[Cite as Johnson v. Progressive Preferred Ins. Co., 2011-Ohio-6448.]


               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96068



                                     LILLIAN JOHNSON
                                                            PLAINTIFF-APPELLANT

                                                      vs.


        PROGRESSIVE PREFERRED INS. CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                             JUDGMENT:
                                              AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-723296


        BEFORE: Jones, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEYS FOR APPELLANT

Michael I. Shapero
James A. Marx
Shapero & Green LLC
Signature Square II, Suite 220
25101 Chagrin Boulevard
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEES

Joseph R. Tira
Kelly M. Jackson
625 Alpha Drive
Box #011B
Highland Heights, Ohio 44143
LARRY A. JONES, J.:

      {¶ 1} Plaintiff-appellant, Lillian Johnson, appeals from the trial court’s

judgment     granting       defendant-appellee,    Progressive   Preferred   Insurance

Company’s, motion for summary judgment.           We affirm.

                             I.   Procedural History and Facts

      {¶ 2} At all relevant times, Johnson was an insured under an automobile

insurance policy issued by Progressive.           The declarations page of the policy

named Johnson’s son, Lavelle Randall, as an excluded driver.

      {¶ 3} The policy provided uninsured/underinsured motorist coverage for

bodily injury as follows:

      {¶ 4} “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:

             “1.   sustained by the insured person;

             “2. caused by an accident; and

             “3. arising out of the ownership, maintenance, or use of a motor
             vehicle by an uninsured motorist or underinsured motorist.”

      {¶ 5} The policy defined bodily injury as “bodily harm, sickness, or disease,

including death that results from bodily harm, sickness, or disease.”        The policy

provided the following relevant exclusion:

             “Coverage under [Part III - Uninsured/Underinsured Motorist Coverage]

             will not apply * * * to bodily injury sustained by an insured person if the
             bodily injury is caused by a motor vehicle operated by any person who

             is specifically excluded for bodily injury liability coverage under this

             policy as an excluded driver or under any other provision of this

             policy[.]”

      {¶ 6} In 2008, Randall was operating a motorcycle, which was not covered

under the policy, when he was struck by a motor vehicle operated by a tortfeasor;

Randall   died   as       a   result   of   the   accident.   The   tortfeasor   was   an

uninsured/underinsured motorist.

      {¶ 7} In 2010, Johnson, individually and as administratrix of Randall’s estate,

filed an action against Progressive, the tortfeasor, the owner of the vehicle driven by

the tortfeasor, and several John Does. Default judgment was entered against the

tortfeasor and the owner of the vehicle he was driving; the Doe defendants were

dismissed from the action by Johnson.

      {¶ 8} For her complaint against Progressive, Johnson alleged that Randall

was an insured under the policy and was entitled to uninsured/underinsured

motorist coverage (fourth claim of complaint). Johnson further alleged that she

“suffered sickness and disease and other bodily harm, and severe emotional

distress,” for which the company was responsible to compensate her (sixth claim of

complaint). Progressive answered and counterclaimed for a declaration that it did

not owe coverage to Johnson for any claims submitted as a result of the accident.

      {¶ 9} Progressive moved for summary judgment. In its motion, Progressive

sought judgment in its favor on the grounds that Johnson was not entitled to
recover uninsured/underinsured benefits because she did not suffer bodily injury in

the accident and because Randall was not an insured under the policy.         Johnson

opposed the motion.        The trial court granted summary judgment in favor of

Progressive, finding that the policy unambiguously excluded Randall as an insured.

 The trial court further found that Johnson did not suffer bodily injury as a result of

the accident and, therefore, was not entitled to benefits.

