Wetzel v. Auto-Owners Ins. Co.

[Cite as Wetzel v. Auto-Owners Ins. Co., 2016-Ohio-5355.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY

SHANE D. WETZEL :
: Appellate Case No. 2015-CA-25
Plaintiff-Appellant :
: Trial Court Case No. 13-CV-406
v. :
: (Civil appeal from Darke County
AUTO-OWNERS INSURANCE : Common Pleas Court)
COMPANY, et al. :
:
Defendant-Appellees :
:

...........
OPINION
Rendered on the 12th day of August, 2016.
...........

CRAIG A. DYNES, Atty. Ret. No. 0000724, and RYAN C. DYNES, Atty. Reg. No.
0081278, Dynes & Dynes, LLC, 2840 Alt. SR 49 North, Suite B, Post Office Box 250,
Arcanum, Ohio 45304
Attorneys for Plaintiff-Appellant

GORDON D. ARNOLD, Atty. Reg. No. 0012194, and PATRICK J. JANIS, Atty. Reg. No.
0012194, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800,
Dayton, Ohio 45402
Attorneys for Defendant-Appellees

.............

HALL, J.

{¶ 1} Shane D. Wetzel appeals from the trial court’s entry of summary judgment

against him on his complaint seeking underinsured-motorist coverage from appellee
 -2-

Auto-Owners Insurance Company.

{¶ 2} In his sole assignment of error, Wetzel contends the trial court erred in

sustaining Auto-Owners’ summary-judgment motion. He argues that the inclusion of a

“scheduled drivers” list in the subject insurance policy created an ambiguity that resulted

in those named on the list becoming “you” for purposes of extended underinsured-

motorist coverage.

{¶ 3} The present appeal stems from a July 2011 automobile accident. On that

date Shane Wetzel owned his own vehicle but he was driving a Chrysler 300 owned by

his girlfriend, Jane Hammaker. As Wetzel approached an intersection, another driver,

Michael Short, negligently ran a stop sign and struck the Chrysler 300. The accident killed

Hammaker and seriously injured Wetzel, whose damages exceeded the tortfeasor’s

liability-policy limits. Wetzel subsequently sought underinsured-motorist coverage

through an Auto-Owners policy issued for his father’s trucking company, “Wayne D.

Wetzel dba Wayne Wetzel Trucking.” Wayne Wetzel was the first and only “named

insured” in the Auto-Owners policy. The policy contained a list of “scheduled drivers” that

included Shane Wetzel. It also listed five commercial trucks as insured vehicles.

{¶ 4} Auto-Owners denied Shane Wetzel’s claim for underinsured-motorist

coverage under his father’s insurance policy. Wetzel responded by filing the present

lawsuit. As relevant here, he sought a declaratory judgment regarding his right to

underinsured-motorist coverage under the Auto-Owners policy. 1 (See Amended

1 Wetzel’s amended complaint also included claims against other defendants and an
“implied-in-fact” coverage claim against Auto-Owners. The other defendants eventually
were dismissed, however, and Wetzel’s assignment of error addresses only his claim for
underinsured-motorist coverage as an insured under the terms of the Auto-Owners policy.
The record also reveals the presence of cross claims and counterclaims. In an April 2016
 -3-

Complaint, Doc. #32). Auto-Owners later moved for summary judgment. (Doc. #67). The

trial court sustained Auto-Owners’ motion in an October 7, 2015 judgment entry. (Doc.

#86). It held that Wetzel did not qualify for underinsured-motorist coverage under the

terms of the policy. (Id. at 5-7).This appeal followed.

{¶ 5} The essence of Wetzel’s argument is that his inclusion on a “scheduled

drivers” list in the Auto-Owners policy created an ambiguity. Wetzel notes that a

“scheduled driver” was not defined. Nor did the policy assign any particular coverage to

“scheduled drivers.” Given this purported ambiguity regarding the purpose and effect of

being a scheduled driver, Wetzel argues that the policy must be construed to mean he

qualified as an insured who was entitled to underinsured-motorist protection. (Appellant’s

brief at 7).

{¶ 6} Upon review, we find Wetzel’s argument to be unpersuasive. “The

interpretation of an automobile liability insurance policy presents a question of law that an

appellate court reviews without deference to the trial court.” Jackson v. Pub. Entities Pool

of Ohio, 2d Dist. Montgomery No. 23049, 2009-Ohio-1772, ¶ 13, citing Nationwide Mut.

Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). In

construing the terms of an insurance policy, we are guided by the rules of contract

interpretation. “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. This rule cannot be used to create ambiguity where none

decision and entry, however, we determined that those claims were moot, and did not
preclude the existence of an appealable order, because they were derivative subrogation
claims.
 -4-

exists. Hacker v. Dickman, 75 Ohio St.3d 118, 119-20, 661 N.E.2d 1005 (1996).

Ambiguity exists only when a provision is susceptible of more than one reasonable

interpretation. Id. at 120. “Also, ‘[t]he fundamental goal in insurance policy interpretation

is to ascertain the intent of the parties from a reading of the contract in its entirety and to

settle upon a reasonable interpretation of any disputed terms in a manner calculated to

give the agreement its intended effect.’ ” Selective Ins. Co. of Am. v. Arrowood Indemn.

Co., 2d Dist. Montgomery No. 23400, 2010-Ohio-557, ¶ 11, quoting 57 Ohio

Jurisprudence 3d (2005) 394, Insurance, Section 315.

{¶ 7} As relevant here, the Auto-Owners policy provided liability coverage,

underinsured-motorist coverage, and extended underinsured-motorist coverage. The

liability insurance portion of the policy stated:

We will pay damages for bodily injury and property damage for which

you become legally responsible because of or arising out of the ownership,

maintenance or use of your automobile (that is not a trailer) as an

automobile. We will pay such damages:

(1) on your behalf;

(2) on behalf of any relative using your automobile (that is not a trailer);

(3) on behalf of any person using your automobile (that is not a trailer)

with your permission or that of a relative; and

(4) on behalf of any person or organization legally responsible for the use

of your automobile (that is not a trailer) when used by you, a relative, or

with your permission or that of a relative.

(Doc. #1 at Auto-Owners policy pg. 2).
 -5-

{¶ 8} The policy included the following definitions:

9. Relative means a person who resides with you and who is related to you

by blood, marriage, or adoption. Relative includes a ward or foster child

who resides with you. * * *

12. You or your means the first named insured shown in the Declarations

and if an individual, your spouse who resides in the same household.

13. Your automobile means the automobile described in the Declarations.

(Id. at 1-2).

{¶ 9} In light of the foregoing provisions, Shane Wetzel did not have liability

coverage at the time of the accident.2 The only named insured in the Declarations was

his father, Wayne Wetzel.3 Shane Wetzel did not live with his father and, therefore, did

not qualify as a resident relative. Shane Wetzel also was not using one of the five trucks

identified in the policy at the time of the accident. Nor was he a person or organization

2We include the liability portion of the policy for context and because the underinsured-
motorist portion of the policy refers to it.
3 In its appellee’s brief, Auto-Owners points out that Wayne Wetzel died in November
2010, which was before Shane Wetzel’s July 2011 automobile accident. Auto-Owners
argues that it had no knowledge of Wayne Wetzel’s death and continued to issue policy
renewals to “Wayne Wetzel dba Wayne Wetzel Trucking” long after Wayne Wetzel’s
death and Shane Wetzel’s accident. Auto-Owners also argues that Wayne Wetzel’s death
had no effect on the coverage provided by the policy and did not result in Shane Wetzel
automatically becoming the named insured. (See Appellee’s brief at 20-23). For present
purposes, however, we need not consider the impact, if any, of Wayne Wetzel’s death. In
his sole assignment of error, Shane Wetzel does not argue that Wayne Wetzel’s death
affected his entitlement to underinsured-motorist coverage. In fact, Shane Wetzel’s
opening appellate brief does not mention the fact that Wayne Wetzel died prior to the
accident. As set forth above, Shane Wetzel’s sole argument on appeal is that he qualifies
as “you” for purposes of extended underinsured-motorist coverage under the terms of the
policy based on his status as a “scheduled driver.” Given that Wayne Wetzel’s death is
not raised as an issue, or even mentioned, in Shane Wetzel’s appellate argument, we
need not consider it.
 -6-

legally responsible for the use of one of the trucks.

{¶ 10} With regard to underinsured-motorist coverage, the Auto-Owners policy

stated:

a. We will pay compensatory damages, including but not limited to loss of

consortium, any person is legally entitled to recover from the owner or operator of

an underinsured automobile because of bodily injury sustained by an injured

person while occupying an automobile that is covered by SECTION II –

LIABILITY COVERAGE of the policy.

(Id. at Form 79303 (12-090)).

{¶ 11} Shane Wetzel was not injured while occupying an automobile that was

covered by the liability-coverage portion of the Auto-Owners policy. As set forth above,

the automobiles covered by liability insurance included the five trucks specifically

identified in the Declarations. Shane was driving his girlfriend’s Chrysler 300, which was

not covered by liability insurance under the Auto-Owners policy.

