[Cite as Sarrough v. Budzar,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102422

MAY SARROUGH, ADMINISTRATOR OF THE ESTATE OF HANAN SAAH, DECEASED PLAINTIFF-APPELLEE

vs.

JOEL BUDZAR, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-784034

BEFORE: E.A. Gallagher, J., Celebrezze, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: September 10, 2015 ATTORNEYS FOR APPELLANT

Donald G. Drinko Jay Clinton Rice Gallagher Sharp Sixth Floor Buckley Building 1501 Euclid Avenue Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

W. Craig Bashein Bashein & Bashein Co., L.P.A. 35th Floor Terminal Tower 50 Public Square Cleveland, Ohio 44113

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} In this insurance coverage dispute, defendant-appellant Peerless Indemnity

Insurance Company (“Peerless”) appeals from the decision of the Cuyahoga County Court

of Common Pleas granting the summary judgment motion of plaintiff-appellee May

Sarrough, administrator of the estate of Hanan Saah (“Sarrough”), and denying Peerless’s

cross-motion for summary judgment on Sarrough’s claim for breach of contract.

Sarrough alleged that Peerless had breached its insurance contract with decedent Hanan

Saah (“Saah”) by failing to pay underinsured motorist (“UIM”) benefits due under an

automobile insurance policy Peerless had issued to Saah (the “policy”) following her

involvement in a series of motor vehicle accidents.

{¶2} The parties disagree as to whether the sequence of events giving rise to

Sarrough’s claim constituted one “accident” or two “accidents” for purposes of

determining Peerless’ liability limits for UIM coverage under the policy. Peerless asserts

that the trial court erred in interpreting the policy as providing a $600,000 limit (less

setoff) for UIM coverage for two “accidents” and thereafter determining, as a matter of

law, that Peerless must tender its policy limits (less setoff). Peerless contends that there

was only one impact and thus “one accident” under the policy and that genuine issues of

material fact remain for trial regarding comparative negligence, proximate cause and the

damages resulting from each “accident.” For the reasons that follow, we affirm in part

and reverse in part the trial court’s judgment.

Procedural and Factual Background {¶3} The material facts are undisputed. On February 20, 2011, at approximately

9:30 p.m., seventeen-year-old Brittini Meadows was driving a 2005 Chevrolet Cavalier

owned by her mother, Donna Russo, eastbound on Interstate 90 toward Cleveland after

picking up her boyfriend from work. Meadows testified that due to accumulations of

water, snow and ice, she was traveling in the left lane of the highway at approximately 30

m.p.h. because she believed it was “[t]he clearest lane to drive in.” As she approached

the Rocky River-Lakewood border, Meadows testified that she could hear “water and ice

hitting up against the bottom of the car, like if you were driving through a little pond or

something” and that her vehicle then began to hydroplane and spin to the right. The

vehicle made at least one complete turn and traveled across the width of the highway

before coming to a stop in the right lane, angled toward the middle lane. Her lights

remained on, but her car was “dead” and would not start or move.

{¶4} A snow plow driver stopped behind Meadows and attempted to assist her by

directing traffic around her vehicle. Although several vehicles were able to avoid her

vehicle, within 20-30 seconds, Meadows vehicle was struck from behind by a car owned

and driven by Sarah Owings. The impact caused Meadows vehicle to cross several lanes

of traffic, ending up in the left lane of the highway. A Dodge Durango, driven by

Benitza Montgomery and owned by Mark Montgomery, then stuck Meadows vehicle a

second time. The impact pushed Meadows vehicle to the right, into the right berm.

{¶5} At around this same time, Saah was driving a Chevrolet Impala eastbound

on Interstate 90 in the right lane. Her son, Salem Saah (“Salem”), was sitting in the front

passenger seat. Salem testified that it was snowing and the road was “a little bit icy” but that he could still see the cars in front of them. He testified that as they were proceeding

down the highway, a car (i.e., Meadows vehicle) started to spin out in front of them from

the left to the right, then came to a stop. Saah steered to the left and into the center lane

to avoid the vehicle. As she did so, her vehicle started to slide. Saah’s vehicle slid left

and came to a stop, facing north toward the median, straddling the far left and center

lanes. Once Saah’s vehicle stopped, Salem looked around. He then looked at his

mother and assured her that “everything was fine” and that they “didn’t hit anything.”

