[Cite as Johns v. Hopkins, 2013-Ohio-2099.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99218




                                       DEVAN JOHNS
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                          JUSTIN D. HOPKINS, ET AL.
                                                       DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-769112


        BEFORE: Jones, P.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED: May 23, 2013
ATTORNEYS FOR APPELLANT

Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113

Michael D. Schroge
Plevin & Gallucci Co.
55Public Square
Suite 2222
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For Justin D. Hopkins

Larry C. Greathouse
Gallagher Sharp
1501 Euclid Avenue
Bulkley Building, 6th Floor
Cleveland, Ohio 44115

For State Farm Mutual Auto Ins. Co.

Joseph H. Wantz
Williams, Moliterno & Scully Co.
2241 Pinnacle Parkway
Twinsburg, Ohio 44087
LARRY A. JONES, SR., P.J.:

        {¶1} In this case, we are asked to review the definition of who “an insured”

individual is for the purposes of uninsured/underinsured motorist coverage in an auto

insurance policy.      The trial court granted defendant-appellee State Farm Mutual

Automobile Insurance Company’s motion for summary judgment. For the reasons that

follow, we affirm.

                                   I. Procedural History

        {¶2} In November 2009, plaintiff-appellant Devan Johns was involved in a car

accident with defendant Justin Hopkins. Hopkins is not a party to this appeal.

        {¶3} The car Johns was driving was owned by Randal and Carol Brack.           The

Bracks had auto insurance through State Farm. Johns had auto insurance through State

Auto; Hopkins, the tortfeasor, had a policy with GEICO insurance.

        {¶4} In November 2011, Johns filed a complaint against Hopkins; a month later, he

filed an amended complaint adding State Farm as a new party defendant.

        {¶5} In the complaint, Johns alleged that Hopkins was intoxicated when Hopkins

caused the accident.    According to the police report, attached as an exhibit to Johns’s

brief in opposition to State Farm’s motion for summary judgment, Hopkins ran a stop sign

and crashed into Johns, causing Johns to hit a parked car. Hopkins’s breath alcohol level

was .182; more than twice the legal limit in Ohio.

        {¶6} As a result of the accident, Johns alleged he sustained injuries to his head,

neck, back, and other parts of his body, causing pain and suffering, and he lost time from

work.
      {¶7} In the amended complaint, Johns alleged that the car he was driving was

insured by State Farm; exhibit A attached to the complaint showed that the car was owned

by the Bracks.

      {¶8} The policy limits on Hopkins’s auto insurance were $12,500 per

person/$25,000 per accident; the policy limits on Johns’s insurance were the same. Johns

added State Farm as a new party defendant “for the balance of the proceeds of the

underinsurance benefits in the amount of $100,000 in compliance with the terms of said

policy.” Amended complaint, ¶ 12. In sum, because both his own policy limits and the

policy limits of the tortfeasor were far less than those of the Bracks ($12,500 vs.

$100,000), Johns decided to sue the company that insured the car he was driving when the

accident occurred.

      {¶9} State Farm moved for summary judgment, arguing that because Johns’s Safe

Auto policy provided uninsured/underinsured (“UM/UIM”) coverage, he did not qualify as

an insured under the State Farm policy. Johns opposed the motion.

      {¶10} The trial court issued the following order:

      In opposing defendant State Farm’s July 11, 2012 motion for summary
      judgment, plaintiff has argued that under R.C. 3937.18(C), no UIM benefits
      are available from Safe Auto because plaintiff’s UIM policy limits are the
      same as the policy limits for the liability policy of defendant Justin Hopkins.


      However, the “available for payment” language in R.C. 3937.18(C) does not
      allow for a simple policy limit – to – policy limit comparison. See Pierson
      v. Wheeland, 2006-Ohio-1316, ¶ 15 (Ohio Ct. App. Summit County Mar. 22,
      2006) (citing Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425)).

      Therefore, in order to rule on the motion, the court needs evidence as to what
      amount is actually “available for payment.” The parties shall file
      supplemental briefs addressing only this issue within 10 days of this entry.

      {¶11} Both parties filed supplemental briefs. The trial court subsequently granted

State Farm’s motion for summary judgment.

