Sullivan-White v. Aukland

[Cite as Sullivan-White v. Aukland, 2023-Ohio-141.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Donna Kelly Sullivan-White Court of Appeals No. L-21-1213

Appellant/Cross-appellee Trial Court No. CI0201901403

v.

Amanda S. Aukland, et al.

Appellees

State Farm Mutual Automobile
Insurance Company Subrogation
Services DECISION AND JUDGMENT

Appellee/Cross-appellant Decided: January 18, 2023

*****

Patrick D. Hendershott, for appellant/cross-appellee.

Richard C.O. Rezie and Maia E. Jerin, for appellees,
Thomas C. Aukland and Amanda S. Aukland.

Mark P. Seitzinger, for appellee/cross-appellant.

*****

DUHART, J.

{¶ 1} This is an appeal filed by appellant/cross-appellee, Donna Kelly Sullivan-

White, from the October 12, 2021 judgment of the Lucas County Court of Common
Pleas, and the cross-appeal of appellee/cross-appellant, State Farm Mutual Automobile

Insurance Company (“State Farm”), from the May 6, 2020 and July 1, 2021 judgments of

the Lucas County Court of Common Pleas. For the reasons that follow, we affirm the

judgments.

{¶ 2} Appellant sets forth three assignments of error:

1. The Trial Court Erred by Overturning its previous ruling of

November 2, 2020 that Defendant State Farm Mutual Automobile

Insurance Company’s Motion for Summary Judgment was denied.

2. The Trial Court Erred by requiring that Appellant be responsible

for State Farm Mutual Automobile Insurance Company’s service on

Amanda S. Aukland and Thomas Aukland when it was a party to the

lawsuit with its own attorney representing it.

3. The Trial Court Erred by looking at insurance policy provisions

not raised during the original filing of State Farm’s Motion for Summary

Judgment.

{¶ 3} State Farm sets forth two assignments of error:

1. The Trial Court Erred by Denying State Farm’s Motion for Relief

from Judgment Because State Farm Filed the Motion within a Reasonable

Time.

2.
 2. The Trial Court Erred by Granting the Aukland Defendants’

Motion to Dismiss Because Dismissal of State Farm’s Cross-Claim For

Failure of Service Would Be “Otherwise Than On the Merits.”

Background

{¶ 4} On February 10, 2017, while appellant was driving, she claims she was

struck by a vehicle driven by Amanda Aukland, and owned by Thomas Aukland. As a

result, appellant allegedly sustained injuries and damages.

{¶ 5} On February 8, 2019, appellant filed a complaint against the Auklands, State

Farm and others. Appellant alleged, inter alia, Mrs. Aukland was negligent in causing the

vehicular accident, Mr. Aukland negligently entrusted his wife with his vehicle, and the

Auklands were inadequately insured to sufficiently compensate her, so she sought to

recover uninsured/underinsured motorist (“UM/UIM”) benefits from her automobile

insurance policy with State Farm. Appellant attempted to serve the complaint on the

Auklands, but service failed. Appellant successfully served the complaint on State Farm.

{¶ 6} On February 25, 2019, State Farm filed an answer to the complaint as well

as a cross-claim against the Auklands. In the cross-claim, State Farm asserted it is

subrogated to appellant’s right to recover from the Auklands, and is entitled to

indemnification and/or contribution from the Auklands for any amounts paid to appellant,

including UM/UIM benefits. State Farm attempted to serve the cross-claim on the

Auklands, but service failed.

3.
 Motion to Dismiss/Service/Motion for Relief

{¶ 7} On March 16, 2020, the Auklands appeared solely to file a motion to dismiss

pursuant to Civ.R. 12(B)(2), (4), (5) and (6), claiming they were entitled to have the

complaint and cross-claim against them dismissed with prejudice. They argued the case

against them had never been commenced due to insufficient service and service of

process, thus the trial court did not have jurisdiction. They also asserted since the statute

of limitations had expired, appellant and State Farm were barred from reasserting their

claims.

