[Cite as Roush v. Butera, 2012-Ohio-2506.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97463
CHARLES W. ROUSH, ET AL.
PLAINTIFFS-APPELLANTS
vs.
JOANN BUTERA, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-490493
BEFORE: Cooney, J., Celebrezze, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEY FOR APPELLANTS
David L. Meyerson
Seaman Garson, LLC
1600 Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
National Union Fire Insurance Co.
Steven G. Janik
Crystal L. Maluchnik
Janik LLP
9200 South Hills Blvd., Suite 300
Cleveland, OH 44147-3521
Nationwide Mutual Insurance Co.
Aaron M. Minc
James A. Sennett
Sennett Fisher, LLC
One Chagrin Highlands
2000 Auburn Dr., Suite 200
Beachwood, OH 44122
Also listed:
Joann Butera, pro se
3608 West 133rd Street
Cleveland, Ohio 44111
COLLEEN CONWAY COONEY, J.:
{¶1} Plaintiffs-appellants, Charles Roush (“Roush”) and Dorothy Roush
(collectively referred to as “appellants”), appeal the trial court’s grant of summary
judgment in favor of National Union Fire Insurance Company (“National Union”) and
Nationwide Insurance Company (“Nationwide”), on their claims for
uninsured/underinsured motorist (“UM/UIM”) coverage. We find no merit to the appeal
and affirm.
{¶2} In January 2001, Roush was driving a truck owned by U.S. Freightways
Corp. (“USF”), a parent corporation of his employer, USF Holland, Inc. (“Holland”).
The truck was insured under two National Union policies: Trucker’s Liability Policy No.
527-32-99, effective June 30, 2000 to June 30, 2001, with liability limits of $2 million
(the “Trucker’s Policy”); and Umbrella Liability Policy No. BE 932-25-54, effective June
30, 1997 to June 30, 2002, with liability limits of $8 million in excess of the Trucker’s
Policy limits (the “Umbrella Policy”). The Trucker’s Policy contained a deductible in
the amount of $1,750,000. Roush also had his own individual insurance with
Nationwide.
{¶3} While driving the truck within the course and scope of his employment,
Roush was involved in a motor vehicle accident in January 2001. It is undisputed that
Joann Butera (“Butera”), an uninsured driver, proximately caused the accident. Roush
sued Butera for injuries sustained in the accident. He also sued National Union and
Nationwide for UM/UIM coverage. Dorothy Roush alleged a loss of consortium claim.
{¶4} National Union filed a motion for summary judgment, claiming appellants
were not entitled to UM/UIM coverage because the policyholders, Holland and USF,
waived UM/UIM coverage when they accepted their insurance policies. To prove the
waiver, National Union presented an Ohio UM/UIM rejection form and alleged that
Thomas Clarke (“Clarke”), USF’s Vice President of Risk Management, signed the form
in March 1999. Roush disputed the credibility of National Union’s rejection form and
Clarke’s affidavit testimony on the grounds that the rejection form does not have a policy
number, or a receipt or file stamp of the agency or insurer, and is not referenced in any
other policy or lists of policies. Roush also asserted that the signature on the rejection
form is not dated. In his affidavit, Clarke stated that he had written authority from
Holland to waive UM/UIM coverage on Holland’s behalf.
{¶5} Nationwide also filed a motion for summary judgment, arguing that
appellants’ insurance policy with Nationwide excluded UM/UIM coverage because
Roush was operating an unlisted vehicle that was “furnished” to him and “available for
regular use” at the time of the accident.
{¶6} On April 28, 2004, at National Union’s request, the trial court stayed the
case pending the Ohio Supreme Court’s ruling in Gilchrist v. Gonsor, 118 Ohio St.3d
1511, 2008-Ohio-3369, 889 N.E.2d 1028. The Ohio Supreme Court released its decision
in Gilchrist in July 2008, and the trial court reactivated this case in February 2009. After
additional discovery and briefing on the motions for summary judgment, the trial court
granted the motions in favor of both National Union and Nationwide, and found that
Roush was not entitled to UM/UIM coverage under any policies issued by either insurer.
{¶7} Appellants now appeal and raise eight assignments of error.
Standard of Review
{¶8} An appellate court reviews a trial court’s decision on a motion for summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
(1996). Summary judgment is appropriate when, construing the evidence most strongly
in favor of the nonmoving party (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, that conclusion being adverse to the nonmoving party.
Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998),
citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995),
paragraph three of the syllabus.
