Smith v. Speakman, 08ap-211 (12-16-2008)
Smith v. Speakman, 08ap-211 (12-16-2008)
Opinion of the Court
OPINION
{¶ 1} Plaintiffs-appellants, Dennis W. Smith (individually, "Smith") and his wife, Dana M. Smith (collectively, "appellants"), appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee State *Page 2 Farm Mutual Automobile Insurance Company ("State Farm") and denying appellants' motion for partial summary judgment.1{¶ 2} On November 24, 2004, Smith, in the course and scope of his employment with the Franklin County Municipal Court, operated a motor vehicle made available for his regular use, by his employer and was involved in an accident caused by an underinsured motorist. Smith suffered bodily injuries as a result of the accident. At the time of the accident, appellants were insured under an automobile liability policy issued by State Farm that included uninsured/underinsured ("UM/UIM") coverage. Based upon a policy exclusion for bodily injuries suffered while Smith was operating a vehicle available for his regular use, which was not insured under the policy, State Farm refused to pay UM/UIM benefits.
{¶ 3} As relevant here, appellants subsequently filed an action seeking a declaration that the policy provides UM/UIM coverage. State Farm filed a motion for summary judgment and appellants filed a cross-motion for partial summary judgment. The trial court issued a decision granting summary judgment in favor of State Farm and denying appellants' cross-motion for partial summary judgment, journalizing its decision on March 10, 2008. Appellants appeal, assigning one error for our review:
*Page 3THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANTS, DENNIS W. SMITH AND DANA M. SMITH, IN ORDERING SUMMARY JUDGMENT IN FAVOR OF APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ON APPELLANTS' ASSERTED UNDERINSURED MOTORIST CLAIM AGAINST STATE FARM POLICY NUMBER 071 3439-D23-35.
{¶ 4} As appellants' assignment of error arises out of the trial court's summary judgment rulings, we set forth the familiar standard governing summary judgment. An appellate court reviews a summary judgment disposition independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993),
{¶ 5} Pursuant to Civ. R. 56(C), summary judgment should be rendered only where the evidence demonstrates that: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. State ex rel. Grady v. State Emp. Relations Bd.,
{¶ 6} The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt,
{¶ 7} R.C.
{¶ 8} Here, the parties do not dispute that, at the time of the accident, Smith was operating a vehicle available for his regular use in the course and scope of his employment, which was not specifically identified in appellants' policy as a covered vehicle. Further, the parties do not dispute that R.C.
{¶ 9} In its motion for summary judgment, State Farm argued that the policy in effect at the time of the accident included a "regular use" exclusion which precluded *Page 5 UM/UIM coverage. In support of its argument, State Farm attached a copy of policy No. 71 3439-D23-35(B), along with the affidavit of State Farm Underwriting Team Manager, Tyna Doran, certifying that the policy was "issued to" appellants and was "in effect" at the time of the accident. (State Farm December 27, 2007 motion for summary judgment, Exhibit B.) This policy includes the following "regular use" exclusion:
WHEN COVERAGE U DOES NOT APPLY
THERE IS NO COVERAGE:
* * *
2. FOR DAMAGES ARISING OUT OF AND DUE TO BODILY INJURY TO AN INSURED
A. WHILE OPERATING OR OCCUPYING A MOTOR VEHICLE OWNED BY, LEASED TO, FURNISHED TO, OR AVAILABLE FOR REGULAR USE OF YOU, YOUR SPOUSE OR ANY RELATIVE IF THAT MOTOR VEHICLE IS NOT INSURED FOR THIS COVERAGE UNDER THIS POLICY.
(Emphasis sic.) (See policy No. 71 3439-D23-35[B], 6935A Amendatory Endorsement, at 5.) (State Farm December 27, 2007 Motion for Summary Judgment, Exhibit B.)