{¶ 8} On March 17, 2020, appellant filed praecipes directing the clerk to serve the

complaint on the Auklands. Subsequently, service failed.

{¶ 9} On March 26, 2020, State Farm opposed the motion, arguing if the motion to

dismiss is granted, it should be without prejudice, as appellant and State Farm could re-

file their claims within one year using the savings statute.

{¶ 10} On April 1, 2020, appellant filed a motion for extension of time to respond

to the motion to dismiss. On April 13, 2020, the Auklands filed a brief in opposition, and

attached their affidavits, averring, inter alia, Mrs. Aukland was out of the state for 32

days between February 10, 2017 and February 10, 2019, and Mr. Aukland was out of the

state for 68 days between February 10, 2017 and February 10, 2019.

{¶ 11} On April 30, 2020, the trial court’s decision granting the motion to dismiss

appeared on the online docket, and on May 6, 2020, the court issued its opinion and

4.
journal entry granting the motion to dismiss. The court found appellant and State Farm

failed to serve the Auklands within the one year allowed by Civ.R. 3(A), and did not

commence their actions against the Auklands prior to the expiration of the statute of

limitations. The court further found R.C. 2305.19, the savings statute, did not apply

because the dismissal is a judgment on the merits. The trial court dismissed the

complaint and the cross-claim with prejudice.

{¶ 12} On May 4, 2020, State Farm filed praecipes directing the clerk to serve the

cross-claim on the Auklands. Service of the cross-claim was made on Mrs. Aukland on

May 11, 2020, and on Mr. Aukland on May 12, 2020.

{¶ 13} On March 24, 2021, State Farm again filed praecipes directing the clerk to

serve the cross-claim on the Auklands. Service of the cross-claim was made on both of

the Auklands on March 31, 2021.

{¶ 14} On April 28, 2021, State Farm filed a motion for relief from the May 6,

2020 judgment which granted the motion to dismiss State Farm’s cross-claim against the

Auklands. The trial court denied State Farm’s motion on July 1, 2021.

Motion for Summary Judgment and Opinion

{¶ 15} On June 26, 2020, State Farm filed a motion for summary judgment against

appellant as to her claim to collect UM/UIM benefits. State Farm argued the policy

language excludes UM/UIM coverage where the insured is not “legally entitled to

recover” against the tortfeasors, and since the Auklands were dismissed with prejudice,

5.
appellant is no longer legally entitled to recover against the alleged uninsured tortfeasors.

Therefore, appellant is barred from collecting UM/UIM benefits.

{¶ 16} On July 29, 2020, appellant filed a memorandum in opposition, where she

asserted State Farm does not dispute that she timely obtained service against it. She

noted that her claims and State Farm’s claims against the Auklands were dismissed

pursuant to Civ.R. 3(A), but the Snyder case, cited by State Farm, does not apply. The

Snyder court held “policy language restricting [UM] coverage to those amounts the

insured is ‘legally entitled to recover’ from the tortfeasor * * * unambiguously denies

coverage for injuries caused by uninsured motorists who are immune from liability under

R.C. Chapter 2744 or R.C. 4123.741.” State v. Snyder, 114 Ohio St.3d 239, 2007-Ohio-

4004, 871 N.E.2d 574, ¶ 2. Appellant asserted the Auklands have not shown they are

entitled to immunity.

{¶ 17} Appellant further argued the statute of limitations may not be used within

the definition of “legally entitled to recover.” She maintained since the policy does not

include the word “damages” after the phrase “legally entitled to recover,” the policy does

not require that she actually be able to recover damages from the Auklands.

{¶ 18} On November 2, 2020, the trial court issued an opinion denying State

Farm’s motion for summary judgment, finding Taylor v. Kemper Ins. Co., 8th Dist.

Cuyahoga No. 81360, 2003-Ohio-177, controlled. The court found, under the Taylor

analysis, State Farm was not prohibited from pursuing its subrogation rights against the

6.
Auklands due to appellant’s failure to perfect service of the complaint, but rather by its

own failure to perfect service of its cross-claim.

