I concur with the judgment of the majority in holding that the exclusionary clause at issue herein was included in the insurance policy issued by Avemco to appellee, Douglas Eaves. However, I do not believe it was necessary for the majority to address the "delivery issue" in order to reach that conclusion.
In its brief, appellant makes several distinct arguments in support of its first assignment of error that "the trial court erred in reaching the conclusion that Avemco did not send out the complete insurance policy." One of these arguments is that the validity of the policy does not depend upon its delivery or non-delivery to an insured. I agree.
It is well-established law in Ohio that a valid contract of insurance can be made by parol agreement. Newark Machine Co. v.Kenton Ins. Co. (1893), 50 Ohio St. 549, 35 N.E. 1060, at paragraph one of the syllabus. Obviously, in the case of a parol insurance contract, there will not be any delivery of written terms and conditions because none exist. Nevertheless, the law will presume that the parties intended those terms and conditions which are usual and customary. Id. at paragraph two of the syllabus. Such terms and conditions are, therefore, given binding legal effect independent of whether any writing is subsequently delivered to the insured.
In short, it would appear that the delivery, or non-delivery, of an insurance policy is at issue only when the consummation of the contract, or the validity of the policy, is called into question. See, e.g., Hartford Fire Ins. Co. v. Whitman (1906),75 Ohio St. 312, 319, 79 N.E. 459, 461. In the cause sub judice, all parties have taken the position that a binding and valid contract of insurance has been formed. At issue, rather, are the terms and conditions of the contract, more specifically, whether there is an exclusion for damage incurred during operation by a student pilot carrying passengers. Because the validity or existence of an insurance contract is not at issue herein, I believe the question of whether appellant made a proper "delivery" to be irrelevant.
If such issue is irrelevant in resolving the cause of action, then any error by the trial court in deciding the issue would not prejudice appellant. In that an assignment of error cannot be sustained without a showing prejudicial error, Gries SportsEnterprises, Inc. v. Cleveland Browns Football Co. (1986),26 Ohio St.3d 15, 28, 26 OBR 12, 23, 496 N.E.2d 959, 969, I would also hold that appellant's first assignment of error should be overruled.
I further concur in the majority's judgment and opinion sustaining the second assignment of error. I would add that in Ohio, insurance contracts may rest partly in parol and partly in writing, Central Cas. Co. v. Fleming (1926), 22 Ohio App. 129,136, 153 N.E. 345, 347 thereby including those *Page 571 contracts based upon an oral agreement and an afterwards-signed application. Further, exclusions similar to the one at issue herein are usual and customary throughout the country. See cases cited in 12 Couch, Insurance (2 Ed.1981) 143-145 and fn. 2, Section 44A:105.