      {¶12} Johns filed this timely appeal and raises one assignment of error for our

review:

      The trial judge erred, as a matter of law, by determining that

      defendant-appellee, State Farm Mutual Automobile Insurance Company, is

      entitled   to     deny    uninsured/underinsured     motorist   coverage       to

      plaintiff-appellant, Devan Johns.

                                  II. Standard of Review

      {¶13} A reviewing court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Mitnaul v.

Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d

1093 (8th Dist.).     Therefore, this court applies the same standard as the trial court,

viewing the facts in the case in the light most favorable to the nonmoving party and

resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13

Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).

      {¶14} Pursuant to Civ.R. 56(C), summary judgment is proper if:

      (1) No genuine issue as to any material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the party against whom
      the motion for summary judgment is made, that conclusion is adverse to that
      party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

      {¶15} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts, demonstrating that a “genuine triable issue”

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

      {¶16} Likewise, the interpretation of an automobile liability insurance policy

presents a question of law that an appellate court reviews without deference to the trial

court. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108,

1995-Ohio-214, 652 N.E.2d 684.

                                III.   State Farm’s Policy

      {¶17} The Bracks’ State Farm policy included the following provision relative to

UM/UIM coverage:

      WHO IS AN INSURED

      Insured - means the person or persons covered by Uninsured Motor
      Vehicle Coverage.

      This is:

      1. the first person named in the declarations;

      2. his or her spouse;

      3. their relatives; and

      4. any other person who is not insured for uninsured motor vehicle coverage
      under another vehicle policy while occupying your car * * *. Such
      vehicle has to be used within the scope of the consent of you or your
      spouse;
       5. any person entitled to recover damages because of bodily injury to an insured
       under 1 through 4 above.

       (Emphasis sic.)

       {¶18} The policy also contained an “Important Notice”:

       1.   The definition of “insured” has changed.         While occupying your car * *

       * a person other than the named insured, spouse, and relatives who has

       uninsured motor vehicle coverage from another source no longer meets the

       definition of “insured.”

       {¶19} The parties agree on the following: (1) Johns does not meet the first, second,

third, or fifth definition listed above; and (2) Johns had an insurance policy through State

Auto, which included an UM/UIM endorsement.                   At issue is the definition of “an

insured,” specifically whether Johns falls under subsection four.                Johns claims that

because his policy limits of $12,500 per person/$25,000 per accident were the same as

Hopkins’s policy limits, he meets the definition of one “who is not insured for uninsured

motor vehicle coverage under another vehicle policy.”                 Because he cannot recover

UM/UIM benefits from either Hopkins’s GEICO policy or his own Safe Auto policy due

to the offset provision in Ohio’s UM/UIM law, Johns claims he falls under the definition

of “an insured” under State Farm’s policy. R.C. 3937.18(C).1 In other words, Johns is

arguing that because he does not have a colorable claim under his policy, he does not have



          The offset provision in R.C. 3937.18(C) states that “[t]he policy limits of the underinsured
       1


motorist coverage shall be reduced by those amounts available for payment under all applicable
bodily injury liability bonds and insurance policies covering persons liable to the insured.”
UM/UIM “coverage” and therefore should be considered “an insured” under State Farm’s

policy.

          {¶20} State Farm argues that Johns does not fall under the fourth definition because

his State Auto policy included a UM/UIM provision, plain and simple; it is immaterial if

Johns can pursue a claim under his policy.

          {¶21} Johns proposes that we expand the definition of “an insured” to include an

individual who is unable to recover from the UM/UIM portion of his or her own insurance

policy. This is not a reasonable construction of State Farm’s contract; such an expansion

would essentially write impermissible terms into the contract and we decline to do so.

                                    IV.   Law and Analysis

          {¶22}   When interpreting an automobile liability insurance policy, if the language

used is clear and unambiguous, a court must enforce the contract as written, giving words

used in the contract their plain and ordinary meaning.       Holliman v. Allstate Ins. Co., 86

Ohio St.3d 414, 418, 1999-Ohio-116, 715 N.E.2d 532; Cincinnati Indemn. Co. v. Martin,

85 Ohio St.3d 604, 607, 1999-Ohio-322, 710 N.E.2d 677. However, when “the language

in an insurance policy is ambiguous and susceptible of more than one meaning, the policy

will be liberally construed in favor of the insured and strictly against the insurer who

drafted the policy.” Id., citing Derr v. Westfield Cos., 63 Ohio St.3d 537, 542, 589

N.E.2d 1278 (1992).

