[Cite as Ramsey v. State Farm Mut. Auto. Ins. Co., 2016-Ohio-5871.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 TONYA RAMSEY, ADMINISTRATOR      :
                                  :
      Plaintiff-Appellant         :  C.A. CASE NO. 27050
                                  :
 v.                               :  T.C. NO. 14CV6617
                                  :
 STATE FARM MUTUAL                :  (Civil Appeal from
 AUTOMOBILE INSURANCE CO., et     :   Common Pleas Court)
 al.                              :
                                  :
      Defendants-Appellees        :
                                  :
                             ...........

                                              OPINION

            Rendered on the ___16th___ day of _____September______, 2016.

                                              ...........

CHRISTOPHER VAN BLARGAN, Atty. Reg. No. 0066077 and KRISTEN M. LEWIS, Atty.
Reg. No. 0078026, 3412 W. Market Street, Akron, Ohio 44333
      Attorneys for Plaintiff-Appellant

KEVIN C. CONNELL, Atty. Reg. No.0063817, Fifth Third Center, 1 S. Main Street, Suite
1800, Dayton, Ohio 45402
      Attorney for Defendant-Appellee State Farm Mutual Automobile Insurance
      Company

STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 W. Second Street, Suite 1500, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee Gary Lowe



                                            .............
                                                                                      -2-




FROELICH, J.

       {¶ 1} Tonya Ramsey, as administrator of the estate of Rhonda L. Boyer, appeals

from a judgment of the Montgomery County Court of Common Pleas, which denied

Ramsey’s motion for summary judgment against State Farm Mutual Automobile

Insurance Company (“State Farm”) and granted State Farm’s motion for summary

judgment on Ramsey’s claim for uninsured/underinsured motorist coverage. The trial

court certified the judgment as immediately appealable under Civ.R. 54(B). For the

following reasons, the trial court’s judgment will be affirmed.

                         I. Background and Procedural History

       {¶ 2} The underlying facts are not disputed. On August 16, 2014, Rhonda Boyer

was a passenger on a motorcycle operated by Gary Lowe, when the motorcycle was

struck by a vehicle driven by Jeremy Hawks. Boyer died as a result of the injuries she

sustained in the collision.

       {¶ 3} At the time of the collision, Hawks was insured under an automobile policy

issued by Progressive Insurance Company, with a liability limit of $25,000 per person per

accident. Lowe had a motorcycle policy with State Farm, which included underinsured

motorist (UIM) coverage in the amount of $100,000 per person. Boyer was an insured

under two separate policies: (1) a policy issued by Safe Auto to Boyer, which included

UIM coverage in the amount of $12,500 per person, and (2) a policy issued by

Progressive to Boyer’s daughter, Tonya Ramsey, who lived with Boyer, with UIM

coverage in the amount of $25,000 per person.

       {¶ 4} Boyer’s estate was unable to recover under the policies with Safe Auto
                                                                                           -3-


(Boyer’s policy) and Progressive (Boyer’s daughter’s policy), because both of those

policies defined an underinsured motorist or vehicle as a motorist or vehicle whose liability

limit is less than the policies’ underinsured motorist limits. The liability limit in Hawks’s

(the tortfeasor’s) policy was $25,000 per person per accident, which was equal to

Progressive’s UIM coverage ($25,000) and greater than Safe Auto’s UIM coverage

($12,500).

       {¶ 5} Lowe’s policy with State Farm provided that it would pay “compensatory

damages for bodily injury an insured is legally entitled to recover from an uninsured

motorist” that was (a) “sustained by an insured” and (b) “caused by an accident arising

out of the operation, maintenance, or use of a motor vehicle by an uninsured motorist.”

(Emphasis in original.)        The policy set forth the following definition of “insured” for

purposes of UM/UIM coverage:

       Additional Definitions

       Insured means:

       1. you;

       2. resident relatives;

       3. any other person who is not insured for uninsured motor vehicle

       coverage under another vehicle policy while occupying:

       a. your car; * * *[.]

(Bold in original; italics added.)

       {¶ 6} Following the collision, Ramsey sought underinsured motorist benefits from

State Farm under Lowe’s policy. State Farm denied her claims of coverage. Shortly

thereafter, Ramsey brought suit against State Farm, Hawks, and Lowe, seeking a
                                                                                        -4-


monetary judgment and “a declaration that Plaintiff is entitled to underinsured motorist

benefits in an amount up to the policy limits pursuant to terms of the State Farm policy.”

        {¶ 7} Ramsey and State Farm filed cross-motions for summary judgment

regarding whether Boyer was an insured for UIM coverage under Lowe’s policy with State

Farm. The trial court granted State Farm’s motion and overruled Ramsey’s motion,

reasoning that Boyer’s lack of coverage from Safe Auto and Progressive for this specific

collision did not result in her being “not insured for uninsured motor vehicle coverage

under another vehicle policy.” The trial court thus concluded that Boyer was not an

insured under Lowe’s policy with State Farm. The trial court dismissed Ramsey’s claims

against State Farm and certified that its decision was immediately appealable pursuant

to Civ.R. 54(B).1 Ramsey appeals.