{¶ 19} The trial court also cited to Ferrando v. Auto-Owners Mut. Ins. Co., 98

Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927, ¶ 91, and the two-step test to

determine if the insured breached a subrogation-related provision, and if so, was the

UM/UIM insurer prejudiced. The court applied the Ferrando analysis and found

appellant filed suit within the limitations period, but she breached the policy by failing to

perfect service against the Auklands and allowing the limitations period to expire. The

court noted prejudice was presumed, but the presumption was rebutted. The court found

appellant’s failure to perfect service did not prejudice State Farm because State Farm was

able to file its cross-claim within the tolled limitations period, and State Farm only had to

perfect service within a year to pursue its claim, but it failed to do so.

{¶ 20} The trial court concluded because appellant filed suit against the Auklands

within the limitations period thereby allowing State Farm to file its cross-claim within the

tolled limitations period, her failure to perfect service does not preclude her recovery

under her State Farm UM/UIM policy. The court held while appellant is no longer

“legally entitled to recover” from the Auklands, as required by the policy, she was

“legally entitled to recover” from the Auklands when she filed suit and when State Farm

filed its cross-claim, and State Farm’s failure to perfect service was its doing, not her

doing.

7.
 Motion for Clarification and Order

{¶ 21} On November 9, 2020, State Farm filed a motion for clarification,

requesting that the court explain whether State Farm is entitled to set off the $25,000 of

coverage which would have been available to appellant through the Auklands’ insurance

policy with Geico, or must State Farm consider this an uninsured motorist claim.

{¶ 22} On May 13, 2021, the trial court determined “[in] consideration [of the

motion for clarification] and on its own Motion * * * the Court will Reconsider its

November 2nd Judgment Entry.” The court allowed the parties the opportunity to submit

additional arguments, authority and evidence as to the issues of appellant’s claim for

UM/UIM benefits and State Farm’s affirmative defenses of set-off and appellant’s failure

to meet the contractual requirements for UM/UIM coverage. The court noted the relief

sought by State Farm was declaratory in nature although State Farm did not file a claim

for declaratory judgment, and “it appears (at least to this Court) that the Policy clauses

underlying the parties’ arguments to date are not sufficiently dispositive with respect to

the issues brought before the Court.” The court observed State Farm’s arguments

“implicitly highlight the potential inconsistencies arising when policy clauses are

selectively analyzed, or narrowly considered in piecemeal fashion * * * [so] further

briefing by the parties is necessary to allow the Court to reconcile their rights,

obligations, and contractual intent.” The court set forth its “prior determination was

based upon the rather abbreviated Policy clauses to which both parties directed its

8.
attention, although a review of the Policy in its entirety suggests additional, unreferenced

portions are applicable and properly considered for a just result.”

Judgment after Reconsideration

{¶ 23} On October 12, 2021, the trial court reconsidered State Farm’s summary

judgment motion, and granted the motion. The court noted State Farm argued appellant’s

right to UM/UIM benefits was conditioned on her being “legally entitled to recover”

from the Auklands, the tortfeasors, but since her claims against the Auklands were

dismissed with prejudice, she was no longer able to recover, as required by the policy

language. The court found she breached her obligations under the policy and prejudiced

State Farm’s subrogation rights, thus she was not entitled to UM/UIM benefits.

{¶ 24} The court also found the dismissal of appellant’s claims against the

Auklands, with prejudice, clearly prevented her from obtaining judgment against them,

thus she was not “legally entitled to recover” from the Auklands or able to exhaust the

Auklands’ liability coverage, both of which were conditions to State Farm’s obligation to

pay UM/UIM benefits.

{¶ 25} The court recognized appellant argued that: the policy did not expressly

define the phrase “legally entitled to recover”; the phrase was ambiguous and must be

construed in her favor; the phrase was no longer used in the UM/UIM statutory

framework, and R.C. 3937.18(D) states “an insured shall be required to prove all

elements of the insured’s claim that are necessary to recover from the owner or operator

9.
of the uninsured or underinsured motor vehicle”; and the statute does not require her to

file a lawsuit against the Auklands, and State Farm has no authority to require her to do

so.

