[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Sauer v. Crews, Slip Opinion No. 2014-Ohio-3655.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-3655
   SAUER ET AL. v. CREWS ET AL., APPELLEES; CENTURY SURETY COMPANY,
                                      APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
     it may be cited as Sauer v. Crews, Slip Opinion No. 2014-Ohio-3655.]
Insurance—Commercial general-liability policy—Exclusions from coverage—
        Trailers—Policy definition of “mobile equipment” does not include
        trailers—Provision excluding trailers from coverage not ambiguous—In
        determining whether insurance policy provision is ambiguous, court must
        consider context in which provision is used.
(No. 2013-0283—Submitted February 26, 2014—Decided September 2, 2014.)
     APPEAL from the Court of Appeals for Franklin County, No. 12AP-320,
                                   2012-Ohio-6257.
                               ____________________
                              SYLLABUS OF THE COURT
In determining whether an insurance policy provision is ambiguous, a court must
        consider the context in which the provision is used.
                               ____________________
                                   SUPREME COURT OF OHIO




           LANZINGER, J.
           {¶ 1} In this case, we are again asked to consider the language of an
insurance policy. Specifically, the question is, Should ambiguity be determined
only after the language at issue is examined in light of the overall context of the
policy? We answer in the affirmative, i.e., that in determining whether a policy
provision is ambiguous, courts must consider the context in which the specific
language of the provision is used. Based on this rule, we conclude that the policy
provision in this case is not ambiguous and does not provide coverage.
                                      I. Case Background
           {¶ 2} On November 24, 2006, Julia S. Augenstein’s vehicle collided
with a flatbed trailer owned by appellees, Stinson J. Crews and Stinson Crews
Trucking (collectively, “Crews”). During paving work on Columbus Street in
Grove City, Ohio, Crews had parked without a permit in a no-parking zone and
blocked most of Augenstine’s lane of travel. Augenstine, who was 86 years old,
died as a result of the injuries she sustained in the accident.
           {¶ 3} The executors of Augenstine’s estate, Sharon A. Sauer and Karen
S. Streets, filed a survivorship action and an action alleging wrongful death
against Crews; Raymond L. Jackson, the driver of a dump truck involved in the
paving work; and Mariann Jackson, the owner of the dump truck driven by
Raymond.1 Crews then filed a third-party complaint against appellant, Century
Surety Company (“Century”), seeking a declaration that Crews is entitled to
coverage in the wrongful-death action as an insured under a commercial general-
liability (“CGL”) policy issued by Century. Century counterclaimed, seeking its
own declaration that the CGL policy excludes coverage in the wrongful-death
action.      Before trial, the liability and coverage portions of the case were
bifurcated. The court held a bench trial on the issue of liability.


1
    Raymond L. Jackson and Mariann Jackson are not parties to this appeal.




                                                 2
                               January Term, 2014




       {¶ 4} The trial court found that Crews’s negligence was the sole
proximate cause of the accident and entered a judgment of $251,552.04 in
compensatory damages against Crews. The judgment entry stated that there was
no just cause for delay, thus permitting an immediate appeal even though the
third-party complaint and counterclaim had not been resolved.
       {¶ 5} On appeal, Crews argued that it was not solely liable for the
accident. Crews asserted that Augenstein was herself partly liable due to her own
negligence. Crews contended that Augenstein failed to maintain an assured clear
distance ahead in violation of R.C. 4511.21(A), she operated her motor vehicle
while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), and
she was driving with significantly reduced vision due to macular degeneration.
The Tenth District Court of Appeals rejected these arguments and affirmed the
judgment of the trial court assigning Crews sole liability for the accident. Sauer
v. Crews, 10th Dist. Franklin No. 10AP-834, 2011-Ohio-3310.
       {¶ 6} On remand, both Crews and Century agreed to submit Crews’s
declaratory-judgment action to the trial court for a decision on the briefs. After
examining the CGL policy that Century issued to Crews, the trial court’s analysis
focused upon a provision in the policy providing that “mobile equipment” is not
included within the definition of “auto” and is therefore not excluded from
coverage. The trial court wrote that to determine whether the trailer qualified as
“mobile equipment,” it had to decide whether the paving machinery that Crews
transported on the trailer was “cargo” as used in the policy. The trial court found
the term “cargo,” which is not defined in the policy, to be ambiguous and
accordingly construed this language against Century, the insurer.       The court
concluded that the CGL policy provides coverage in this underlying wrongful-
death action.
       {¶ 7} On appeal, Century argued that the trial court had misinterpreted
the language of the CGL policy.       Century asserted that the trial court had