        II. Was Passenger-Decedent an Insured under Driver’s UM/UIM Policy?

        {¶ 8} In her sole assignment of error, Ramsey claims that the “trial court erred in

denying [her] motion for summary judgment and granting State Farm Mutual Automobile

Insurance Company’s cross-motion for summary judgment based on its finding that

Ramsey’s decedent was not ‘an insured’ under State Farm’s Policy.”

        {¶ 9} The ultimate issue in this case is whether Boyer was “an insured” under

Lowe’s policy with State Farm. There is no dispute that Boyer was a passenger on

Lowe’s motorcycle and that she was suffered bodily injuries in the collision. In this case,

the answer to whether Boyer was “an insured” under the State Farm policy turns on

whether she “was not insured” for UIM coverage under another policy, i.e., the

Progressive and Safe Auto policies.


1
    Ramsey’s claims against Hawks and Lowe remain pending in the trial court.
                                                                                             -5-


       {¶ 10} Ramsey does not dispute that Boyer was “an insured” under the Progessive

and Safe Auto policies. Rather, she contends that she is entitled to compensation from

the State Farm policy precisely because, while she may have been “an insured” under

her Safe Auto and Progressive policies, she was “not insured” under them for this

collision. In her appellate brief, she states the “issues presented” to be:

       1. As used in an insurance policy’s definition of who is an insured, is there

       any substantive difference between the verb phrase “is not insured” and the

       noun clause “is not an insured”?

       2. Where, for purposes of UM/UIM coverage, an insurer defines an insured

       as “any other person who is not insured for uninsured motor vehicle

       coverage under another vheicle policy while occupying * * * your car,” does

       a trial court error [sic] in finding a claimant falls outside this definition where

       the claimant is “an insured” for uninsured motor vehicle under another policy

       but not “insured” for the loss at issue?

       {¶ 11} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
                                                                                         -6-

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

       {¶ 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. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is

a genuine issue of material fact for trial.     Id.   Throughout, the evidence must be

construed in favor of the nonmoving party. Id.

       {¶ 13} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.

De novo review means that this court uses the same standard that the trial court should

have used, and we examine the evidence, without deference to the trial court, to

determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,

2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

       {¶ 14} The interpretation of a contract is a question of law. St. Marys v. Auglaize

Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 38;

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d

684 (1995). When reviewing a contract, the court’s 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). A contract that is, by its terms, clear and

unambiguous requires no real interpretation or construction and will be given the effect

called for by the plain language of the contract. Aultman Hosp. Assn. v. Community Mut.

Ins. Co., 46 Ohio St.3d 51, 55, 544 N.E.2d 920 (1989).

       {¶ 15} In granting summary judgment, the trial court found that, under the clear
                                                                                        -7-


and ambiguous language of the State Farm policy, Boyer was not an insured under

Lowe’s policy because she was insured under the Safe Auto and Progressive polices for

UM/UIM coverage. The trial court explained:

             Plaintiff’s argument, distilled to its core, is premised upon the

      suggestion that Boyer was not insured for uninsured motor vehicle coverage

      under another vehicle policy while a passenger on Lowe’s motorcycle

      because she cannot recover under the UM/UIM coverage provided in the

      Safe Auto and Progressive policies since Hawks’ insurance coverage

      equaled or exceeded coverage under each of Boyer’s policies.            In her

      memoranda, Plaintiff argues that the language of the Safe Auto and

      Progressive policies, under the circumstances presented, render her

      decedent uninsured since Plaintiff cannot collect under the terms of the

      policies. It cannot, however, be disputed that Ms. Boyer was, by the terms

      of the Safe Auto and Progressive policies an insured, with UM/[UIM]

      coverage included in the terms of the policies.

             Whether an injured party is insured, and whether that party is able to

      recover are two separate and distinct concepts that should not be confused

      nor conflated.   Several Ohio courts have found the inability to recover

      under a UM/UIM endorsement does not render an individual uninsured. In

      Johns v. Hopkins, 2013-Ohio-2099, where the court considered the

      language of a State Farm policy identical to Lowe’s policy, the court

      determined that nothing in the State Farm policy, nor its definition of insured

      can be interpreted to mean “that an individual must actually be able to
                                                                                           -8-


       recover under his or her own UM/UIM policy before State Farm’s definition

       of ‘an insured’ would apply.”         The court found that a reasonable

       interpretation of the State Farm contract language was that the parties

       “intended to exclude coverage for persons who had UM/UIM coverage

       under another insurance policy and were neither a named insured nor an

       insured family member under State Farm’s policy.”            The Johns court

       concluded that “(n)o reasonable interpretation of the contract could lead one

       to a meaning of ‘one who is insured for uninsured motor vehicle coverage

       under another vehicle policy, unless he or she cannot recover under that

       policy.’ ” Johns, supra. See also Wohl v. Swinney, 118 Ohio St. 3d 277

       (2008). Several other Ohio courts have come to a similar conclusion when

       considering similar insurance contract language. See Ashcraft v. Grange

       Mut. Cas. Co., 2008-Ohio-1519; Watkins v. Grange Mut. Cas. Co., 2007-

       Ohio-4366.

