister
Kaley Eyster to come stay with her. At that time, Kaley Eyster was
living with her parents. Kaley Eyster traveled to Arizona in April
2007 and stayed with her sister until August 2007. On July 27,
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2007, the date of the accident at issue, Kaley Eyster was staying in
the apartment rented by Keisha Eyster.
(8) Shortly after Kaley Eyster arrived in Arizona, she got a job at
Marriott as a cafeteria assistant. This did not require any culinary
training such as Keisha Eyster had. * * * Kaley Eyster got the job
in order to pay for her personal expenses in Arizona.
(9) Kaley Eyster continued working at the Marriott in Arizona
from April 2007 until July 2007, shortly before she was scheduled
to leave.
(10) Kaley Eyster was originally scheduled to travel to Ohio on July
31, 2007 and she had purchased an airline ticket to fly to the airport
in Columbus, OH on that date. The Eysters allege that on July 31,
2007, Kaley was in the hospital because of injuries received in the
accident on July 27, 2007. * * *
(11) Kaley Eyster purchased her airline ticket from Orbitz, a travel
website. The email confirmation from Orbitz shows a credit card
billing address of 1528 North Dodge Boulevard, Tuscon, Arizona
85716. This was the address on file with Kaley Eyster’s bank at the
time of the accident of July 27, 2007.
(12) Kaley Eyster had a checking account and a credit card with the
same bank. In May 2007 she advised the bank of a change of
address to 1528 North Dodge Boulevard, Tuscon, Arizona 85716.
The bank statements had previously gone to the home of her parents
in Marion, Ohio. Kaley Eyster says she changed her address
because she did not want her father opening her mail. On July 27,
2007 Kaley Eyster was receiving her checking account statement
and credit card statement at 1528 North Dodge Boulevard, Tuscon,
Arizona 85716. This was the apartment Keisha Eyster was renting
and where Kaley Eyster was staying.
(13) Kaley Eyster alleges that she was suspended from OSU Marion
for three quarters following the Winter 2007 quarter based on her
deficient academic performances. She was eligible to return in
January 2008 for the Winter 2008 quarter. Financial aid forms for
the 2007-2008 academic year were due in March 2007. Kaley
Eyster alleges that she had submitted the forms. She did resume her
attendance at OSU Marion in the Winter 2008 quarter.
(14) On July 27, 2007 Keisha Eyster was driving the 2002 Honda
Civic listed on the Allstate policy issued to Jon and Penny Eyster.
Keisha Eyster’s sister, Kaley Eyster, was her passenger. Kaley
Eyster claims that Keisha Eyster was negligent in her operation of
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the vehicle and that Kaley Eyster suffered bodily injury as the direct
and proximate result of her sister’s negligence. The accident
occurred on a state route within the tribal lands owned by the
Tohono O’odham [sic] Nation in Arizona.
(15) The parties agree that on July 27, 2007, Kaley Eyster was
working in Arizona, staying overnight in her sister’s apartment in
Arizona, and had been doing both for more than three months. The
parties agree that the evidence indicates that Kaley Eyster intended
to travel to Ohio thereafter.
(16) The parties dispute whether Kaley Eyster was a “resident” of
her sister’s apartment while she was staying there.
{¶4} In September 2009, Allstate filed a motion for summary judgment,
arguing that no genuine issues of material fact existed on the matter of Keisha’s
liability coverage for Kaley’s bodily injury claim because the insurance policy
excluded liability coverage to a resident relative of an “insured person,” and Kaley
lived with Keisha and her parents, who were both “insured persons” under the
policy.
{¶5} On October 2, 2009, the Eysters filed a response to Allstate’s motion
for summary judgment and their own motion for summary judgment, arguing that
no genuine issue of material fact existed on Keisha’s claim for liability coverage
under the insurance policy, as the exception to liability coverage for a resident
relative of an “insured person” did not apply because Kaley was not a resident of
Keisha’s household and because the policy cannot be logically interpreted to
include Jon and Penny as “insured person[s]” under the policy exception, as the
exception implies that the “insured person” means the tortfeasor.