Waiver of UM/UIM Coverage
{¶9} In the first and second assignments of error, appellants argue the trial court
erred in finding that USF and Holland rejected UM/UIM coverage. They contend that
because the offer of UM/UIM coverage failed to contain the elements required under
Linko v. Indemn. Ins. of N. Am., 90 Ohio St.3d 445, 739 N.E.2d 338 (2000), USF’s
rejection of UM/UIM coverage is invalid and coverage arises by operation of law.
{¶10} The statutory law in effect at the time of entering into a contract for
automobile liability insurance determines the rights and duties of the contracting parties.
Ross v. Farmers Ins. Group, 82 Ohio St.3d 281, 1998-Ohio-381, 695 N.E.2d 732,
syllabus.
{¶11} Appellants argue the trial court erred in finding that USF and Holland
rejected UM/UIM coverage because there is no evidence that National Union’s offer of
UM/UIM coverage complied with the requirements set forth in Linko and Gyori v.
Johnston Coca-Cola Bottling Group, Inc., 76 Ohio St.3d 565, 568, 1996-Ohio-358, 669
N.E.2d 824.
{¶12} In Gyori, the plaintiff was injured in an automobile accident on
December 12, 1990 and sued his employer’s insurance carrier for UM/UIM coverage.
The insurer argued that Gyori was not entitled to UM/UIM benefits because it had
rejected UM/UIM coverage. The Ohio Supreme Court disagreed and held that pursuant
to R.C. 3937.18, as it existed at that time, there could be no rejection absent a written
offer of UM/UIM coverage from the insurance provider. Gyori at 568. In Linko, the
high court further held that:
To satisfy the offer requirements of R.C. 3937.18, the insurer must inform
the insured of the availability of UM/UIM coverage, set forth the premium
for UM/UIM coverage, include a brief description of the coverage, and
expressly state the UM/UIM coverage limits in its offer.
Linko at 447-448.
{¶13} If the insurer failed to meet any one of these requirements, the insured’s
rejection of coverage was invalid and UM/UIM coverage arose by operation of law equal
to the policy’s liability limits. Id.
{¶14} As previously stated, the Trucker’s Policy was effective from June 30, 2000
to June 30, 2001. It is governed by R.C. 3937.18, as amended by H.B. 261 and S.B. 57,
which became effective on September 3, 1997 and November 2, 1999, respectively.
Gyori and Linko were both decided before the General Assembly passed H.B. 261 and
S.B. 57. In Hollon v. Clary, 104 Ohio St.3d 526, 2004-Ohio-6772, 820 N.E.2d 881, the
Ohio Supreme Court explained that H.B. 261 modified the strict Linko requirements.
The written offer of UM/UIM coverage at issue in Hollon did not set forth the premiums
for the coverage. Nevertheless, the court recognized that in light of the presumption of
an offer of coverage created by the H.B. 261 version of R.C. 3937.18(C), “Linko’s
requirements are arguably less relevant.” Id. The court reiterated that the Linko
requirements were chosen to ensure that an insurer makes a meaningful offer, which is
“an offer in substance and not just in name,” and which allows the insured to make “an
express, knowing rejection of [UM/UIM] coverage.” Id., quoting Linko, 90 Ohio St.3d at
449, 739 N.E.2d 338 (2000). Accordingly, the court went on to hold that “[o]nce a
signed rejection is produced, the elements of the offer may be demonstrated by extrinsic
evidence.” Id. at syllabus.
{¶15} The Hollon court determined the parties’ intent from an unrebutted
affidavit of the insured, attesting that:
Before approving and signing these rejection forms, I was informed, aware,
and understood: (a) that UM/UIM coverage was available; (b) the amount
of the premium that would be charged for UM/UIM coverage if I selected
UM/UIM coverage, or of the reduced premium if I selected reduced
UM/UIM limits; (c) what UM/UIM coverage was; and (d) that I was
rejecting UM/UIM coverage in its entirety.
Id. at ¶ 6.
{¶16} Based on this affidavit, the Hollon court concluded that the insured had
made “an express, knowing rejection of UM/UIM coverage, under H.B. 261,” and that the
court could presume that a valid offer had been made. Id. at ¶ 13.
{¶17} This court followed Hollon in Bossin v. Groves, 8th Dist. No. 92975,
2010-Ohio-664. In Bossin, an employee of Viacom Outdoor Group, Inc. (“Viacom”)
sued Travelers, Viacom’s motor vehicle insurer, for UM/UIM coverage following an
accident. Travelers denied coverage on the grounds that Viacom, through its director of
insurance, had rejected UM/UIM coverage. Bossin asserted that the rejection was
invalid because it failed to comply with Linko. This court disagreed and, following
Hollon, found that despite the fact that the rejection form Travelers produced failed to
contain the coverage premiums, the named insured’s knowledge of the premiums could
be demonstrated by extrinsic evidence. Id. at ¶ 15.
