[Cite as English v. Progressive, 2016-Ohio-847.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


George R. English, Administrator of                    Court of Appeals No. L-14-1239
the Estate of Dale A. Barnhiser, deceased
                                                       Trial Court No. CI0201205257
        Appellant
v.

Progressive Specialty Insurance                        DECISION AND JUDGMENT
Company, et al.

        Appellee                                       Decided: March 4, 2016

                                                   *****

        Steven P. Collier, Steven R. Smith, and Janine T. Avila, for appellant.

        Andrew J. Ayers, for appellee.

                                                   *****
        SINGER, J.

        {¶ 1} This case is before the court on appeal from the Lucas County Court of

Common Pleas which granted summary judgment to appellee, Progressive Specialty
Insurance Company (“Progressive”), and denied the motion for summary judgment of

appellant, George R. English, Administrator of the Estate of Dale A. Barnhiser, deceased.

Appellant had sought a declaration that Barnhiser was an insured under his own

Progressive policy for purposes of uninsured coverage and benefits, while Progressive

had sought a declaration that Barnhiser was not entitled to recover such benefits. For the

reasons that follow, we reverse the judgment of the trial court.

       {¶ 2} On August 4, 2011, Barnhiser was killed as a result of events which

occurred on Interstate 475. On that date, at about 5:00 a.m., Michael Borowy was driving

a tractor trailer in the right-hand lane of northbound I-475 when James South, who was

driving a pick-up truck, attempted to merge onto the highway from the Dussel Drive

entrance ramp, and in so doing collided with Borowy’s truck. As a result of the collision,

South’s pick-up truck came to rest in the right lane of the highway.

       {¶ 3} Following the accident, a number of motorists stopped to offer assistance,

including Barnhiser, who had been operating his motorcycle. Several minutes later, as

South and the other motorists stood on the highway in the vicinity of South’s disabled

pick-up, a tractor trailer truck driven by John Neal Tucker and owned by Estes Express

Lines (“Estes”) collided with South’s pick-up truck. South, Barnhiser and another

motorist were killed.

       {¶ 4} At the time of the accidents, South was uninsured and Barnhiser was insured

under a Progressive motorcycle policy, which included uninsured/underinsured motorist




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(“UM/UIM”) coverage in the amount of $250,000 each person/$500,000 each accident,

and Estes had liability insurance coverage of $5,000,000, which insured Tucker.

      {¶ 5} On August 27, 2012, a confidential settlement was reached between

appellant, Estes and Tucker.

      {¶ 6} On September 11, 2012, appellant filed a complaint against Progressive and

South’s estate. Appellant alleged as a result of South’s negligence, Tucker struck and

killed Barnhiser. Appellant alleged South was uninsured at the time of the collision.

Appellant sought a declaration that Barnhiser was an insured under the Progressive policy

for purposes of UM coverage, and that appellant was entitled to UM benefits.

      {¶ 7} On September 25, 2012, Progressive filed a counterclaim against appellant

for declaratory judgment as well as a third-party complaint against Tucker and Estes for

declaratory judgment. Ultimately, Progressive voluntarily dismissed its third-party

complaint against Estes and Tucker.

      {¶ 8} A default judgment for liability was granted for appellant against South’s

estate on November 30, 2012. Subsequently, a damages hearing was held. Progressive

was notified of the hearing but did not attend. Appellant was awarded damages in the

amount of $2,907,522.44 against South’s estate.

      {¶ 9} On December 5, 2012, appellant moved for summary judgment and

requested a declaration that Progressive was obligated to pay appellant for damages he

was legally entitled to recover from South’s estate up to the per person limit of UM

coverage under Barnhiser’s Progressive policy.



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         {¶ 10} Progressive also moved for summary judgment arguing appellant was not

entitled to recover UM/UIM benefits for several reasons. First, if the court concluded

two accidents occurred, there was no coverage because Barnhiser was not injured in the

accident which involved the uninsured driver. Next, if the court decided one accident

occurred, there was no coverage because Tucker was not an uninsured or underinsured

driver. Last, if the court decided one accident occurred and UM/UIM coverage applied,

no UM/UIM benefits were payable under the policy “because any liability coverage, by

contract, is reduced by the amounts paid by those persons responsible for Plaintiff’s

decedent’s injuries - in this case that party could only be determined to be Tucker.”

         {¶ 11} In April 2013, a jury trial was held in Maumee Municipal Court and Tucker

was found not guilty of vehicular homicide, vehicular manslaughter and fatality through

negligent operation.

