[Cite as Westfall v. Dlesk, 2015-Ohio-4313.]



                            STATE OF OHIO, HARRISON COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

RUSSELL A. WESTFALL, et al.,                     )
                                                 )
        PLAINTIFFS-APPELLANTS,                   )
                                                 )            CASE NO. 14 HA 17
V.                                               )
                                                 )                  OPINION
ESTATE OF DONALD DLESK, et al.,                  )
                                                 )
        DEFENDANTS-APPELLEES.                    )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas of Harrison County, Ohio
                                                 Case No. CVH2013-0114

JUDGMENT                                         Reversed. Judgment for Appellants.

APPEARANCES:
For Plaintiffs-Appellants                        Attorney Peter D. Traska
                                                 4352 Pearl Road, Suite A
                                                 Cleveland, Ohio 44109

For Defendants-Appellees                         Attorney Craig Pelini
                                                 840 Cleveland Avenue, NW, Suite 400
                                                 North Canton, Ohio 44720




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated: October 13, 2015
[Cite as Westfall v. Dlesk, 2015-Ohio-4313.]
DONOFRIO, P.J.

        {¶1}     Plaintiffs-appellants, Russell Westfall and Westfall Towing, appeal from
a Harrison County Common Pleas Court judgment granting summary judgment in
favor of defendant-appellee, Ohio Mutual Insurance Group.
        {¶2}     Donald Dlesk died in a single-vehicle accident in September 2010. His
van left the road, struck a tree, and caught fire. The Ohio State Highway Patrol
responded to the scene. The Highway Patrol contacted appellant Westfall Towing,
owned by appellant Russell Westfall, to clear the scene of the accident. Appellants
cleared the scene and stored Dlesk’s van.
        {¶3}     Appellants filed a claim against Dlesk’s estate to recover fees for towing
and storage. The trial court entered judgment in appellants’ favor, against Dlesk’s
estate, in the amount of $9,917.33 plus 39.8 cents per day until the judgment is paid.
        {¶4}     At the time of the accident, Dlesk was insured by an automobile policy
issued by appellee.          Appellants filed a supplemental complaint against appellee
seeking a declaratory judgment of coverage and payment of the judgment under the
terms of Dlesk’s policy.
        {¶5}     Appellants filed a motion for a partial judgment on the pleadings arguing
they were entitled to judgment because Ohio law mandates that insurance policies
provide coverage for towing and recovery services since they arise out of the
ordinary use of a motor vehicle and Dlesk’s policy provided such coverage.
        {¶6}     Appellee then filed a motion for summary judgment, arguing Ohio’s
financial responsibility laws do not require it to provide coverage for towing, storage,
or other services and Dlesk’s policy did not provide coverage for these services.
        {¶7}     The trial court found that appellee was under no statutory obligation to
pay the towing expenses. It further found that Dlesk only purchased comprehensive
coverage and did not pay a premium for collision coverage, towing coverage, or
specified causes of loss coverage. It found the comprehensive coverage did not
cover losses caused by a collision or the vehicle overturning. Therefore, it found
appellee was not obligated to pay for the losses associated with the collision.
Accordingly, the trial court granted appellee’s summary judgment motion. Appellants
                                                                               -2-


filed a timely notice of appeal on September 26, 2014.
       {¶8}   Appellants now raise three assignments of error.         Appellants’ first
assignment of error states:

              THE TRIAL COURT ERRED BY FAILING TO GIVE EFFECT TO
       UNAMBIGUOUS POLICY LANGUAGE THAT EXTENDED COLLISION
       COVERAGE TO THE APPELLEE’S INSURED.

       {¶9}   In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review.         Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).             A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
       {¶10} Appellants argue the policy specifically includes collision coverage and
that collision coverage would cover the towing and storage costs. They point to the
following provisions in the policy in support of their argument:

       SECTION III – PHYSICAL DAMAGE COVERAGE
       A. Coverage
              1. We will pay for “loss” to a covered “auto” or its equipment under:
                  a. Comprehensive Coverage
                     From any cause except:
                                                                                 -3-


                    (1) The covered “auto’s” collision with another object; or
                    (2) The covered “auto’s” overturn.
                    ***
                 c. Collision Coverage
                    Caused by:
                    (1) The covered “auto’s” collision with another object; or
                    (2) The covered “auto’s” overturn.