{¶ 10} Page one of the declarations page indicates that the "Policy Period" is September 2, 2003 to April 23, 2004, and also includes the following notations under the caption "IMPORTANT MESSAGES":
YOUR POLICY CONSISTS OF THIS DECLARATIONS PAGE, THE POLICY BOOKLET — FORM 9835A, AND ANY ENDORSEMENTS THAT APPLY, INCLUDING THOSE ISSUED TO YOU WITH ANY SUBSEQUENT RENEWAL NOTICE.
REPLACED POLICY NUMBER 0713439-35A.
* THE TOTAL PREMIUM FOR THE POLICY PERIOD LISTED ABOVE REFLECTS A RECENT CHANGE TO *Page 6 YOUR POLICY PLUS THE 6 MONTH RENEWAL PREMIUM.
YOUR TOTAL CURRENT 6 MONTH PREMIUM FOR OCT 23 2003 TO APR 23 2004 IS $312.40.
GUARANTEE PERIOD OCT 23 2003 TO OCT 23 2005 SUBJECT TO CONDITIONS 4 AND 5.
(Emphasis sic.)
{¶ 11} Page two of the declarations page includes the following relevant notations under the caption "EXCEPTIONS AND ENDORSEMENTS":
6091P CERTIFICATE OF GUARANTEED RENEWAL.
6935A AMENDMENT OF DEFINED WORDS: INSUREDS DUTIES; LIABILITY, MEDICAL PAYMENTS, UNINSURED MOTOR VEHICLE PHYSICAL DAMAGE COVERAGES; AND CONDITIONS — EFF OCT 23 2003.
{¶ 12} The policy also includes an "Important Notice Regarding Changes To Your Car Policy" ("Important Notice"), which states, in relevant part, under the caption "UNINSURED MOTOR VEHICLE COVERAGE (COVERAGE U)":
THE FOLLOWING CHANGES HAVE BEEN MADE TO UNINSURED MOTOR VEHICLE COVERAGE (COVERAGE U). MOST OF THE CHANGES ARE THE RESULT OF RECENT OHIO COURT DECISIONS OR ARE IN RESPONSE TO OHIO SENATE BILL 97.
* * *
10. WE HAVE ADDED LANGUAGE STATING THAT THERE IS NO LONGER COVERAGE WHEN AN INSURED IS OPERATING OR OCCUPYING A MOTOR VEHICLE FURNISHED TO OR AVAILABLE FOR THE REGULAR USE OF YOU, YOUR SPOUSE, OR ANY RELATIVE IF THAT VEHICLE IS NOT INSURED FOR THIS COVERAGE UNDER THIS POLICY. THIS COULD MEAN THERE IS NO COVERAGE UNDER YOUR POLICY WHEN YOU *Page 7 OPERATE A VEHICLE FURNISHED TO YOU BY YOUR EMPLOYER.
{¶ 13} The "Important Notice" also states that the endorsement was to take effect at the time of the upcoming renewal:
ENDORSEMENT 6935A, WHICH IS ENCLOSED, MAKES THESE CHANGES TO YOUR POLICY. CHANGES THAT BROADEN COVERAGE ARE EFFECTIVE JUNE 1, 2003. CHANGES THAT RESTRICT COVERAGE ARE EFFECTIVE ON YOUR FIRST RENEWAL ON OR AFTER JUNE 1, 2003. PLEASE READ ENDORSEMENT 6935A, AND PLACE IT WITH YOUR POLICY. IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT YOUR AGENT.
{¶ 14} Appellants filed a memorandum contra State Farm's motion for summary judgment, supported by the "Affidavit and Memorandum" of appellants' counsel, Robert W. Kerpsack. Mr. Kerpsack, citing the September 2, 2003 to April 23, 2004 "Policy Period" language on page one of the declarations page, asserted that the policy period began on September 2, 2003, and that the policy language stating that Endorsement 6935A (which added the "regular use" exclusion) became effective on October 23, 2003 established that such policy change was not made at the beginning of the policy period on September 2, 2003, in contravention of R.C.