{¶ 26} Nonetheless, the court found appellant’s argument that State Farm could

not contractually obligate her to file suit against the Auklands lacked merit, as the

relevant State Farm provisions required that she file a complaint. In so finding, the court

agreed with the reasoning in Pursley v. Estate of Messman, 2020-Ohio-2985, 154 N.E.3d

602, ¶ 110-111 (3d.Dist.). The court further noted that appellant argued the policy did

specify that she was required to obtain service of the complaint, but the court found this

argument ignored the policy’s express requirement that she “secure a judgment” in such

action. The court found the “legally entitled to recover” language in the policy lacked

any ambiguity.

{¶ 27} The court also found the subrogation provision in the policy expressly

required that appellant do nothing to impair State Farm’s legal right to subrogation, and

to hold all rights of recovery against all liable parties in trust for State Farm’s benefit.

The court noted the parties agreed the analysis in Ferrando was applicable to State

Farm’s arguments that appellant breached the contract and State Farm was prejudiced.

{¶ 28} The court applied the Ferrando analysis and found appellant failed to

comply with the policy language and breached at least one subrogation-related policy

provision since the law provides State Farm can only be subrogated to the extent of

10.
appellant’s claims against the Auklands, which no longer existed because they were

dismissed with prejudice. The court found State Farm was presumptively prejudiced, as

absent appellant’s claims against the Auklands, State Farm was left without any

subrogation rights for amounts it would pay appellant under the UM/UIM provisions.

The court further found appellant adduced no evidence rebutting the presumed prejudice

to State Farm, and State Farm was entitled to judgment.

{¶ 29} Appellant appealed, State Farm filed its cross-appeal.

{¶ 30} In appellant’s brief, she advances three assignments of error, but fails to set

forth separate arguments for each assignment. App.R. 16(A)(7) requires a separate

argument for each assignment of error, and App.R. 12(A)(2) provides that we may

disregard assignments of error not separately argued in the brief. However, in the

interests of justice, we choose to consider appellant’s arguments and decide them on the

merits. As her assignments of error are not supported individually with arguments and

authority, we are left to parse her brief for arguments pertaining to each assignment of

error. We will begin our examination with the third assignment of error.

Appellant’s Third Assignment of Error

{¶ 31} Appellant argues the trial court, in reconsidering its November 2, 2020

ruling, failed to restrain itself to the insurance policy provisions argued by State Farm in

its original summary judgment motion. She asserts the court’s action is in contravention

of Allstate Ins. Co. v. Dolman, 6th Dist. Lucas No. L-05-1281, 2006-Ohio-4134, where

11.
we held the trial court committed reversal error by granting summary judgment to the

insurer based on an insurance clause which was not raised or argued by the insurer,

despite the policy being attached to the insurer’s motion.

{¶ 32} State Farm counters the rationale underlying Dolman is not applicable as

appellant had the opportunity to respond to the reconsideration of the summary judgment

motion, and she filed a memorandum. State Farm contends the trial court did not err in

considering other relevant policy provisions.

Law

{¶ 33} It is well-established that an order denying a summary judgment motion is

subject to revision upon a motion for reconsideration, a renewed motion for summary

judgment or the court’s own power to reconsider any judgment which is interlocutory and

not final. See Watson v. Ford Motor Co., 6th Dist. Erie No. E-06-074, 2007-Ohio-6374,

¶ 44; Van Buren v. Paterson, 6th Dist. Lucas No. L-92-127, 1993 WL 18805, *1 (Jan. 29,

1993). If the reconsideration is based on new evidence or issues, the trial court must give

the parties notice and an opportunity to respond. See Vanmeter v. Lawrence County, 4th

Dist. Lawrence No. 93CA27, 1994 WL 323703, * 6 (July 8, 1994).

