[Cite as Sposito v. Krzynowek, 2014-Ohio-1151.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


JOHN SPOSITO,                                     :     OPINION

                 Plaintiff-Appellant,             :
                                                        CASE NO. 2013-A-0038
        - vs -                                    :

DAVID KRZYNOWEK,                                  :

                 Defendant,                       :

NATIONWIDE INSURANCE COMPANY                      :
OF AMERICA,
                                                  :
                 Defendant-Appellee.
                                                  :


Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012 CV
714.

Judgment: Affirmed.


Michael J. Feldman and Matthew A. Lallo, Lallo & Feldman Co., L.P.A., Interstate
Square Building I, 4230 State Route 306, #240, Willoughby, OH 44094 (For Plaintiff-
Appellant).

Joseph A. Ferrante, Nationwide Insurance Company, 323 Lakeside Ave., W., Suite
410, Cleveland, OH 44113 and Joyce V. Kimbler, 50 South Main Street, Suite 502,
Akron, OH 44308 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, John Sposito, appeals from the Judgment Entry of the

Ashtabula County Court of Common Pleas, granting summary judgment in favor of
defendant-appellee, Nationwide Insurance Company of America (Nationwide), and

dismissing Sposito’s Complaint. The issue to be determined by this court is whether an

insurance company’s exclusion of uninsured/underinsured motorist coverage to an

insured driver when he was driving a vehicle provided for his regular use by his

employer is void as against public policy. For the following reasons, we affirm the

decision of the lower court.

       {¶2}   On August 14, 2012, Sposito filed a Complaint in the Ashtabula County

Court of Common Pleas against David Krzynowek and Nationwide. The Complaint

asserted that Sposito was injured when Krzynowek negligently, and while under the

influence of alcohol, collided into the rear of Sposito’s parked motor vehicle on August

16, 2010.     It also alleged that Sposito had made a claim for damages under his

Nationwide policy, which included underinsured motorists benefits, and this claim was

“wrongfully refused.” Sposito requested compensatory and punitive damages in excess

of $25,000.

       {¶3}   Krzynowek filed his Answer on October 22, 2012.

       {¶4}   On October 23, 2012, Nationwide filed an Answer and Cross-Claim. In its

Cross-Claim, it requested indemnity or contribution from Krzynowek. Krzynowek filed

an Answer to the Cross-Claim on October 29, 2013.

       {¶5}   Sposito’s deposition was filed on February 28, 2013. In his deposition, he

stated that he was working as a mail carrier for the United States Postal Service (USPS)

on the date of the accident, when his parked work vehicle was struck from behind by

Krzynowek, causing Sposito, who had been sitting inside, to suffer injuries to his neck.

Pursuant to Sposito’s testimony, the vehicle he was driving on the date of the accident




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was a USPS vehicle that he used daily for mail deliveries, for approximately five to six

days a week, eight months out of the year. For the remaining months of the year, he

would drive various other vehicles furnished by the USPS.

          {¶6}   Nationwide filed a Motion for Summary Judgment on February 28, 2013.

It argued that Sposito was not entitled to underinsured motorist coverage under the

terms of his policy since, at the time of the accident, he was occupying a vehicle

provided to him by his employer, the USPS. Nationwide asserted that, under the terms

of   the     policy,   as   permitted   by   R.C.      3937.18,   Sposito   could   not   receive

uninsured/underinsured motorist coverage while he was driving or occupying a vehicle

furnished to him for “regular use.” Sposito’s insurance policy included the following

coverage exclusions related to the uninsured/underinsured motorist coverage:

          “A. This coverage does not apply to anyone for bodily injury[:]

          ***

          3. While any insured operates or occupies a motor vehicle * * * available

          for the regular use of * * * you or a relative, but not insured for Auto

          Liability coverage under this policy.”

          {¶7}   On April 26, 2013, Sposito filed a Brief in Opposition to the Motion for

Summary Judgment, arguing that the exclusion of coverage is in violation of public

policy.

          {¶8}   On May 29, 2013, a Stipulation for Dismissal with Prejudice was filed,

dismissing the claims against Krzynowek.

          {¶9}   On June 24, 2013, the trial court issued a Judgment Entry, granting

summary judgment in favor of Nationwide and dismissing Sposito’s claim. The court




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noted that the “exclusionary language in [Sposito’s] Nationwide automobile insurance

policy and the Ohio Uninsured Motor[ist] Statute, R.C. 3937.18, provide that Nationwide

is not legall[y] obligated to provide under-insured motorist coverage to [Sposito],” since

he was operating a vehicle provided to him by his employer when the collision occurred.

The court noted that this exclusion had been upheld by the Ohio Supreme Court in

Kenney v. Emps.’ Liab. Assur. Corp., Ltd., 5 Ohio St.2d 131, 214 N.E.2d 219 (1966).