{¶ 12} Finally, the Auto-Owners policy provided extended underinsured-motorist

coverage. It stated:

b. If the first named insured in the Declarations is an individual, this

coverage is extended as follows:

(1) we will pay compensatory damages, including but not limited to loss of

consortium, you are legally entitled to recover from the owner or operator

of any underinsured automobile because of bodily injury you sustain:

(a) when you are occupying an automobile that is not covered by

SECTION II – LIABILITY COVERAGE of the policy; or
 -7-

(b) when you are not occupying any automobile that is covered by

SECTION II – LIABIILTY COVERAGE of the policy.

(2) The coverage extended in 2.b.(1) immediately above is also extended

to a relative who does not own an automobile.

(Id.).

{¶ 13} Here the first (and only) named insured in the Declarations was Wayne

Wetzel. Therefore, the extended underinsured-motorist coverage applied to Wayne

Wetzel, and to a spouse living with him, regardless of what vehicle they were in. This is

so because the word “you” in the policy means the first named insured and a spouse who

resides in the same household. Underinsured-motorist extended coverage also applies

to a relative, defined as a related person residing with the named insured, provided the

relative does not own an automobile. The record reflects Shane Wetzel did not live with

Wayne Wetzel and Shane did own his own vehicle. Consequently, the policy

unambiguously did not provide Shane Wetzel with extended underinsured-motorist

coverage when a tortfeasor struck his girlfriend’s Chrysler 300 that he was driving.

{¶ 14} On appeal, Wetzel’s sole argument in opposition to our conclusion is that

the word “you” in the Auto-Owners policy included him. If Wetzel were correct, he would

qualify for extended underinsured-motorist coverage under the language set forth above.

But we conclude he is not. Wetzel argues that his inclusion on the list of “scheduled

drivers” in the policy Declarations is ambiguous because the purpose and effect of being

on the list are unclear. Wetzel asserts that a “scheduled driver” is not defined in the policy

and that no specific coverage is assigned to a “scheduled driver.” He reasons that if any
 -8-

of the scheduled drivers were operating any of the covered commercial trucks in the

course and scope of their employment, the liability provision of the policy would provide

coverage. (Appellant’s brief at 8). This is so, he asserts, because they would qualify as

“you” for purposes of liability coverage. (Id. at 10). Based on that premise, he reasons

that “[i]f the ‘scheduled drivers’ are ‘you’ or ‘your’ for liability coverage then they are ‘you’

or ‘your’ for the Extended UIM coverage.” (Id.).

{¶ 15} We agree with Wetzel that if any of the five scheduled drivers were

involved in an accident while driving a covered truck in the course and scope of

employment, liability coverage would exist. It would not exist, however, because the

scheduled drivers all would qualify as “you” for purposes of liability insurance. As set forth

above, the word “you” in the policy explicitly refers to the first named insured, Wayne

Wetzel, not to all five scheduled drivers. Rather, the scheduled drivers all would have

liability coverage under the hypothetical in Shane Wetzel’s brief because they were

driving a covered vehicle with Wayne Wetzel’s permission.

{¶ 16} Although the Auto-Owners policy does not expressly state that individuals

on the “scheduled drivers” list have the named insured’s permission to drive one of the

work trucks, that conclusion is unavoidable and self-evident. At the top of the list,

instructions advised Wayne Wetzel, the named insured, that “[l]isted below are drivers

currently scheduled on this policy.” He was told to “compare the list with [his] current

records and contact [his] agent with any changes that need to be made.” Thus, it is

apparent that Wayne Wetzel controlled the names on the list of people “scheduled” to

drive his work trucks. By placing a driver’s name on the schedule, Wayne Wetzel

necessarily gave that driver express permission. We see no other reason for placing a
 -9-

driver’s name on the list.4 And the liability portion of the policy extended coverage to

anyone driving one of the trucks with Wayne Wetzel’s permission. Therefore, the

scheduled drivers had liability coverage because they were driving the work trucks with

Wayne Wetzel’s permission, not because they all qualified as “you” under the policy. By

definition, “you” in the Auto-Owners policy did not refer to all “scheduled drivers” but only

to the “first named insured.” The fact that a list of “scheduled drivers” appeared on the

Declarations page did not make ambiguous the clear reference to Wayne Wetzel as the

named insured.

{¶ 17} In resolving the issue before us, we find persuasive the Connecticut

appellate court’s reasoning in Kitmirides v. Middlesex Mut. Assurance Co., 65 Conn. App.

729, 783 A.2d 1079 (Conn.App.2001). In Kitmirides, the plaintiff was a listed driver on the

declarations page of an insurance policy issued to her father in law. After she was injured

by an underinsured driver, she sought underinsured-motorist benefits under the policy.

