[Cite as Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957.]




     MARUSA ET AL., APPELLANTS, v. ERIE INSURANCE COMPANY, APPELLEE.
      [Cite as Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957.]
Insurance—Motor         vehicles—Uninsured-motorists           coverage—Policy   defining
        “uninsured motor vehicle” as motor vehicle whose operator “has immunity
        under the Ohio Political Subdivision Tort Liability Law” provides coverage
        for damages caused by tortfeasor who is immune under that law—Specific
        definitional language prevails over general language in policy that insurer
        will pay damages that insured is “legally entitled to recover.”
       (No. 2012-0058—Submitted January 8, 2013—Decided May 21, 2013.)
         APPEAL from the Court of Appeals for Cuyahoga County, No. 96556,
                                      2011-Ohio-6276.
                                ______________________
        PFEIFER, J.
        {¶ 1} Based on the insurance policy that Maria Marusa has with Erie
Insurance Company, we conclude that summary judgment against her and her
daughter was improperly granted and that their claim for uninsured-motorist
coverage is not precluded.
                                      I. BACKGROUND
        {¶ 2} In November 2009, appellant Maria Marusa was driving her car when
it was struck by a police cruiser driven by Officer Michael Canda. Marusa and her
daughter Melanie, also an appellant, were both injured in the accident. The parties
stipulated that the Marusas’ injuries were proximately caused by Officer Canda’s
negligent operation of his police cruiser and that the Marusas “were not negligent
and were not at fault for causing the collision.”
        {¶ 3} The Marusas filed suit against appellee, Erie Insurance Company,
seeking damages to compensate for, among other claims, medical expenses and pain
and suffering. The parties have stipulated that “Officer Canda and his employer are
                              SUPREME COURT OF OHIO



immune from suit under the Ohio Political Subdivision Tort Liability Act” and that
“Officer Canda qualifies as an ‘uninsured motorist’ under the terms” of the insurance
policy that Maria Marusa has with Erie Insurance. In its answer, Erie Insurance
claimed that it was not obligated to pay damages, because even though the policy
includes uninsured-motorist coverage and Officer Canda is an uninsured motorist,
the Marusas were not “legally entitled to recover,” citing Snyder v. Am. Fam. Ins.
Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574.
       {¶ 4} Erie Insurance moved for summary judgment. The trial court granted
the motion, stating that the Marusas are “precluded from recovery under the terms of
the Policy.” The court of appeals affirmed, concluding that Snyder controls. Marusa
v. Erie Ins. Co., 8th Dist. No. 96556, 2011-Ohio-6276.
       {¶ 5} We granted the Marusas’ discretionary appeal. 131 Ohio St.3d 1552,
2012-Ohio-2263, 967 N.E.2d 764.
                                    II. ANALYSIS
       {¶ 6} The issue in this case is whether the trial court properly granted
summary judgment for Erie Insurance and against the Marusas.
                               A. Standard of Review
       {¶ 7} Our review of cases involving a grant of summary judgment is de
novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-
2220, 767 N.E.2d 707, ¶ 24. Summary judgment may be granted only when (1)
there is no genuine issue of material fact, (2) the moving party is entitled to judgment
as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can come to but one conclusion and that
conclusion is adverse to the nonmoving party. M.H. v. Cuyahoga Falls, 134 Ohio
St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, at ¶ 12.
                       B. Interpreting Insurance Contracts
       {¶ 8} “The meaning of a contract is to be gathered from a consideration of
all its parts, and no provision is to be wholly disregarded as inconsistent with other
provisions unless no other reasonable construction is possible.” German Fire Ins.