                                        3
                             SUPREME COURT OF OHIO




incorrectly determined that the trailer is “mobile equipment” as defined by the
policy and that even if the trailer were mobile equipment, the claim involving the
trailer was not covered because of a provision in the CGL policy excluding
coverage for claims arising out of the transport of mobile equipment. The Tenth
District disagreed and affirmed the trial court’s judgment that the CGL provides
coverage.
       {¶ 8} Century appealed to this court, and we accepted Century’s two
propositions of law:


               1. A registered commercial flatbed trailer, used to haul
       construction equipment to and from job sites, is not a vehicle
       maintained for purposes other than transportation of cargo within
       the meaning of a commercial general liability policy, and,
       therefore, claims arising out of the ownership or use of such a
       trailer are excluded from coverage under the terms of such
       policies.
               2.      When considering whether an insurance policy
       provision is ambiguous, a reviewing court must consider the
       context in which the policy provision is used—particularly where
       that context pertains to a highly regulated commercial activity such
       as the use of commercial vehicles upon public roadways.


135 Ohio St.3d 1458, 2013-Ohio-2285, 988 N.E.2d 578.
                               II. Legal Analysis
       {¶ 9} The outcome of this cases hinges upon whether the CGL policy
insured the trailer used by Crews. Century argues in its second proposition of law
that the lower courts improperly determined that the relevant policy provisions
were ambiguous. We accordingly address this second proposition of law, which




                                        4
                                January Term, 2014




deals with the proper method of interpreting the language of insurance policies,
before addressing the first proposition of law, which asks us to apply that method
to the particular language in the CGL policy before us.
A. The Context in Which a Provision Is Used Must Be Considered in Determining
Whether Ambiguity Exists
       {¶ 10} “An insurance policy is a contract whose interpretation is a matter
of law.” Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180,
846 N.E.2d 833, ¶ 6. “[W]ords and phrases used in an insurance policy must be
given their natural and commonly accepted meaning, where they in fact possess
such 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., 70 Ohio St.2d 166, 167-168,
436 N.E.2d 1347 (1982), citing Dealers Dairy Prods. Co. v. Royal Ins. Co., 170
Ohio St. 336, 164 N.E.2d 745 (1960), paragraph one of the syllabus.
       {¶ 11} We have stated that “an exclusion in an insurance policy will be
interpreted as applying only to that which is clearly intended to be excluded.”
(Emphasis sic.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio
St.3d 657, 665, 597 N.E.2d 1096 (1992).          Furthermore, “[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.’ ” Sharonville at ¶ 6, quoting
King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988),
syllabus.
       {¶ 12} We have previously discussed the effect of ambiguity in an
insurance contract:


               Although ambiguous provisions in an insurance policy
       must be construed strictly against the insurer and liberally in favor
       of the insured, see, e.g., King v. Nationwide Ins. Co., 35 Ohio St.3d



                                         5
                            SUPREME COURT OF OHIO




        208, 519 N.E.2d 1380, syllabus, it is equally well settled that a
        court cannot create ambiguity in a contract where there is none.
        See, e.g., Hacker v. Dickman (1996), 75 Ohio St.3d 118, 119, 661
        N.E.2d 1005. Ambiguity exists only when a provision at issue is
        susceptible of more than one reasonable interpretation. Id. at 119-
        120, 661 N.E.2d 1005.


Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666,
¶ 16.
        {¶ 13} Century argues that the language of the provisions in its policy
must be examined in the context of the overall policy and with respect to the
policy’s purpose. We agree. We have previously stated that insurance policies
cannot be read in an overly circumscribed fashion. Gomolka, 70 Ohio St.2d at
172, 436 N.E.2d 1347. “One may not regard only the right hand which giveth, if
the left hand also taketh away. The intention of the parties must be derived
instead from the instrument as a whole, and not from detached or isolated parts
thereof.” Id., citing Stickel v. Excess Ins. Co. of Am., 136 Ohio St. 49, 53, 23
N.E.2d 839 (1939), and Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136, 68
N.E. 706 (1903).
        {¶ 14} Since courts must examine the insurance policy as a whole to
determine the parties’ intentions, it follows that courts must also examine the
policy as a whole when determining whether a word or phrase of the policy is
ambiguous. We accordingly hold that in determining whether an insurance policy
provision is ambiguous, a court must consider the context in which the provision
is used.
        {¶ 15} In this case, the trial court and the Tenth District found the word
“cargo” to be ambiguous. The analysis of those courts, however, isolated the
word “cargo,” rather than examining the intended scope of the policy as a whole.




                                        6
                                January Term, 2014




A consideration of the overall context of the policy would show that the policy is
unambiguous in excluding the trailer from coverage.
B. The Language of the CGL Policy
         {¶ 16} The insuring portion of the CGL policy provides that Century “will
pay those sums that the insured becomes legally obligated to pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
Then the policy sets forth the exclusions that state what the insurance does not
cover.


                SECTION I—COVERAGES
                COVERAGE A BODILY INJURY AND PROPERTY
         DAMAGE LIABILITY
                ***
                2. Exclusions
                This insurance does not apply to:
                ***
                g. Aircraft, Auto Or Watercraft
                “Bodily injury” or “property damage” arising out of the
         ownership, maintenance, use or entrustment to others of any
         aircraft, “auto” or watercraft owned or operated by or rented or
         loaned to any insured. Use includes operation and “loading or
         unloading.”


(Capitalization and boldface sic.)
         {¶ 17} The CGL policy defines “auto” as:


                SECTION V—DEFINITIONS
                ***



                                         7
                             SUPREME COURT OF OHIO




               2. “AUTO” MEANS:
               a. A land motor vehicle, trailer or semitrailer designed for
       travel on public roads, including any attached machinery or
       equipment; or
               b. Any other land vehicle that is subject to a compulsory or
       financial responsibility law or other motor vehicle insurance law in
       the state where it is licensed or principally garaged.
               However, “auto” does not include “mobile equipment.”


(Boldface sic; italics added for emphasis.)
       {¶ 18} “Mobile equipment” is also defined in Section V of the policy:


               12. “Mobile equipment” means any of the following types
       of land vehicles, including any attached machinery or equipment:
               a. Bulldozers, farm machinery, forklifts and other vehicles
       designed for use principally off public roads;
               b.   Vehicles maintained for use solely on or next to
       premises you own or rent;
               c. Vehicles that travel on crawler treads;
               d.   Vehicles, whether self-propelled or not, maintained
       primarily to provide mobility to permanently mounted:
               (1) Power cranes, shovels, loaders, diggers or drills; or
               (2) Road construction or resurfacing equipment such as
       graders, scrapers or rollers;
               e. Vehicles not described in a., b., c. or d. above that are
       not self-propelled and are maintained primarily to provide mobility
       to permanently attached equipment of the following types:




                                         8
                                January Term, 2014




               (1)   Air compressors, pumps and generators, including
       spraying, welding, building cleaning, geophysical exploration,
       lighting and well servicing equipment; or
               (2) Cherry pickers and similar devices used to raise or
       lower workers;
               f.    Vehicles not described in a., b., c. or d. above
       maintained primarily for purposes other than the transportation of
       persons or cargo.


(Boldface sic; italics added for emphasis.)
       {¶ 19} Century argues that the policy is unambiguous, asserting that in
this case the trailer qualifies as an “auto” and is not “mobile equipment” under the
policy definitions. Crews counters, and the appellate court held, that the policy is
ambiguous because its failure to define the term “cargo” makes it unclear whether
the policy is intended to exclude the trailer from coverage. Crews asserts that the
policy’s ambiguity should be construed strictly against Century and that we
should accordingly hold that the trailer meets the definition of “mobile
equipment” under Section V(12)(f) of the policy and thus the policy provides
coverage for the trailer. We agree with Century that the policy is unambiguous
and does not provide coverage for the trailer.
C. The CGL Policy Does Not Provide Coverage
       {¶ 20} When viewing the CGL policy as a whole we conclude that the
policy clearly excludes the trailer from coverage in this case.       The fault in
Crews’s analysis is that it fixates upon a single word, “cargo,” and fails to
consider the intent of the policy as a whole.
       {¶ 21} The policy excludes coverage for any bodily injury or property
damage arising from the use of an “auto” by the insured. Section V(2)(a) of the
policy explicitly states that a “trailer” designed for travel on public roads is an