She argued that the policy was ambiguous because the purpose and effect of being a

listed driver were not explained. In light of that purported ambiguity, she argued that she

qualified as “you” for purposes of underinsured-motorist coverage. As in the present case,

such coverage was provided to “you,” which the policy defined as the “named insured,”

the plaintiff’s father in law. The Connecticut appellate court rejected her argument,

reasoning in part:

4 This does not mean, of course, that Wayne Wetzel could not give other people
permission to drive a work truck. Nothing in the policy precluded him from doing so.
Having a particular driver’s name on the list simply removed any doubt regarding the
existence of permission for that person.
 -10-

After a searching review of the record, the parties’ briefs, the cases

cited therein and the oral argument, we are persuaded that, although the

plaintiff’s arguments are not implausible, the defendant’s reading of the

policy is more convincing. The declarations page in this case, even though

it lists the plaintiff as an additional driver without defining the rights attaching

to that designation, does not, per se, create an ambiguity in the policy’s

definition of a “Covered person” for a particular coverage. [footnote omitted].

In our view, the policy is not reasonably susceptible to more than one

reading with regard to a listed driver’s right to underinsured motorist

coverage. For underinsured motorist coverage, the policy clearly and

unambiguously defines “you,” the person covered in the underinsured

portion of the policy, as the “ ‘Named insured’ shown in the Declarations....”

Because these terms are unambiguous, the coverage provisions as a whole

are unambiguous. On the present record, the only person who fits the

definition of the “Named Insured” is the plaintiff’s father-in-law. He is the

only person who is identified as the insured on the declarations page. That

identification is not on the same page as the listing of named drivers. He

alone requested the policy change that made her an additional driver. * * *

* * * [W]e agree with the defendant’s construction of the policy that it

issued to the plaintiff’s father-in-law. Specifically, we conclude that a person

who is a listed driver on the declarations page of an automobile insurance

policy, and who is nowhere else listed as an insured, is not entitled to

underinsured motorist coverage. The policy’s definition of who is an insured
 -11-

for such coverage is unambiguous. Under the circumstances of this case,

the plaintiff cannot require the defendant to compensate her for the injuries

that she received as a result of the tortious conduct of an underinsured

motorist.

Id. at 1083-1084.

{¶ 18} A Missouri appellate court reached the same conclusion in Eldridge v.

Columbia Mut. Ins. Co., 270 S.W.3d 423 (Mo.App.2008). Citing Kitmirides and case law

from Indiana and Kentucky, the Eldridge court reasoned:

Victoria Savage was not a resident of John Earnest’s household at

the time of the accident. Additionally, she is not listed as a “Named Insured”

on the Declarations page of the policy. She is listed in the policy only as a

“Driver.” More specifically, she is listed as a driver for the 2000 Chevrolet

Malibu, which is a covered vehicle under the policy but was not involved in

the subject accident. Based on the plain language of the insurance

agreement, Victoria Savage was a covered driver with regard to the 2000

Chevrolet Malibu, but she was not an insured for any other purposes under

the policy.

We disagree with Eldridge’s argument that the term “driver” is

unclear because it was not defined in the policy. The mere lack of definition

does not create an ambiguity. * * * Nothing in the policy suggests that its

use of the term has any meaning beyond the plain and ordinary meaning of

“driver.” Merriam Webster’s Collegiate Dictionary, 353 (10th ed.2000)

defines “driver” as “one that drives: as a: coachman b: the operator of a
 -12-

motor vehicle[.]” These definitions are consistent with the everyday use of

the word with respect to automobiles and do not create confusion or

uncertainty. Further, the double listing of John Earnest in the policy, once

as the “named insured” and again in another section of the policy set off

with horizontal lines and headed by the bolded words “DRIVER(S)

SUMMARY,” prevents an understanding that “driver” could have the same

meaning as “named insured” under the policy.

Although Missouri has not directly addressed this issue, other

jurisdictions have recognized that the designation of “driver” on the

declarations page of an insurance policy is not without effect. In Kitmirides

v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 783 A.2d 1079,

1084 (2001), under similar circumstances to those before us, the court held

that the policy’s definition of an insured is unambiguous when one party is

listed as a named insured on the declarations page and another is listed as

a driver, a term undefined by the policy. The court concluded that the driver

designation serves as dispositive evidence of permission to use a covered

vehicle. Id. at 1083 n. 7.

Indiana and Kentucky have also rejected the notion that an ambiguity

arises when an automobile insurance policy fails to define the term “driver.”