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{¶6} Additionally, the affidavits of Jon, Penny, Keisha, and Kaley Eyster
were filed with the trial court. Kaley stated that she was a sophomore at Ohio
State University, Marion campus; that she was living with her parents at 1947
Chapel Heights Road, Marion, Ohio; that she visited her sister Keisha in Arizona
from April 2007 until August 2007; that she had no intention of staying in Arizona
with Keisha and was planning on returning home at the end of the summer; that
she was registered to vote in Marion, Ohio; that when she submitted financial aid
information in March 2007 to continue her education at Ohio State University, she
listed her address as that of her parents’ residence; that when she went to Arizona,
she did not have an official return date but discussed with her parents and
boyfriend about returning at the end of July; that when she was in Arizona, she
worked at Marriott and lived with Keisha; that she worked at Marriott until the
day before the accident; that she purchased an airline ticket for July 31, 2007, to
return to Ohio; that while in Arizona, she changed the address on her bank account
to 1528 North Dodge Boulevard, Tuscon, Arizona, because she did not want her
father to open her bank statements that were being sent to her parents’ residence;
that she did not pay for the groceries, utilities, or rent while she lived with Keisha;
that she was injured in an auto accident in which Keisha was the driver on July 27,
2007; and that as a result of the accident, she was not able to return home on her
scheduled flight.
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{¶7} Penny stated in her deposition that Kaley went to Arizona to visit
Keisha in April 2007; that she planned on returning to Marion at the end of the
summer; that her original return date was delayed due to injuries she sustained in
an auto accident; and that Kaley returned in August 2007 and currently lived with
her and Jon.
{¶8} Jon stated in his deposition that he notified Allstate of Keisha’s
change of address when she moved to Pittsburgh and, later, Arizona; that Kaley
went to visit Keisha in Arizona in April 2007; that Kaley worked while staying
with Keisha; that while in Arizona, Kaley received her bank statements at
Keisha’s address; and that Kaley went to Arizona for an “extended vacation.”
{¶9} Keisha stated in her deposition that her address while residing in
Arizona was on North Dodge Boulevard in Tucson; that while residing in Arizona,
she worked as a cook for Marriott; that Kaley stayed with her in Arizona from
April 2007 until August 2007; that she asked Kaley to come to Arizona because
she was homesick, and Kaley planned to come only for the summer; that Kaley
worked at Marriott with her while she was in Arizona to pay for her own
expenses; that Kaley did not pay any of the rent or utilities at the residence, but
paid for some of her food and gas for the car when she drove; that Kaley received
her bank statement for her credit card at the Arizona address, but she received no
other mail at the address; that Kaley stopped working at Marriott sometime
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between July 20 and 26, 2007; and that Kaley planned to return to Ohio on July
31, 2007, but was delayed because of the injuries she sustained in the automobile
accident.
{¶10} Moreover, the Eysters filed Kaley’s affidavit, to which they attached
her certificate of voter registration from Marion County, which indicated her
status as a registered voter as of February 2007, with her address being that of her
parents’ residence at 1947 Chapel Heights Road, Marion, Ohio. Also attached
was Kaley’s Free Application for Federal Student Aid (“FAFSA”), completed in
Spring 2007, for the 2007-2008 academic year, which also indicated that her
address was that of her parents’ residence.
{¶11} On October 19, 2009, Allstate filed a motion to strike Kaley’s
certificate of voter registration and FAFSA form, arguing that the certificate of
voter registration was inadmissible hearsay under Evid.R. 803(A) and that the
FAFSA form was not a form she had completed, but a compilation of information
from an institution, to which she was not competent to testify. Furthermore,
Allstate argued that Jon’s deposition testimony indicating that he had notified
Allstate of Keisha’s move from the family’s Marion, Ohio residence should also
be stricken, as it was inadmissible hearsay under Evid.R. 801(C) and in violation
of the parol evidence rule because the insurance policy provided that each family
member, including Keisha, resided at the Marion, Ohio residence. Finally,
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Allstate also argued that Keisha’s deposition testimony that Kaley never intended
to permanently stay with her in Arizona should be stricken, as she was not
competent to testify regarding Kaley’s intentions.
