[Cite as King v. Wachauf, 2013-Ohio-2498.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




SANDRA K. KING, EXECUTOR OF
THE ESTATE OF BARRY L. KING,
                                                         CASE NO. 2-12-10
        PLAINTIFF-APPELLANT,

        v.

JENNIFER M. WACHAUF, ET AL.,                             OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2011 CV 0242

                                    Judgment Affirmed

                             Date of Decision: June 17, 2013




APPEARANCES:

        J. Alan Smith for Appellant

        Robert B. Fitzgerald for Appellee, Hamilton Mutual Ins. Co.
Case No. 2-12-10



PRESTON, P.J.

          {¶1} Plaintiff-appellant Sandra K. King (“Sandra”), the executor for the

estate of Barry L. King, brings this appeal from the judgment of the Court of

Common Pleas of Auglaize County granting summary judgment in favor of

defendant-appellee, Hamilton Mutual Insurance Company (“Hamilton”).           We

affirm.

          {¶2} On September 12, 2009, Sandra’s husband, Barry L. King (“Barry”),

was driving his motorcycle on County Road 25A. (Complaint, Doc. No. 1, ¶ 4).

Defendant-appellee, Jennifer M. Wachauf (“Wachauf”), pulled into the path of

Barry’s motorcycle causing an accident. (Id.). Barry was injured and taken to a

hospital for treatment where he subsequently died from his injuries on September

24, 2009. (Id. at ¶ 5-6, 12). At the time of the accident, both Barry and Sandra

were named insureds on an automobile policy issued by Hamilton. (Id. at ¶ 17);

(Id., Ex. 1, attached).     The policy provided underinsured motorists (“UIM”)

coverage. (Id., Ex. 1, attached). Barry also had a motorcycle insurance policy

through defendant-appellee, Progressive Specialty Insurance Co. (“Progressive”)

at the time of the accident. (Id., Ex. 2, attached).

          {¶3} On September 9, 2011, Sandra filed a complaint individually and as

the executor of Barry’s estate against Wachauf, John Does 1 and 2, Progressive,



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and Hamilton. (Id.).1 Sandra alleged Wachauf acted negligently and caused

Barry’s death. (Id. at ¶ 5-6). The suit claimed damages for personal injury,

survivorship, loss of consortium, and wrongful death. (Id. at ¶ 5-9, 11-12). The

suit also sought declaratory judgment against Progressive and Hamilton for

coverage under the Un-insured/Underinsured Motorist (“UM/UIM”) provisions of

their insurance policies. (Id. at ¶ 15-20).

        {¶4} Hamilton filed its answer on October 13, 2011. (Doc. No. 11). On

February 8, 2012, Hamilton filed a motion for summary judgment arguing that the

“other-owned auto exclusion” contained in their policy prohibited coverage in this

case. (Doc. No. 25). The trial court granted Hamilton’s motion for summary

judgment on May 14, 2012 and certified the judgment as a final, appealable order

pursuant to Civ.R. 54(B). (Doc. No. 38).

        {¶5} Sandra filed a notice of appeal on May 31, 2012. (Doc. No. 42).

Sandra now appeals raising the following assignment of error:

                                     Assignment of Error

        The trial court erred by granting summary judgment in favor of
        [Hamilton], because although the “Other-Owned Auto
        Exclusion” contained in the [Hamilton] policy would exclude
        UIM motorist coverage for [Barry’s] claim for bodily injuries,
        the “Other-Owned Auto Exclusion” contained in the [Hamilton]
        policy is ambiguous and when construed in favor of the insured

1
  This case was previously filed and assigned Auglaize County case no. 2010 CV 0341, which Sandra
subsequently dismissed without prejudice. (Doc. No. 16). The trial court in the present case (2011 CV
0242) granted Hamilton’s motion to transfer discovery, including Hamilton’s previous motion for summary
judgment, from the dismissed case to the present case. (Doc. No. 17-17A).

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       [Sandra], does not exclude from UIM coverage her separate
       claims for common law loss of consortium and for benefits under
       the wrongful death statute where there is no evidence (or even
       an allegation) in the record that [Sandra], owned the motorcycle
       or that she “occupied” or was “struck by” the motorcycle
       involved in the accident.