{¶18} Travelers produced affidavits, one from a director at Travelers who had met
with Viacom’s director of insurance, and the other from a Viacom manager. The
Viacom manager attested that
the rejection was consistent with Viacom’s policy to reject UM/UIM
coverage whenever possible, that Viacom was aware that an increase in
premiums would be charged for such coverage and that Viacom made a
knowing business decision to reject UM/UIM coverage for the state of
Ohio.
Id. at ¶ 17.
{¶19} Based on this evidence, this court found that “the extrinsic evidence offered
by Travelers was sufficient to demonstrate that Viacom was aware that additional
coverage premiums would be charged and, that consistent with its company policy, made
a knowing rejection of UM/UIM coverage.” Id. at ¶ 18.
{¶20} In support of its motion for summary judgment, National Union submitted
the affidavit of Thomas Clarke, USF’s risk manager, which provided, in pertinent part:
3. Attached hereto as Exhibit A-1 is an authentic copy of ISO Form No.
62582 (5/95), titled “REJECTION OF UNINSURED/ UNDERINSURED
MOTORISTS COVERAGE OR SELECTION OF LOWER LIMIT OF
LIABILITY (Ohio) (“Rejection Form”) which I executed on behalf of U.S.
Freightways Corporation (“USF”) on March 19, 1999;
4. At the time I executed the Rejection Form, I was employed by USF in
the capacity of Vice President of Risk Management. By reason of this
position, I was familiar with USF’s insurance program, and duly authorized
to act on behalf of USF including, but not limited to, the execution of the
rejection of uninsured/underinsured (“UM/UIM”) coverage;
5. The Rejection Forms are part of Trucker’s Liability Policy No.
527-32-99 effective July 1, 2000 to July 1, 2001 (“Policy”), and manifests
the intent of USF to reject UM/UIM coverage in Ohio.
6. Before approving and executing the Rejection forms, USF and I were
informed, were aware, and understood:
a. that UM/UIM coverage was available in increments up to an amount
equal to the Policy’s liability limits;
b. the method of calculating premiums for coverage under the Policy, the
amount of additional premium that would be charged for UM/UIM
coverage if USF selected full UM/UIM coverage, and the amount of
premium that would be charged if USF selected a reduced limit of UM/UIM
coverage;
c. the purpose of UM/UIM coverage; and that by signing the Rejection
Form, USF was rejecting Ohio UM/UIM coverage in its entirety.
7. USF intended to reject UM/UIM coverage in all states where such
coverage is not mandatory and intended to select the lowest limit of
UM/UIM coverage required in the jurisdictions where UM/UIM coverage is
mandatory, so as to avoid the payment of additional premium for such
coverage.
{¶21} In a supplemental affidavit, Clarke explained that it was USF’s policy to
reject UM/UIM coverage whenever possible for two reasons. First, National Union
issued the insurance policies as part of a fronting agreement under which USF had agreed
to reimburse National Union for all amounts paid under its Trucker’s policy. Thus, if
USF selected UM/UIM coverage, it would be responsible for both general liability
damage and UM/UIM benefits to its employees, as well as additional premiums.
Second, USF did not see the need to purchase UM/UIM coverage when its employees
were already protected within the scope of their employment under a state worker’s
compensation law. USF’s purchase of UM/UIM coverage would duplicate this
protection at additional cost to USF.
{¶22} In addition to Clarke’s affidavits, National Union submitted documentary
evidence showing that: (1) USF had rejected UM/UIM coverage every year as far back as
1989, when it was insured by a different carrier; (2) USF repeatedly informed National
Union over a period of six years that it wanted to reject such coverage in all states where
permitted; and (3) for the policy year in question, USF signed rejection forms for every
state where it did business, including Ohio.
{¶23} Appellants argue that Clarke’s affidavit should be rejected as self-serving
because USF’s substantial deductible would render it personally liable for appellants’
damages up to $1,750,000. Appellant also claims there are suspicious inconsistencies in
USF’s documentation that cast doubt on Clarke’s credibility.
{¶24} However, the documentary evidence unequivocally demonstrates USF’s
intent to reject UM/UIM coverage. The evidence also shows that Clarke, as the risk
manager of a trucking fleet, was familiar with UM/UIM coverage and understood the
ramifications of any rejection of that coverage. Like Viacom in Bossin, USF made a
knowing business decision to reject UM/UIM coverage in Ohio. Based on this evidence,
we agree with the trial court’s finding that National Union made a valid offer of UM/UIM
coverage, which was properly rejected.