Five to ten seconds later, a 2002 Nissan X-Terra driven by Joel Budzar, struck Saah’s

vehicle.

{¶6} Budzar described the weather as “horrible” with lots of snow and ice on the

road. Budzar testified that he was traveling in the right lane at a speed of 35-45 mph

when he saw two vehicles on the highway, both of which appeared to be disabled. The

first vehicle (Meadows car) was further east and was stopped sideways to the right of the

right berm near the guardrail. The second vehicle (Saah’s car) was turned sideways,

facing north, blocking part of the center and right lanes and appeared to be moving

slowly, coming to a stop. He testified that he intended to drive between the two vehicles,

hoping that Saah’s vehicle would create a path for him “[b]ecause there was no way I

could stop.” However, Saah’s vehicle did not move in time, and Budzar’s vehicle struck

the driver’s-side door of Saah’s vehicle. Saah died from the injuries she sustained in the

incident. Saah was survived by her children, Salem, Samer Saah, Rana Zaboura and

Rema Tadros, and her mother, Zuhdieh Kash. {¶7} On May 31, 2012, Sarrough filed a complaint against Joel Budzar, Benitza

Montgomery, Mark Montgomery, Sarah Owings, Brittini Meadows, Donna Russo and

Peerless to recover damages for the fatal injuries Saah sustained in the February 20, 2011

incident. Salem, Samer Saah, Rana Zaboura, Rema Tadros and Zuhdieh Kash also

asserted claims in the action. As to Peerless, Sarrough asserted a claim for breach of

contract, alleging that Peerless had failed to pay the estate the UIM benefits to which it

was entitled under Saah’s automobile insurance policy with Peerless. Peerless filed an

answer denying the material allegations of the complaint relating to the breach of contract

claim and asserting various affirmative defenses.

{¶8} At the time of the incident, Meadows was insured under a policy issued by

Century Insurance with $100,000/$300,000 liability limits, Budzar was insured by

Peerless under a policy with $100,000/$300,000 liability limits and Saah was insured

under a Peerless policy that included UIM coverage with a “single limit” of $300,000 for

“[e]ach [a]ccident.” Under the terms of its policy with Saah, Peerless had a right of

setoff against its limit of liability for “all sums paid because of ‘bodily injury’ by or on

behalf of persons or organizations who may be legally responsible.”

{¶9} Settlement conferences were conducted in April and May 2013 during which

the insurers for Meadows and Budzar each tendered their respective policy limits of

$100,000, which were accepted subject to Peerless’s approval. Peerless consented to the

estate’s acceptance of the $200,000 offered by Meadows and Budzar’s insurers and

tendered an additional $100,000, which it claimed was the balance of the $300,000 single

limit UIM coverage available under Saah’s policy after the setoff. All claims except the breach of contract claim between Saah and Peerless were settled and/or dismissed

following the settlement conferences.

{¶10} On November 25, 2013, Peerless filed a motion for summary judgment,

asserting that, based on the undisputed material facts, Peerless had fully satisfied its

obligations under the automobile insurance policy it had issued to Saah and was,

therefore, entitled to judgment as a matter of law on Sarrough’s breach of contract claim.

Peerless argued that there was only one “accident” that resulted in “bodily injury” to Saah

and that because Peerless was entitled to set off any amounts paid by other tortfeasors

under the policy, i.e., the $200,000 paid by Meadows and Budzar’s insurers, Peerless had

satisfied its obligations under the policy when it tendered $100,000 to the estate. In

support of its motion, Peerless attached a certified copy of the policy and cited to

deposition testimony from the parties and witnesses involved in the incident.

{¶11} A day later, Sarrough filed her own motion for partial summary judgment,

seeking a judicial declaration that two “accidents” had occurred — one involving

Meadows vehicle and one involving Budzar’s vehicle — and that up to $400,000 in UIM

coverage ($200,000 for each of the two accidents less the $200,000 the estate received

from Meadows and Budzar’s insurers) was available to the estate under the policy. In

support of her motion, Sarrough attached copies of the policy and the traffic crash report

from the February 20, 2011 incident and cited deposition testimony from the involved

parties and witnesses. Each party opposed the summary judgment motion filed by the

other party and filed replies in support of their own motions. Peerless also filed a motion

to strike the traffic crash report attached to Sarrough’s motion for partial summary judgment on the grounds that it was not properly authenticated, included inadmissible

hearsay and did not otherwise constitute proper summary judgment evidence under Civ.R.