      {¶ 10} Johnson raises the following two assignments of error for our review:

             “[I.]    The trial court erred in granting summary judgment to
                      Progressive and denying UM coverage to Johnson, the named
                      insured, for the bodily harm, sickness and/or disease she
                      suffered due to her son’s death, which was caused by an
                      uninsured driver, and further erred in ruling as a matter of law
                      that Johnson’s medically diagnosed and treated major
                      depressive disorder, which caused physical symptoms and
                      manifestations, and post traumatic stress disorder, did not
                      constitute bodily harm, sickness or disease[ ], and hence did not
                      constitute bodily injury, where the policy specifically defined
                      bodily injury as meaning not only bodily harm, but also sickness
                      or disease.

             “[II.]   The trial court erred in granting summary judgment to
                      Progressive and in denying UM coverage to the estate and
                      beneficiaries of Johnson’s decedent son for wrongful death and
                      bodily injury caused by an uninsured driver.”

                                 II. Law and Analysis

      A.   Summary Judgment

      {¶ 11} Appellate review of summary judgment is de novo.         Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. The Ohio

Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club, 82

Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, as follows:
                   “Pursuant to Civ.R. 56, summary judgment is appropriate when

             (1) there is no genuine issue of material fact, (2) the moving party is

             entitled to judgment as a matter of law, and (3) reasonable minds can

             come to but one conclusion and that conclusion is adverse to the

             nonmoving party, said party being entitled to have the evidence

             construed most strongly in his favor.   Horton v. Harwick Chem. Corp.

             (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the

             syllabus.   The party moving for summary judgment bears the burden

             of showing that there is no genuine issue of material fact and that it is

             entitled to judgment as a matter of law. Dresher v. Burt (1996), 75

             Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.”

      {¶ 12} Once the moving party satisfies its burden, the nonmoving party “may

not rest upon the mere allegations or denials of the party’s pleadings, but the

party’s response, by affidavit or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.”        Civ.R. 56(E);

Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197.

Doubts must be resolved in favor of the nonmoving party.                  Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.



      B.   Insurance Policies

      {¶ 13} An insurance policy is a contract, and the relationship between the

insurer and the insured is purely contractual in nature.   Nationwide Mut. Ins. Co. v.
Marsh (1984), 15 Ohio St.3d 107, 109, 472 N.E.2d 1061. The interpretation and

construction of insurance policies is a matter of law to be determined by the court

using rules of construction and interpretation applicable to contracts generally.

Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-168, 436

N.E.2d 1347; Value City, Inc. v. Integrity Ins. Co. (1986), 30 Ohio App.3d 274, 276,

508 N.E.2d 184.

      {¶ 14} In insurance policies, as in other contracts, words and phrases are to

be given their plain and ordinary meaning unless there is something in the contract

that would indicate a contrary intention.    Olmstead v. Lumbermen’s Mut. Ins. Co.

(1970), 22 Ohio St.2d 212, 216, 259 N.E.2d 123. Where the provisions of an

insurance policy are clear and unambiguous, courts may not indulge themselves in

enlarging the contract by implication in order to embrace an object distinct from

that contemplated by the parties.    Gomolka at 168.

      {¶ 15} However, where the provisions of a contract of insurance are

reasonably susceptible of more than one interpretation, they will be construed

strictly against the insurer and liberally in favor of the insured.   King v. Nationwide

Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380, paragraph one of the

syllabus.

      C.    Johnson and Bodily Injury

      {¶ 16} Johnson claims that she suffered from post-traumatic stress disorder

and major depressive disorder as a result of Randall’s death and, therefore, that

she suffered bodily injury.     In opposition to Progressive’s summary judgment
motion, Johnson submitted her medical records detailing her diagnoses and

treatment. She also submitted publications from the American Psychiatric

Association and the United States Department of Health and Human Services,

National Institutes of Health, stating that post-traumatic stress disorder and major

depressive disorder are serious medical illnesses.

       {¶ 17} Progressive does not dispute that Johnson may have suffered from

these disorders, or that they are a sickness or disease, but contends that they were

not caused by the accident, as required under the policy.     We agree.

       {¶ 18} The record before us demonstrates that Johnson was not present at

the time of the accident or otherwise involved in the accident. We therefore find

that she did not suffer “bodily injury * * * caused by [the] accident[,] and arising out

of the ownership, maintenance, or uses of a motor vehicle by [the tortfeasor,]” as

required under the policy.