       {¶6} The sole assignment of error challenges the granting of summary

judgment. Specifically, Sandra argues that while the “other-owned automobile”

exclusion prevents her husband, Barry, from recovering under the UIM portion of

the Hamilton policy, it does not preclude her recovery. Sandra argues that the

Hamilton UIM coverage language is ambiguous and subject to different

interpretations, one of which entitles her to coverage. In particular, Sandra argues

that she is an “insured” under the terms of the Hamilton policy legally entitled to

recover from the owner/operator (Wachauf) of an underinsured motor vehicle for

“bodily injury” sustained by “an insured,” her husband, Barry. Sandra argues that

an ambiguity must be interpreted to her benefit and against Hamilton as the

drafter; and therefore, she is entitled to UIM coverage under the policy.

       {¶7} When reviewing a motion for summary judgment, courts must

proceed cautiously and award summary judgment only when appropriate. Franks

v. The Lima News, 109 Ohio App.3d 408, 411-412 (3d Dist.1996).               Before

granting summary judgment, the court must determine that “(1) no genuine issues

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

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Case No. 2-12-10


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.”

Civ.R. 56(C); State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589 (1994).

When reviewing the judgment of the trial court, an appellate court reviews the

case de novo. Franks at 411-412, citing Koos v. Cent. Ohio Cellular, Inc., 94 Ohio

App.3d 579, 588 (8th Dist.1994).

       {¶8} The issue in this case is whether the language of Hamilton’s UIM

coverage is ambiguous. “An insurance policy is a contract whose interpretation is

a matter of law.” Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306,

2007-Ohio-4917, ¶ 7, citing Sharonville v. Am. Employers Ins. Co., 109 Ohio

St.3d 186, 2006-Ohio-2180, ¶ 6.       To determine a contract’s interpretation, a

reviewing court must give effect to the parties’ intent upon examination of the

contract as a whole, guided by the presumption that the parties’ intent is reflected

by the language of the policy. Id., citing Westfield Ins. Co. v. Galatis, 100 Ohio

St.3d 216, 2003-Ohio-5849, ¶ 11 and Kelly v. Med. Life Ins. Co., 31 Ohio St.3d

130 (1987), paragraph one of the syllabus. “When the language of a written

contract is clear, a court may look no further than the writing itself to find the

intent of the parties.” Cincinnati Ins. Co. at ¶ 7, citing Alexander v. Buckeye Pipe

Line Co., 53 Ohio St.2d 241 (1978), paragraph two of the syllabus. A contract is




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Case No. 2-12-10


unambiguous as a matter of law if it can be given a definite legal meaning. Id.,

citing Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.2000).

       {¶9} While ambiguity in an insurance contract is construed against the

insurer and in favor of the insured, a court should not apply this rule if it results in

an unreasonable interpretation of the words of the policy. Cincinnati Ins. Co. at ¶

8, citing King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (1988), syllabus and

Morfoot v. Stake, 174 Ohio St. 506 (1963), paragraph one of the syllabus.

       {¶10} The Hamilton UIM coverage provides, in pertinent part:

       Insuring Agreement

       A. We will pay compensatory damages which an “insured” is
       legally entitled to recover from the owner or operator of an
       “underinsured motor vehicle” because of “bodily injury”:

       1.    Sustained by an “insured”; and

       2.    Caused by an accident

       The owner’s or operator’s liability for these damages must arise
       out of the ownership, maintenance or use of the “underinsured
       motor vehicle”.

       ***

       B.    “Insured” as used in this endorsement means:

       1.    You or any “family member”.

       2.    Any other person “occupying” “your covered auto”.




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       3. Any person for damages that person is entitled to recover
       because of “bodily injury” to which this coverage applies
       sustained by a person described in 1. or 2. above.

       ***

       Exclusions

        A. We do not provide Underinsured Motorists Coverage for
        “bodily injury” sustained:

       1. By an “insured” while “occupying”, or when struck by, any
       motor vehicle owned by that “insured” which is not insured for
       this coverage under this policy. This includes a trailer of any
       type used with that vehicle.