                                           2
                                 January Term, 2013



Co. v. Roost, 55 Ohio St. 581, 45 N.E. 1097 (1897), paragraph one of the syllabus.
The intent of the parties is presumed to be reflected in the language used in the
policy. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987),
paragraph one of the syllabus.        Because the cause before us involves the
interpretation of an insurance contract, any ambiguities will be construed strictly
against the insurer and liberally in favor of the insured. Dominish v. Nationwide Ins.
Co., 129 Ohio St.3d 466, 2011-Ohio-4102, 953 N.E.2d 820, at ¶ 7. See Buckeye
Union Ins. Co. v. Price, 39 Ohio St.2d 95, 99, 313 N.E.2d 844 (1974).
        {¶ 9} Fortunately, the long and tortured history of this court’s jurisprudence
regarding uninsured/underinsured-motorist (“UM”) insurance coverage need not be
retold for us to resolve the case before us. This case is novel, based on the language
contained in Erie Insurance’s contract, and recourse to precedent other than Snyder is
unnecessary.
                      C. Snyder and This Insurance Contract
        {¶ 10} In Snyder, this court stated that “a policy provision limiting the
insured’s recovery of uninsured- or underinsured-motorist benefits to amounts which
the insured is ‘legally entitled to recover’ is enforceable, and its effect will be to
preclude recovery when the tortfeasor is immune under R.C. Chapter 2744.” 114
Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574, at ¶ 29. The court also stated that
“[o]ur ruling here, of course, does not prevent insurers from responding to consumer
demand by offering uninsured-motorist coverage without precluding recovery
because of a tortfeasor’s immunity.” Id. at ¶ 33. The UM endorsement in this case
does just that.
        {¶ 11} The UM endorsement provides that “uninsured motor vehicle”
includes a motor vehicle whose owner or operator “has immunity under the Ohio
Political Subdivision Tort Liability Law [OPSTLL].” But Erie Insurance claims that
language elsewhere in the endorsement that Erie will pay damages that the insured is
“legally entitled to recover” makes Snyder dispositive, as that phrase mirrors the
language relied upon in Snyder to preclude coverage.        We do not agree.      We



                                          3
                              SUPREME COURT OF OHIO



conclude that the language of the definitional provision controls, and it plainly and
unambiguously provides UM coverage when an insured is injured by an owner or
operator who is immune under the OPSTLL.
       {¶ 12} The critical distinction between Snyder and this case is that in Snyder,
the plaintiff relied on a statutory definition of “uninsured motor vehicle.” Here, the
Marusas are not constrained by a statutory definition.         This court’s decision,
therefore, is not controlled by Snyder. Twice at oral argument, Erie Insurance stated
that it included the definitional provision because consumers would otherwise not
know what an uninsured motorist is. It is interesting that Erie Insurance did not
consider it necessary or advisable to similarly define “legally entitled to recover” to
ensure that consumers would be aware of the potential impact of the Snyder decision.
       {¶ 13} Given our conclusion concerning the definition of “uninsured motor
vehicle” contained in this insurance contract, we cannot conclude, as the Snyder
court did when confronted with language from outside the insurance contract, that
the phrase “legally entitled to recover” precludes uninsured-motorist coverage when
the owner or operator is immune under the OPSTLL. Two courts of appeals have
recently reached the same conclusion. See Thom v. Perkins Twp., 6th Dist. No. E-
10-069, 2012-Ohio-1568, 2012 WL 1154578; Payton v. Peskins, 12th Dist. No.
CA2010-10-022, 2011-Ohio-3905, 2011 WL 3433027. To give effect to the policy
definition of an “uninsured motor vehicle,” it is necessary to consider it an exception
to the limiting phrase “legally entitled to recover,” which the Snyder court foresaw as
a possibility. 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574, at ¶ 33.
       {¶ 14} Furthermore, the definitional provision is specific and the “legally
entitled to recover” provision is general.    When faced with provisions that are
arguably in conflict, we apply the more specific provision. Troyer v. Janis, 132 Ohio
St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 15. See Mut. Life Ins. Co. of New
York v. Hill, 193 U.S. 551, 558, 24 S.Ct. 538, 48 L.Ed. 788 (1904).




                                          4
                                  January Term, 2013



                                  III. CONCLUSION
        {¶ 15} The trial court granted Erie’s motion for summary judgment. We
conclude that the motion was improperly granted. The definitional provision at issue
operates to expand UM coverage, not to limit or preclude it. Accordingly, we
conclude that summary judgment should have been denied to Erie Insurance.
        {¶ 16} The Marusas also moved for summary judgment on the issue whether
the policy provides UM coverage, which the trial court denied. Having concluded
that neither Snyder nor the insurance contract precludes UM coverage, we remand
the cause to the trial court for further proceedings consistent with this opinion.
                                                                     Judgment reversed
                                                                   and cause remanded.
        O’NEILL, J., concurs.
        O’CONNOR, C.J., and LANZINGER, J., concur in judgment and concur
separately.
        O’DONNELL, KENNEDY, and FRENCH, JJ., dissent and would hold that Snyder
v. Am. Family Ins. Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574,
controls.
                                ____________________
        LANZINGER, J., concurring.
        {¶ 17} I concur in judgment only for reasons expressed in my dissent in
Snyder v. Am. Family Ins. Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d
574. As Judge Stewart remarked in her dissent to the application of Snyder in this
case,