       {¶ 19} In Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 540 N.E.2d 716, the

Ohio Supreme Court defined bodily injury as “commonly and ordinarily used to

designate an injury caused by external violence * * *.”         The Tomlinson court

considered a claim under an insurance policy for loss of consortium and stated that

“[a]lthough the wife of a husband who has been incapacitated suffers great pain

and endures constant anguish * * * such physical manifestations do not render a

claim for loss of consortium a ‘bodily injury’ as that term is commonly understood.”

Id. at 14.

       {¶ 20} The Eleventh Appellate District reached the same conclusion about
bodily injury in Vance v. Sang Chong, Inc. (Nov. 9, 1990), Lake App. No.

88-L-13-188.    There, an insured suffered fatal injuries when he was involved in a

car accident caused by a company’s employee.        The insured’s surviving wife, who

was not present for, or otherwise involved in the accident, sought to recover for her

bodily injury under the company’s insurance policy.        The policy defined bodily

injury as “sickness or disease including death.”

      {¶ 21} The Eleventh District declined to find that the surviving wife’s

emotional distress and mental anguish constituted bodily injury under the policy.

The Eleventh District found that the wife “was not present at the time of the

accident and her emotional distress was in reaction to her husband’s bodily injury.”

      {¶ 22} In light of the above, Johnson did not suffer bodily injury as a result of

this accident and, therefore, was not entitled to recover under the policy.    The first

assignment of error is therefore overruled.

      D.   Randall — An Insured or Not?

      {¶ 23} Progressive contends that Randall was not an insured under the

policy, while Johnson contends that he was.           In support of her contention,

Johnson cites the policy’s definition of an insured person as “[y]ou or a relative.”   It

is not disputed that Randall was Johnson’s relative.        Nonetheless, we have to

determine whether an exclusion applies; it does.

      {¶ 24} “Ohio courts have upheld the validity of named driver exclusions as

express rejections of uninsured/underinsured motorist coverage if the exclusions

were sufficiently clear.”    Nichols v. Progressive Ins. Co., Franklin App. No.
01AP-899, 2002-Ohio-3058, ¶40. Randall is clearly named on the declarations

page as an “excluded driver.” The declarations page is defined as the “document

showing your coverages, limits of liability, covered autos, premium, and other

policy-related information. The declarations page may also be referred to as the

Auto Insurance Coverage Summary.”          On the four corners of the document,

Randall was not an insured under the policy.

      {¶ 25} Johnson further cites the following exclusion under the policy in

support of her position: uninsured/underinsured coverage will not apply “to bodily

injury sustained by an insured person if the bodily injury is caused by a motor

vehicle operated by any person who is specifically excluded for bodily injury liability

coverage under this policy as an excluded driver * * *.” According to Johnson,

because Randall did not cause the accident, he should not be precluded from

coverage.    We disagree.     The provision relates to “an insured person.”         As

discussed, Randall was not an insured person, and therefore, for purposes here, it

is irrelevant whether he was at fault in causing the accident.

      {¶ 26} R.C. 3937.18 governs uninsured/underinsured recovery in Ohio. The

statute has evolved over the years, but under the current version, an insurance

company may limit uninsured/underinsured motorist coverage to instances where

an insured has suffered bodily injury, including death.   Hedges v. Nationwide Mut.

Ins. Co., 109 Ohio St.3d 70, 2006-Ohio-1926, 846 N.E.2d 16, ¶25.                  The

declarations page of Progressive’s policy lists Randall as an excluded driver.

Thus, under the plain language of the contract, Randall was not an insured entitled
to coverage.

        {¶ 27} Moreover, Johnson is not entitled to uninsured benefits for the death

of Randall. In her brief, Johnson relies on Dickerson v. State Farm Mut. Auto. Ins.