       2. By any “family member” while “occupying”, or when
       struck by, any motor vehicle you own which is insured for this
       coverage on a primary basis under any other policy.

(Doc. No. 1, Ex. 1, Hamilton Policy, UIM Endorsement at 1-2) (Emphasis added).

       {¶11} For purposes of the summary judgment motion, Hamilton and Sandra

stipulated to the following basic facts. First, Wachauf negligently caused the

accident.   Second, Barry was the sole owner of the motorcycle.        Third, the

motorcycle was not covered by the Hamilton policy. Fourth, Sandra was not a

passenger on the motorcycle and was not struck by the motorcycle or Wachauf’s

vehicle. Fifth and finally, the parties agreed that Barry would not be entitled to

recover under the UIM policy because of the “other automobile exclusion.” The

question is whether the UIM policy is ambiguous and would allow Sandra to

recover under it.


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       {¶12} The Court of Appeals for the Sixth Appellate District was presented

with a similar case in Bailey v. Progressive Ins. Co., et al., 6th Dist. No. H-03-043,

2004-Ohio-4853. The husband in that case, like Barry herein, was injured while

riding his motorcycle after being struck by another driver. Id. at ¶ 2. At the time

of the accident, the husband’s motorcycle was insured through Progressive, and

Progressive paid the husband and wife the policy limit of $12,500.00. Id. at ¶ 3.

The couple also sought UM/UIM coverage for the accident through their

American Family Insurance Group automobile insurance policy, which covered a

1997 automobile.      Id.   The trial court granted American Family summary

judgment on the couple’s claim. Id. On appeal, the couple argued that the trial

court erred in granting the summary judgment on the UM/UIM coverage claim

under the American Family insurance policy. Id. at ¶ 12. The Court of Appeals

disagreed, however, citing the policy’s other-owned auto exclusion, which

provided, in relevant part: “[t]his coverage does not apply to bodily injury to a

person * * * [w]hile occupying, or when struck by, a motor vehicle that is not

insured under this part, if it is owned by you or any member of your household.”

Id. at ¶ 15-16. The Court found that it was undisputed that the motorcycle was not

a covered vehicle listed in the declarations page of the insurance policy; and

therefore, pursuant to R.C. 3937.18 (as amended by S.B. 261, eff. 9-21-00), the




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couple was barred from recovering by virtue of the other-owned auto exclusion

under the UM/UIM portion of the insurance policy. Id. at ¶ 18.

      {¶13} Likewise, the Court of Appeals for the Fifth Appellate District was

presented with a similar case in Siciliano v. Natl. Mut. Ins. Co., 5th Dist. No.

06CA61, 2007-Ohio-6508. The husband in that case, like Barry herein, died as a

result of an accident while he was driving a motorcycle. Id. at ¶ 1. At the time of

the accident, the husband was a named insured on an automobile policy issued by

National Mutual Insurance Company, which had UM/UIM coverage. Id. at ¶ 2.

The motorcycle the husband was driving at the time of the accident was not listed

as a covered vehicle under this policy. Id. Like Sandra herein, the wife filed a

wrongful death claim against the tortfeasor and declaratory action against National

Mutual for coverage under the UM/UIM portion of the policy. Id. at ¶ 3. The trial

court granted summary judgment in favor of National Mutual. Id. On appeal, the

Court of Appeals determined that the wife was not entitled to UM/UIM coverage

under the National Mutual insurance policy, because the husband was operating a

motorcycle which was not covered under the policy, and the policy contained an

other-owned automobile exclusion, which was valid and enforceable under R.C.

3937.18 (as amended by S.B. 97, eff. 10-31-01). Id. at ¶ 30-34.

