Watson v. Grange Mutual Casualty Co.

Sweeney, J.,

dissenting. Unfortunately, as has happened too often in recent cases, the majority in its zeal to arrive at a particular result has strictly construed the language of an automobile liability insurance policy against the insured and liberally construed it in favor of the insurance company which drafted the language that is being disputed. In light of such circumstances, I must vigorously dissent from the majority opinion herein.

While most of the reasoning employed in the majority opinion is cursory, it is somewhat heartening to see *199that some of the majority have finally acknowledged that uninsured motorist coverage is designed for the protection of persons, not automobiles. See Dairyland Ins. Co. v. Finch (1987), 32 Ohio St. 3d 360, 366-368, 513 N.E. 2d 1324, 1330-1332 (Sweeney, J., dissenting).

In any event, the key inquiry here is to determine whether uninsured motorist coverage exists. Coverage, of course, is determined by resorting to the language set forth in the insurance contract. The majority opinion does not include the language of the subject uninsured motorist provision issued by defendant-insurance company. It provides in relevant part:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile * * (Emphasis added.)

The facts, as stipulated below, indicate that the towed sedan was uninsured and that it was a contributing factor to the accident. This being the case, I believe that plaintiffs may make a valid claim for uninsured motorist coverage, since under the policy language, the accident arose out of the “use” of an uninsured motor vehicle. At the very least, the language of the subject uninsured motorist provision is ambiguous and reasonably susceptible to more than one interpretation, and therefore must be strictly construed against the insurer and liberally construed in favor of the insured. See, e.g., Faruque v. Provident Life & Acc. Ins. Co. (1987), 31 Ohio St. 3d 34, 31 OBR 83, 508 N.E. 2d 949. While the majority is intent on exalting public policy in a very limited respect, it ignores or forgets this central canon of insurance contract construction illustrated in Faruque, supra, which was also formulated under sound public policy considerations. Suffice it to say that this standard has guided this court for many years.

The majority summarily dismisses certain cases cited by plaintiffs because those cases involved towed vehicles that were insured. However, the majority completely misses the point raised by plaintiffs concerning those cases, i.e., what constitutes a “use” of a motor vehicle. As stated in 7 American Jurisprudence 2d (1980) 608, Automobile Insurance, Section 131: “The vehicle which is being towed also is being ‘used’ during the towing operation.” Moreover, it appears that this is the prevailing viewpoint throughout the country. See Annotation, Automobile Liability Insurance: What Are Accidents Or Injuries “Arising Out Of Ownership, Maintenance, Or Use” of Insured Vehicle (1982), 15 A.L.R. 4th 10. See, also, e.g., Tolleson v. State Farm Fire & Cas. Co. (La. App. 1984), 449 So. 2d 105.

In my view, the majority focuses on a distinction that is largely irrelvant, i.e., whether the towed vehicle was insured. The crucial inquiry is whether the towed vehicle was being put to “use” under the terms of the uninsured motorist provision. To say that such cases are inapposite because the vehicles being towed were insured effectively creates a distinction without a difference.

The divergent viewpoints expressed in this dissent and the majority opinion point out the fact that the subject provision is susceptible of more than one interpretation. As such, I *200believe the policy language must, at a minimum, be liberally construed in favor of plaintiffs, the insureds, and strictly construed against the defendant-insurance company pursuant to Faruque, supra, and other like precedents.

For these reasons, I would reverse the split decision of the court of appeals, and reinstate the decision of the trial court finding coverage for plaintiffs under the subject uninsured motorist provision.

Locher and Douglas, JJ., concur in the foregoing dissenting opinion.