[Cite as Miller v. Troyer, 2018-Ohio-3419.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

JODY MILLER                                           C.A. No.     17AP0018

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ELI TROYER, et al.                                    COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellee                                      CASE No.   2016 CVC-C 000458

                                 DECISION AND JOURNAL ENTRY

Dated: August 27, 2018



        CARR, Judge.

        {¶1}     Plaintiff-Appellant Jody Miller, individually, and as executrix of the estate of

Matthew E. Miller (“the Estate”), appeals the judgment of the Wayne County Court of Common

Pleas. This Court reverses and remands the matter for further proceedings consistent with this

opinion.

                                                 I.

        {¶2}     On July 28, 2015, decedent, Mr. Miller was operating a motorcycle northbound

on Prairie Lane in Wooster. His wife, Jody Miller, was a passenger. At the time, Defendant Eli

Troyer was traveling southbound on the same road operating a horse-drawn buggy. The horse-

drawn buggy veered left of center and struck the motorcycle, resulting in Mr. Miller’s death and

causing Mrs. Miller injury. The Estate filed a claim with its insurance company, Defendant-

Appellee Westfield National Insurance Company (“Westfield”). While Westfield paid the Estate
                                                 2


certain benefits under the policy, it denied the Estate’s claim for uninsured/underinsured

motorists coverage.

       {¶3}    In November 2015, the Estate filed a complaint against Eli Troyer and Westfield.

With respect to Eli Troyer, the Estate alleged that Eli Troyer negligently operated the horse-

drawn buggy and asserted claims for wrongful death/negligence, survivorship, and negligence.

In addition, the Estate filed a claim seeking declaratory judgment against Westfield. The Estate

argued that Mr. and Mrs. Miller qualified as insureds under a policy underwritten by Westfield

and that such policy provided uninsured/underinsured motorists coverage. The Estate further

alleged that Eli Troyer may be an uninsured/underinsured motorist and that the Estate was

entitled to recover under the policy.      Finally, the Estate requested a declaration that the

provisions Westfield relied on to deny the Estate benefits under the policy be found “void and

invalid and unconscionable or violative of Ohio law and/or public policy.”

       {¶4}    Westfield answered the complaint and filed a counterclaim against the Estate and

a crossclaim against Eli Troyer. Westfield asserted it was entitled to a declaration that the Estate

was not owed uninsured/underinsured motorist coverage because the horse-drawn buggy did not

meet the definition of an uninsured or underinsured motor vehicle in the policy. With respect to

Eli Troyer, Westfield maintained that it was entitled to recover the payments it had made to the

Estate as a result of the accident caused by Eli Troyer’s negligence.

       {¶5}    After receiving leave, the Estate filed an amended complaint adding Enos Troyer,

the father of Eli Troyer and the owner of the horse and buggy, as a defendant. The amended

complaint included claims of negligent entrustment and negligence/liability of owner of

domestic animal against Enos Troyer.
                                                 3


       {¶6}    Thereafter, Westfield filed a motion for judgment on the pleadings, or, in the

alternative, motion for summary judgment, on the Estate’s claim against it and on its

counterclaim. Westfield argued that, based upon the definitions of motor vehicle and trailer in

the general provisions section of the policy, the horse-drawn buggy did not qualify as an

uninsured/underinsured motor vehicle under the policy and therefore the Estate was not entitled

to coverage under the uninsured/underinsured motorists coverage section of the policy.

       {¶7}    The Estate filed a motion in opposition and a cross-motion for summary judgment

on the Estate’s claim. In support of its motion, the Estate filed the deposition of a representative

of Westfield. The Estate maintained that the horse-drawn buggy qualified as an uninsured motor

vehicle based upon the definitions of motor vehicle and trailer provided in the policy, which the

Estate argued were ambiguous. The Estate also asserted that the policy included multiple

definitions of the word “trailer[.]”

       {¶8}    Westfield replied arguing that, even if the policy was ambiguous, no reasonable

construction of the terms would allow for the conclusion that a horse-drawn buggy qualified as

either a motor vehicle or trailer as those terms were defined in the general provisions section of

the policy.

