The facts in this case are not in dispute and are set out in the majority opinion. However, the majority opinion omits one fact that I feel is important to this case, namely, the following provisions of the policy of Allstate Insurance Company which appear in Part I:
"* * * Allstate will pay for an insured all damages which the insured shall be legally obligated to pay because of:
"A. bodily injury sustained by any person, and
"B. injury to or destruction of property,
"arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile or a non-owned automobile.
"* * * The following persons are insured under this Part
"1. The named insured with respect to the owned or a non-owned automobile;
"2. Any resident of the named insured's household with respect to the owned automobile;
"3. Any other person with respect to the owned automobile, *Page 36 provided the actual use thereof is with the permission of the named insured; * * *."
The above provisions paraphrase the language of Section4509.51 (B), Revised Code, which is quoted in the majority opinion.
The majority opinion cites the provision of this policy entitled "Compliance with financial responsibility"; comments that the record does not disclose that the policy issued by Allstate Insurance Company in this case was ever "certified" as provided in Section 4509.46, Revised Code; and cites the second paragraph of the syllabus of Moyer, Admx., v. Aron, 175 Ohio St. 490.
I have examined the transcript of the record and the briefs filed in the Moyer, Admx., v. Aron case, and the insurance policy in the Moyer case did not contain the provisions contained in this policy, which paraphrase the language of Section 4509.51 (B). The insurance policy in the Moyer case did contain a provision similar to the one in this case, entitled "compliance with financial responsibility laws," which is set out in the majority opinion.
The issue in the Moyer case was whether the provision of the policy involved therein on "compliance with financial responsibility laws" extended the coverage of the policy by incorporating the language of Section 4509.51 (B), as a matter of law, into the policy. Obviously, the Moyer case is not applicable to this case, because the policy in this case contains the language of Section 4509.51 (B) as a part of the insurance contract.
The majority opinion holds that "the judgment [of the trial court] was also contrary to law in holding that the policy was ambiguous." The pertinent parts of the trial court's journal entry are set out as follows:
"* * * Having considered the evidence, exhibits, and stipulations of fact, the court sustains the motion for summary judgment on authority of R. C. 4509.51, which is included in the policy; Wall v. Windman, 142 So.2d 537, 4th Circuit; andFirestone v. Mutual Ins. Co., 119 Ohio App. 116; the law is well settled that the language of the policy will be construed most favorably to the insured, 143 Ohio St. 215.
"The court finds from the pleadings, the evidence, and the stipulations of fact that reasonable minds can come to but one *Page 37 conclusion and that conclusion is adverse to defendant, Allstate Insurance Company, * * *."
The case to which the trial court referred as authority that the language of the policy will be construed most favorably to the insured is Bobier v. National Casualty Co., 143 Ohio St. 215, the first two paragraphs of the syllabus of which are as follows:
"1. A policy of indemnity insurance is to be construed in the light of the subject matter with which the parties are dealing and the purpose to be accomplished, and the language used must be given its ordinary and commonly accepted meaning.
"2. In case of ambiguity in the language used by the insurer in an indemnity insurance policy, such language will be construed most favorably to the insured."
The trial court held that reasonable minds can come to but one conclusion and that conclusion is adverse to defendant Allstate Insurance Company.
The legal question in this case is whether coverage is provided in this policy by the provisions in Part I for "damages which the insured shall be legally obligated to pay because of * * * injury * * * arising out of the * * * maintenance or use" by a person using the insured's automobile with the consent of the insured, or whether coverage is limited by the provisions excluding an automobile "while used in an automobile business" which is defined as "the business of selling, repairing, servicing, storing or parking of automobiles."
In my opinion the issue in this case is whether the incorporation of the language of Section 4509.51 (B) into this insurance policy extends the coverage of such policy so that it provides coverage for any person having use of the insured's automobile with the permission of the insured for injury arising out of either (1) the use or (2) maintenance of the owned automobile. If coverage is so extended, I would heartily agree with the trial court. The problem is construing the legal effect of the following language of this policy: "* * * which the insured shall be legally obligated to pay."