56(C). Sarrough did not file a separate opposition to the motion to strike but argued in

her reply to her motion for partial summary judgment that “the witnesses were questioned

at length about numerous aspects of these investigatory materials during their discovery

depositions,” that “they all confirmed the same general version of the tragic episode” and

that Peerless’s objections were “immaterial” because “the necessary facts and

circumstances [had] been established through deposition testimony.”

{¶12} On December 4, 2014, the trial granted Sarrough’s motion for summary

judgment and denied Peerless’s motion for summary judgment. Interpreting the

insurance policy, the trial court reasoned that because the term “accident” was not defined

in the policy, it must “be broadly construed to refer to all types of unexpected or

unintended happenings” and “must be viewed from the standpoint of the insured.” The

trial court held that, based on the undisputed facts, “reasonable minds can only conclude

that there were at least two separate accidents”: (1) the accident caused by Meadows, who

forced Saah’s vehicle to change lanes and spin out of control and (2) the accident caused

by Budzar when his vehicle struck Saah’s vehicle. The trial court observed that, under

the policy, UIM coverage applies “when an insured is ‘legally entitled to recover’ from an

uninsured or underinsured tortfeasor” and that this requirement was satisfied with respect

to the “accident” involving Meadows vehicle because Meadows had settled the wrongful

death and survivorship claims brought against her arising out of the accident. The trial

court rejected Peerless’s argument that an “impact” was required in order to constitute an “accident” under the policy, noting that Peerless had taken the position that the $100,000

payment received from Meadows insurer had reduced its coverage obligation under the

policy (notwithstanding that there was no impact between Saah’s and Meadows vehicles)

and that, in the property damage section of the policy, Peerless had specifically imposed

an “impact” requirement for collision coverage and thus knew “how to adopt” such a

requirement when it applied. As the trial court explained:

[S]ince “accident” was not defined in the Ohio Uninsured/ Underinsured Motorist Endorsement, it is evident that the parties did not intend to exclude non-impact incidents. Since the evidence is undisputed that Hanan Saah’s car was left vulnerable on the highway as a result of an unexpected and unintended happening, for which her survivors are legally entitled to recover from an underinsured motorist, then the conclusion is unavoidable that an “accident” occurred before Budzar negligently caused the second one that resulted in fatal injuries.

{¶13} Because there were two “accidents,” the trial court held that Sarrough could

recover up to the $300,000 limits of liability for each accident, i.e., that the total amount

of underinsured motorist coverage available to Sarrough under the policy was $600,000

(subject to the $200,000 set-off). The trial court also found that “reasonable minds could

only conclude that, but for the negligence of both Meadows and Budzar, Hanan Saah

would not have suffered fatal injuries” and that because Sarrough was “legally entitled to

recover from both underinsured motorists for each accident they caused,” separate per

accident limits (less the $200,00 setoff) “must be tendered” by Peerless to satisfy its

obligations under the policy. The trial court held that therefore, Sarrough was “entitled

to total underinsured motorist limits from Peerless in the amount of $400,000” and

entered final judgment in favor of Sarrough and against Peerless. {¶14} Peerless timely appealed the trial court’s judgment, presenting the following

five assignments of error for review:

FIRST ASSIGNMENT OF ERROR The trial court erred in granting plaintiff’s motion for summary judgment

and in denying defendant Peerless Indemnity Insurance Company’s motion

for summary judgment.

SECOND ASSIGNMENT OF ERROR The trial court erred in its interpretation of Peerless Indemnity Insurance Company’s policy which provides a single limit of uninsured/underinsured motorists coverage of $300,000 as the “maximum limit of liability for all damages resulting from any one accident” and that “this is the most we will pay regardless of the number [of] insureds, claims made, or vehicles involved in the accident” where there was only one impact proximately causing Hanan Saah’s injuries and, therefore, the court had no valid basis for holding that there were two “accidents” thereby doubling the total policy limits of uninsured/underinsured motorists coverage available to plaintiff under the policy for Hanan Saah’s accident (reduced by $200,000 paid by those legally responsible).

THIRD ASSIGNMENT OF ERROR The trial court erred in granting plaintiff’s motion for summary judgment where plaintiff moved only for partial summary judgment.