       {¶9}    The trial court granted summary judgment to Westfield concluding that the policy

covered only uninsured motor vehicles and that the horse-drawn buggy did not meet the

definition of motor vehicle. Additionally, the trial court concluded that the insurance policy did

not violate public policy. Subsequently, the trial court issued an entry adding Civ.R. 54(B)

language to its judgment.

       {¶10} The Estate appealed; however, this Court dismissed the appeal for lack of a final

appealable order. The trial court entered judgment again, this time additionally finding that the
                                                  4


insurance policy was not void as unconscionable or violative of Ohio law. The Estate again

appealed, raising a single assignment of error for our review.

                                                 II.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY GRANTING APPELLEE WESTFIELD
       NATIONAL INSURANCE COMPANY’S MOTION FOR SUMMARY
       JUDGMENT.

       {¶11} In its sole assignment of error, the Estate argues that the trial court erred in

granting Westfield’s motion for summary judgment. Because we conclude that the parties and

the trial court failed to consider certain policy language in determining whether coverage is

warranted, we remand that matter to the trial court so that the issue can be briefed by the parties

and considered by the trial court.

       {¶12} “An insurance policy is a contract whose interpretation is a matter of law. [O]ur

task when interpreting an insurance policy is to examine the insurance contract as a whole and

presume that the intent of the parties is reflected in the language used in the policy. Moreover,

[w]e look to the plain and ordinary meaning of the language used in the policy unless another

meaning is clearly apparent from the contents of the policy.” (Internal quotations and citations

omitted.) Frank v. Westfield Natl. Ins. Co., 9th Dist. Summit No. 27925, 2017-Ohio-1026, ¶ 11.

“When determining whether a provision of an insurance contract is ambiguous, Courts must

examine the contract as a whole and pay careful attention to context. [A] court cannot create

ambiguity in a contract where there is none. Ambiguity exists only when a provision at issue is

susceptible of more than one reasonable interpretation. [I]f provisions are susceptible of more

than one interpretation, they will be construed strictly against the insurer and liberally in favor of

the insured.” (Internal quotations and citations omitted.) Id. at ¶ 12.
                                               5


       {¶13} With respect to uninsured motorists coverage, the policy at issue provides in

relevant part:

       We will pay compensatory damages which an insured is legally entitled to
       recover from the owner or operator of:

       A. An uninsured motor vehicle as defined in Section A., C. and D. of the
       definition of uninsured motor vehicle because of bodily injury:

       1. Sustained by an insured; and

       2. Caused by an accident.

(Emphasis in original.)

       {¶14} The uninsured/underinsured endorsement defines uninsured motor vehicle in

relevant part:

       “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:

       A. To which no bodily injury liability bond or policy applies at the time of the
       accident.

       ***

       C. To which a bodily injury liability bond or policy applies at the time of the
       accident. In this case, its limit for bodily injury liability must be less than the
       minimum limit for bodily injury liability specified by the financial responsibility
       law of Ohio.

       D. To which a bodily injury bond or policy applies at the time of the accident but
       the bonding or insuring company:

       1. Denies coverage; or

       2. Is or becomes insolvent.

(Emphasis in original.)

       {¶15} The argument below, and on appeal, ultimately centered on whether the horse-

drawn buggy was an uninsured motor vehicle,1 i.e. whether it was “a land motor vehicle or trailer


       1
          While the complaint was framed in terms of uninsured/underinsured claims, the
representative of Westfield acknowledged in her deposition that the tortfeasor was uninsured.
                                                   6


of any type.” Westfield argued that the definitions of motor vehicle and trailer in the general

provisions section of the policy were controlling. The Estate also relied on the definition of

motor vehicle in the general provisions section but has additionally pointed out that the definition

of uninsured motor vehicle references trailer of any type, yet the general provisions section

contains a more limited definition of trailer.

        {¶16} The general provisions section of the policy provides the following definitions of

motor vehicle and trailer:

        “Motor Vehicle” means:

        a. A self-propelled land or amphibious vehicle; or

        b. Any trailer or semi-trailer, which is being carried on, towed by or hitched for
        towing by a vehicle described in a. above.

        ***

        “Trailer” means a vehicle designed to be pulled by a:

        a. Private passenger auto; or

        b. Pickup or van.

        However, a trailer does not include a mobile home or any vehicle used as an
        office, store, display, residence or passenger conveyance.