Co., Defiance App. No. 4-03-12, 2003-Ohio-6704, to support her contention that

she is entitled to coverage.         In Dickerson, a mother sought to recover

underinsured motorist benefits for the wrongful death of her son, who was a

passenger in a vehicle driven by her daughter, an excluded driver under the policy.

 The Third Appellate District decided the case before the Ohio Supreme Court’s

decision in Hedges and held that, under the then version of R.C. 3937.18, an

insurer could only limit uninsured/underinsured motorist coverage to exclude an

insured’s bodily injury or death, and because the insured mother’s injury was the

loss of her son and not her own bodily injury or death, she was entitled to

underinsured motorist coverage.

        {¶ 28} But, as noted, Dickerson was decided prior to Hedges and under a

prior version of R.C. 3937.18.     Under the current version of R.C. 3937.18, an

insurer may limit uninsured/underinsured motorist coverage to instances where an

insured suffers bodily injury or death. Thus, Dickerson is not instructive for this

case.    Further, in Dickerson, no recovery was sought for the injuries sustained by

the mother’s daughter, who was listed as an excluded driver under the policy.

        {¶ 29} We find another Third Appellate District case instructive: McDaniels v.

Rollins, Allen App. No. 1-04-82, 2005-Ohio-3079. There, the trial court granted

summary judgment in favor of Progressive Insurance Company on the plaintiffs’
uninsured/underinsured motorist coverage claim for the wrongful death losses they

suffered as a result of the death of their son. The trial court ruled in Progressive’s

favor because the son was not an insured under the policy.                       The

uninsured/underinsured motorist language in the policy at issue in McDaniels was

identical to the policy language in this case. In construing the policy language, the

Third District held as follows:

      {¶ 30} “The clear and unambiguous language of the Progressive policy states

that the insured person seeking coverage under the policy’s UM/UIM provision

must have suffered bodily injury.     This is a permissible limitation on UM/UIM

coverage * * *. The [plaintiffs’] claims against Progressive are based solely on

their wrongful death losses and on any bodily injury sustained by an insured.

Accordingly, recovery for their wrongful death losses associated with [their son’s]

death was properly excluded from their UM/UIM coverage, and Progressive was

properly granted summary judgment * * *.” Id. at ¶35.

      {¶ 31} The relevant facts in McDaniels and this case were substantially the

same. The uninsured/underinsured motorist coverage provisions in the two cases

were identical. For the same reasoning articulated by the Third Appellate District,

we affirm the trial court’s judgment granting summary judgment in favor of

Progressive. In sum, Johnson was not entitled to uninsured coverage for her own

injuries or the wrongful death of Randall under the policy because Randall was not

an insured under the policy at the time of the accident.

      {¶ 32} In light of the above, both assignments of error are overruled and the
trial court’s judgment is affirmed.

      {¶ 33} It is ordered that appellees recover of appellant costs herein taxed.

      {¶ 34} The court finds there were reasonable grounds for this appeal.

      {¶ 35} It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

      {¶ 36} A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

COLLEEN CONWAY COONEY, J., CONCURS
MELODY J. STEWART, P.J., CONCURRING
AND DISSENTING IN PART WITH SEPARATE
OPINION


MELODY J. STEWART, P.J., CONCURRING IN PART; DISSENTING IN PART:

      {¶ 37} I agree that Johnson’s emotional distress and mental anguish do not

constitute a “bodily injury” under the Progressive policy. However, I disagree with

the majority when it concludes that Johnson’s son, Randall, was excluded from

coverage. The policy at issue here does not clearly put Johnson on notice that

Randall would not have uninsured motorist coverage under a scenario where he

was operating a non-listed vehicle and killed, through no fault of his own, by

another driver. I would construe this ambiguity against Progressive and hold that

the court erred as a matter of law by finding that Randall was excluded from
uninsured motorist coverage.

      {¶ 38} Ohio law presumes insurance coverage, so an exclusion to coverage

must be clearly expressed. Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d

186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6.