FOURTH ASSIGNMENT OF ERROR The trial court erred in holding as a matter of law that Peerless must tender in separate “per accidents” limits for two accidents and that “plaintiff is entitled to total underinsured motorist limits from Peerless in the amount of $400,000” without a trial by jury to determine the comparative negligence of Hanan Saah and the alleged tortfeasors, which “accident” was the proximate cause of plaintiff’s damages, and the amount of those damages suffered in each accident, in violation of Peerless Indemnity’s constitutional rights.

FIFTH ASSIGNMENT OF ERROR The trial court erred in declining to rule on Peerless Indemnity Insurance Company’s “motion to strike” thereby effectively denying Peerless’[s] objection to the admissibility into evidence of an unauthenticated traffic report and its hearsay contents. Peerless’s first and second assignments of error and third and fourth assignments of error

are interrelated and will be addressed together.

Law and Analysis

Standard of Review

{¶15} An appeal of a trial court’s summary judgment ruling is subject to a de

novo standard of review. Grafton v. Ohio Edison Co.,

,

(1996); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs.,

,

(8th Dist. 1997). We accord no deference to the trial

court’s decision and independently review the record to determine whether summary

judgment is appropriate.

{¶16} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue exists as to any material fact, (2) the party moving for summary judgment 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 reach only one conclusion, which is adverse to

the nonmoving party.

{¶17} The moving party carries an initial burden of informing the court of the

basis for the motion and identifying those portions of the record that set forth specific

facts that demonstrate its entitlement to summary judgment. Dresher v. Burt,

,

(1996). If the moving party fails to meet this

burden, summary judgment is not appropriate; if the moving party meets this burden,

summary judgment is appropriate only if the nonmoving party fails to meet its reciprocal burden, setting forth specific facts establishing that a genuine issue exists for trial.

.

Interpretation of the Insurance Policy

{¶18} Peerless’s first two assignments of error turn on the interpretation of the

insurance policy. The Peerless policy issued to Saah included UIM coverage with a

“single limit” of $300,000 for “[e]ach [a]ccident.” The terms of Saah’s UIM coverage

are detailed in the “UNINSURED MOTORISTS COVERAGE — Ohio” endorsement to

the policy, which provides, in relevant part:

INSURING AGREEMENT

A. We [Peerless] will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of:

1. An “uninsured motor vehicle” as defined in Sections 1., 2. and 4. of the definition of an “uninsured motor vehicle” because of “bodily injury”:

a. Sustained by an “insured”; and

b. Caused by an accident.

***

The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “uninsured motor vehicle.” We will pay under this coverage only if 1. or 2. below applies:

1. The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by the payment of judgments or settlements * * *

C. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:

*** 2. To which a body injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is * * * [l]ess than the limit of liability for this coverage[.]

***

LIMIT OF LIABILITY

A. The Limit of Liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:

1. “Insureds”;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident.

B. With respect to coverage under Section 2. of the definition of “uninsured motor vehicle,” the limit of liability shall be reduced by all sums paid because of “bodily injury” by or on behalf of persons or organizations who may be legally responsible. * * *

The term “accident” is not defined in the policy.

{¶19} “‘An insurance policy is a contract whose interpretation is a matter of law’”

and is reviewed on a de novo basis. Sauer v. Crews,

,

,

, quoting Sharonville v. Am. Emp. Ins. Co.,

,

,

; Westfield Ins. Co. v. Hunter,

,

,

, ¶ 12, citing Nationwide Mut. Fire Ins.

Co. v. Guman Bros. Farm,

,

(1995). {¶20} As the Ohio Supreme Court has instructed, when interpreting an insurance

policy:

When confronted with an issue of contractual interpretation, the role of a court is to give effect to the intent of the parties to the agreement. Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos.,

,

(1999), citing Employers’ Liab. Assur. Corp. v. Roehm,

,

, syllabus (1919); see also Section 28, Article II, Ohio Constitution. We examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. Kelly v. Med. Life Ins. Co.,

,

, paragraph one of the syllabus (1987). We look to the plain and ordinary meaning of the language used in the policy unless another meaning is clearly apparent from the contents of the policy. Alexander v. Buckeye Pipe Line Co.,

,

, paragraph two of the syllabus (1978).

Westfield Ins. Co. v. Custom Agri Sys.,

,

,

, quoting Westfield Ins. Co. v. Galatis,

,

,

.

