               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0999n.06
                          Filed: December 21, 2005

                                         No. 05-3003

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


CHRISTIE HENDERSON,                    )
                                       )
      Plaintiff-Appellant,             )               ON APPEAL FROM THE
                                       )               UNITED STATES DISTRICT
v.                                     )               COURT FOR THE NORTHERN
                                       )               DISTRICT OF OHIO
STATE FARM MUTUAL                      )
INSURANCE COMPANY,                     )
                                       )                      OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Christie Henderson

(“Henderson”) appeals the district court’s grant of summary judgment to Defendant-Appellee State

Farm Mutual Insurance Company (“State Farm”). Henderson was injured in a car accident, and she

submitted a claim to State Farm based on her father’s motor vehicle insurance policy. State Farm

refused to pay on the basis that Henderson was not covered under any of the definitions of an

“insured” under the policy. We AFFIRM the district court’s judgment in favor of State Farm.

                                     I. BACKGROUND

       On April 24, 2001, Christie Henderson was a passenger in a vehicle being driven by Telly

Warden (“Warden”). As a result of Warden’s negligence, there was an accident and Henderson was

injured. Warden’s motor vehicle insurance coverage included liability insurance in the amount of

$100,000.00, and Warden’s insurer offered to settle with Henderson for that amount.
        Henderson was fifteen years old at the time of the accident, and she was living with her

mother, Charlotte Henderson. Her mother and father got divorced in 1996. Lee Henderson

(Henderson’s father) had full visitation rights pursuant to the divorce decree, and he paid child

support and medical expenses for Henderson. After March 1999, Henderson did not live with or

visit her father on a regular basis.

        Lee Henderson had three motor vehicle insurance policies from State Farm in effect in 2001.

One of these policies carried uninsured motorist coverage in the amount of $300,000.00. On June

6, 2001, Henderson’s attorney notified State Farm of the accident, and on June 11, 2001, he

requested coverage from State Farm pursuant to Lee Henderson’s policy. On June 21, 2002, counsel

for State Farm sent a letter to Henderson’s attorney stating that there was no coverage under the

policy for Henderson’s claims.

        On October 17, 2003, Charlotte and Christie Henderson filed a complaint against State Farm

in the Cuyahoga County Court of Common Pleas. In the complaint, Henderson asserted that State

Farm’s “failure to negotiate and settle Plaintiff’s claim in ‘good faith,’ constitutes a breach of their

contractual obligations, including its fiduciary obligation to act in good faith.” Joint Appendix

(“J.A.”) at 17 (Compl.). Furthermore, she claimed that State Farm’s conduct “rises to the level of

‘bad faith’ for which Plaintiff is entitled to additional damages.” J.A. at 17 (Compl.).

        State Farm petitioned to remove the case to the United States District Court for the Southern

District of Ohio, and the case was subsequently transferred to the United States District Court for

the Northern District of Ohio. On July 20, 2004, State Farm filed a motion for summary judgment,

and Henderson filed a motion for partial summary judgment. On November 16, 2004, the district




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court entered an order granting State Farm’s motion for summary judgment and denying

Henderson’s motion for partial summary judgment. This timely appeal followed.

                                          II. ANALYSIS

       We review de novo the district court’s grant of summary judgment to State Farm. DiCarlo

v. Potter, 358 F.3d 408, 414 (6th Cir. 2004).

       The State Farm policies at issue in this case include the following definition:

       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 while occupying:
           a. your car, a temporary substitute car, a newly acquired car or a trailer attached
                to such car. Such vehicle has to be used within the scope of the consent of
                you or your spouse; or
           b. a car not owned by you, your spouse, or any relative, or a trailer attached to
                such a car. It has to be driven by the first person named in the declarations
                or that person’s spouse and within the scope of the owner’s consent.
                Such other person occupying a vehicle used to carry persons for a charge is
                not an insured.
       5. any person entitled to recover damages because of bodily injury to an insured
           under 1 through 4 above.