      {¶ 39} Part III of the Progressive policy states the uninsured/underinsured

motorists coverage. It provides:

      {¶ 40} “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;

            “1. sustained by the injured person;

            “2. caused by an accident; and

            “3.   arising out of the ownership, maintenance, or use of a motor

            vehicle   by   an   uninsured    motorist   or   underinsured   motorist.”

            (Emphasis omitted.)

      {¶ 41} For purposes of uninsured motorists coverage, the policy defines an

“insured” person as, among other things, “you or a relative.” (Emphasis omitted.)

      {¶ 42} The declarations page of the policy, under the heading “drivers and

household residents,” lists Johnson as a “named insured” and lists Lavelle Randall

as an “excluded driver.”    Randall is clearly and unambiguously excluded as a

“driver” of the listed vehicles insured under the policy, none of which he was driving

at the time of the accident. However, according to the policy’s definition, because

Randall is Johnson’s son who lived in the household, he is a relative and thus an
insured.

       {¶ 43} Progressive does not actually dispute that Randall is an insured under

the policy but argues that he was not an insured at the time of the accident

because he was driving a vehicle—regardless of the fact that the vehicle he was

driving was not one in which he was excluded from driving under the policy.

Tellingly, in response to a question posed to Progressive during oral argument,

counsel for Progressive conceded that Randall would have been covered as an

insured under the policy if his injuries had occurred in the same manner but as a

passenger on the motorcycle. This is a tortured interpretation of the policy. If the

accident and Randall’s fatal injuries were caused by an uninsured motorist, his

status as a passenger or driver seems irrelevant. Progressive’s interpretation of

the policy cannot work both ways: either Randall is an insured or he is not.

       {¶ 44} As previously noted, Johnson’s policy defines an insured as “you or a

relative.” This definition clearly designates Randall, as a relative of Johnson, an

insured.   No provision of the policy indicates that Randall is not an insured.

Specifically, no provision of the policy states that he is excluded as an insured by

virtue of his being listed as an excluded driver of Johnson’s vehicles. I would find,

therefore, that he is an insured and can be denied coverage subject only to

limitations set forth in the policy.

       {¶ 45} In addition to the clear language on the declarations page of the policy

that excludes Randall as a driver of the vehicles listed on the same page,

Progressive specifically limited uninsured/underinsured coverage in instances
where Randall, as an excluded driver under the policy, was driving a vehicle and

caused   an    accident.      The   “EXCLUSIONS”      section   under    Part   III   -

Uninsured/Underinsured motorist coverage of the policy provides in pertinent part:

“Coverage under this Part III will not apply: *** 3. To bodily injury sustained by an

insured person if the bodily injury is caused by a motor vehicle operated by any

person who is specifically excluded for bodily injury liability coverage under this

policy as an excluded driver or under any other provision of this policy[.]”

(Emphasis omitted.)    A plain reading of this provision of the policy precludes

uninsured/underinsured motorists coverage when an accident is caused by an

excluded driver. Neither this provision nor the declarations page of the policy puts

Johnson on notice that Randall would be excluded from uninsured/underinsured

motorists coverage under the circumstances of the accident in this case. Had

Progressive wanted an all-encompassing exclusion policy, it could easily have

written one. See, e.g., Fruit v. State Farm Auto. Ins. Co., 8th Dist. No. 87294,

2006-Ohio-4121 (where we held that an all-inclusive exclusion policy clearly

prohibited uninsured motorist coverage when an excluded driver was operating a

motor vehicle).

      {¶ 46} “[A]n exclusion is interpreted narrowly in order not to defeat coverage

that would apply absent the exclusion.       The general presumption in favor of

coverage operates to make an exclusion barring coverage applicable only if it is

clearly expressed.”        Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540,

2011-Ohio-1818, 948 N.E.2d 931, ¶32, citing Sharonville, 109 Ohio St.3d at ¶6.
Because the exclusion was not clearly expressed, I would construe the exclusion

against Progressive and find that Randall’s estate is entitled to recover under the

uninsured motorists provisions of the policy.