We find no error in the trial court’s conclusion.

       {¶ 16} As noted by the trial court, a conclusion that Boyer was insured under the

Safe Auto and Progressive policies for UM/UIM coverage, thus precluding her from being

an insured under the State Farm policy, is consistent with decisions from several Ohio

appellate courts. In addition to the Eighth District’s opinion in Johns, which the trial court

discussed, the First, Third, and Tenth Districts have reached similar conclusions. See,

e.g., West Am. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 1st Dist. Hamilton No. C-

100012, 2010-Ohio-6311; Watkins v. Grange Mut. Cas. Co., 3d Dist. Allen No. 1-06-95,

2007-Ohio-4366; Ashcraft v. Grange Mut. Cas. Co., 10th Dist. Franklin No. 07AP-943,
                                                                                         -9-


2008-Ohio-1519.

          {¶ 17} For example, in Ashcraft, the plaintiff (Ashcraft) was a passenger in a

vehicle driven by Danny Paynter that was struck by a vehicle operated by the tortfeaser,

who had drifted left-of-center.    The tortfeasor had liability coverage of $12,500 per

person and $25,000 per occurrence; Ashcraft was also insured under a policy with liability

and UM/UIM coverage limits of $12,500 per person and $25,000 per occurrence, the

same as the tortfeasor.      Paynter, the driver of the vehicle in which Ashcraft was a

passenger, was insured by Grange, with liability and UM/UIM insurance limits of $100,000

per person and $300,000 per occurrence. Ashcraft was paid the policy limit by the

tortfeasor’s insurance ($12,500); Ashcraft could not recover under his own policy,

because the amount of his UM/UIM coverage ($12,500) was equal to the amount he

received from the tortfeasor.

          {¶ 18} Ashcraft sought coverage under Paynter’s policy, which included as an

insured “[a]ny other person while occupying your covered auto with a reasonable belief

that that person is entitled to do so, if that person is not insured for Uninsured Motorists

Coverage under another policy.” (Emphasis added.) Although Ashcraft agreed that he

was “an insured” under his policy, he claimed – like Ramsey – that he was “not insured

for” UM/UIM coverage under his policy, because his insurer failed to pay anything to

compensate him for his loss. The Tenth District rejected Ashcraft’s claim, concluding

that the fact that the tortfeasor’s liability coverage was equal to the UM/UIM policy limits

of Ashcraft’s insurance carrier did not change his status to uninsured under that carrier’s

policy.

          {¶ 19} Although we are not bound by the judgments of other districts as to the
                                                                                      -10-


interpretation of the language in the State Farm policy, we find these authorities to be

apposite and persuasive, and we find no reason to deviate from them.

      {¶ 20} It is true that, in this situation, Boyer and her daughter paid premiums for

insurance coverage, and Boyer’s estate is not entitled to receive any payment from these

companies (Safe Auto and Progressive) in return. However, what they paid for was the

guarantee that Boyer would not suffer a loss and be totally uncompensated, but rather

would receive at least a certain amount – up to $12,500 under the Safe Auto policy and

$25,000 under the Progressive policy -- for any injuries caused by another driver. Since

she did receive that amount from the tortfeaser, the insurance promise provided by her

own UM/UIM coverage was met.

      {¶ 21} The concepts of being “an insured,” “being insured,” and being able to

recover from an insurance company for a loss may be distinct concepts, depending on

the circumstances, although at some point, the grammatical or lexical meanings of words

in an insurance policy beggar definition. An example is an individual who is a named

insured on a homeowner’s insurance policy with a $1,000 deductible.        If that policy

expressly excludes coverage for flooding, the individual is an insured on the policy, but

he or she cannot recover from the insurance company if the home suffers water damage

due to a flood. However, if the policy were to cover damage from flooding and the home

were to incur $10,000 of damage due to a flood, the individual would be an insured under

the homeowner’s policy, insured for flooding, and able to recover the difference between

the amount of loss and the deductible ($9,000). On the other hand, if the loss amounted

to only $500, the individual would be an insured under the policy, insured for water

damage caused by flooding, but unable to recover from the insurance company because
                                                                                    -11-


the deductible exceeded the amount of the loss.

      {¶ 22} Boyer was covered under the State Farm policy if she was not insured under

another vehicle policy. Boyer was an insured under the Safe Auto and Progressive

policies, and she had UM/UIM coverage (i.e., “was insured” for purposes of UM/UIM

coverage) as part of those policies.    She simply was unable to recover from those

insurers because the amount of UM/UIM coverage was less than or equal to the amount

that she recovered from Hawks, the tortfeasor.

      {¶ 23} Ramsey’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 24} The trial court’s judgment will be affirmed.

                                        .............

FAIN, J. and HALL, J., concur.


Copies mailed to:

Christopher Van Blargan
Kristen M. Lewis
Kevin C. Connell
Steven O. Dean
Hon. Mary Katherine Huffman