{¶ 34} An appellate court will not reverse a trial court’s decision to reconsider the

denial of a summary judgment motion unless the trial court abused its discretion and

acted in a manner that was unreasonable, arbitrary, or unconscionable. Watson, at ¶ 44;

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

12.
 Analysis

{¶ 35} Upon review, the record shows the trial court gave appellant and State

Farm notice that it was reconsidering its decision, and the opportunity to submit

additional arguments, authority and evidence as to appellant’s claim for UM/UIM

benefits and State Farm’s affirmative defenses of set-off and appellant’s failure to meet

the contractual requirements for UM/UIM coverage.

{¶ 36} We find since the parties had suitable notice and a full opportunity to

support and oppose the summary judgment motion following the trial court’s decision to

reconsider its ruling, the court did not abuse its discretion. Accordingly, appellant’s third

assignment of error is not well-taken.

{¶ 37} Next, we will examine appellant’s first and second assignments of error

together, as they are related.

Appellant’s First Assignment of Error

{¶ 38} Appellant argues the trial court erred in granting State Farm’s summary

judgment motion, as she did not in any way impair State Farm from obtaining service of

its cross-claim, and nothing has changed since the November 2, 2020 ruling denying

State Farm summary judgment. She notes the trial court, in its May 13, 2021 order,

“acknowledged that State Farm’s Cross-Claims [sic] failed as the result of State Farm’s

own failure.”

13.
 {¶ 39} Appellant asserts the cases cited by the trial court deal with when the

statute of limitations has been missed, but she timely filed her complaint and State Farm

timely filed its cross-claim. She also argues the Snyder case, cited by State Farm, does

not apply because the Auklands have not shown they are entitled to immunity.

{¶ 40} Appellant further submits the phrase “legally entitled to recover” was

defined in Sumwalt v. Allstate Ins. Co., 12 Ohio St.3d 294, 466 N.E.2d 544 (1984),

syllabus, and means “the insured must be able to prove the elements of her claim

necessary to recover damages.” She argues in a negligence action, the injured party’s

claims are determined by common law: duty; breach; proximate cause; and damages; the

statute of limitations is not an element of negligence, it is a defense. She cites to Welsh v.

Indiana Ins. Co., 5th Dist. Stark No. 2002CA00378, 2003-Ohio-5054, ¶ 30, for the

assertion that “‘[t]he statute of limitations is a statutory creation designed to limit the

exercise of the right to pursue recovery for the damages resulting from the tortfeasor’s

negligence.’” (Citation omitted.). She also contends, relying on Welsh, that the failure to

preserve the statute of limitations in a negligence case does not preclude a claim against

the insurance company, as that failure falls under the issue of subrogation. Id. at ¶ 31.

Appellant submits she “has sufficiently pleaded all of those elements [of a negligence

claim] and * * * State Farm does not dispute that she met those.”

14.
 Appellant’s Second Assignment of Error

{¶ 41} Appellant argues the trial court erred by requiring that she be responsible

for State Farm’s service of its cross-claim on the Auklands when State Farm was a party

with its own attorney. She asserts the policy contains no language which suggests that

she must obtain service of State Farm’s cross-claim for State Farm. She contends she had

no greater duty to secure service on the Auklands than State Farm, and State Farm cannot

skirt its obligation to pay her under the UM insurance contract. She further submits that

she agrees that State Farm timely obtained service of its cross-claim on the Auklands, due

to the tolling of the statute of limitations under H.B. 197.

Standard of Review

{¶ 42} We consider whether a trial court properly granted a motion for summary

judgment on a de novo basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Civ.R.

56(C). A motion for summary judgment should be granted if “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact,” show that there is no genuine issue as to any material fact,

and the moving party is entitled to judgment as a matter of law. Id. “No evidence or

stipulation may be considered except as stated in this rule.” Id.

15.
 {¶ 43} The moving party has the burden of demonstrating that no genuine issue of

material fact exists. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).

The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact exists. Id. at 293.