Millspaugh v. Ross, 645 N.E.2d 14 (Ind.Ct.App.1994); True v. Raines, 99

S.W.3d 439, 444 (Ky.2003). The Indiana court found that while the

designation of driver was significant for some purposes, including the

amount of the premium due under the policy, it did not create a right to
 -13-

coverage under all provisions of the policy. Millspaugh, 645 N.E.2d at 16-

17. Likewise, North Carolina has held that the term “named insured”

unambiguously excludes persons listed only as drivers in policies similar to

the one at issue here. Nationwide Mut. Ins. Co. v. Williams, 123 N.C.App.

103, 472 S.E.2d 220, 222 (1996). This view is in keeping with Couch on

Insurance, which explains that “one listed on the policy, but only in the

status of a driver of a vehicle, is not a named insured despite the fact that

such person’s name was physically on the policy.” 7A Lee R. Russ &

Thomas F. Segalla, Couch on Insurance 3d § 110:1 (2005).

Eldridge at 427-428; see also Ex parte United Servs. Auto. Ass’n, 365 S.C. 50, 56, 614

S.E.2d 652 (S.C. App.2005) (“We therefore adopt the majority view and hold that listing

an individual as an operator on the declarations page of an insurance policy does not

make that individual a named insured.”).

{¶ 19} We agree with the foregoing case law, which is equally applicable here. But

even if we were to accept Shane Wetzel’s argument regarding ambiguity as to the

purpose and effect of being a “scheduled driver,” we believe the most natural and

reasonable interpretation is that the list provides prima facie evidence that a driver whose

name appears there has permission to drive one of the work trucks. In any event, no

reasonable interpretation of the policy would transform all of the scheduled drivers into

“you” (which the policy explicitly defines elsewhere as Wayne Wetzel, the first named

insured) for purposes of underinsured-motorist coverage. Compare Georgia Farm Bureau

Mut. Ins. Co. v. Wilkerson, 250 Ga. App. 100, 102, 549 S.E.2d 740 (Ga. App. 2001)

(“Although the designation ‘driver’ may be used to show permission to use the insured
 -14-

automobile, this meaning is not stated in the policy. But this case does not involve the

meaning of listing a driver on the policy. And just because identifying one as a ‘driver’

may be ambiguous does not make ambiguous the otherwise plain and clear reference to

McDowell as the only ‘named insured’ shown in the Declarations.”). In other words,

assuming arguendo that the meaning of “scheduled driver” is ambiguous, we know that it

does not mean “you” because “you” is clearly defined elsewhere in the policy. We also

know that all of the “scheduled drivers” do not qualify as the “first named insured” because

the policy specifically identifies Wayne Wetzel, alone, as the first and only named insured.

{¶ 20} On appeal, Shane Wetzel notes that some courts from other states have

accepted an argument that the undefined term “driver” is ambiguous and that the

ambiguity results in such a “driver” becoming a “named insured.” Perhaps more

pertinently, he maintains that the Kitmirides decision discussed above is at odds with two

Ohio cases, Jensen v. State Automobile Mutual Ins. Co., 10th Dist. Franklin No. 04AP-

837, 2005-Ohio-4354, and Roelle v. Coffman, 3d Dist. Seneca No. 13-97-17, 1997 WL

722775 (Nov. 17, 1997).5

5 Wetzel also addresses the cases of Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio
St.3d 660, 710 N.E.2d 1116 (1999), and Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, which limited Scott-Pontzer. He argues that they do
not apply here because they involved insurance policies that designated a corporation as
the named insured whereas the Auto-Owners policy identified an individual, Wayne
Wetzel, as the named insured. (Appellant’s brief at 19). Wetzel specifically asserts that
“[t]he within case is not governed by the Supreme Court of Ohio’s holding in Galatis.” (Id.).
We agree. In his reply brief, however, Wetzel then suggests that Scott-Pontzer and
Galatis do apply. In fact, he asserts that “[t]his case is controlled by” Scott-Pontzer and
Galatis. (Appellant’s reply brief at 6). We are more persuaded by Wetzel’s initial position
on the issue. Scott-Pontzer and Galatis involved an allegedly-ambiguous “you” when the
named insured was a corporation. Here the named insured was an individual, and we find
no ambiguity with regard to the word “you,” which the policy clearly defined. Wetzel’s
argument is different. He contends that the phrase “scheduled driver” is ambiguous and,
therefore, that all “scheduled drivers” should be grafted onto the unambiguous definition
 -15-

{¶ 21} In Roelle, Jeanette Bowlin shared a residence with Marc Edward Coffman.

They obtained a joint car insurance policy through Motorists Mutual Insurance Company.