       {¶10} Sposito timely appeals and raises the following assignment of error:

       {¶11} “The trial court committed prejudicial error in granting defendant-

appellee’s motion for summary judgment when it applied the ‘available for regular use’

exclusion in an uninsured/underinsured policy as found in R.C. 3937.18(I)(1) to the facts

of this case.”

       {¶12} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” 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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate

court to conduct an independent review of the evidence before the trial court without

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.

Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.




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        {¶13} Sposito argues that the trial court erred in granting summary judgment in

favor of Nationwide, since the purpose of uninsured motorists coverage is to protect

people, not vehicles, and that the “available for regular use” or “other owned auto”

exclusion in uninsured motorist coverage is unenforceable and void as against public

policy as a matter of law.1 He argues that since he was operating a government owned

vehicle, which he has no ability to insure, his own insurance should cover him.

        {¶14} Nationwide asserts that the cases cited by Sposito in an attempt to

distinguish Kenney are no longer applicable, following the amendment of R.C. 3937.18

by H.B. No. 261, which authorizes insurers to limit uninsured/underinsured motorist

coverage under certain circumstances.

        {¶15} Pursuant to R.C. 3937.18(I), “[a]ny policy of insurance that includes

uninsured motorist coverage, underinsured motorist coverage, or both uninsured and

underinsured motorist coverages may * * * include terms and conditions that preclude

coverage for bodily injury or death suffered by an insured under specified

circumstances.” One such exception precluding coverage, also known as the “available

for regular use” exception, occurs when “the insured is operating or occupying a motor

vehicle owned by, furnished to, or available for the regular use of a named insured * * *,

if the motor vehicle is not specifically identified in the policy under which a claim is

made, or is not a newly acquired or replacement motor vehicle covered under the terms

of the policy under which the * * * uninsured and underinsured motorist coverages are

provided.” R.C. 3937.18(I)(1); Spelich v. State Farm Ins. Co., 11th Dist. Trumbull No.


1. While this case specifically involves the “regular use” exception, “courts sometimes refer to exclusions
such as this, generally, as ‘other owned auto’ exclusions,” since these matters relate to whether the
insurance extends to cars not owned by the insured or included on his policy. Yoder v. Thorpe, 10th Dist.
Franklin Nos. 07AP-225 and 07AP-302, 2007-Ohio-5866, ¶ 26-27.



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2007-T-0043, 2007-Ohio-7128, ¶ 15 (“[o]ther owned vehicle exclusions are permitted to

be included in automobile insurance policies regarding uninsured motorist coverage”

under R.C. 3937.18).

      {¶16} Here, Sposito’s insurance policy contained the exact exclusion that is

permitted by R.C. 3937.81(I)(1). It denied coverage when Sposito was operating a

vehicle “available for * * * regular use,” but not covered under his insurance policy. This

court has held that, “in determining the validity of an exclusion of UM/UIM motorist

coverage, a court must determine whether the exclusion conforms with R.C. 3937.18,”

which is the case here. Westfield Ins. Co. v. Ellis, 11th Dist. Trumbull No. 2003-T-0093,

2004-Ohio-4393, ¶ 8.

      {¶17} In a case similar to the present one, which was relied upon by the lower

court in granting summary judgment in favor of Nationwide, the Ohio Supreme Court

held that when a police officer is assigned to work in a police vehicle for “122 of 164

working days, such a vehicle is as a matter of law ‘an automobile furnished for’ his

‘regular use’ within the meaning of such policy provisions” and it can be excluded from

insurance coverage. Kenney, 5 Ohio St.2d at 135, 214 N.E.2d 219. The court also held

that “regular use includes” an employee’s use of an automobile that “is only one of a

group of automobiles from which an automobile is regularly furnished to the named

insured by his employer.” Id. at 134. As in Kenney, Sposito was driving an automobile

furnished to him by his employer, which he regularly drove, and which falls under the

exception contained in R.C. 3937.81(I)(1).

      {¶18} Sposito does not dispute that his use of the USPS vehicle constituted

“regular use,” i.e., that he had “frequent, steady, constant, or systematic” use of the




                                             6
vehicle. Sanderson v. Ohio Edison Co., 69 Ohio St.3d 582, 589, 635 N.E.2d 19 (1994).

Instead, he argues that this court should apply the Ohio Supreme Court’s holding in

Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478, 639 N.E.2d 438 (1994), that

the purpose of uninsured motorist coverage is to protect “persons, not vehicles,” and

that “other owned vehicle” exclusions are not enforceable. Id. at 481-482.

        {¶19} In Martin, the Ohio Supreme Court held that “[a]n automobile liability

insurance policy provision which eliminates uninsured motorist coverage for persons

insured thereunder who are injured while occupying a motor vehicle owned by an

insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore

invalid.” Id. at 482.