         {¶ 12} A stipulation between appellant and Progressive was filed on April 17,

2013, attached to which was the transcript of Tucker’s interview with the Ohio State

Highway Patrol on the morning of August 4, 2011. The parties stipulated Tucker’s

statement could be used for all purposes in this case.

         {¶ 13} On April 10, 2014, the trial court granted summary judgment to

Progressive and against appellant. Appellant appealed, setting forth one assignment of

error:

               The Trial Court erred by granting the motion for summary judgment

         of defendant Progressive Specialty Insurance Company (Progressive), and



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       denying Appellant’s motion for summary judgment, when it determined the

       settlement amount between Appellant and Estes Express Lines and John

       Tucker reduced any available uninsured motorist coverage (UM) to zero.

                 Standard of Review - Motion for Summary Judgment

       {¶ 14} In order for summary judgment to be granted, the movant must prove that

“(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 the evidence most

strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving

party.” State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217,

219, 631 N.E.2d 150 (1994).

       {¶ 15} An appellate court reviews a trial court's granting of summary judgment de

novo and the appellate court applies the same standard used by the trial court. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996). Thus, we will

independently review the record, giving no deference to the trial court's decision. Thayer

v. Diver, 6th Dist. Lucas No. L-07-1415, 2009-Ohio-2053, ¶ 26.

                                       Contract Law

       {¶ 16} In reviewing a written contract, our primary role is to ascertain and give

effect to the intent of the parties. Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86

Ohio St.3d 270, 273, 714 N.E.2d 898 (1999). We presume the intent of the parties to a

contract is contained in the language used in the written contract. Kelly v. Med. Life Ins.



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Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. If we can

ascertain the intent of the parties from the plain language of the contract, there is no need

for interpretation. Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51,

55, 544 N.E.2d 920 (1989).

        {¶ 17} An insurance policy is a contract and its interpretation is a matter of law.

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978),

paragraph one of the syllabus. Contract terms must be given their plain and ordinary

meaning. Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 167-168, 436 N.E.2d

1347 (1982). If a contract provision is susceptible to more than one interpretation, it

“will be construed strictly against the insurer and liberally in favor of the insured.” King

v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus.

                                     Progressive Policy

        {¶ 18} Appellant’s decedent’s Progressive insurance policy provides in relevant

part:

               PART III - UNINSURED/UNDERINSURED MOTORIST

        COVERAGE INSURING AGREEMENT - UNINSURED/

        UNDERINSURED MOTORIST BODILY INJURY COVERAGE

               If you pay the premium for this coverage, we will pay for damages

        that an insured person is legally entitled to recover from an uninsured

        motorist or underinsured motorist because of bodily injury * * *.




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              The limits of liability under this Part III will be reduced by:

              1. all sums paid because of bodily injury or property damage by or

       on behalf of any persons or organizations that may be legally responsible;

              2. all sums paid under Part I – Liability to others; and

              3. any other amounts available for payment for bodily injury or

       properly damages under liability bonds and policies covering person liable

       to the insured person.

              ***

              No one will be entitled to duplicate payments for the same elements

       of damages.

                                   Parties’ Arguments

       {¶ 19} Appellant argues the trial court’s judgment is against the public policy

underlying UM coverage as well as the public policy to encourage settlements. Appellant

further contends the limits of liability provision in the Progressive policy is ambiguous,

which requires the court to construe the language in favor of coverage and against any

restriction on coverage. Appellant asserts the phrase “may be legally responsible” could

have several meanings in the context where injury is caused by an uninsured driver as

well as an insured driver.

       {¶ 20} Progressive counters the plain and ordinary language of the limits of

liability provision in the policy is unambiguous. Progressive observes the trial court

“followed the policy language and found the payment by Estes and Tucker, an



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organization and party legally responsible for Barnhiser’s death reduced the limit of

liability under Part III to zero.” Progressive claims it is undisputed that Tucker “failed to

maintain an assured clear distance with the vehicles and pedestrians on the bridge.”

          {¶ 21} Progressive further argues appellant is asking the court to find that R.C.

3937.18(C)1 no longer authorizes insurance companies to include its terms in UM

endorsements. Progressive maintains R.C. 3937.18(C) is clear that when the amounts

available for payment on behalf of tortfeasors exceeds the damaged party’s UM coverage

limits, the UM limits are reduced to zero.