Bowlin was the named insured, Marc Edward Coffman was listed as a driver, and the

policy included their respective cars. The policy provided liability coverage to an “insured,”

which it defined to include (1) the named insured, (2) a resident spouse of the named

insured, (3) anyone using a covered auto of the named insured or the named insured’s

resident spouse, and (4) a family member of the named insured or the named insured’s

resident spouse. Roelle at *1-2. The issue in the case was whether Marc Edward

Coffman’s son, Marc Anthony Coffman, was an insured under the policy based on his

status as a family member of Marc Edward Coffman.

{¶ 22} Because Marc Edward was listed as a “driver” but was not the named

insured or a resident spouse of the named insured, a literal reading of the policy meant

that he was not covered at all and, by extension, that his son was not covered as his

family member. The Third District rejected this interpretation, reasoning:

Appellants contend that Marc Edward is an insured under the policy

even though he was not Jeanette’s spouse nor a named insured listed on

the Declarations page of the policy. While Marc Edward was a listed driver

and had paid an additional premium to be included on the policy, the policy

language does not expressly provide any insurance coverage for named

drivers who do not otherwise qualify as named insureds or as family

members of the named insured. Appellants argue that to read the policy as

of “you.”
 -16-

providing no coverage to Marc Edward is unreasonable and contrary to the

intentions of the contracting parties. As the depositions of Jeanette, Marc

Edward, and Randall Mick, Motorists Mutual’s own agent, demonstrate, all

parties believed Marc Edward would receive insurance coverage as a result

of being named on the policy and an additional premium being charged.

Since insurance coverage was clearly intended to include Marc Edward,

Appellants believe he should receive the same benefits as a named insured.

According to Appellants, it follows then that Marc Anthony, as Marc

Edward’s son, would qualify as [an] insured family member for liability

purposes under the Motorists Mutual policy.

On the other hand, while Motorists Mutual concedes that Marc

Edward was insured under their policy as a named driver, the company

does not agree that he qualifies for the same coverage as a named insured.

As a result, Motorists Mutual maintains that Marc Anthony would not be

entitled to liability coverage since he is not a family member of Jeanette

Bowlin, the only named insured. * * *

* * * We find the automobile insurance policy issued to Jeanette

Bowlin and Marc Edward Coffman ambiguous since a “named driver” other

than a “named insured” is not defined nor is a “named driver” assigned any

coverage limits in the body of the contract. A literal reading of the contract

reveals that named drivers who are not also the named insured or a family

member of a named insured are not covered under the policy. However,

such a reading would be unreasonable given that a premium was charged
 -17-

by Motorists Mutual for the sale of insurance protection and paid by Marc

Edward, as a purchaser of that coverage. Nor would such a reading conform

to the intentions of the parties, all of whom agree that Marc Edward was

entitled to insurance coverage as a named driver.

Although Motorists Mutual suggests a named driver is entitled to a

more limited form of coverage than a named insured, as the drafter of the

policy, Motorists Mutual had the opportunity to define the coverage available

to named drivers listed on their policies. Its failure to do so results in an

ambiguity which must be construed against the insurer. * * * Viewing the

contract terms in a light consistent with the intentions of the parties, we find

Marc Edward Coffman was an insured, as that term is used in Motorists

Mutual’s policy, for purposes of liability coverage. As a result, Marc Anthony

Coffman is also eligible for liability coverage under Motorists Mutual’s policy

as a family member of an insured. * * *.

Id. at *2-3.

{¶ 23} In Jensen, the plaintiff-appellee, Mark Jensen, was struck in a crosswalk by

a negligent driver. Jensen lived in an apartment in Columbus, Ohio, but also considered

himself a resident of his parents’ home in Oregon, Ohio. Jensen’s parents had automobile

insurance with State Auto. The parents were “named insureds,” and plaintiff Jensen was

listed as an “additional driver” on the policy. His parents paid a premium to include him

on their policy, and he resided with them periodically. As a result of his accident, Jensen

sought underinsured-motorist coverage under his parents’ policy. The trial court found

him entitled to coverage as a resident of his parents’ household.
 -18-

{¶ 24} On review, the Tenth District affirmed on alternative grounds. Jensen at ¶

16. Relying on Roelle, it found that Jensen’s status as an “additional driver” entitled him

to underinsured-motorist coverage, reasoning:

In appellee’s request for admissions in this case, State Auto

acknowledged appellee is entitled to underinsured motorist coverage and

general automobile insurance coverage as a rated driver. Although appellee

is listed on the declarations page as an additional driver, an “additional

driver” other than a named insured is neither defined, nor assigned any

coverage limits in the policy. Thus, we find the policy is ambiguous, as it

does not define what coverage is available to additional drivers listed on

their policies. Construing the policy in favor of appellee, we find appellee,

as an “additional driver,” qualified as an “insured” under the State Auto

policy. To find otherwise would contravene the intention of the parties, as

State Auto charged a premium for insurance coverage, and Mr. Jensen paid

a premium to ensure appellee was insured under the State Auto policy.