Holland’s Rejection
{¶25} Appellants argue that even if USF rejected UM/UIM coverage, the rejection
does not apply to its subsidiary, Holland. However, this court has recognized that the
General Assembly altered the common law under post-H.B. 261 versions of R.C.
3937.18, and held that a parent corporation’s rejection of UM/UIM coverage is binding
upon its subsidiary where the parent corporation was the named insured. Bossin, 8th
Dist. No. 92975, 2010-Ohio-664; Rice v. Progressive Max Ins. Co., 8th Dist. No. 83970,
2004-Ohio-6107. Although Holland used the truck involved in Roush’s accident, USF
owned and insured the truck.
{¶26} Moreover, Clarke stated in his affidavit that he was authorized by Holland to
negotiate automobile insurance coverage and reject UM/UIM coverage on its behalf.
Absent an express, statutory provision requiring a power of attorney, a parent
corporation’s authority to act on behalf of its subsidiary can be established through
extrinsic evidence. Lee v. Hennick, 52 Ohio St. 177, 181, 39 N.E. 473 (1894).
Evidence in the record shows that Holland has relied on USF to negotiate insurance on its
behalf for eleven years. This fact, coupled with Clarke’s affidavit, demonstrates that
USF had authority to reject UM/UIM coverage on behalf of Holland.
The Umbrella Policy
{¶27} Appellants argue that even if USF rejected UM/UIM coverage under the
Trucker’s Policy, they are entitled to drop down coverage from the Umbrella Policy.1
However, appellants never stated a claim for coverage under the Umbrella Policy in their
complaint. Although they attempted to amend their complaint to assert a claim for
coverage under the Umbrella Policy, the trial court denied the motion to amend as
Umbrella policies are different from standard excess insurance policies in
1
that they are meant to fill gaps in coverage both vertically, by providing excess
coverage, and horizontally (by providing primary coverage). The vertical coverage
provides additional coverage above the limits of the insured’s underlying primary
insurance, whereas the horizontal coverage is said to “drop down” to provide
primary coverage for situations where the underlying insurance provides no
coverage at all. Sarka v. Love
8th Dist. No. 85960, 2005-Ohio-6362, ¶ 12, quoting Wright v. Medamerica Internatl.
Ins. Ltd., 2d Dist. No. 19809, 2003-Ohio-5723, ¶ 32.
untimely. Thus, the trial court never determined whether there was coverage under the
Umbrella Policy. As an appellate court, we do not consider arguments that the trial court
did not address. In Murphy v. Reynoldsburg, the Ohio Supreme Court explained that “[a]
reviewing court, even though it must conduct its own examination of the record, has a
different focus than the trial court. If the trial court does not consider all the evidence
before it, an appellate court does not sit as a reviewing court, but, in effect, becomes a
trial court.” Id., 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992). We, therefore, do not
consider issues raised for the first time on appeal. Id.
Collateral Estoppel
{¶28} Appellants contend that National Union should be estopped from arguing
that the UM/UIM rejection form is valid because the First District Court of Appeals has
already held that this rejection form is unenforceable as a matter of law. See Oblinger v.
State Auto Ins. Co., 163 Ohio App.3d 266, 2005-Ohio-4695, 837 N.E.2d 815 (1st Dist.).
In Oblinger, the plaintiff was injured while driving a truck for his employer, USF Dugan,
another subsidiary of USF. The plaintiff argued that USF’s rejection of UM/UIM
coverage was invalid because it did not satisfy the strict Linko requirements. As in this
case, National Union argued USF had rejected UM/UIM coverage on behalf of USF
Dugan, and supported its argument with an affidavit from the same witness, Thomas
Clarke.
{¶29} In reversing the trial court’s grant of summary judgment in favor of National
Union, the Oblinger court held the UM/UIM rejection was invalid because extrinsic
evidence did not satisfy the Linko requirements. Because the First District determined
that National Union’s rejection of UM/UIM coverage was invalid in Oblinger, appellants
argue the doctrine of collateral estoppel precludes National Union from relitigating this
issue here.
{¶30} Collateral estoppel, also referred to as the doctrine of issue preclusion,
holds that a fact or a point that was actually and directly at issue in a
previous action, and was passed upon and determined by a court of
competent jurisdiction, may not be drawn into question in a subsequent
action between the same parties or their privies, whether the cause of action
in the two actions be identical or different.
Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395,
692 N.E.2d 140 (1998), citing Norwood v. McDonald 142 Ohio St. 299, 52 N.E.2d 67
(1943).