{¶21} “‘[W]ords and phrases used in an insurance policy must be given their

natural and commonly accepted meaning, where they in fact possess such meaning, to the

end that a reasonable interpretation of the insurance contract consistent with the apparent

object and plain intent of the parties may be determined.’” Gomolka v. State Auto. Mut.

Ins. Co.,

,

(1982). Because, in an insurance

context, the insurer customarily drafts the contract, any ambiguity in an insurance contract

is interpreted against the insurer and in favor of the insured. Galatis at ¶ 13 (“[W]here

the written contract is standardized and between parties of unequal bargaining power, an

ambiguity in the writing will be interpreted strictly against the drafter and in favor of the

nondrafting party.”); Sharonville at ¶ 6 (“If provisions are susceptible of more than one interpretation, they ‘will be construed strictly against the insurer and liberally in favor of

the insured.’”), quoting King v. Nationwide Ins. Co.,

,

(1988), syllabus. However, there are limits to this rule. “[A] court cannot create

ambiguity in a contract where there is none. * * * Ambiguity exists only when a

provision at issue is susceptible of more than one reasonable interpretation.”

, quoting Lager v. Miller-Gonzalez,

,

,

; see also

(“[W]here the provisions of an insurance policy are

clear and unambiguous courts may not indulge themselves in enlarging the contract by

implication in order to embrace an object distinct from that contemplated by the parties, *

* * nor read into the contract a meaning not placed there by an act of the parties, * * * nor

make a new contract for the parties where their unequivocal acts demonstrate an intention

to the contrary * * *[.]”). A term is not necessarily ambiguous simply because it is not

defined in the insurance contract. State ex rel. Petro v. R.J. Reynolds Tobacco Co.,

,

,

; Guman Bros. Farm, 73 Ohio

St.3d at 108,

.

{¶22} Sarrough asserts that “[b]ased on the undisputed facts,” there were “at least

two separate accidents on February 20, 2011” that caused Saah’s fatal injuries — one

involving Meadows vehicle and one involving Budzar’s vehicle. Peerless disagrees.

Peerless argues that because Saah’s vehicle was involved in only one “impact,” there was

only one “accident” “regardless of the number of negligent motorists on the highway

during the evening of February 20, 2011, whose negligence may have contributed to this

accident.” In other words, because there was no “impact” with Saah’s vehicle as a result of the events involving Meadows vehicle, Peerless maintains that the events involving

Meadows vehicle could not be deemed a separate “accident” under the policy. Peerless

further contends that such a conclusion “affords * * * ‘accident’ its ‘natural’ and

commonly accepted meaning” and is the only reasonable interpretation of the policy

language that states that Peerless’s $300,000 “limit of liability” is “our maximum limit of

liability for all damages resulting from any one accident” and “the most we will pay

regardless of the number of * * * ‘[i]nsureds’; * * * [c]laims made; * * * or * * *

[v]ehicles involved in the accident.” We disagree.

{¶23} Applying the principles of construction set forth above, considering both

(1) the plain and ordinary meaning of “accident” and (2) Peerless’s failure to include a

more precise definition of the term in its policy, we conclude that the trial court properly

determined that the series of events involving Meadows vehicle and the separate impact

with Budzar’s vehicle constituted two “accidents” within the meaning of the policy.

{¶24} The parties agree that the plain and ordinary meaning of “accident” is “‘an

unexpected and undesirable event,’” Miller v. Motorists Mut. Ins. Co.,

,

,

, ¶ 27, (11th Dist.) quoting Webster’s II New

College Dictionary 6 (1999),

“‘an event proceeding from an unexpected happening or unknown cause without design and not in the usual course of things; an event that takes place without one’s expectation; an undesigned, sudden and unexpected event; an event which proceeds from an unknown cause or is an unusual effect of a known cause and, therefore, unexpected,’”

Westfield Ins. Co. v. Our 3 Sons, Inc., 8th Dist. Cuyahoga No. 87452,

, quoting Am. State Ins. Co. v. Guillermin,

,

(2d Dist. 1996); see also Custom Agri Sys.,

,

,

(noting that “accidental” has been defined as “‘unexpected, as well as

unintended’”), quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co.,

,

(1992).