{¶ 15} In response, State Farm argued that appellants were mistaken in asserting that the policy period began on September 2, 2003. State Farm explained that it does not send out a new declarations page every six months; rather, it sends out only renewal/premium notices every six months. State Farm further stated that it issues a new *Page 8
declarations page only if an insured requests a change to the policy. According to State Farm, it issued the new declarations page on September 2, 2003, to correct a misspelling of Smith's name; this declarations page was the last one issued before the accident. State Farm noted that appellants' policy normally renewed every six months on April 23 and October 23 of each year, and that page two of the declarations page reflected that Endorsement 6935A was attached and would take effect at the time of the next six-month renewal on October 23, 2003. State Farm argued that R.C.
{¶ 16} Appellants subsequently filed a cross-motion for partial summary judgment. Appellants noted that the coverages under the original policy had been guaranteed for two years beginning on October 23 of odd-numbered years. Appellants asserted that, without their knowledge or consent, State Farm, on September 2, 2003, unilaterally canceled the original policy, which did not include the "regular use" exclusion, and reissued the policy under a different policy number and added the "regular use" exclusion. Appellants maintained that State Farm's unilateral cancellation and reissuance of the policy was expressly prohibited by R.C.
{¶ 17} Appellants further argued that State Farm's reliance on R.C.
{¶ 18} In conclusion, appellants argued that, at the time State Farm reissued the policy on September 2, 2003, it did not include a "regular use" exclusion; therefore, pursuant to R.C.
{¶ 19} In support of their motion, appellants attached the affidavit of Dana Smith, who attested that: (1) between at least October 23, 2001 to October 23, 2005, she and her husband were the named insureds under motor vehicle liability insurance policy No. 71 3439-D23-35 issued by State Farm; (2) on September 2, 2003, she telephoned her State Farm agent and requested the termination of motor vehicle liability insurance coverage on one of their personal vehicles, but neither requested nor authorized any other changes to the coverages provided under the policy; (3) prior to September 2, 2003, the policy provided UM/UIM coverage for her husband's operation of motor vehicles available for his use through his employment; (4) following the September 2, 2003 telephone conversation with the State Farm agent, neither she nor her husband received any notifications, letters or correspondence either from State Farm, the State Farm agent or anyone else advising of any changes to the UM/UIM coverages provided under the policy; (5) between at least October 23, 2001 and October 23, 2005, neither she nor her husband requested or authorized any changes to the UM/UIM coverages provided under the policy; and (6) between at least October 23, 2001 and October 23, 2005, she and her *Page 11 husband believed that the policy provided the same UM/UIM coverages at all such times, and that no changes had ever been made to those coverages.
{¶ 20} After reviewing the parties' summary judgment motions, the trial court determined that UM/UIM coverage was not available to appellants pursuant to the "regular use" exclusion contained in the policy. In particular, the court, citing our decision inAdvent, noted that under R.C.
{¶ 21} Further, the court determined that the policy attached to State Farm's motion for summary judgment, which included the "regular use" exclusion, was the policy in effect at the time of the accident. In support of this finding, the trial court cited Ms. Doran's affidavit and statements on the declarations page signaling October 23, 2003 as the start-date of the six-month renewal period and the beginning of a new two-year guarantee period. *Page 12
{¶ 22} The court further determined that the effectiveness of Endorsement 6935A did not depend upon appellants' knowledge of the changes made to coverages thereunder or the absence of explicit consent to those changes. The court concluded that State Farm sent appellants advance notice of Endorsement 6935A and appellants chose to maintain coverage under the policy, as modified.
{¶ 23} In short, the trial court concluded that State Farm had presented evidence that the policy, including Endorsement 6935A, attached to its motion for summary judgment, was in effect at the time of the accident and that the change made by Endorsement 6935A complied with R.C.
{¶ 24} On appeal, appellants contend the trial court erred in granting summary judgment to State Farm and in denying their motion for partial summary judgment. In particular, appellants contend the trial court misinterpreted R.C.