{¶31} Ohio courts have held that a judgment can operate as collateral estoppel only
where all of the parties to the prior proceeding in which the judgment is relied upon were
bound by the judgment. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193,
443 N.E.2d 978 (1983). The operation of the rule must be mutual. Id. If a judgment
cannot be effective as res judicata against a particular person, he cannot avail himself of
the adjudication and contend that it is available against others. Id. Thus, “collateral
estoppel can only be applied against parties who have had a prior ‘full and fair’
opportunity to litigate their claims. C.A. Hardy v. Johns-Manville Sales Corp. (C.A.5,
1982), 681 F.2d 334, 338.” (Footnote omitted.) Id. at 197-198. “In order to preclude
either party from relitigating an issue, a judgment must be preclusive on both.” Goodson
at paragraph one of the syllabus.
{¶32} Oblinger, 163 Ohio App.3d 266, 2005-Ohio-4695, 837 N.E.2d 815 (1st
Dist.), was styled as a declaratory judgment action. Pursuant to R.C. 2721.12(A), only
parties to a declaratory judgment action are bound by the judgment. Hence, appellants
would not have been bound by Oblinger if the First District had reached a decision
adverse to their interests. Without mutuality upon which the trial court could apply the
doctrine of collateral estoppel, National Union was free to assert the validity of its
rejection of UM/UIM coverage.
{¶33} Based on the foregoing, we find the trial court properly found that appellants
were not entitled to UM/UIM coverage as a matter of law. The first and second
assignments of error are overruled.
Insurance Expert Report
{¶34} In the third assignment of error, appellants argue the trial court erred in
granting National Union’s motion to strike the affidavit and report of their expert, Daniel
N. Sutherin (“Sutherin”). Appellants contend their expert report did not constitute
discovery and should not have been subject to the discovery deadline.
{¶35} Appellants produced Sutherin’s report for the first time to support their brief
in opposition to National Union’s motion for summary judgment. They never produced
the expert report prior to the discovery or expert report deadlines.
{¶36} If an opposing party requires additional time to produce facts essential to the
opposition motion, the party may seek a continuance under Civ.R. 56(F). Gates Mills
Invest. Co. v. Pepper Pike, 59 Ohio App.2d 155, 169, 392 N.E.2d 1316 (8th Dist.1978).
However, Civ.R. 56(F) requires that the motion for additional time for discovery be
supported by the nonmovant’s affidavit, which must contain sufficient reasons showing
why such party was unable to obtain an affidavit of facts to oppose the summary
judgment earlier. Morantz v. Ortiz, 10th Dist. No. 07AP-587, 2008-Ohio-1046. A party
who fails to seek relief under Civ.R. 56(F) in the trial court, fails to preserve the issue on
appeal. Jackson v. Walker, 9th Dist. No. 22996, 2006-Ohio-4351, ¶ 17, citing R & R
Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789, 637 N.E.2d 332 (6th Dist.1993).
{¶37} Appellants argue their insurance expert report should have been admissible
to support their opposition to National Union’s motion for summary judgment because
they did not realize they would need an expert until National Union had produced all of
its responses to their discovery requests. However, it is undisputed that appellants did
not produce the expert report prior to filing their brief in opposition to National Union’s
motion for summary judgment. It is also undisputed that they did not produce their
expert report before the discovery or expert report deadlines had passed, and they never
sought leave to produce an expert report under Civ.R. 56(F). Therefore, they failed to
preserve this issue on appeal, and we find no abuse of discretion in the court’s striking
appellants’ expert report.
{¶38} The third assignment of error is overruled.
Supplemental Evidence
{¶39} In the fourth and fifth assignments of error, appellants argue the trial court
abused its discretion when it granted National Union’s motions for leave to file
supplemental evidence. In the sixth assignment of error, they also argue the court abused
its discretion in denying their motion to strike Clarke’s supplemental affidavit as
untimely.
{¶40} Civ.R. 56(E) states that a “court may permit affidavits to be supplemented or
opposed by depositions or by further affidavits.” McGuinness v. Hooper, 2d Dist. App.
No. 16551, 1998 WL 46688 (Feb. 6, 1998). “The trial court has broad discretion in the
admission of evidence, and unless it has clearly abused its discretion and the defendant
has been materially prejudiced thereby, an appellate court should not disturb the decision
of a trial court.” State v. Joseph, 73 Ohio St.3d 450, 460, 653 N.E.2d 285 (1995), citing
State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph seven of the
syllabus.