{¶12} In December 2009, the trial court denied Allstate’s motion for
summary judgment and granted summary judgment to the Eysters, stating the
following in its judgment entry.
(1) Kaley Eyster was a resident in the household of her parents, Jon
and Penny Eyster at the time of the crash on July 27, 2007. Kaley
was not a resident of her sister Keisha’s household in Arizona at the
time of the crash.
(2) The resident relative exclusion in the liability section of the
Allstate policy does not preclude coverage for Defendant Kaley
Eyster for the injuries and damages proximately caused by the
negligence of Keisha Eyster in the July 27, 2007 motor vehicle crash,
since Kaley was not a resident with Keisha in Arizona.
(3) The claimed exclusion does not preclude coverage if Kaley is a
resident with her parents in Marion, Ohio since they were not the
tortfeasor responsible for Kaley’s injuries.
(4) The term “that” in the resident relative exclusion refers to
Keisha Eyster’s household in Arizona and is inapplicable to Jon and
Penny Eyster’s household in Marion, Ohio.
{¶13} It is from this judgment that Allstate appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
The trial court erred in failing to issue a declaratory judgment
that the Allstate policy excluded liability insurance coverage for
bodily injuries claimed by appellee Kaley Eyster.
Assignment of Error No. II
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The trial court abused its discretion by overruling Allstate’s
motion to strike certain hearsay testimony and parol evidence
offered by the appellees in support of their motion for summary
judgment.
Assignment of Error No. I
{¶14} In its first assignment of error, Allstate argues that the trial court
erred in failing to grant its motion for summary judgment. Specifically, it
contends that because the insurance policy excluded liability coverage for injuries
sustained to a resident relative of an “insured person,” it was not required to
provide liability coverage for Kaley’s injury claim against her sister Keisha, when
Kaley was a resident relative of Keisha’s and her parents’ household and both
were an “insured person” under the policy.
{¶15} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court used different or erroneous reasons as the basis for
its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, citing State ex rel. Cassels v. Dayton
City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary judgment
is appropriate when, looking at the evidence as a whole, (1) there is no genuine
issue as to any material fact, (2) reasonable minds can come to but one conclusion,
and that conclusion is adverse to the party against whom the motion for summary
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judgment is made, and, therefore, (3) the moving party is entitled to judgment as a
matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73 Ohio
St.3d 679, 686-687. If any doubts exist, the issue must be resolved in favor of the
nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359.
{¶16} The party moving for summary judgment has the initial burden of
producing some evidence that demonstrates the lack of a genuine issue of material
fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving
party is not required to produce any affirmative evidence, but must identify those
portions of the record that affirmatively support his argument. Id. at 292. The
nonmoving party must then rebut with specific facts showing the existence of a
genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings. Id.; Civ.R. 56(E).
{¶17} An insurance policy is a contract, and its interpretation is a matter of
law for the court. Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186, 2006-
Ohio-2180, ¶6. The coverage under an insurance policy is determined by
construing the contract “in conformity with the intention of the parties as gathered
from the ordinary and commonly understood meaning of the language employed.”
King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 211. Contract terms are to
be given their plain and ordinary meaning, Dunson v. Home-Owners Ins. Co., 3d
Dist. No. 5-09-37, 2010-Ohio-1928, ¶13, and “[w]hen the contract is clear and
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unambiguous, the court ‘may look no further than the four corners of the insurance
policy to find the intent of the parties.’” Fed. Ins. Co. v. Executive Coach Luxury
Travel, Inc., 3d Dist. Nos. 1-09-17 and 1-09-18, 2009-Ohio-5910, ¶23, quoting
McDaniel v. Rollins, 3d Dist. No. 1-04-82, 2005-Ohio-3079, ¶32.
{¶18} However, when a portion of an insurance contract is reasonably
susceptible of more than one interpretation, it will be strictly construed against the
insurer and in favor of the insured. Niemeyer v. W. Res. Mut. Cas. Co., 3d Dist.
No. 12-09-03, 2010-Ohio-1710, ¶9, citing King, 35 Ohio St.3d 208, at syllabus.
Nevertheless, this rule of insurance-policy interpretation will not be applied in an
unreasonable manner. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-
Ohio-5849, ¶14.