        {¶20} However, this case has been held inapplicable, since it was superseded

by amendments to R.C. 3937.18 contained in H.B. No. 261, effective September 3,

1997, which added sections allowing for certain limitations on uninsured motorist

coverage, including the “available for regular use” exception that remains in the present

statute.2 Yoder, 2007-Ohio-5866, at ¶ 26-27; Lager v. Miller-Gonzalez, 120 Ohio St.3d

47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 21 (“the General Assembly has repeatedly

amended R.C. 3937.18 to supersede our holdings” in Martin and related cases). This

court, as well as others, have also reached similar conclusions, that “Martin was

superseded by amendments to then R.C. 3937.18(J) through HB 261, * * * which

allowed an insurance company to exclude insureds who were not occupying covered

vehicles.” Westfield Ins. Co., 2004-Ohio-4393, at ¶ 8, fn. 3; also Ellis v. Nationwide Ins.

Co., 160 Ohio App.3d 302, 2005-Ohio-1658, 827 N.E.2d 334, ¶ 30 (7th Dist.) (“[t]he


2. In the 1997 version of the statute, the exception was under R.C. 3937.18(J)(1).



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Ohio General Assembly passed H.B. 261, in part, so that insurance companies could

exclude UM/UIM coverage for vehicles not listed in the policy”); Adams v. Crider, 3rd

Dist. Mercer Nos. 10-02-18 and 10-12-19, 2004-Ohio-535, ¶ 13.                 These cases

specifically find that the statute allows exclusions for vehicles not listed in the insured’s

policy, which would include the USPS vehicle in the present case.

       {¶21} It is also noteworthy that, as discussed above, Martin’s holding was based

on the insurance policy’s failure to comply with the mandates of the existing version of

R.C. 3937.18. Martin, 70 Ohio St.3d at 482, 639 N.E.2d 438. Since R.C. 3937.18 has

changed, presumably, the court’s holding in Martin would be different in the present

circumstances, since policies such as Sposito’s specifically contain exceptions now

included in R.C. 3937.18(I)(1).

       {¶22} Based on this, it follows that Watts v. Gen. Acc. Ins. Co. of Am., 102 Ohio

App.3d 359, 657 N.E.2d 320 (2nd Dist.1995), cited by Sposito in support of his

contention that underinsured motorist coverage “follows the insured and not the

vehicle,” would be inapplicable for similar reasons, especially given that it relies on the

reasoning contained in Martin. Id. at 364.

       {¶23} In light of the foregoing, several courts have applied Kenney, post-H.B.

261, to circumstances similar to those in the present case, in holding that an employee

is not covered by uninsured/underinsured motorist coverage when using an employer’s

vehicle which was available for his regular use. Yoder at ¶ 46; Brill v. Progressive Ins.

Co., 8th Dist. Cuyahoga No. 84665, 2005-Ohio-626, ¶ 23-25.

       {¶24} Based on the existing case law and statute, we reject Sposito’s argument

that underinsured/uninsured motorist coverage should cover all vehicles, as well as his




                                             8
contention that this result is unfair because he was unable to insure his work vehicle.

Sposito provides no case law, post-H.B. 261, in support of his contention that this

conclusion is against public policy.     As has been repeatedly held, “[i]t [is] for the

legislature of Ohio to define the public policy of that State.” (Citation omitted.) In re

Application of Marriage License for Nash, 11th Dist. Trumbull Nos. 2002-T-0149 and

2002-T-0179, 2003-Ohio-7221, ¶ 34; State ex rel. Cincinnati Enquirer v. Dupuis, 98

Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21 (“the General Assembly is the

ultimate arbiter of public policy”). There are no grounds provided here that would cause

us to second guess the legislature as to this issue.

       {¶25} The Tenth District came to a similar conclusion in Yoder, holding that the

statute represented the General Assembly’s public policy determinations and intent and,

therefore, found no basis for a holding that the regular use exclusion was in violation of

public policy. Yoder, 2007-Ohio-5866, ¶ 38 (rejecting the appellant’s argument that

“enforcement of the regular use exclusion would violate public policy by thwarting the

purpose of UM insurance to protect persons from uninsured drivers” and that it would

produce unreasonable results).

       {¶26} Sposito cites Wayne Mut. Ins. Co. v. McCartney, 114 Ohio App.3d 129,

682 N.E.2d 1061 (7th Dist.1996), in support of his position that the trial court’s ruling is

against public policy. Again, we must emphasize that this case, as the others cited by

Sposito, was decided prior to the amendment to R.C. 3937.18, adding the specific

exclusion that exists in this case. It relies directly on Martin and the prior version of the

statute in concluding that the exclusion was against public policy.

       {¶27} The sole assignment of error is without merit.




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      {¶28} For the foregoing reasons, the Judgment Entry of the Ashtabula County

Court of Common Pleas, granting summary judgment in favor of Nationwide and

dismissing Sposito’s Complaint, is affirmed. Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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