{¶41} National Union sought leave of court to produce supplemental evidence,
including Clarke’s supplemental affidavit, as required by Civ.R. 56(E) and (F). In the
motion, National Union explained that appellants raised for the first time the issue that
National Union was collaterally estopped from arguing the validity of the rejection form
pursuant to Oblinger, 163 Ohio App.3d 266, 2005-Ohio-4695, 837 N.E.2d 815 (1st Dist.).
Further, despite the enactment of H.B. 261 and this court’s decision in Rice, appellants
maintained that National Union still had to prove that USF had authority from Holland to
reject UM/UIM coverage. Because much of this evidence was in the possession of
Yellow Freight, the successor of USF, who was not a party to the case, National Union
requested additional time to obtain and present this evidence.
{¶42} The Ohio Supreme Court has determined that a continuance, or extension of
time, is based on a party’s right to have his case heard upon the merits. State ex rel. Buck
v. McCabe, 140 Ohio St. 535, 537, 45 N.E.2d 763 (1942). Appellants’ response brief
raised new issues that National Union had not addressed in its motion for summary
judgment. Granting leave to supplement the record to respond to the new issues allowed
the trial court to consider all the evidence and hear the case on its merits.
{¶43} Furthermore, National Union did not delay in seeking leave and complied
with Civ.R. 56(E) and (F) by explaining its need to submit additional evidence. National
Union needed Clarke’s supplemental affidavit and other documentary evidence to address
the new issues raised in appellants’ response brief. For these reasons, we find the trial
court did not abuse its discretion in denying appellants’ motion to strike Clarke’s
supplemental affidavit or in granting National Union leave to submit supplemental
evidence.
{¶44} The fourth, fifth, and sixth assignments of error are overruled.
Amended Complaint
{¶45} In the seventh assignment of error, appellants argue the trial court abused its
discretion in denying their motion to amend their complaint.
{¶46} A trial court’s decision whether to grant a motion for leave to amend a
complaint will not be reversed on appeal absent an abuse of discretion. Cselpes v.
Cleveland Catholic Diocese, 109 Ohio App.3d 533, 541, 672 N.E.2d 724 (8th Dist.1996).
If a plaintiff fails to make a prima facie showing of support for new matters sought to be
pleaded, a trial court acts within its discretion to deny the motion to amend the pleading.
Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 123, 573
N.E.2d 622 (1991).
{¶47} Appellants sought leave to add a claim for coverage under the Umbrella
Policy and a bad faith claim. Appellants alleged that National Union acted in bad faith
by failing to admit coverage and pay their claims pursuant to Oblinger, 163 Ohio App.3d
266, 2005-Ohio-4695, 837 N.E.2d 815 (1st Dist.). However, Oblinger was decided on
September 9, 2005, almost four years before appellants filed their motion to amend the
complaint. They filed the motion to amend the complaint after National Union had
already filed its renewed motion for summary judgment. As previously discussed,
National Union had a valid defense to appellants’ collateral estoppel argument based on
Oblinger. Under these circumstances, the trial court properly concluded that appellants
failed to make a prima facie showing in support of the bad faith claim.
{¶48} Appellants failed to challenge the trial court’s denial of their motion to add a
claim under the Umbrella Policy in their merit brief. Pursuant to App.R. 12(A)(2), we
may disregard any assigned errors if the party raising them “fails to identify in the record
the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R.16(A).” App.R. 12(A)(2).
{¶49} Accordingly, the seventh assignment of error is overruled.
Nationwide Policy
{¶50} In the eighth assignment of error, appellants argue the trial court erred in
granting Nationwide’s motion for summary judgment because Roush had UM/UIM
coverage under his individual policy with Nationwide. Appellants contend the trial court
erroneously found that Roush was excluded under his Nationwide policy because this
conclusion is contrary to the parties’ intent and violates former versions of R.C. 3937.18.
{¶51} The sole issue raised in this assignment of error is the interpretation of an
exclusion in Roush’s Nationwide policy. Insurance policies are contracts and their
interpretation is a matter of law for the court. Sharonville v. Am. Emps. Ins. Co., 109
Ohio St.3d 186, 187, 2006-Ohio-2180, 846 N.E.2d 833, at ¶ 6, citing Alexander v.
Buckeye Pipe Line Co., 53 Ohio St.2d 271, 374 N.E.2d 146 (1978), paragraph one of the
syllabus. Insurance coverage is determined by reasonably construing the contract in
conformity with the parties’ intentions, as interpreted from the common and ordinary
meaning of the language employed. King v. Nationwide Ins. Co., 35 Ohio St.3d 208,
211, 519 N.E.2d 1380 (1988). If an insurance contract provision is reasonably
susceptible to more than one interpretation, its provisions will be construed strictly
against the insurer and liberally in favor of the insured. Id. at syllabus. An exclusion in
an insurance policy is interpreted as applying only to that which is clearly intended to be
excluded. Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 597
N.E.2d 1096 (1992).