      {¶11} “Item    Two”    of   the   Declarations     lists   “PHYSICAL   DAMAGE
COMPREHENSIVE” and “PHYSICAL DAMAGE COLLISION,” among other types of
coverage. Next to both “PHYSICAL DAMAGE COMPREHENSIVE” and “PHYSICAL
DAMAGE COLLISION,” there is a “7” listed. The Declarations also lists “PHYSICAL
DAMAGE TOWING AND LABOR” as an option but there is no “7” listed next to this
option.
      {¶12} The “Description Of Covered Auto Designation Symbols” defines “7” as
“Specifically Described Autos” meaning “Only those ‘autos’ described in Item Three
of the Declarations for which a premium charge is shown[.]”
      {¶13} “Item Three” is the “SCHEDULE OF COVERED AUTOS YOU OWN.” It
lists a 2000 Ford E-250 van and a 1986 Ford F350 pickup.          Dlesk was driving the
Ford van when the accident occurred.
      {¶14} Reading these provisions alone, it would seem clear that Dlesk had
“PHYSICAL DAMAGE COLLISION” coverage. But there is another item to consider.
      {¶15} Prior to listing the coverages, Item Two provides:

      This policy provides only those coverages where a charge is shown in
      the premium column below. Each coverage will apply only to those
      “autos” shown as covered “autos”, indicated by the entry of one or more
      symbols from the COVERED AUTO Section of the Business Auto
      Coverage Form next to the name of the coverage.
                                                                                -4-


(Emphasis added.)
       {¶16} While there is a premium of $59.00 listed for PHYSICAL DAMAGE
COMPREHENSIVE, there is a premium of $0.00 listed for PHYSICAL DAMAGE
COLLISION.
       {¶17} Appellee argues that because there is no premium charge next to the
PHYSICAL DAMAGE COLLISION, there was no collision coverage. It asserts that in
order for collision coverage to have been in effect, the “7” had to be present and
there had to a premium charge listed. Because there was no premium charge listed,
appellee argues collision coverage was not included in Dlesk’s policy.
       {¶18} There is an ambiguity in the policy.        The Declarations, Item Two
contains a column titled “COVERAGES.” This column contains 12 types of coverage:
(1) liability, (2) personal injury protection, (3) added personal injury protection, (4)
rental reimbursement, (5) auto medical payments, (6) uninsured motorists, (7)
underinsured motorists, (8) physical damage comprehensive, (9) physical damage
specified causes of loss, (10) physical damage collision, (11) physical damage towing
and labor, and (12) uninsured motorist coverage property damage.
       {¶19} The next column is titled “COVERED AUTO SYMBOLS.” This column
contains a space next to each type of coverage where a covered auto symbol is
either placed or the space is left blank. A number 7 is the covered auto symbol for a
specifically described auto, which in this case includes the van Dlesk was driving at
the time of the accident. Next to liability coverage, the numbers 7, 8, and 9 are listed,
indicating that liability coverage exists for these three types of autos. Next to auto
medical payments, uninsured motorists, underinsured motorists, physical damage
comprehensive, physical damage collision, and uninsured motorist coverage property
damage coverages, the number 7 is listed, which indicates that coverage exists for
each of these items. The spaces next to personal injury protection, added personal
injury protection, rental reimbursement, physical damage specified causes of loss,
and physical damage towing and labor are all blank, indicating these types of
coverage are not included in the policy.
                                                                               -5-