                                          9
                                     SUPREME COURT OF OHIO




“auto” for purposes of the policy.2 This provision establishes a fundamental
premise of the policy: trailers are excluded from coverage.
           {¶ 22} Crews is correct that the policy provides an exception to the “auto”
exclusion. Anything qualifying as “mobile equipment” as defined by the policy is
excepted from the definition of “auto.” Crews argues that the trailer qualifies as
“mobile equipment” pursuant to Section V(12)(f) of the policy. However, when
looking at this section in context, it is clear that the trailer does not qualify as
“mobile equipment.”
           {¶ 23} Section V(12) of the CGL policy lists specific types of land
vehicles that qualify as “mobile equipment.” Subsections (a) through (d) group
these specific types of vehicles into categories, such as vehicles maintained solely
on or next to premises rented or owned by the insured and vehicles that travel on
crawler treads. Subsections (e) and (f) are catchall provisions, but Crews relies
only on (f), which classifies the following as “mobile equipment”: “Vehicles not
described in a., b., c. or d. above maintained primarily for purposes other than the
transportation of persons or cargo.” (Boldface sic.) When read in context with
the rest of Section V(12), it is clear that the catchall provision of subsection f is
meant to classify as “mobile equipment” those land vehicles not specifically
named in Section V(12) that are of the same subclass of vehicles as those that are
named in the section. A trailer is not of the same subclass as the land vehicles
identified in Section V(12). It follows, then, that Section V(12)(f)’s catchall
provision does not apply to the trailer in this case and that it is excluded from
coverage pursuant to Section V(2)(a).
           {¶ 24} Because we conclude that the trailer does not belong to the
subclass of land vehicles set forth in Section V(12) of the CGL policy, the precise
definition of the word “cargo” as used in that section is irrelevant to our analysis.


2
    Crews concedes that the trailer in this case was designed for travel on public roads.




                                                   10
                                  January Term, 2014




We accordingly disagree with the lower courts’ conclusion that the CGL policy’s
failure to define the term “cargo” creates an ambiguity that, when construed in
favor of the insured, must be read in a way that provides coverage for the trailer.
Instead, we conclude that the plain language of the CGL policy clearly excludes
trailers from coverage as autos pursuant to Section V(2)(a) of the policy. We
finally note that because trailers do not fit into the subclass of land vehicles
described in Section V(12) of the CGL policy, we need not address the portion of
Century’s first proposition of law asking us to construe the phrase “maintained
primarily for purposes other than the transportation of persons or cargo” as found
in Section V(12)(f).
                                    III. Conclusion
          {¶ 25} When interpreting a provision in an insurance policy, courts must
look at the provision in the overall context of the policy in determining whether
the provision is ambiguous. The CGL policy issued by Century clearly provides
that trailers are excluded from coverage. We accordingly reverse the judgment of
the court of appeals and remand this case to the court of common pleas for
proceedings consistent with this opinion.
                                                                  Judgment reversed,
                                                                 and cause remanded.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, DEWINE, and O’NEILL, JJ.,
concur.
          PFEIFER, J., dissents and would dismiss the appeal as having been
improvidently accepted.
          PAT DEWINE, J., of the First Appellate District, sitting for FRENCH, J.
                               ____________________
          Plymale & Dingus, L.L.C., and M. Shawn Dingus, for appellees.
          Davis & Young and Richard M. Garner, for appellant.




                                           11
                           SUPREME COURT OF OHIO




       Koehler Neal, L.L.C., and Timothy J. Fitzgerald, urging reversal for
amicus curiae Ohio Association of Civil Trial Attorneys.
       Vorys, Sater, Seymour & Pease, L.L.P., Thomas E. Szykowny, and
Michael Thomas, urging reversal for amicus curiae Ohio Insurance Institute.
                         _________________________




                                       12