          {¶ 22} In addition, Progressive contends the trial court granted its motion for

summary judgment and “[a]fter the court dismissed Progressive as a party, appellant

requested a hearing to assess damages against South.” Progressive submits “[b]ecause all

claims had been dismissed against Progressive, it did not appear for the hearing on

damages and had no standing to appear.” Progressive maintains the damages awarded

against South are only binding on South.

          {¶ 23} In reply, appellant argues Progressive is bound by the judgment against

South’s estate as Progressive had every opportunity to litigate South’s liability but

declined to do so. Appellant submits since the summary judgment decision was not a



1
    This provision provides in relevant part:

          If underinsured motorist coverage is included in a policy of insurance, the
          underinsured motorist coverage shall provide * * *. Underinsured motorist
          coverage in this state * * *. The policy limits of the underinsured motorist
          coverage shall be reduced * * *.


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final appealable order, the action was not terminated as to any of the parties, pursuant to

Civ.R. 54(B). Appellant also argues R.C. 3937.18(C) deals with UIM coverage not UM

coverage and therefore does not apply in this case.

        {¶ 24} Appellant further asserts the liability of Tucker and Estes was hotly

disputed, and Tucker and Estes denied liability and did not admit fault as part of their

settlement. Appellant contends the judgment against South’s estate established that

South was the sole and proximate cause of Barnhiser’s injuries, and no other party is or

may be legally responsible for those injuries.

        {¶ 25} Before examining the Progressive insurance policy, we will address two

other issues raised by the parties.

                                      R.C. 3937.18(C)

        {¶ 26} While Progressive argues R.C. 3937.18(C) applies in this case, it is

apparent that this this provision refers only to UIM coverage and not UM coverage. As

appellant is seeking benefits under UM coverage, R.C. 3937.18(C) is inapplicable in this

case.

                              Effect of the Default Judgment

        {¶ 27} A default judgment is not binding on a co-defendant who is not in default

when that co-defendant did not have a meaningful opportunity to present a defense.

Archacki v. [Greater Cleveland] Regional Transit Auth., 8 Ohio St.3d 13, 14, 455 N.E.2d

1285 (1983). The co-defendant must be given the chance to controvert evidence

presented at a default hearing. Id. at 15.



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       {¶ 28} Here, the record shows Progressive had notice of the assessment of

damages hearing on the default judgment against South’s estate, but did not attend. The

issue of Progressive’s standing to attend the hearing was not raised. Progressive was

offered the opportunity to participate in the hearing, but chose not to do so.

       {¶ 29} We find the default judgment against South’s estate is binding on

Progressive as Progressive had a reasonable opportunity to protect its interest by

participating in the assessment of damages hearing.

       {¶ 30} The issue before us is whether Progressive was entitled to reduce the limits

of liability under Part III of the insurance policy because of the sums paid to appellant by

or on behalf of Tucker and Estes.

       {¶ 31} A review of the Progressive insurance policy shows the language plainly

and clearly provides that Progressive will pay damages that an insured is legally entitled

to recover from an uninsured motorist because of bodily injury, reduced by sums paid

because of bodily injury by or on behalf of persons or organizations that may be legally

responsible. The term “legally responsible” is not defined in the policy, therefore the

plain and ordinary meaning must be applied.

       {¶ 32} It is undisputed that appellant is legally entitled to recover from South’s

estate the amount of $2,907,522.44 because of bodily injuries, and Progressive is

obligated to pay appellant $250,000 in UM benefits, “reduced by * * * all sums paid

because of bodily injury or property damage by or on behalf of any persons or

organizations that may be legally responsible.” Here is where the dispute lies.



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Progressive insists Tucker and Estes are legally responsible because Tucker failed to

maintain an assured clear distance, while appellant maintains Tucker and Estes cannot

and may not be legally responsible because the judgment against South establishes South

was the sole and proximate cause of Barnhiser’s injuries.

                       The Law of Liability/Legal Responsibility

       {¶ 33} The assured-clear-distance statute, R.C. 4511.21(A), states “no person shall

drive any motor vehicle * * * in and upon any street or highway at a greater speed than

will permit the person to bring it to a stop within the assured clear distance ahead.” A

violation of this statute is negligence per se. Pond v. Leslein, 72 Ohio St.3d 50, 53, 647

N.E.2d 477 (1995). However, “[w]here conflicting evidence is introduced with respect to

the assured-clear-distance-ahead provision (R.C. 4511.21[A]), the issue of whether an

object is reasonably discernible on a highway during nighttime hours is usually a

question of fact for a jury to determine.” Sharp v. Norfolk & W. Ry. Co., 36 Ohio St.3d

172, 522 N.E.2d 528 (1988), syllabus.