      {¶20} The final column is titled “PREMIUM.” This column lists the amount of
premium paid for each particular type of coverage. Specific dollar amounts, ranging
from $8.00 to $714.00, are listed for each of the types of coverage that have a
covered auto symbol in the coverage column. For the coverages that do not have a
covered auto symbol in the coverage column, $0.00 is listed in the premium column.
The one exception, however, is for physical damage collision. Physical damage
collision coverage is the only type of coverage for which a 7 is listed in the covered
auto symbol column and for which $0.00 is listed in the premium column.
      {¶21} Under appellee’s interpretation of the policy, the 7 listed next to physical
damage collision coverage would be meaningless. Under appellants’ interpretation,
the 7 would indicate collision coverage. These differing interpretations create an
ambiguity in the policy language.
      {¶22} It is a well-founded principle that we must construe ambiguous
contracts against the drafter. Handel's Ent., Inc. v. Wood, 7th Dist. Nos. 04 MA 238,
05 MA 70, 2005-Ohio-6922, ¶104, citing Graham v. Drydock Coal Co., 76 Ohio St.3d
311, 314, 667 N.E.2d 949, 1996-Ohio-393.
      {¶23} “Where 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., 35 Ohio St.3d 208, 519
N.E.2d 1380 (1988), syllabus. When an ambiguity exists in an insurance policy, the
policy should be construed liberally in favor of coverage, unless such an
interpretation would be unreasonable. Spike Indus., Inc. v. Midwestern Indemn. Co.,
7th Dist. No. 06 MA 148, 2007-Ohio-6225, ¶11, citing Westfield Ins. Co. v. Galatis,
100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶14.
      {¶24} An ambiguity exists in this case. Pursuant to well-settled case law, we
must construe this ambiguity against appellee as the insurer and drafting party.
Construing the ambiguity against appellee, we find that the Dlesk policy did include
collision coverage.
      {¶25} Appellants assert that the collision coverage covers their towing and
                                                                                  -6-


storage costs, which stemmed from Dlesk’s collision with a tree.
         {¶26} Under the Physical Damage Collision Coverage section, the policy
states it will pay for “loss” to a covered “auto” or its equipment caused by the covered
auto’s collision with another object or the covered auto’s overturn.            The policy
defines “loss” as “direct and accidental loss or damage.”            (Policy, Section V,
Definitions).
         {¶27} In this case, Dlesk’s van collided with another object, a tree. Thus, it
fits under the collision coverage for any loss to the van.
         {¶28} In sum, the trial court erred in granting summary judgment in appellee’s
favor.
         {¶29} An ambiguity exists concerning whether collision coverage was
included with the policy. Construing the ambiguity against appellee, we find that
collision coverage exists. Under the collision coverage, appellee is to pay for loss
resulting from the collision of Dlesk’s van with a tree.
         {¶30} Accordingly, appellants’ first assignment of error has merit.
         {¶31} Appellants’ second assignment of error states:

                THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE
         THAT, UNDER OHIO’S FINANCIAL RESPONSIBILITY ACT, EVERY
         POLICY ISSUED IN OHIO MUST INSURE “AGAINST LOSS FROM
         THE LIABILITY IMPOSED BY LAW FOR DAMAGES ARISING OUT
         OF THE OWNERSHIP, MAINTENANCE OR USE” OF THE INSURED
         VEHICLE.

         {¶32} Appellants’ third assignment of error states:

                THE    TRIAL    COURT      SHOULD          HAVE   FOUND        THAT
         COVERAGE WAS IMPLIED BY LAW IN THE OMIG POLICY FOR
         TOWING AND RECOVERY SERVICES BECAUSE OF THE LOSS
         PROTECTION LANGUAGE, AND BECAUSE THE REMOVAL OF A
                                                                               -7-


       WRECKED VEHICLE MINIMIZES THE LIABLITY EXPOSURE OF THE
       DRIVER’S INSURER.

       {¶33} Given our resolution of appellants’ first assignment of error, their
second and third assignments of error are moot.
       {¶34} For the reasons stated above, the trial court’s judgment is hereby
reversed and judgment is entered in favor of appellants finding that collision
coverage exists in the Dlesk policy.

Waite, J., concurs.

Robb, J., dissents with attached dissenting opinion.