      {¶14} This Court was presented with an analogous case in Tuohy v. Taylor,

3d Dist. No. 4-06-23, 2007-Ohio-3597. In that case, a mother and father sought


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Case No. 2-12-10


UM/UIM coverage under their Westfield automobile insurance policy for the

death of their son, who was driving a vehicle that was titled in his own name and

not insured under his parents’ automobile policy at the time of the accident. Id. at

¶ 1-2. The trial court granted summary judgment in favor of Westfield on the

parents’ claims. Id. at ¶ 5. On appeal the parents, like Sandra herein, argued that

the policy’s other-owned auto exclusion did not preclude their wrongful death

claim. Id. at ¶ 11. Westfield, like Hamilton herein, argued that the parents’ claims

were barred under the other-owned automobile exclusion because their son was

driving a vehicle not covered under their policy. Id. at ¶ 12. The language of the

Westfield UM/UIM coverage was exactly the same as the language of the

Hamilton UM/UIM coverage, and the other-owned exclusions were substantially

similar. Id. at ¶ 18. After reviewing the policy language and relevant case law,

including Bailey and Justice Lanzinger’s dissent in Kotlarczyk v. State Farm Mut.

Auto. Ins. Co., 6th Dist. No. L-03-1103, 2004-Ohio-3447, we concluded that

“[t]he exclusion clearly indicates that the parties intended the policy to limit

coverage to the vehicles specifically covered under the insurance policy.” Id. at ¶

19. Since the son was operating a motorcycle that was not covered under his

parents’ insurance policy, we concluded “the ‘other owned auto’ exclusion * * *

clearly and unambiguously precluded coverage of [the parents’] claims,

individually, and the claim’s [sic] of [the son’s] estate.” Id. at ¶ 24.


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        {¶15} Sandra has failed to persuade us that Hamilton’s UM/UIM coverage

is ambiguous. It is exactly the same language contained in Westfield’s insurance

policy we found unambiguous in Touhy. Furthermore, we believe that the other-

owned auto exclusion clearly and unambiguously precludes coverage in this case.

As the Ohio Supreme Court has more recently noted, “other-owned-auto

exclusions that disclaim UM coverage represent a clear intent to limit coverage

[to] bodily injuries incurred in ‘the vehicles specifically covered under the

insurance policy.’” Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-

4838, ¶ 26, quoting Tuohy, 2007-Ohio-3597, at ¶ 19 and citing Kotlarczyk, 2004-

Ohio-3447, at ¶ 61 (Lanzinger, J., dissenting) (“The stated intent is to limit

coverage to vehicles specifically identified to the policy”). Not only does this

result align with the language of the insurance policy, it comports with common

sense and the practice of the parties herein. Barry obtained separate insurance for

his motorcycle through Progressive—evidence of the fact that Barry knew the

motorcycle was not covered under his Hamilton automobile policy.2

        {¶16} The cases Sandra relies upon are not persuasive. Jones v. Progressive

Preferred Ins. Co. involved UM/UIM coverage language that was substantially

different than the UM/UIM coverage language in the Hamilton policy, and Jones


2
  It is highly doubtful that motorcycles generally, let alone Barry’s motorcycle, are even covered under the
Hamilton policy since motorcycles are not included under the definition of a “newly acquired auto,” and
“[a]ny vehicle which: [h]as fewer than four wheels” is excluded from liability coverage. (Doc. No. 1, Ex.
1).

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did not involve an other-owned auto exclusion like this case. 169 Ohio App.3d

291, 2006-Ohio-5420 (9th Dist.). While the UM/UIM language of the insurance

policy in Brunn v. Motorists Mut. Ins. Co., 5th Dist. No. 2005 CA 0022, 2006-

Ohio-33, ¶ 31 was similar to the language in the Hamilton policy, the continuing

validity of the Court’s decision in Brunn is questionable following the Fifth

District’s more recent decision in Siciliano, supra. In fact, the dissenting judge in

Siciliano relies, in part, upon Brunn in support of her position that the insurance

policy is ambiguous. 2007-Ohio-6508, at ¶ 50. Aside from that, the reasoning of

the leading author’s opinion in Brunn is flawed since it relied upon cases that were

decided under prior versions of R.C. 3937.18, including our decision in Adams v.

Crider, 3d Dist. Nos. 10-02-18 and 10-02-19, 2004-Ohio-535, and cases that we

have since rejected, like the majority opinion in Kotlarczyk, 2004-Ohio-3447.