{¶25} Applying this definition to the facts of here, one might reasonably interpret

“accident” as Peerless does, i.e., to conclude that the nearly continuous sequence of

events that allegedly combined to cause Saah’s fatal injuries constituted a single

“accident” or “unexpected happening.” However, one might also reasonably conclude

(1) that the series of events involving Meadows vehicle (including the sudden, the evasive

actions that Saah was forced to undertake to avoid a collision with Meadows vehicle and

the vulnerable position in which Saah’s vehicle came to a rest after avoiding that

collision) constituted one “accident” or “unexpected happening” and (2) that the collision

of Budzar’s vehicle with Saah’s vehicle constituted a second “accident” or “unexpected

happening.” An “impact” is not required for an incident to constitute an unexpected

event or happening. It is undisputed that the events involving Meadows vehicle occurred

before Budzar struck Saah’s vehicle (i.e., that the events were sequential, not concurrent),

that the events involved two different alleged tortfeasors engaging in separate,

independent conduct (i.e., one alleged tortfeasor’s conduct was not impacted by or

attributable to the other) and that both Saah’s vehicle and Meadows vehicle came to rest

before Budzar’s vehicle struck Saah’s vehicle, i.e., the events were not part of a single

“chain reaction.” As Salem Saah testified, he thought the incident was over once

Meadows vehicle came to rest on the right berm and Saah successfully avoided hitting Meadows vehicle. Because either of these two interpretations are reasonable

interpretations of the ambiguous, undefined language Peerless chose to include in the

policy, we must construe the ambiguity against Peerless.

{¶26} In Miller, supra, the Eleventh District reached a similar conclusion when

interpreting similar policy language. In Miller, an SUV driven by Daniel Masterson

collided with a motorcycle driven by David Perine. Miller,

,

,

, at ¶ 3. A second driver, Michael Reese, who had been

following Perine’s motorcycle, tried to take evasive action to avoid Perine’s motorcycle

after it was struck by Masterson’s vehicle but was unsuccessful and also struck Perine’s

motorcycle.

Within 0.3 seconds of striking Perine, Masterson collided with a

second motorcycle driven by Geoffrey Davis. Id. at ¶ 4. Davis, Perine, Reese and their

respective passengers were injured in the incident. Id. at ¶ 3-4.

{¶27} Masterson was insured under a policy that provided liability coverage for

bodily injury with limits of $100,000 for each person and $300,000 for each accident.

Id. at ¶ 5. The policy contained a “limit of liability” provision, which stated that “our

maximum limit of liability for all damages resulting from any one accident * * * is the

most we will pay regardless of the number of * * * “[i]nsureds”; * * * [c]laims made; * *

* or * * * [v]ehicles involved in the accident.” The term “accident” was undefined. Id.

at ¶ 15-20. The parties disagreed whether the incident involved one “accident” or two

“accidents,” i.e., whether Masterson’s collision with Davis’s motorcycle constituted a

separate “accident” subject to separate per accident limits under Masterson’s insurance policy. Id. at ¶ 6. Davis and his passenger filed a declaratory judgment action, and the

parties filed cross-motions for summary judgment on the issue. Id. at ¶ 8.

{¶28} The trial court granted summary judgment in favor of the insurer finding

that the incident was “one continuous course of conduct” and, therefore, one “accident”

under the policy. Id. Davis and his passenger appealed, and the Eleventh District

reversed. Id. at ¶ 9, 32.

{¶29} Giving the term “accident” its plain and ordinary meaning, the Eleventh

District held that a “[a] person unversed in the technicalities of insurance law might * * *

easily conclude that [the insured’s striking of each of the vehicles], sequentially,

constituted separate accidents or occurrences, rather than the single accident or

occurrence of losing control of the [car] * * *.” Id. at ¶ 27, quoting Nationwide Mut. Ins.

Co. v. Godwin, 11th Dist. Lake No. 2005-L-183,

. The court held

that although the policy

specifically accounts for and limits [the insurer’s] liability in an event such as the first collision, a chain reaction if you will, whereby the same automobile strike causes injuries to multiple parties and vehicles[,] [t]he policy does not specifically contemplate and limit [the insurer’s] liability in a sequence of events as presented in this case, where two separate and distinct automobile strikes cause injury to multiple parties.