{¶ 25} We do not agree with appellants' contention that State Farm changed the terms of appellants' policy in the middle of a six-month renewal period in contravention of R.C.
{¶ 26} Having determined that State Farm properly endorsed appellants' policy to add the "regular use" exclusion, we turn next to appellants' second contention, i.e., whether the trial court properly found that appellants received notice of the addition of Endorsement 6935A to their policy. Appellants argue that no evidence in the record establishes that State Farm provided such notice to appellants. Appellants note that Ms. Doran's affidavit states merely that the policy containing Endorsement 6935A was "issued to" appellants and "in effect" on the date of loss; it does not specifically aver that State Farm notified appellants of the addition of Endorsement 6935A. Appellants further contend the trial court ignored Mrs. Smith's affidavit, which expressly stated that appellants never received any notifications, letters or correspondence either from State Farm, their State Farm agent or anyone else regarding the addition of Endorsement 6935A to the policy. Appellants argue that, as no evidence established that they were notified of the change, they are entitled to summary judgment or, at the very least, the issue of whether appellants received notice of the addition of Endorsement 6935A to their policy is a material question of fact, thereby precluding summary judgment for State Farm.
{¶ 27} Initially, we note that the trial court made no specific reference to Mrs. Smith's affidavit in its order granting summary judgment to State Farm. Further, the trial court provided no explanation for its failure to consider the affidavit. "Civ. R. 56(C) places *Page 15
a mandatory duty on a trial court to thoroughly examine all appropriate materials filed by the parties before ruling on a motion for summary judgment. The failure of a trial court to comply with this requirement constitutes reversible error." Murphy v. Reynoldsburg,
{¶ 28} Further, even assuming that the trial court considered the affidavit, we nonetheless find a genuine issue of material fact regarding the notice issue. In Kasakaitas v. Floering (Mar. 20, 1992), Lucas App. No. L-91-209, the court considered a similar issue. There, the plaintiffs, a husband and wife, purchased automobile insurance, including UM/UIM coverage, from the defendant insurer in 1985. The policy did not exclude coverage for injuries sustained while riding a motorcycle that was owned by the plaintiffs, but not insured under the policy. In 1988, the wife was injured by an underinsured motorist while riding a motorcycle owned by her husband. The plaintiffs sought a judicial declaration requiring the insurer to pay UM/UIM benefits under the policy. In response, the insurer asserted that the terms of the policy in effect at the time of the accident were different than the policy terms put forth by the plaintiffs. In particular, the insurer asserted that a new policy was issued in 1986, which contained a broader exclusion omitting coverage for all owned but undeclared vehicles including motorcycles.
{¶ 29} All parties moved for summary judgment. The insurer relied on the affidavit of its general counsel which identified the new policy booklet as the policy that was "in effect" at the time of the accident. The plaintiffs denied receiving any new policy booklet and relied on the original policy booklet obtained in 1985. The trial court granted the *Page 16 insurer's motion for summary judgment, finding that the 1986 policy was "in effect" at the time of the accident.
{¶ 30} On appeal, the court, citing J.R. Roberts Son v. Natl. Ins.Co. of Cincinnati (1914),
{¶ 31} As in Kasakaitas, the instant case presents a factual question to be resolved in the trial court. Here, State Farm relies on the affidavit of its underwriting team manager identifying the policy including the "regular use" exclusion as the one "in effect" at the time of the accident. In contrast, appellants rely on the affidavit of Mrs. Smith, who attested that neither she nor her husband ever received notification of the endorsement to the policy. As inKasakaitas, appellants, as the nonmoving party, are entitled to have that evidence construed most strongly in their favor. Viock, supra. As there remains a genuine issue of material fact with regard to whether appellants received notice of the *Page 17 endorsement to the State Farm policy, summary judgment was not appropriate. Civ. R. 56.
{¶ 32} Accordingly, we sustain appellants' assignment of error as to the notice issue. Accordingly, we reverse the judgment of the Franklin County Court of Common Pleas granting summary judgment to State Farm and remand this matter to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
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