State Farm’s Motion for Summary Judgment

Arguments Presented by the Parties in the Trial Court

{¶ 44} In its June 26, 2020 summary judgment motion against appellant, State

Farm argued it was entitled to judgment based on the policy language, as the policy

excludes UM/UIM coverage where the insured is not “legally entitled to recover” against

the Auklands, and since the Auklands were dismissed with prejudice, appellant is no

longer legally entitled to recover from them.

{¶ 45} State Farm also argued it was entitled to judgment based on Ohio law.

State Farm noted R.C. 3937.18, as amended in 2001 by S.B. 97, defines UM/UIM

coverage under Ohio law. State Farm observed prior to 2001, “legally entitled to

recover” was used, but after 2001, that language was removed, and now R.C. 3937.18(D)

provides, with respect to UM/UIM coverage, that “an insured shall be required to prove

all elements of the insured’s claim that are necessary to recover from the owner or

operator of the uninsured or underinsured motor vehicle.” State Farm argued since

appellant can no longer pursue her action against the Auklands, because her claim was

dismissed with prejudice, she is no longer legally entitled to recovery against them.

16.
 {¶ 46} In its June 7, 2021 memorandum, State Farm argued appellant breached her

obligations under the policy by failing to timely commence her action against the

Auklands, as she failed to properly serve them within the applicable time limits. State

Farm cited to Ferrando. State Farm also argued that under the subrogation provision in

the policy, it can only step into appellant’s shoes if she has the legal right to recover.

State Farm asserts that an insured must do nothing to impair its rights of recovery and

must hold all rights of recovery against all liable parties, but appellant failed to do so.

State Farm further argued appellant cannot bring a legal action against it for UM

coverage unless there has been full compliance with the policy’s “Deciding Fault and

Amount Provisions,” and she failed to comply by not properly serving the Auklands.

{¶ 47} In her June 8, 2021 memorandum, appellant maintained she filed her

lawsuit within the statute of limitations. She argued State Farm filed its cross-claim

against the Auklands before the statute of limitations ran on each of them, because they

were out of the jurisdiction for a time. She submitted that the statute of limitations to file

the complaint was extended to March 14, 2019, for Mrs. Aukland and April 19, 2019, for

Mr. Aukland, therefore the statute of limitations had not run on State Farm when it filed

its cross-claim on February 25, 2019.

{¶ 48} Appellant also asserted State Farm has not been prejudiced, as it has been

completely reimbursed, by the Auklands’ carrier, for the medical payments it made on

her behalf before the lawsuit was filed. She argued “that amount would reduce the

17.
$25,000 set off.” She submitted State Farm had every opportunity to serve the Auklands,

“[t]hereby the Auklands[’] * * * insurance is not available so there should be no $25,000

set off” to State Farm.

{¶ 49} Appellant argued the Snyder case, cited by State Farm, does not apply. She

further argued the statute of limitations may not be used within the definition of “legally

entitled to recover.” She maintained since the policy does not include the word

“damages” after the phrase “legally entitled to recover,” the policy does not require that

she actually be able to recover damages from the Auklands.

Analysis

{¶ 50} In her first and second assignments of error, appellant essentially argues the

trial court erred in granting State Farm’s motion for summary judgment, thereby barring

her from obtaining any UM benefits under her State Farm policy.

{¶ 51} The State Farm policy contains the following relevant language:

UNINSURED MOTOR VEHICLE COVERAGE

***

Insuring Agreement

1. We will pay compensatory damages for bodily injury an insured is

legally entitled to recover from an uninsured motorist. * * *

2. We will pay only if:

18.
 a. the limits of all bodily injury liability bonds, policies, and self-

insurance plans that apply have been used up by the payment of judgments;

or

b. the insurer of the uninsured motorist, if any, commits to pay any

amount in settlement * * * .

***

Deciding Fault and Amount

1. a. The insured and we must agree to the answers to the following

two questions:

(1) Is the insured legally entitled to recover compensatory damages

from the uninsured motorist?