          {¶23} When interpreting a contract, such as a policy for insurance, courts will

presume that words are used for a specific purpose and will avoid interpretations that

render portions meaningless or unnecessary. Wohl v. Swinney, 118 Ohio St.3d 277,
2008-Ohio-2334, 888 N.E.2d 1062, ¶ 22.

       {¶24} In Wohl, the court looked to language in an insurance policy similar to the

one in this case.    James Slattery and Linda Wohl were struck by a vehicle driven by Tyler

Swinney. Slattery was driving Wohl’s car, in which Wohl was a passenger. Swinney

was insured by Progressive Insurance Company, Wohl had insurance with Motorists

Mutual Insurance Company, and Slattery had insurance through American States

Insurance.

       {¶25} Progressive offered its policy limit of $500,000 to settle Wohl’s and

Slattery’s claims.     Wohl and Slattery agreed to allocate the payment so that Wohl

received $499,999 and Slattery received $1.        Slattery also instituted a claim against

Motorists for UM coverage. Motorists denied Slattery’s claim, arguing that Slattery was

not considered “an insured” for UM coverage under Wohl’s Motorists policy.

       {¶26} The trial court found that Motorists was required to cover Slattery as an

insured for UM coverage under Wohl’s policy. Motorists appealed, and the Twelfth

District Court of Appeals affirmed.     Wohl v. Swinney, 12th Dist. No. CA2006-05-123,

2007-Ohio-592. The court of appeals did not rely on the trial court’s reasoning, but

instead held that for the purposes of UM coverage, the definition of “an insured” in

Motorists’ policy was ambiguous and should be strictly construed against the insurer.

       {¶27} The Supreme Court of Ohio disagreed.       The court found the definition of an

insured was unambiguous and because Slattery was “someone else who was occupying the

covered auto but who was a named insured for uninsured motorist coverage under another

policy (his own), Slattery was not an insured for UM coverage under Wohl’s Motorists
policy.”     Wohl, 118 Ohio St.3d 277, 2008-Ohio-2334, 888 N.E.2d 1062, ¶ 24.

       {¶28} Importantly, the court noted the “intention of the parties was to narrowly

define ‘insured’ for UM coverage.” Id. at ¶ 14.          The court concluded “[w]hen the

insurance policy at issue here is viewed as a whole, it becomes clear that the definition of

insured in the UM portion of the policy is intended to narrowly define who is considered

an insured under that section.” Id. at ¶ 23.

       {¶29} In Safeco Ins. Co. of Illinois v. Motorists Mut. Ins. Co., 8th Dist. No. 86124,

2006-Ohio-2063, this court found that an insurance policy, which contained language

similar to the subject provision in this case, excluded a party from the definition of an

insured for UM/UIM coverage because that party had UM/UIM coverage under another

policy. This court held that R.C. 3937.18, the statute governing UM/UIM coverage,

“does not mandate who must be an insured for purposes * * * of coverage, and the parties

to the insurance contract are free to draft and negotiate their own restrictions regarding

who is and is not an insured for various coverage.” Safeco at ¶ 15, citing Mitchell v.

Motorists Mut. Ins. Co., 10th Dist. No. 04AP-589, 2005-Ohio-3988.

       {¶30} Johns attempts to distinguish Wohl and Safeco, arguing that the statute’s

offset provision, R.C. 3937.18(C), was not germane to either of those cases; therefore, the

cases are not controlling.

       {¶31} R.C. 3937.18(C) provides, in part, the following:

       The policy limits of the underinsured motorist coverage shall be reduced by

       those amounts available for payment under all applicable bodily injury

       liability bonds and insurance policies covering persons liable to the insured.
       {¶32} Johns argues that due to this statutory provision and the limits of his and

Hopkins’s policies, he is precluded from recovering under those policies.       And because

he is precluded from recovery under those policies, he must be included as an insured

under State Farm’s policy. We disagree; while under the facts of this case Johns may be

precluded from recovery under his and the tortfeasor’s policies due to the limits on the

policies, he still cannot be considered an insured under the State Farm’s policy.