               The broader principle at issue here, and the one that apparently
        troubles the majority, too, is the prospect that an insured who
        specifically pays for UM coverage could be denied that coverage
        simply because the tortfeasor happened to be immune from liability,
        despite being fully at fault as is the case here. UM coverage is



                                            5
                              SUPREME COURT OF OHIO



       designed just for these types of situations, yet court decisions have
       effectively denied a significant number of people insurance coverage
       that they pay for, and think that they have, but do not. This is an
       intolerable state of the law and one I hope is quickly rectified.


Marusa v. Erie Ins. Co., 8th Dist. No. 96556, 2011-Ohio-6276, ¶ 25 (Stewart, P.J.,
dissenting).
       {¶ 18} Erie’s policy provides that “uninsured motor vehicle” means a motor
vehicle “for which the owner or operator of the ‘motor vehicle’ has immunity under
the Ohio Political Subdivision Tort Liability Law or a diplomatic immunity.”
       {¶ 19} And it also provides:


                                   OUR PROMISE
               “We” will pay damages for bodily injury that “anyone we
       protect” or the legal representative of “anyone we protect” are legally
       entitled to recover from the owner or operator of an “uninsured motor
       vehicle” or “underinsured motor vehicle.”


(Emphasis added.)
       {¶ 20} The majority opinion holds that Erie’s specific definition of
“uninsured motor vehicle” trumps the broader “legally entitled to recover” language.
This is one way to hold Erie to its coverage promise. But in Snyder, this court held
that use of the language “legally entitled to recover” excludes recovery of uninsured-
motorists benefits when the tortfeasor is immune under R.C. Chapter 2744. Id. at
¶ 24 and 29. I would forthrightly overrule Snyder rather than simply distinguish it as
a case premised on the statutory definition of “uninsured motor vehicle” rather than
the policy definition.
       {¶ 21} By amending R.C. 3937.18(A) in 2001 Am.Sub.S.B. No. 97, the
General Assembly made clear that insurers were no longer obligated to offer



                                           6
                                  January Term, 2013



uninsured- and underinsured-motorist (“UM/UIM”) coverage as part of a motor-
vehicle liability policy. 149 Ohio Laws, Part I, 779, 779-780. In addition, insurers
who now choose to offer UM/UIM coverage within a policy are granted the freedom
to limit or exclude UM/UIM coverage under “specified circumstances.” R.C.
3937.18(I).    That section, however, says nothing about modifying statutory
definitions. By considering the term “legally entitled to recover” as a “specified
circumstance” under R.C. 3937.18(I), Snyder allowed an insurance contract
containing this language to invalidate R.C. 3937.18(B)(5)’s definition of “uninsured
motorist.”
       {¶ 22} Although R.C. 3937.18 no longer contains the term “legally entitled
to recover,” the idea remains that a plaintiff injured by an uninsured motorist must
still prove the elements of the claim:


               With respect to the uninsured motorist coverage, underinsured
       motorist coverage, or both uninsured and underinsured motorist
       coverages included in a policy of insurance, an insured shall be
       required to prove all elements of the insured’s claim that are
       necessary to recover from the owner or operator of the uninsured or
       underinsured motor vehicle.


(Emphasis added.) R.C. 3937.18(D); compare 1997 amendment to R.C. 3937.18(A),
1997 Am.Sub.H.B. No. 261, 147 Ohio Laws, Part II, 2372, 2373 (“legally entitled to
recover” means that the insured is able to prove the elements of the claim for
damages from the tortfeasor).
       {¶ 23} I would hold that a policy that defines an uninsured motor vehicle as a
vehicle owned or operated by one with political-subdivision immunity does not
exclude the promise of UM/UIM insurance coverage by using the term “legally
entitled to recover” in the insuring clause. I do not believe that we can continue to




                                          7
                                SUPREME COURT OF OHIO



hold that these words effectively demolish the UM/UIM protection that the insured
expects to receive in such a policy.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                                ____________________
       Caravona & Berg, L.L.C., Donald E. Caravona, and Aaron P. Berg, for
appellants.
       Hanna, Campbell & Powell, L.L.P., Robert L. Tucker, John R. Chlysta, and
Emily R. Yoder, for appellee.
                            ________________________




                                          8