Miller at ¶ 31. The court observed that the insurer “had the opportunity to define

accident and construct its policy in a way which limited its liability in a situation such as

the one before us” but that because “[i]t chose not to do so,” the appellate court “must

construe the ambiguity in favor of [Davis and his passenger].” Id. at ¶ 31. Accordingly,

the court concluded that the series of collisions involving Masterson’s constituted two “accidents” under the policy. Id. at ¶ 1; see also Godwin,

(where insurer failed to define term “accident” or “occurrence” in insurance policy, policy

was determined to be ambiguous and was construed against the insurer such that an

incident with sequential impacts involving two different victims was deemed to

encompass two separate “accidents” or “occurrences” for purpose of policy’s liability

limits clause). A similar conclusion is warranted here. 1 Peerless’s attempt to

distinguish these cases on the ground that they involved “two separate impacts” is not

persuasive for the reasons explained above.

{¶30} Peerless further argues that even if the events involving Meadows vehicle

could be considered an “accident” that caused Saah’s injuries (notwithstanding there was

no “impact”), the court should still find that there was only one “accident” under the

policy because Saah’s injuries were the result of a single cause — “treacherous road

conditions” — that caused both Meadows and Budzar to lose control of their vehicles.

In support of its argument, Peerless points out that several Ohio courts, including this

court, have applied a “causation approach” in determining the number of accidents that

have occurred for purposes of liability coverage. See, e.g., Dutch Maid Logistics, Inc. v.

Acuity, 8th Dist. Cuyahoga Nos. 91932 and 92002,

; Greater Cincinnati

1 The court indicated that it could reach the same conclusion by applying a causation analysis. See discussion infra at ¶ 30, stating that in comparing the cause of the injuries to Perine, Reese and their respective passengers with the cause of the injuries to Davis and his passenger, “they appear decidedly different.” Miller at ¶ 28. The court explained: “The injuries to the former group are as a direct result of Mr. Masterson’s collision with Mr. Perine’s motorcycle. [The injuries to Davis and his passenger], however, do not stem from that collision; instead, they are a direct result of an independent collision between Mr. Masterson’s vehicle and their own motorcycle.” Id. Chamber of Commerce v. Ghanbar,

,

,

(1st Dist.); Progressive Preferred Ins. Co. v. Derby, 6th Dist. Fulton No.

F-01-002,

(June 15, 2001). Under the causation approach,

the terms “accident” or “occurrence” as used in an insurance policy are construed “by

determining whether there is but one proximate cause for a series of injuries.”

, citing Derby at *8-9. “If the injuries are the result of continuous or repeated

exposure to the same conditions, then only one accident has occurred.” Greater

Cincinnati Chamber of Commerce v. Ghanbar,

,

,

(1st Dist.), citing Banner v. Raisin Valley, Inc.,

(N.D.Ohio 1998); Miller at ¶ 23 “The ‘causation approach’ to policy interpretation

focuses on the cause of the insured event, not the effects.”); see also Manor Care, Inc. v.

First Specialty Ins. Corp., N.D. Ohio No. 3:03CV7186,

,

*11-12 (July 17, 2006) (In Ohio, “‘proximate cause is an integral part of any

interpretation of the words accident or occurrence as used in a contract for liability

insurance.’ * * * ‘[W]here there is but one proximate, uninterrupted and continuous

cause, all injuries and damages are included within the scope of that single proximate

cause.’ The converse is also true: Where there are multiple proximate causes, each is a

separate occurrence under an insurance contract.”), quoting Derby at *8-9.

{¶31} Peerless argues that even if Meadows negligence could be considered a

proximate cause of Saah’s injuries, her negligence, along with Budzar’s negligence, was

simply part of a “continuous chain of events caused by the treacherous road conditions,”

and, therefore, together comprised only a single “accident” under the policy. {¶32} Once again, we disagree. The authorities upon which Peerless relies for its

argument are readily distinguishable from this case. Each of those cases involved a

single tortfeasor whose continuous tortious conduct allegedly resulted in multiple injuries

to one or more victims. See Dutch Maid Logistics, Inc. v. Acuity, 8th Dist. Cuyahoga

Nos. 91932 and 92002,

(where semitruck driver caused a

multivehicle accident resulting in two deaths and bodily injuries to three others, court

concluded that there was one “accident” for purpose of applying policy limits based on

finding that “there was but one continuous accident that caused all the bodily injury

claims that flowed from it” and definition of “accident” in policy that “encompass[ed] as

many vehicles and injuries as caused by the same tortfeasor”);

(actions

of insured in driving drunk, “plowing through a crowd of people” at a city festival and