J.A. at 37-38 (Insurance Policy Number 46 6295-A19-35) (emphases omitted). Henderson argues

that she is entitled to recover funds under Lee Henderson’s State Farm policy pursuant to sub-parts

three and five.

       Henderson’s argument with regard to sub-part five of the policy is as follows: “Under the

plain meaning of the Subsection five (5), the policy does not require that Lee Henderson suffer

bodily injury, only that an additional class of persons are insureds, i.e. those who would be entitled

to recover if Lee were injured.” Br. Appellant at 11 (emphasis in original).




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       “[I]nsurance contracts must be construed in accordance with the same rules as other written

contracts.” Hybud Equip. Corp. v. Sphere Drake Ins. Co., 597 N.E.2d 1096, 1102 (Ohio 1992), cert.

denied, 507 U.S. 987 (1993). The Ohio Supreme Court has instructed that “words and phrases used

in an insurance policy must be given their natural and commonly accepted meaning . . . to the end

that a reasonable interpretation of the insurance contract consistent with the apparent object and

plain intent of the parties may be determined.” Gomolka v. State Auto. Mut. Ins. Co., 436 N.E.2d

1347, 1348 (Ohio 1982).

       The language of sub-part five is unambiguous. Henderson’s arguments essentially interpret

the term “entitled” to mean “who would be entitled,” which is not a “commonly accepted meaning”

of this word. Id. As explained by the magistrate judge, “[t]o be ‘entitled’ means to be granted or

furnished with proper grounds for seeking or claiming something, or to qualify for something.” J.A.

at 237 (Mem. Op. & Order at 6). “As Lee Henderson has not suffered bodily harm, Plaintiff does

not qualify for, and has no claim, right, or grounds to recover damages because of bodily injury to

Lee Henderson.” J.A. at 237 (Mem. Op. & Order at 6).

       Henderson does not dispute that she is not covered under the definition of “relative” provided

in the policy;1 instead, she claims that the definition is an “invalid exclusion” under Ohio Revised

Code § 3937.18.2 Br. Appellant at 14. Ohio courts use the following test to analyze claims brought


       1
        “Relative” is defined as “a person related to you or your spouse by blood, marriage or
adoption who resides primarily with you.” J.A. at 28 (Insurance Policy Number 46 6295-A19-35).
       2
        The version of § 3937.18(A) in effect at the time of the accident in 2001 states as follows:
       No automobile liability or motor vehicle liability policy of insurance insuring against
       loss resulting from liability imposed by law for bodily injury or death suffered by
       any person arising out of the ownership, maintenance, or use of a motor vehicle shall
       be delivered or issued for delivery in this state with respect to any motor vehicle
       registered or principally garaged in this state unless both [uninsured motorist

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pursuant to § 3937.18: “[T]he statute mandates coverage if (1) the claimant is an insured under a

policy which provides uninsured motorist coverage; (2) the claimant was injured by an uninsured

motorist; and (3) the claim is recognized by Ohio tort law.” Martin v. Midwestern Group Ins. Co.,

639 N.E.2d 438, 441 (Ohio 1994). Henderson’s argument fails to acknowledge that she must be an

insured according to the first prong of the Martin test, and that “[n]othing in R.C. 3937.18 or Martin

prohibits the parties to an insurance contract from defining who is an insured person under the

policy.” Holliman v. Allstate Ins. Co., 715 N.E.2d 532, 535 (Ohio 1999) (citing Wayne Mut. Ins.

Co. v. Mills, 692 N.E.2d 213, 218 (Ohio Ct. App. 1996)).

                                       III. CONCLUSION

        For the reasons discussed above, we AFFIRM the district court’s judgment in favor of State

Farm.




        coverage and underinsured motorist coverage] are offered to persons insured under
        the policy for loss due to bodily injury or death suffered by such insureds.


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