RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Posante v. Cambridge No. 02-4383
ELECTRONIC CITATION: 2004 FED App. 0301P (6th Cir.) Mutual Fire Ins. Co., et al.
File Name: 04a0301p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ON BRIEF: James L. Deese, Cleveland, Ohio, Mark L.
_________________ Wakefield, LOWE, EKLUND, WAKEFIELD &
MULVIHILL, Cleveland, Ohio, for Appellant. Ronald A.
TONY POSANTE , X Risbo, Carol K. Metz, WESTON, HURD, FALLON,
Plaintiff-Appellant, - PAISLEY & HOWLEY, Cleveland, Ohio, Timothy John
- Fitzgerald, GALLAGHER, SHARP, FULTON & NORMAN,
- No. 02-4383 Cleveland, Ohio, for Appellees.
v. -
> _________________
,
CAMBRIDGE MUTUAL FIRE -
INSURANCE COMPANY ; OPINION
- _________________
LUMBERMENS MUTUAL -
CASUALTY COMPANY , - BOYCE F. MARTIN, JR., Circuit Judge. This appeal
Defendants-Appellees. - concerns the availability of underinsured motorist coverage
- under Ohio law. The Ohio Supreme Court recently issued a
N landmark decision in Westfield Insurance Co. v. Galatis, 797
Appeal from the United States District Court N.E.2d 1256 (Ohio 2003), which changed and clarified the
for the Northern District of Ohio at Cleveland. law in a way that is dispositive of this case.
No. 01-01617—Solomon Oliver, Jr., District Judge.
Tony Posante, a former employee of Pepsico, Inc., seeks a
Submitted: June 8, 2004 declaration that Pepsico’s insurer, Lumbermens Mutual
Casualty Company, is liable for underinsured motorist
Decided and Filed: September 8, 2004 coverage in connection with an accident in which his
daughter, Ashley Posante, was struck and killed by an
Before: MARTIN and SUTTON, Circuit Judges; QUIST, automobile as she was crossing a street. Mr. Posante settled
District Judge.* claims against the driver’s insurance carrier, State Farm
Insurance Company, as well as with Mr. Posante’s own
homeowner’s insurance carrier, Cambridge Mutual Insurance
Company. The availability of underinsured motorist coverage
under the Lumbermens policy is the sole subject of this
lawsuit.
*
The Honorable Gordon J. Quist, United States District Judge for the
W estern D istrict of M ichigan, sitting by de signation.
1
No. 02-4383 Posante v. Cambridge 3 4 Posante v. Cambridge No. 02-4383
Mutual Fire Ins. Co., et al. Mutual Fire Ins. Co., et al.
Mr. Posante’s claim for underinsured motorist coverage is differentiated between coverage under the Ohio Uninsured
based upon Scott-Pontzer v. Liberty Mutual Fire Insurance Motorist Coverage Endorsement and coverage that is imposed
Co., 710 N.E.2d 1116 (Ohio 1999), and Ezawa v. Yasuda Fire by operation of law. See In re Uninsured and Underinsured
& Marine Ins. Co. of America, 715 N.E.2d 1142 (Ohio 1999). Motorist Coverage Cases, 798 N.E.2d 1077 (Ohio 2003). See
The Ohio Supreme Court’s recent decision in Galatis, also Jones v. Fed. Ins. Co., No. 2003CA 00075, 2003 WL
however, significantly restricted the availability of 22961343 (Ohio App. Dec. 15, 2003) (denying coverage
underinsured motorist coverage under Scott-Pontzer, and based upon Galatis and explaining that “[e]ven though
expressly overruled Ezawa. Galatis held as follows: Galatis deals with the definition of an insured when there is
express UM/UIM coverage, the reasoning was applied to
Absent specific language to the contrary, a policy of UM/UIM coverage which arises by operation of law”) (citing
insurance that names a corporation as an insured for In re Uninsured and Underinsured Motorist Coverage Cases,
uninsured or underinsured motorist coverage covers a 798 N.E.2d 1077). Therefore, contrary to Mr. Posante’s
loss sustained by an employee of the corporation only if assertions, Galatis governs our analysis of his claim.
the loss occurs within the course and scope of
employment. Additionally, where a policy of insurance Although Galatis was decided after the district court’s
designates a corporation as a named insured, the judgment was entered, Lumbermen’s motion for summary
designation of ‘family members’ of the named insured as judgment was nevertheless granted on a different ground –
‘other insureds’ does not extend insurance coverage to a namely, that Mr. Posante had breached a condition precedent
family member of an employee of the corporation, unless to coverage. While we pass no judgment on the rationale
that employee is also a named insured. employed by the district court, we hold that summary
judgment in favor of Lumbermens was proper because Mr.
Galatis, 797 N.E.2d at 1271 (emphasis added). See also Posante’s claim for underinsured motorist coverage is
Masco Corp. v. Zurich Am. Ins. Co., ___ F.3d ___, 2004 WL foreclosed by Galatis. Accordingly, the district court’s
1924045, n.1 (6th Cir. Aug. 31, 2004) (recognizing the judgment is AFFIRMED.
restrictions that Galatis places upon the availability of Scott-
Pontzer uninsured and underinsured motorist coverage). It is
clear that Mr. Posante’s claim for underinsured motorist
coverage is not viable under Galatis.
Mr. Posante argues, however, that we should not apply
Galatis in this case because: (1) the decision “represents a
substantive departure from established precedent;” and (2) it
“applies only to coverage under the ambiguous Ohio
Uninsured Motorist Coverage Endorsement . . . [and] not to
the coverage imposed by operation of law that [Mr. Posante]
has sought.” These arguments lack merit. The Ohio Supreme
Court has applied Galatis to bar coverage in cases that were
pending at the time the decision was issued, and has not