        {¶17} Yet, what neither side has pointed out or discussed is the fact that none of the

words in the terms “land motor vehicle” and “trailer of any type” are in bold and italics in the

uninsured motorists coverage portion of the policy. The general provisions portion of the policy,

which states in a parenthetical that it is applicable to all sections of the policy, also states under




Given the foregoing, and the fact that the focus of the briefing and the trial court’s entry was
whether the horse-drawn buggy was an uninsured motor vehicle as defined by the policy, we will
limit our discussion accordingly. Nonetheless, we note that the underinsured portion of the
policy also defines an underinsured motor vehicle in part as “a land motor vehicle or trailer of
any type[.]”
                                                7


the definitions of you, your, we, us, and our, that “[o]ther words and phrases are defined. They

are bold italics when used.” Two of those defined terms include motor vehicle and trailer. In

other portions of the policy, motor vehicle and trailer do appear in bold and italics,

presumptively because the policy is referring to the previously defined terms. However, “land

motor vehicle” and “trailer of any type[,]” as those terms are stated in the uninsured motorists

coverage section of the policy, do not contain any words in bold and italics. Thus, there is an

argument to be made that the definitions of motor vehicle and trailer contained in the general

provisions portion of the policy might not apply to the terms used in the uninsured motorists

coverage portion of the policy. See Frank, 2017-Ohio-1026, at ¶ 11; see also Schroeder v. Auto-

Owners Inc. Co., 6th Dist. Lucas No. L-03-1349, 2004-Ohio-5667, ¶ 28-29 (discussing the

significance of varying typefaces in insurance policies). It appears that neither side considered

this issue as it was not briefed below.

       {¶18} And while this Court generally does not raise issues sua sponte, the issue before

the trial court was whether the horse-drawn buggy qualified as an uninsured motor vehicle under

the policy. In order to review the trial court’s determination of that issue, this Court cannot

ignore certain language in the policy merely because an argument regarding that language was

not raised below. See Frank at ¶ 11 (“[O]ur task when interpreting an insurance policy is to

examine the insurance contract as a whole and presume that the intent of the parties is reflected

in the language used in the policy.”). As neither side has had the opportunity to brief this issue,

and because the trial court has not had the opportunity to consider how this issue might affect the

ultimate issue of coverage, we determine it is appropriate to reverse the trial court’s judgment

and remand the matter for briefing by the parties, and consideration by the trial court. As a

reviewing Court, this Court’s role is not to decide matters in the first instance. See, e.g.,
                                                 8


Montville Lakes Cluster Homeowners Assn. Phase One v. Montville Lakes Homeowners Assn.,

9th Dist. Medina No. 16CA0082-M, 2017-Ohio-7920, ¶ 17.

       {¶19} The Estate’s assignment of error is sustained to the extent discussed above. To

the extent the Estate has challenged the trial court’s determinations that the insurance policy does

not violate public policy and is not void as unconscionable or violative of Ohio law, review of

those determinations are no longer properly before us in light of the remand.

                                                III.

       {¶20} To the extent discussed above, the Estate’s assignment of error is sustained and

this matter is remanded for proceedings consistent with this opinion. The judgment of the

Wayne County Court of Common Pleas is reversed.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.
                                                 9




                                                      DONNA J. CARR
                                                      FOR THE COURT




TEODOSIO, P. J.
CONCURS.

HENSAL, J.
CONCURRING IN JUDGMENT ONLY.

       {¶21} I agree that the judgment must be reversed and remanded but for a different

reason. Under the parties’ contract, uninsured motorists coverage is provided if an “uninsured

motor vehicle” caused bodily injury. An “uninsured motor vehicle” can be either a land “motor

vehicle” or “trailer of any type[.]” The trial court concluded that there was no coverage because

the horse and buggy “does not meet the definition of a motor vehicle * * *.” It appears to have

failed to consider, however, whether the horse and buggy were a “trailer of any type[.]” That is

an issue it must resolve in the first instance. On remand, I would direct the court to examine

whether the horse and buggy were a “trailer of any type[,]” taking into consideration the issue

identified by the lead opinion regarding the usage of bold and italicized terms in the contract.


APPEARANCES:

MICHAEL D. GOLDSTEIN and JOSEPH N. CINDRIC, Attorneys at Law, for Appellant.

CARI FUSCO EVANS, Attorney at Law, for Appellee.