       {¶ 34} Negligence per se does not equate to liability per se. Merchants Mut. Ins.

Co. v. Baker, 15 Ohio St.3d 316, 318, 473 N.E.2d 827 (1984). A finding of negligence

per se “does not mean that [such] negligence was the sole proximate cause, or even a

proximate cause, of the collision.” Smiddy v. The Wedding Party, 30 Ohio St.3d 35, 40,

506 N.E.2d 212 (1987). Where reasonable minds could differ as to proximate cause, it is

an issue to be determined by the trier of fact. Id.




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       {¶ 35} Furthermore, a settlement is not tantamount to admitting liability or

responsibility. Fidelholtz v. Peller, 81 Ohio St.3d 197, 201, 690 N.E.2d 502 (1998).

“Defendants settle for many reasons, such as the avoidance of bad publicity and litigation

costs, the possibility of an adverse verdict, and the maintenance of favorable commercial

relationships.” Id.

       {¶ 36} A summary of some of the evidence submitted by the parties follows.

                        Transcript of Tucker’s Interview

       {¶ 37} In his interview with police, Tucker stated that right before the accident, he

was coming from Columbus, Ohio and heading to Flint, Michigan. He drives the Flint to

Columbus and back to Flint trip every night and has been doing it for one and a half to

two years. Tucker slept the day before from about 9:30 or 10:00 a.m. to about 5:30 p.m.,

then had supper. He did not have any alcohol to drink. When asked if he had any trouble

sleeping during the day, Tucker said, “[y]eah, it’s just like everybody else trying to sleep

during the day, you know. * * * I was, I was alert.”

       {¶ 38} Tucker started off the night at about 8:00 p.m., and left the yard around

8:30 p.m. He did a pre-trip inspection on his truck and did not have any trouble with the

truck. He arrived in Columbus at 1:00 a.m. Tucker ate a sandwich at 2:00 a.m. and had

some coffee. Tucker said the weather was clear, there was hardly any traffic. Just before

the accident, which occurred around 5:00 a.m., Tucker was operating his truck in the

right- hand lane of the highway, traveling at about 60 m.p.h., when he came upon a dark

car with no lights in his lane. Tucker recalled, “it wasn’t real dark * * * Must have been



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dark enough, I guess, because I just, I didn’t see that car until I was, I was right on it.”

Tucker “jumped on the brakes” and “scrubbed off some speed” before hitting the vehicle.

       {¶ 39} At the time of the accident, Tucker was wearing his seatbelt and was not

talking on his cell phone or texting. He was 65 years old and was on medication for high

blood pressure, gout and edema in his legs.

                               Other Evidence in the Record

       {¶ 40} Progressive and appellant both attached uncertified excerpts of witness

testimony from Tucker’s criminal trial as exhibits to their respective reply and surreply.

There is no indication on the docket that the full transcript of Tucker’s criminal trial was

filed with the trial court or with this court. The excerpts do not fall under any of the types

of evidence a court may consider when determining a summary judgment motion, nor

were the portions of the trial transcript authenticated as required by Civ.R. 56(C).

However, it has been recognized that while a court need not consider improper summary

judgment evidence, a court may consider such evidence if no objection is raised.

Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684, 672 N.E.2d 1081 (6th Dist.1996).

Here, since both parties offered uncertified transcript excerpts and they were considered

by the trial court, we will also consider the excerpts in making our determination.

       {¶ 41} The witness testimony, offered by Progressive and appellant, mainly

focused on the lighting and visibility in the area where the accidents occurred and

whether South’s truck was discernible. The witnesses were asked and gave conflicting

accounts of whether the headlights on South’s truck were on or off as South’s truck sat in



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the right- hand lane of the highway. In addition, the witnesses gave differing accounts of

whether the dome light inside of South’s truck was on or off. There was also some

witness testimony about the lack of braking sounds before Tucker’s truck struck South’s

pick-up.

       {¶ 42} A review of all of the evidence in the record shows there are genuine issues

of material fact as to whether Tucker was negligent, and if so, whether Tucker’s

negligence was a proximate cause of Barnhiser’s injuries. Thus, questions of fact exist as

to whether Tucker and Estes may be legally responsible for Barnhiser’s injuries.

Therefore, the trial court erred in granting summary judgment to Progressive.

Accordingly, appellant’s assignment of error is well-taken.

       {¶ 43} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is reversed. Costs to appellee, pursuant to App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



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           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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