The briefs of both parties shed no light on this. The plaintiff assumes that there is extended coverage, and the defendant assumes that the incorporation of the language of Section 4509.51 (B) does not extend coverage.
The general rule is that the owner of a motor vehicle is not *Page 38 liable for the negligent operation of his vehicle by a garageman or mechanic to whom he has turned it over for repairs, since the garageman or mechanic is deemed to be an independent contractor. 6 Ohio Jurisprudence 2d 501, Automobiles, Section 261; 8 American Jurisprudence 2d 132, Automobiles and Highway Traffic, Section 578.
I presume this is the basis for the position of defendant-appellant. However, the issue is whether this general rule is inapplicable in light of the express provisions of the insurance policy.
Since the provisions of the policy at issue paraphrase the language of Section 4509.51 (B), Revised Code, most of the argument in the case has centered on this statute. Because of the provision in this policy labeled "compliance with financial responsibility laws," the majority opinion cites Section 4509.46, Revised Code, which provides in part as follows:
"Proof of financial responsibility may be furnished by filing with the registrar of motor vehicles the written certificate of any insurance carrier authorized to do business in this state certifying that there is in effect a motor-vehicle liability policy for the benefit of the person to furnish proof of financial responsibility. * * *."
However, in my opinion, all that Section 4509.46, Revised Code, does to this case is to cause confusion, because I feel that it does not apply. This section had a purpose in the old Ohio Financial Responsibility Law (Section 6298-1 et seq., General Code), which was enacted in 1943, and which only applied when a person was convicted of certain serious traffic offenses or failed to satisfy a judgment against him for bodily injury or property damage arising out of operation of a motor vehicle. Proof of ability to satisfy such a judgment could be submitted by filing with the registrar of motor vehicles a written certificate of a "Motor Vehicle Liability Policy." However, the Financial Responsibility Law has been revised considerably since its enactment. Under the present law, the driver of any motor vehicle which is involved in an accident must file a written report of the accident with the registrar of motor vehicles (Section 4509.06, Revised Code). Such a report indicates whether such person carries a policy of liability insurance. If the report states that the driver carries liability insurance, the *Page 39 registrar of motor vehicles verifies this by writing to the insurance company. If the insurance company confirms coverage, this satisfies the security requirements under Section 4509.19 (A) (5), Revised Code. Thus, the provisions of Section 4509.46, Revised Code, would usually have no legal effect in a case such as this.
Section 4509.11, Revised Code, provides that the sections of the Financial Responsibility Law concerning its security requirements apply to the driver and owner of any motor vehicle which is in any manner involved in a motor vehicle accident within this state.
Therefore, if Henry Higgins, the insured, would not have liability insurance, it is my understanding that he would be subject to the Financial Responsibility Law under the circumstances of this case, and if the judgment in this case on behalf of plaintiff-appellee against Joe McLendon was not satisfied, the registrar of motor vehicles, under the provisions of Section 4509.17, Revised Code, would suspend the driver's license of Henry Higgins, as well as the registrations of all motor vehicles owned by Henry Higgins. Under these circumstances, I am inclined to feel that Henry Higgins would be "legally obligated to pay," or he would forfeit his driver's license and automobile license plates.
However, Henry Higgins obtained a liability insurance policy from defendant-appellant, and thus complied with the provisions of the Financial Responsibility Law. The question, as I stated before, is whether the incorporation of the language of Section4509.51 (B) into this insurance policy had the effect of extending the coverage to provide liability under the circumstances of this case.
I can think of no possible purpose for the incorporation of the language of Section 4509.51 (B), Revised Code, into this policy other than for it to have the same meaning as in this statute. Since this statute spells out the requirements of an owner's liability policy so as to comply with the Financial Responsibility Law, I come to the conclusion that this provision in the policy specifically incorporated the legal obligations of the insured under the Financial Responsibility Law into this policy. I would affirm the judgment. *Page 40