{¶52} The exclusion in Roush’s Nationwide policy states:
Coverage Exclusions:
This coverage does not apply to:
* * *
3. Bodily injury suffered while occupying a motor vehicle:
a) owned by you;
b) furnished to; or
c) available for the regular use of; you or a relative, but not insured for Auto
Liability Coverage under this policy.
{¶53} It is undisputed that at the time of the accident, Roush was driving a truck
his employer furnished to him for his regular use in his job as a truck driver. It is also
undisputed that the truck he was driving was not insured under Roush’s Nationwide
policy. Under the plain and unambiguous language of the exclusion, Roush was
excluded from coverage under his policy.
{¶54} The exclusion in Roush’s Nationwide policy, which was issued on
September 14, 2000, is enforceable under the applicable version of R.C. 3937.18, which
was amended by H.B. 261. In H.B. 261, the General Assembly mandated that all
automobile insurance policies offer UM/UIM coverage for loss due to bodily injury or
death suffered by an insured. However, it also added a provision that UM/UIM coverage
may include terms and conditions that would preclude coverage for bodily injury or death
suffered by an insured. For example, R.C. 3937.18(J)(1) provides that coverage may be
precluded:
While the insured is operating or occupying a motor vehicle owned by,
furnished to, or available for the regular use of a named insured, a spouse,
or a resident relative 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 motorists coverages are
provided.
{¶55} The language contained in R.C. 3937.19(J)(1) is unambiguous. Kyle v.
Buckeye Union Ins. Co., 103 Ohio St.3d 170, 2004-Ohio-4885, 814 N.E.2d 1195. In
very clear terms, R.C. 3937.18(J)(1) allowed Nationwide to exclude coverage to Roush,
who was a operating motor vehicle furnished to him or available for his regular use by his
employer. The vehicle was not specifically identified in the policy under which a claim
was made. Therefore, we find Roush was excluded from UM/UIM coverage under his
personal Nationwide policy.
{¶56} The eighth assignment of error is overruled.
{¶57} Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS IN JUDGMENT ONLY;
EILEEN A. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)
EILEEN A. GALLAGHER, J., DISSENTING:
{¶58} Because I conclude that USF failed to validly reject UM/UIM coverage in
this case and that the trial court erred in striking appellants’ expert report, I respectfully
dissent, in part and concur, in judgment only, in part, from the majority opinion.
{¶59} In their first and second assignments of error, appellants co-mingle several
arguments as to why the trial court erred in granting defendant appellee National Union’s
motion for summary judgment. The majority opinion addresses each of these arguments
in turn, ultimately overruling each claim. It is only with respect to the majority’s
analysis of appellants’ claim that USF failed to validly reject UM/UIM coverage offered
in National Union’s policy, that I dissent. I find no issue with the remainder of the
majority’s disposition of appellants’ remaining arguments contained within their first and
second assignments of error.
{¶60} In the present case, there is no dispute as to the material facts concerning the
accident. The parties agree that there remains the legal issue of whether the appellees’
owed coverage under R.C. 3937.18, as amended in 1997 by H.B. No. 261 and S.B. 57,
which was in effect at the time of the accident. In granting summary judgment, and in
affirming that grant on appeal, the trial court and the majority opinion, respectively,
determined that no coverage existed as National Union made a valid offer of UM/UIM
coverage, which USF properly rejected. I disagree.
{¶61} The requirements for a valid rejection of UM/UIM coverage are enumerated
in Linko v. Indemn. Ins. Co. of N. Am., 90 Ohio St.3d 445, 739 N.E.2d 338 (2000). In
Linko, the court held that an offer of UM/UIM coverage must inform the insured of the
availability of UM/UIM coverage, describe the coverage, list the premium costs of the
coverage, and expressly state the coverage limits. Id. If the offer or the rejection of
coverage does not establish that these requirements have been met, coverage arises by
operation of law. Id. More recently, the Ohio Supreme Court has held that once a
signed rejection form has been produced, the elements of the offer, as required under
Linko, may be demonstrated by extrinsic evidence. State v. Hollon, 104 Ohio St.3d 526,
2004-Ohio-6772, 820 N.E.2d 881.
{¶62} Applying this case law to the facts at hand, the majority concluded that the
documentary evidence, which included the affidavits of Thomas Clarke, USF’s risk
manager, unequivocally demonstrated USF’s intent to reject UM/UIM coverage.