{¶19} Furthermore, when an insurance contract contains exceptions to
coverage, there is a presumption that all coverage applies unless it is clearly
excluded in the contract. Bosserman Aviation Equip. v. U.S. Liab. Ins. Co., 183
Ohio App.3d 29, 2009-Ohio-2526, ¶11, citing Andersen v. Highland House Co.
(2001), 93 Ohio St.3d 547, 549. “Accordingly, in order for an insurer to defeat
coverage through a clause in the insurance contract, it must demonstrate that the
clause in the policy is capable of the construction it seeks to give it, and that such
construction is the only one that can be fairly placed upon the language.” Id.-13-
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{¶20} The party seeking to recover under an insurance policy bears the
burden of proof to demonstrate that the policy provides coverage for the particular
loss. Chicago Title Ins. Co. v. Huntington Natl. Bank (1999), 87 Ohio St.3d 270,
273. However, “when an insurer denies liability coverage based upon a policy
exclusion, the insurer bears the burden of demonstrating the applicability of the
exclusion.” Beaverdam Contracting, Inc. v. Erie Ins. Co., 3d Dist. No. 1-08-17,
2008-Ohio-4953, ¶19, citing Continental Ins. Co. v. Louis Marx & Co., Inc.
(1980), 64 Ohio St.2d 399, syllabus.
{¶21} Resident-relative liability exclusions have been found to be valid in
Ohio as a means to prevent fraudulent intrafamilial lawsuits brought for the sole
purpose of reaping a monetary windfall through an insurance policy. See
Dairyland Ins. Co. v. Finch (1987), 32 Ohio St.3d 360, overruled on other
grounds, State Farm Auto Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397,
syllabus; Nussbaum v. Progressive Cas. Ins. Co. (1988), 61 Ohio App.3d 1, 6;
Kelly v. Auto-Owners Ins. Co., 1st Dist. No. 050450, 2006-Ohio-3599, ¶11.
Furthermore, a resident of a household for purposes of an insurance policy has
been defined as “one who lives in the home of the named insured for a period of
some duration or regularity, although not necessarily there permanently, but
exclud[ing] a temporary or transient visitor.” Farmers Ins. of Columbus, Inc. v.
Taylor (1987), 39 Ohio App.3d 68, 70. See also Am. States Ins. Co. v. Guillermin
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(1996), 108 Ohio App.3d 547, 553; Nationwide Ins. Co. v. Alli, 178 Ohio App.3d
17, 2008-Ohio-4318, ¶26.
{¶22} In the case at bar, the insurance policy for Keisha, Jon, and Penny
provided an exclusion for liability coverage for injuries sustained by any resident
relative of an “insured person,” and Allstate contends that whether Kaley was a
resident of Keisha’s or her parents’ household does not have a bearing on whether
the liability exclusion applies, as Keisha, Jon, and Penny were all “insured
person[s]” under the policy.
{¶23} In viewing the evidence presented, we find that Kaley was not a
resident of Keisha’s household, but of her parents’ household, as evidenced by her
temporary stay in Arizona and intent to return to Ohio. The policy defines a
resident as “a person who physically resides in your household with the intention
to continue residence there. * * * Your unmarried dependent children while
temporarily away from home will be considered residents if they intend to resume
residing in your household.” Moreover, appellate courts have consistently found
that a resident, for purposes of an insurance policy, excludes a temporary or
transient visitor. See Farmers Ins. of Columbus, Inc., 39 Ohio App.3d at 70; Am.
States Ins. Co., 108 Ohio App.3d at 553.
{¶24} Here, testimony was presented by Kaley, Keisha, Jon, and Penny
that Kaley intended to stay with Keisha only for the summer; that Kaley lived with
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her parents prior to her stay with Keisha; that her stay with Keisha was only
temporary, from April until August; and that Kaley returned to Ohio to live with
her parents and attend school after her recovery from the accident. Although
evidence was presented that Kaley obtained employment while staying with
Keisha, testimony was also presented that this employment was only for the
summer, and that Kaley stopped working shortly before her planned return to
Ohio.