* * * State Auto improperly argues that the definition of a “named

insured” is inapplicable, contrary to its admission that appellee is insured

under the policy. Nonetheless, State Auto admitted underinsured motorist

coverage was not limited to an insured’s use of a particular automobile

when he is a pedestrian. Thus, we find appellant’s argument is without

merit, and the trial court properly granted appellee’s motion for summary

judgment.

Id. at ¶ 23-24.
 -19-

{¶ 25} Upon review, we are unpersuaded by Wetzel’s reliance on Roelle and

Jensen. In both cases, the policyholder specifically paid a premium to have the disputed

person covered. In Roelle, the insurance company also agreed that Marc Edward was an

insured under the policy as a named driver even though the literal policy terms did not

provide him any coverage. Moreover, the Third District found that the insurance company

had failed to define the particular coverage available to named drivers such as Marc

Edward and, by extension, his son. Likewise in Jensen, the insurance company agreed

that Jensen was an insured under the policy, but the Tenth District found that the policy

did not define what coverage was available to him.

{¶ 26} Here the Auto-Owners policy at issue did identify the coverage available to

Wetzel. As set forth more fully above, the liability portion of the policy extended coverage

to anyone driving one of the work trucks with Wayne Wetzel’s permission. Therefore, the

scheduled drivers, including Wetzel, had liability coverage when they were driving the

work trucks. The policy unambiguously did not provide Wetzel with underinsured-motorist

coverage, however, because he was not driving a covered work truck at the time of his

accident, and he was not the named insured, a spouse of the named insured, or a resident

relative of the named insured. If Wetzel had been driving a work truck at the time of his

accident, he would have been covered. Because he was driving his girlfriend’s personal

car, the Auto-Owners trucking policy issued to his father provided no coverage.

{¶ 27} To the extent that Roelle and Jensen might suggest a different result based

on a perceived ambiguity in the Auto-Owners policy, we find them unpersuasive and

respectfully decline to follow them. Both opinions expressed concern about paying

premiums but not having coverage for a particular claim. As Auto-Owners notes, however,
 -20-

“lack of coverage in a particular circumstance is not a total lack of coverage, if coverage

applies in other circumstances.” (Appellee’s brief at 16). Auto-Owners also correctly notes

that unlike Roelle and Jensen, where a specific premium apparently was paid to add a

particular driver to the policy, the policy at issue here covered work vehicles without any

apparent additional premium regardless of how many scheduled drivers there were.

Indeed, the policy allowed Wayne Wetzel to change the scheduled drivers at will, which

is consistent with our conclusion that being a scheduled driver merely signified that the

driver had permission to operate the trucks.

{¶ 28} We note also that two Sixth District cases, Moccabee v. Progressive Ins.

Co., 6th Dist. Huron No. L-98-1069, 1998 WL 700670 (Oct. 9, 1998), and Vanvlerah v.

Doughty, 6th Dist. Huron No. H-04-044, 2005-Ohio-3601, are consistent with our analysis

herein. In Moccabee, the Sixth District upheld a finding that the plaintiff, Samuel

Moccabee, was not an insured under an insurance policy issued to Raymond Nowak, his

step-father. Although Moccabee was identified in the policy as an undefined additional

“driver,” that fact did not make him an insured. In rejecting his argument on that issue, the

Sixth District reasoned:

The policy declarations page is addressed to only Raymond Nowak,

and clearly states that it is a “policy declaration” for Raymond Nowak. It is

undisputed that Raymond Nowak was the party responsible for choosing

the levels of available coverage and for paying the policy premiums Thus,

it is clear and unambiguous that Raymond Nowak was the “named insured”

on the policy, and that Norma Nowak was an “insured” under the policy by

virtue of being Raymond Nowak’s spouse and living in the same household
 -21-

as Raymond Nowak. It is undisputed that appellant was not in the Nowak’s

vehicle when the accident occurred, and appellant is not otherwise a

“spouse” or a “relative” as defined by the policy.

Upon consideration of the foregoing, we find that the term “insured,”

while not defined in the policy, unambiguously refers to only Raymond and

Norma Nowak. Accordingly, the trial court did not err by finding that,

although appellant is listed as a “driver” under the policy, appellant is not an

“insured” under the policy, and appellant’s first assignment of error is not

well-taken.