       {¶17} Likewise, Aldrich v. Pacific Indemn. Co. was decided under a prior

version of R.C. 3937.17 when the validity of enforcing the other-owned auto

exclusions to UM/UIM coverage was in question as it related to claims, such as

wrongful death and loss of consortium claims, brought by insureds who were not

occupying the “other-owned auto” at the time of the accident. 7th Dist. No. 02 CO

54, 2004-Ohio-1546. This explains why Aldrich relies upon decisions like ours in

Adams, decided under the H.B. 261 version of R.C. 3937.18 (eff. 9-3-97), and the

Ohio Supreme Court’s decision in Moore v. State Auto. Mut. Ins. Co., 88 Ohio


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Case No. 2-12-10


St.3d 27, 29-30 (2000). Just a few months after Moore was decided, however, the

General Assembly amended R.C. 3937.18 by enacting H.B. 267 (eff. 9-21-00), to

supersede the holding in Moore. H.B. 267, § 3. See also Adams, 2004-Ohio-535, ¶

20, Fn. 7. More recently, the Ohio Supreme Court has determined that Moore

should be limited to the 1994 S.B. 20 version of R.C. 3937.18.             Hedges v.

Nationwide Mut. Ins. Co., 109 Ohio St.3d 70, 2006-Ohio-1926, syllabus.

       {¶18} Finally, Sandra cites to Am. Modern Home Ins. Co. v. Safeco Ins. Co.

of Illinois, 11th Dist. No. 2007-L-044, 2007-Ohio-6247. Admittedly, the facts of

the case are analogous and the UM/UIM coverage language and other-owned auto

exclusion in the insurance policy at issue in that case are identical to that provided

in the Hamilton policy. However, we decline to follow Am. Modern Home Ins.

Co. because it errantly relies upon Jones, supra, which did not involve an other-

owned auto exclusion and had different policy language, and errantly relies upon

Aldrich, supra, which we have already explained was based upon old case law. Id.

at ¶ 44. Judge Grendell in her concurring opinion also relies upon Brunn, which

has since been called into question and also involved a prior version of R.C.

3937.18, and Willett v. GEICO Gen. Ins. Co., 10th Dist. No. 05AP-1264, 2006-

Ohio-3957, which, in turn, relied upon Brunn and Aldrich. Id. at ¶ 49.

       {¶19} Upon review of the Hamilton UIM coverage language and the other-

auto exclusion, we conclude that Sandra is precluded from coverage because her


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husband, Barry, was operating a vehicle that was not covered under the Hamilton

policy (“other-owned automobile”) at the time of the accident. Consequently, the

trial court did not err in granting Hamilton’s motion for summary judgment.

       {¶20} Sandra’s assignment of error is, therefore, overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS, J., concurs.

/jlr



WILLAMOWSKI, J., Concurring Separately.

       {¶22} I am writing separately because I fully agree with the majority that

the contract before us is unambiguous. I concur that with the current direction of

the case law, we can infer that the intent of the parties was to prevent recovery for

any claim arising from an accident in an “other owned auto”. However, this intent

is inferred by the courts from the fact that the parties refused coverage for the

other vehicle, not because the actual language of the contract states such. A

review of the language of the contract itself specifies that coverage for bodily

injury as a result of an accident while operating or occupying an “other owned

auto” is excluded. The plain language of the contract does not specify that any


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Case No. 2-12-10


other claim, such as a wrongful death claim, is excluded. The law, as correctly set

forth by the majority, requires that the intent of the parties be determined from the

language found within the four corners of the document. See Cincinnati Ins. Co.

v. CPS Holdings, Inc., supra. As quoted by the majority, “[w]hen the language of

a written contract is clear, a court may look no further than the writing itself to

find the intent of the parties.” Id. at ¶17. Yet the current state of the law says that

we can look at the “intent” of the parties from outside the contract to determine

whether a contract interpretation is “unreasonable.” Id. However, the idea of

determining the “intent” of the parties to determine the reasonableness of holding

a contract as written against the drafter, by its very nature requires us to look

beyond the four corners of the document. These ideas seem to be inconsistent and

may need to be further examined by the Supreme Court of Ohio. Having said that,

I will follow the current status of the law and concur with the conclusion of the

majority.




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