{¶25} However, although Kaley was a resident relative of her parents’
household and not Keisha’s household under the policy does not mean that the
liability exclusion does not apply. Allstate contends that the policy language
clearly includes both Jon and Penny Eyster as an “insured person” under the
liability exclusion, meaning that the exclusion would apply under these
circumstances because Kaley was a resident relative of her parents’ household.
However, the Eysters argue that the liability exclusion applies only if Kaley was a
resident relative of Keisha’s household, as the term “insured person” under the
liability exclusion refers to the tortfeasor. This is so because the policy language
uses the word “that” to modify “person’s household,” with “that” indicating the
person understood from the situation, which must be the tortfeasor under a plain
and ordinary interpretation of the policy. Further, because the policy names the
insureds as Jon and Penny “or” Keisha, it thereby creates two separate groups for
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insurance purposes and refutes any argument that all three be treated as one
“insured person” under the policy. Furthermore, the Eysters argue that if we find
the policy to be ambiguous on the issue of whether “insured person” includes
Keisha and Jon and Penny, we must interpret the policy against Allstate.
{¶26} Here, the policy language provides liability exclusion for “bodily
injury to any person related to an insured person by blood, marriage, or adoption
and residing in that person’s household.” The policy exclusion defines “insured
person” as “[w]hile operating your insured auto: a) you, b) any resident relative, c)
any other person operating it with your permission;” “insured auto” as “any auto
or utility auto you own which is described on the Policy Declarations;” and, “you”
or “your” as “the policyholder named on the Policy Declarations and that
policyholder’s resident spouse.”
{¶27} After reviewing the resident-relative exclusion in pari materia with
the rest of the policy, and interpreting the policy terms according to their plain and
ordinary meaning and the definitions given, we find that the term “insured person”
under the exclusion refers to Keisha and Jon and Penny. The definition for
“insured person” includes “you” while “operating your insured auto.” “You” and
“your” is defined in the policy as the policyholder as listed in the policy
declaration, which would include Jon and Penny, and/or Keisha. Furthermore,
Keisha was operating a vehicle listed in the policy declarations.
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{¶28} Moreover, the use of “or” in the policy cannot logically be construed
to mean that Allstate meant that either Keisha or Jon and Penny could be an
“insured person” under the policy, and contrary to the Eysters’ assertion, we also
do not find that “insured person” refers to the tortfeasor. There is no language
indicating that the term should be interpreted in that manner, including no use of
the word “tortfeasor” in the definition of “insured person.”
{¶29} Furthermore, the Eysters’ argument that the resident-relative
exclusion refers to the tortfeasor is premised on the language in the definition of
“insured person” included in Part I of the policy, where the resident-relative
exclusion is found. However, the “insured person” definition is only an additional
definition for Part I of the policy and must also be read in conjunction with the
other definitions of “You” or “Your” contained at the beginning of the policy,
defined as “the policyholder named on the Policy Declarations and that
policyholder’s resident spouse.” The Eysters, and ultimately the trial court, failed
to consider that the additional definitions for Part I did not exclude other
definitions contained within the policy and that an “insured person” must be
interpreted according to those other definitions.
{¶30} Consequently, because the plain language of the policy excludes
liability coverage for injuries sustained to a resident relative of an “insured
person,” because Jon and Penny were both an “insured person” under the policy,
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and because Kaley was a resident relative of Jon and Penny’s household, we find
that the liability exclusion applies to exclude Kaley’s injury claim against Keisha
from liability coverage under the policy.
{¶31} Accordingly, we sustain Allstate’s first assignment of error.
Assignment of Error No. II
{¶32} In its second assignment of error, Allstate argues that the trial court
abused its discretion in admitting certain hearsay testimony and parol evidence.
Our disposition of Allstate’s first assignment of error renders its second
assignment of error moot, and we decline to address it. App.R. 12(A)(1)(c).
{¶33} Having found error prejudicial to the appellant herein, in the
particulars assigned and argued in its first assignment of error, we reverse the
judgment of the trial court and remand for further proceedings consistent with this
opinion.
Judgment reversed
and cause remanded.
WILLAMOWSKI, P.J., and SHAW, J., concur.
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