Robb, J., dissenting opinion.
       {¶35} I respectfully dissent from the decision to reverse the trial court’s entry
of summary judgment. I disagree that the insurance contract is ambiguous as to
whether the insured had collision coverage.
       {¶36} The principles that a contract is to be construed against the drafter and
an insurance policy is to be construed in favor of coverage are not applicable unless
there exists an ambiguity. See Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-
Ohio-4838, 896 N.E.2d 666, ¶ 15. Even then, courts cannot construe an ambiguity in
favor of the insured where it results in “an unreasonable interpretation of the words of
the policy.” Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-
4917, 875 N.E.2d 31, ¶ 8 (give effect to each provision if it is reasonable to do so).
See also Karabin v. State Auto. Mut. Ins. Co., 10 Ohio St.3d 163, 167, 462 N.E.2d
403 (1984) (one provision should not be disregarded as inconsistent with any other
provision unless no other reasonable construction is possible).
       {¶37} Ambiguity only exists if the provisions at issue are susceptible of more
than one reasonable interpretation. Lager, 120 Ohio St.3d 47 at ¶ 16, 896 N.E.2d
666.   I emphasize that the interpretation advanced by the proponent must be
reasonable. Id. The insurance contract must be viewed in its entirety so the intent of
                                                                              -8-


each part is determined from consideration of the whole. Cincinnati Ins., 115 Ohio
St.3d 306 at ¶ 7, 17. A contract is unambiguous if it can be given a definite legal
meaning. Id. at ¶ 7.
      {¶38} Here, the two sentences introducing Item Two, Schedule of Coverages
and Covered Autos, do not create an ambiguity merely because the symbol “7” was
placed next to collision coverage. The contractual standard for ascertaining whether
an insured has a certain type of listed coverage is clear in the first sentence:   “The
policy provides only those coverages where a charge is shown in the premium
column below.” No charge was shown in the premium column for collision coverage.
      {¶39} Immediately after this overriding mandate is the sentence explaining
how one can determine what type of vehicles would be covered: “Each coverage will
apply only to those ‘autos’ shown as covered ‘autos’, indicated by the entry of one or
more symbols from the COVERED AUTO Section of the Business Auto Form next to
the name of the coverage.”       When this covered auto clause refers to “[e]ach
coverage,” it is referring back to the prior sentence. That is, the second sentence’s
reference to covered autos is only applicable to those coverages where a charge is
shown in the premium column.
      {¶40} Moreover, the second sentence of Item Two refers to the Covered Auto
Section of the policy where symbol 7 is labeled as “Specifically Described Autos” and
defined as: “Only those ‘autos’ described in Item Three of Declarations for which a
premium charge is shown * * *.” (Emphasis added.) This leads to Item Three, the
“Schedule of Covered Autos You Own.” This schedule names the covered autos and
displays the limits pertaining to each auto for liability, uninsured motorists,
underinsured motorists, auto med pay, and uninsured motorist property damage. In
the box for comprehensive coverage, a $100 deductible and a $59 premium is
shown. In the box for collision, there is no premium listed (nor is there a deductible
listed). The same is true of the boxes for specific cause of loss and towing and
labor—no premium is listed.
      {¶41} In summary, the insured was charged no premium and paid no
                                                                                  -9-


premium for collision. The insurance contract clearly states that it provides only
those coverages where a charge is shown in the premium column in the schedule
within Item Two. The contract also clearly states that symbol 7 is a specifically
described auto that is only covered if it is described in Item Three and a premium
charge is shown.      No premium charge is shown for collision coverage in the
schedules contained in Item Two or Item Three. Accordingly, this policy did not
contain collision coverage.
       {¶42} I would overrule Appellant’s first assignment of error, which claims the
trial court erred in finding the policy did not extend collision coverage to the insured. I
would also overrule Appellant’s remaining assignments of error and conclude that the
statutes and case law of Ohio do not require an insurer to pay for towing and storage
costs for an accident which was not covered by the policy. As a result, I would affirm
the trial court’s summary judgment entered in favor of the Appellee-insurance
company.