{¶63} However, in Oblinger v. State Auto Ins. Co., 163 Ohio App.3d 266,
2005-Ohio-4695, 837 N.E.2d 815, the First District Court of Appeals analyzed the issue
of rejection of UM/UIM coverage and, more importantly, analyzed the exact rejection
form supplied by National Union, and determined that USF’s rejection was invalid.
{¶64} In Oblinger, the plaintiff was injured while driving a truck for his employer,
USF Dugan, in December 2000. The truck was owned by USF, a parent corporation of
USF Dugan, and both corporations were insured under National Union. The plaintiff
sued the uninsured driver who caused the accident and filed a UM/UIM claim against his
employer’s insurer, National Union. As in this case, National Union claimed that USF
declined UM/UIM coverage and the plaintiff argued that the UM/UIM rejection form was
invalid because it did not meet the Linko requirements.
{¶65} The trial court granted summary judgment in favor of National Union. The
court of appeals, however, reversed the decision and held that this UM/UIM rejection
form was invalid, and that there was coverage as a matter of law. Id. In particular, the
Oblinger court determined that the rejection form and the extrinsic evidence did not
satisfy the Linko requirements for a valid rejection of UM/UIM coverage. More
specifically, the court found that the rejection form, while it declared the availability of
UM/UIM coverage and described in general terms the nature of such coverage, was
utterly silent as to the premium costs of such coverage or the policy limits.
{¶66} Then, as held by the Ohio Supreme Court in Hollon, the Oblinger court
looked to the affidavit of Thomas Clarke, which National Union provided to supplement
the terms of the rejection form. The court quoted from Clarke’s affidavit, which stated
that “Within the four corners of the *** Policy, the Rejection Form describes the
UM/UIM coverage, gives premium cost and expressly state [sic] the coverage limits.”
Id. The First District determined that despite the recitation in Clarke’s affidavit that the
rejection form included the Linko requirements, the form manifestly did not. Id.
[T]he form was completely silent as to premium cost and coverage limits.
Clarke’s assertion that the form included that information did not make it
so. And because Clarke did not aver that he had been informed of the
Linko elements by any source other than the rejection form itself, the
evidence did not support the trial court’s holding that U.S. Freightways had
validly rejected UM/UIM coverage.
Id. at ¶ 23.
{¶67} In the present case, I agree with the First District’s conclusion that the
rejection form supplied by National Union fails to satisfy the Linko requirements for
rejection of UM/UIM coverage. The form does not describe the premium costs of
UM/UIM coverage or the policy limits of such coverage. Thus, I am unable to
determine whether USF made a meaningful rejection of the coverage. Next, I would
look to the extrinsic evidence supplied by National Union. Similar to Oblinger, the
affidavit supplied by National Union in the present case does not include the Linko
requirements either. The affidavit does not specify the coverage premiums, it does not
describe the coverage nor does it state the coverage limits in the offer. While National
Union does supplement this affidavit with further evidentiary materials in an attempt to
prove USF’s intent to reject UM/UIM coverage, I cannot ignore that the most basic
elements of that offer are not included in those materials. As such, I cannot conclude
that USF made a meaningful rejection of UM/UIM coverage.
{¶68} I am aware of this court’s decision in Bossin, and I find this case factually
distinguishable. It is my opinion that, while not requiring form over substance, an entity
wishing to validly reject UM/UIM coverage must make it clear that there was a
meaningful offer of said coverage. This simply cannot be done without a detailing of
the premium costs, a description of the coverage and the limits that coverage provides.
As these elements were missing in both the rejection form and the extrinsic evidence
provided by National Union, I would find that the trial court erred in deciding that there
had been a valid rejection of UM/UIM coverage under the National Union policy. Thus,
I would conclude that coverage arose by operation of law.
{¶69} Accordingly, I would affirm, in part, and overrule, in part, appellants’ first
and second assignments of error.
{¶70} Lastly, while I cannot ignore that appellants failed to move for a
continuance under Civ.R. 56(F), which would have preserved their issue of the stricken
expert report for appeal, I concur in judgment only as to the majority’s resolution of the
third assignment of error.
{¶71} This case involves complex issues of law, and the record reveals the parties
thoroughly litigated and defended their positions. The record also reveals that the trial
court, on several occasions, extended the discovery deadlines to accommodate the parties
in their need to examine additional evidence. I find the trial court’s sudden rigidness to
enforce discovery deadlines and outdated expert report cut-off dates to be arbitrary in
light of its past practice.
{¶72} Based on the foregoing, I find it unreasonable that the trial court struck the
affidavit and report of National Union’s expert, Daniel N. Sutherin. I, therefore, concur
in judgment only with respect to this portion of the majority’s opinion.