(2) If the insured and we agree that the answer to 1.a.(1) above is

yes, then what is the amount of the compensatory damages that the insured

is legally entitled to recover from the uninsured motorist?

b. If there is no agreement on the answer to either question in 1.a.

above, then the insured shall:

(1) file a lawsuit in the proper court against

(a) us; and

(b) the uninsured motorist unless we have consented to a settlement

offer proposed by or on behalf of the uninsured motorist;

19.
 (2) upon the filing of the lawsuit, immediately give us copies of the

summons and complaints filed by the insured in that action;

(3) consent to a jury trial if requested by us;

(4) agree that we may contest the issues of liability and the amount

of damages; and

(5) secure a judgment in that action. The judgment must be the final

result of an actual trial and any appeals, if any appeals are taken.

{¶ 52} The law is clear that “insurance policies should be enforced in accordance

with their terms as are other written contracts.” Rhoades v. Equitable Life Assur. Soc. of

U.S., 54 Ohio St.2d 45, 47, 374 N.E.2d 643 (1978). Thus, “[w]hen the language in an

insurance policy is clear and unambiguous, we must enforce the contract as written and

give the words their plain and ordinary meaning.” Cincinnati Indemn. Co. v. Martin, 85

Ohio St.3d 604, 607, 710 N.E.2d 677 (1999). However, “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.

{¶ 53} In Ferrando, 98 Ohio St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927, at ¶ 91,

the Supreme Court held “[i]n cases involving the alleged breach of a * * * subrogation-

related clause, the first step is to determine whether the provision actually was breached.

* * * If the * * * clause was breached, the second step is to determine whether the UIM

20.
insurer was prejudiced. If a breach occurred, a presumption of prejudice to the insurer

arises, which the insured party bears the burden of presenting evidence to rebut.”

{¶ 54} With respect to Insuring Agreement provision, the record shows there are

no judgments against the Auklands, so the limits of all bodily injury liability policies

have not been used up by the payment of judgments, and appellant did not enter into a

settlement with the Auklands’ insurer. We are left to decide if appellant is legally

entitled to recover from the Auklands.

{¶ 55} The record reveals appellant filed her complaint against the Auklands

within the two-year statute of limitations allowed for a bodily injury action based on

negligence. R.C. 2305.10(A); Love v. City of Port Clinton, 37 Ohio St.3d 98, 524 N.E.2d

166 (1988). However, appellant did not perfect service of the complaint within a year, as

required by Civ.R. 3(A), which provides “[a] civil action is commenced by filing a

complaint with the court, if service is obtained within one year from such filing upon a

named defendant * * *.” Appellant again attempted to have her complaint served on the

Auklands, but service was not successful. Thereafter, despite extensions of the statute of

limitations, due to the Auklands being out of the jurisdiction for a time,1 and the

1
See R.C. 2305.15.

21.
enactment of Ohio’s Covid-19 Tolling Order,2 appellant did not attempt to serve the

Auklands.

{¶ 56} On May 6, 2020, the trial court dismissed appellant’s claims against the

Auklands, with prejudice. The court found appellant never commenced an action against

the Auklands prior to the expiration of the statute of limitations. Appellant has not

challenged this dismissal.

{¶ 57} Ohio law, with respect to UM/UIM coverage, provides “an insured shall be

required to prove all elements of the insured’s claim that are necessary to recover from

the owner or operator of the uninsured or underinsured motor vehicle.” R.C. 3937.18(D).

While the language “legally entitled to recover” is not used in the statute, the phrase

“‘means the insured must be able to prove the elements of his or her claim’ against the

tortfeasor.” (Citation omitted.). Ohayon v. Safeco Ins. Co. of Illinois, 91 Ohio St.3d 474,

483-84, 747 N.E.2d 206 (2001).