Moccabee at *3-4.

{¶ 29} In Vanvlerah, an underinsured motorcyclist struck and injured a minor who

was riding a bicycle. The minor’s father, Timothy McGinn, was named as an additional

driver on the declarations page of a policy issued to the minor’s grandfather, James

McGinn. Much like the Rolle case discussed above, Timothy McGinn argued that his

status as an additional driver made him an insured entitled to underinsured-motorist

coverage under James McGinn’s policy. Based on the premise that he was an insured,

Timothy argued that his minor child also was entitled to underinsured-motorist coverage

as a family member. The Sixth District rejected this argument, reasoning:

This court has reviewed the disputed policy language. The sole

named insured is James McGinn. His son, Timothy McGinn, is listed as an

authorized driver of the insured vehicle. In the definitions portion of the

policy, the language expressly states that a resident spouse of the name[d]

insured is also covered by the policy. The policy also extends coverage to
 -22-

family members of the named insured.

Family members are defined as those related by blood, marriage, or

adoption who reside in the same household as the named insured. Timothy

and [D.] McGinn did not reside with the named insured. No resident spouse

was involved in the accident. The covered vehicle was not involved in the

accident. The express language of the policy makes clear it does not

encompass Timothy or [D.] McGinn. It provides no underinsured coverage

for this accident.

Part C of the policy, the underinsured coverage provisions,

specifically establishes that an “insured” is the named insured, a family

member of the named insured, or anyone occupying the covered

automobile. Thus, the plain language of the agreement unequivocally

excludes coverage in this case.

Appellants’ attempt to distinguish and redefine this court’s ruling in

Moccabee v. Progressive Ins. Co. (Oct. 9, 1998), 6th Dist. No. L–98–1069,

is misleading and misplaced. Appellants proclaim that by affirming, this

court would, in effect, be holding that Moccabee enables an insurance

company to charge an additional premium to list an additional named driver

while wholly denying coverage to that named driver. There is absolutely no

evidence that an additional premium was charged in this case based upon

the listing of Timothy McGinn as a driver.

The Moccabee ruling held that whether or not one is an “insured”

under a policy is governed by the language of the policy itself and is not
 -23-

controlled by whether or not that person is listed as an additional driver.

That is precisely what the court is reaffirming in this case. The policy

language in this case is not ambiguous. Pursuant to the language, there is

no coverage. * * *.

Vanvlerah at ¶ 14-18; see also Dea v. Johnson, 8th Dist. Cuyahoga No. 90178, 2008-

Ohio-3147, ¶ 12 (“In the instant case, plaintiff is not a named insured, nor is she an insured

by virtue of being a ‘relative’ as defined by the policy. Furthermore, plaintiff is not an

insured merely by being listed as an additional driver on the policy.”).

{¶ 30} Finally, in his reply brief, Wetzel questions whom the extended

underinsured-motorist coverage in the Auto-Owners policy was intended to protect. He

reasons: “When a policy is issued for five large trucks and five scheduled drivers, who

does Auto Owners think the Extended UIM coverage is for? If Auto Owners’ intent was

that it was only for Wayne D. Wetzel then Auto Owners should have said the Extended

UIM coverage was only for Wayne D. Wetzel.” (Appellant’s reply brief at 2). Later in his

reply brief, Wetzel questions: “If Auto Owners is insuring a trucking company with five

large commercial trucks and five scheduled drivers, then who else would the Extended

UIM coverage benefit?” (Id. at 5).

{¶ 31} But the Auto-Owners policy did identify the recipient of underinsured-

motorist coverage. As explained above, the answer to Wetzel’s inquiries resides in what

we believe is the unambiguous language of the policy. It explicitly provided underinsured-

motorist coverage to anyone occupying one of the covered trucks. It also provided

extended underinsured-motorist coverage to the named insured (Wayne Wetzel), a

resident spouse of the named insured, and a relative of the named insured not owning an
 -24-

automobile. Shane Wetzel was not occupying one of the covered trucks. He was not the

named insured, a resident spouse of the named insured, or a relative of the named

insured who did not own an automobile. Therefore, he was not entitled to underinsured-

motorist coverage under the terms of the Auto-Owners policy.

{¶ 32} Based on the reasoning set forth above, we overrule Wetzel’s assignment

of error and affirm the judgment of the Darke County Common Pleas Court.

.............

FROELICH, J., and WELBAUM, J., concur.

Copies mailed to:

Craig A. Dynes
Ryan C. Dynes
Gordon D. Arnold
Patrick J. Janis
John Archer
Kevin Susman
Melissa Yasinow
Lorree Dendis
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Hon. Jonathan P. Hein