       {¶33} There is nothing written into State Farm’s policy that we can interpret to

mean that an individual must actually be able to recover under his or her own UM/UIM

policy before State Farm’s definition of “an insured” would apply.             State Farm’s

definition clearly states that a person occupying the State Farm vehicle does not qualify as

an insured under part four if that individual has his or her own policy of insurance that

provides for UM/UIM coverage.

       {¶34} In Holliman, 86 Ohio St.3d 414, 416-417, 1999-Ohio-116, 715 N.E.2d 532,

the Ohio Supreme Court noted that “[n]othing in R.C. 3937.18 * * * prohibits the parties

to an insurance contract from defining who is an insured under the policy.”      In fact, R.C.

3937.18(C) does not expand, or even touch upon, whether an individual person qualifies as

“an insured” under an insurance policy. R.C. 3937.18(C) is solely directed to the issue of

the limits of coverage available under the UM/UIM provisions in a policy.

       {¶35} We find that a reasonable interpretation of the contract in this case is that the

parties intended to exclude coverage for persons who had UM/UIM coverage under

another insurance policy and were neither a named insured nor an insured family member

under State Farm’s policy. In accordance with Wohl and Safeco, supra, the parties to the
insurance contract were free to draft and negotiate their own restrictions regarding who is

and is not a named insured for UM/UIM coverage.

          {¶36} The plain language of State Farm’s policy is that “an insured” is an

individual “who is not insured for uninsured motor vehicle coverage under another vehicle

policy.” (Emphasis added.)       No reasonable interpretation of the contract could lead one to

a meaning of “one who is insured for uninsured motor vehicle coverage under another

vehicle policy, unless he or she cannot recover under that policy.”         If State Farm had

wished to include these individuals in its coverage, it could have put such a statement in its

policy.

                                  V.   “Available for Payment”

          {¶37} Finally, although the trial court asked for additional briefing from the parties

on the issue of what was “available for payment” under R.C. 3937.18(C), the trial court

declined to find the cited cases, Pierson v. Wheeland, 9th Dist. No. 22736,

2006-Ohio-1316, and Littrell v. Wigglesworth, 91 Ohio St.3d 425, 2001-Ohio-87, 746

N.E.2d 1077, more than instructive.

          {¶38} Both Pierson and Littrell dealt with the amount of UM/UIM coverage offset;

whether an insured may be covered even if the amount of coverage is identical to or less

than the tortfeasor’s liability limits.     Neither case discussed who was covered as “an

insured” in a policy. Our issue here is whether Johns is          covered under State Farm’s

policy. We agree with the trial court that he is not.

          {¶39} In sum, even in viewing the evidence in a light most favorable to Johns,

reasonable minds can come to only one conclusion and that is that there are no questions
of material fact; therefore, the trial court correctly granted summary judgment in favor of

State Farm.

      {¶40} The sole assignment of error is overruled.

      {¶41} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KENNETH A. ROCCO, J., CONCURS WITH
SEPARATE OPINION;
SEAN C. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION


KENNETH A. ROCCO, J., CONCURRING:

      {¶42} I fully concur with Judge Jones’s well-reasoned opinion. Nonetheless, I

share the sentiments expressed in Judge Gallagher’s dissent. Alas, I am reminded of the

words of my remote ancestors, “dura lex sed lex,” an apt inscription for our high court’s

escutcheon.
SEAN C. GALLAGHER, J., DISSENTING:

      {¶43} I respectfully dissent. I would find that Johns is “an insured” under the

State Farm policy subject to the setoff provision of R.C. 3937.18(C). Johns cannot

recover from Hopkins’s GEICO policy or his own Safe Auto policy by virtue of the offset

provision in Ohio’s UM/UIM law. I find it unconscionable that by having insurance,

albeit minimal coverage, Johns is precluded from qualifying for UM/UIM coverage under

the State Farm policy. Johns, in my view, is in effect “uninsured” and thus qualifies as an

insured under the State Farm policy.