{¶ 58} With statutory construction, the “paramount concern is the legislative intent

in enacting the statute.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-

Ohio-4960, 815 N.E.2d 1107, ¶ 21. To determine intent, we look at the language of the

2
See Am.Sub.H.B. No. 197 and In re Tolling of Time Requirements Imposed by Rules
Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-
1166, 141 N.E.3d 974, which tolled, retroactive to March 9, 2020, all statutes of
limitation, time limitations, and deadlines in the Ohio Revised Code and the Ohio
Administrative Code until July 30, 2020.

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statute and the purpose to be accomplished by the statute. Boley v. Goodyear Tire &

Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20. We look at the

statute “as a whole and giv[e] such interpretation as will give effect to every word and

clause in it. No part should be treated as superfluous unless that is manifestly required,

and the court should avoid that construction which renders a provision meaningless or

inoperative.” State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio

St. 367, 373, 116 N.E. 516 (1917).

{¶ 59} Upon review, in R.C. 3937.18(D), the phrase “an insured shall prove all

elements of the insured’s claim” is immediately followed by “that are necessary to

recover from the owner or operator of the uninsured or underinsured motor vehicle.”

When the statute is read in its entirety, giving effect to all of the words and phrases, it is

evident that appellant’s entitlement to UM coverage under her State Farm policy is

dependent upon her proving the Auklands were negligent, that they are tortfeasors.

{¶ 60} We find appellant has not proven the elements of her negligence claims

against the Auklands, as she has not proven they had a duty to her, or they breached a

duty, or they were the proximate cause of her damages; she has not proven the Auklands

are tortfeasors. We find no merit in appellant’s contention that sufficiently pleading the

elements of a negligence claim is proving the elements of her claims.

{¶ 61} We find since appellant is not able to prove the elements of her claims that

are necessary to recover damages from the Auklands, due to her failure to commence her

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lawsuit against them within the time provided by the statute of limitations, she is not

legally entitled to recover from the Auklands.

{¶ 62} As to the Deciding Fault and Amount provision in the State Farm policy,

the record shows section 1.a. does not apply, as the parties do not agree on the answers to

questions (1) and (2). Thus, section b. applies, where appellant must fulfill all of the

requirements set forth in (1) through (5). The record reveals appellant has not complied

with all of those requirements, as she has not secured and cannot secure a judgment in the

lawsuit that she filed against State Farm and the Auklands.

{¶ 63} Applying the Ferrando analysis, we find appellant breached the State Farm

policy by failing to secure a judgment in the lawsuit she filed against State Farm and the

Auklands. It is presumed that State Farm was prejudiced by this breach. No competent

summary judgment evidence to rebut the presumption was presented by appellant, thus

we find appellant did not rebut the presumption of prejudice. Thus, we find appellant

cannot bring a legal action against State Farm for UM benefits, and we further find State

Farm is not liable to appellant for UM benefits under her State Farm policy.

{¶ 64} For these reasons, we find State Farm was entitled to judgment based on

the policy language and Ohio law, and the grant of summary judgment to State Farm by

the trial court was appropriate. Accordingly, appellant’s first and second assignments of

error are not well-taken.

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 {¶ 65} Our disposition of appellant’s assignments of error renders State Farm’s

assignments of error moot, as a right to contribution and/or indemnity does not exist

against a person who is not liable on the underlying cause of action. See R.C. 2307.25;

Huffman v. Pioneer Basement Water Proofing Co., 5th Dist. Tuscarawas No. 2007 AP 08

0048, 2008-Ohio-7032, ¶ 65. Since we have found appellant has not proven and cannot

prove the Auklands are tortfearsors, they are not legally liable on the underlying

negligence claims, and State Farm’s cross-claim against them cannot exist. As such, the

trial court’s dismissal of State Farm’s cross-claim, albeit on a different basis, was proper.

Accordingly, State Farm’s first and second assignments of error are not well-taken.

{¶ 66} On consideration whereof, we affirm the May 6, 2020, July 1, 2021 and

October 12, 2021 judgments of the Lucas County Court of Common Pleas. Pursuant to

App.R. 24, appellant and State Farm are ordered to split the costs of this appeal.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE

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 This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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