“injur[ing] them almost simultaneously” constituted a single accident for purposes of

limits of liability coverage; injuries occurred as a result of “a single, indivisible course of

conduct” by the insured and were, therefore, the result of a single “sudden, unexpected

and unintended occurrence” within the meaning of “accident” as defined in the policy);

Derby,

(rejecting claim that two “accidents” occurred for

purposes of determining applicable liability limits under employer’s insurance policy for

injuries to traffic control flagger that occurred when dump truck operator backed over

her, then immediately shifted into forward gear and drove over her a second time,

reasoning that “[a]ll of these events were in a continuous series, closely linked in both

time and space” and, therefore, involved a single “accident” within meaning of insurance

policy). This case, however, is not a case in which one continuous, indivisible course of conduct by one individual is alleged to have injured the victim. Here, we arguably have

the reverse, i.e., multiple alleged causes of fatal injuries to a single victim.

{¶33} Further, although these courts referenced the causation approach in

determining that one accident or occurrence had occurred, the court’s decision in each of

these cases was based primarily on the definition of “accident” included in the policy at

issue. In Dutch Maid Logistics and Derby, the policies at issue defined “accident” to

include “a continuous or repeated exposure” to the same or substantially the same

conditions. Dutch Maid Logistics at *21-22 (policy included provision stating that “[a]ll

bodily injury * * * resulting from continuous or repeated exposure to the same conditions

will be considered as resulting from one accident” and defined “accident” as including

“continuous or repeated exposure to the same conditions resulting in bodily injury * * *

”):

(“accident” defined, in relevant part, as “a sudden, unexpected and

unintended event, or a continuous or repeated exposure to substantially the same

conditions to that event that causes bodily injury * * * ”). In this case, by contrast, the

term “accident” was left undefined by the insurer.

{¶34} Further, although the policy in this case states that Peerless’s “maximum

limit of liability for all damages resulting from any one accident” is “the most [it] will pay

regardless of the number of * * * ‘[i]nsureds’; * * * [c]laims made; * * * or * * *

[v]ehicles involved in the accident,” it is noticeably silent with regard to the number of

alleged tortfeasors. See Ross v. State Auto. Mut. Ins. Co., 5th Dist. Licking No. 00CA69,

(Feb. 26, 2001) (where the decedent died as the result of the

negligence of two underinsured tortfeasors, court construed policy language against the insurer, finding that policy did not limit the coverage available to a single claim and that

policy’s $300,000 per accident limits applied to each tortfeasor separately, such that the

total amount of UIM coverage available to appellees was $600,000).

{¶35} Even if we were to apply the causation approach to the facts here, we would

find that there is more than one alleged cause of Saah’s fatal injuries and thus, more than

one potential “accident” for liability limits purposes. Here, the alleged causes of Saah’s

injuries were separate acts of negligent conduct by Meadows and Budzar. The “cause”

considered under the causation approach is the tortious conduct that allegedly caused the

injuries at issue, not, as Peerless contends, the surrounding circumstances that allegedly

led to the tortious conduct. If, as Peerless contends, Saah’s injuries had been caused by

the road conditions rather than by the negligence of Meadows and/or Budzar, UIM

coverage would not be an issue because UIM coverage under the policy is limited to

“compensatory damages which an ‘insured’ is legally entitled to recover from the owner

or operator of [an underinsured vehicle].”

{¶36} Accordingly, the trial court properly determined that the policy provided up

to $200,000 in UIM coverage ($300,000 less the $100,000 setoff) for each of the two

“accidents” alleged to have caused Saah’a fatal injuries in this case (for a total of up to

$400,000 in UIM coverage). Peerless’s first and second assignments of error are

overruled.

Trial Court’s Determination that Peerless Was Required to Tender and That Sarrough Was Entitled to $400,000 in UIM Benefits {¶37} In its third and fourth assignments of error, Peerless argues that the trial

court erred in entering full summary judgment on Sarrough’s breach of contract claim and

determining as a matter of law that Sarrough was entitled to total underinsured motorist

benefits from Peerless in the amount of $400,000 because Sarrough (1) moved only for

partial summary judgment and (2) presented no evidence of damages caused by either

“accident.” Peerless argues that “the comparative negligence of [Saah] and the alleged

tortfeasors,” whether each accident was the proximate cause of Sarrough’s damages, and

the amount of damages, if any, caused by each accident were issues of fact for the jury to

decide.

{¶38} Sarrough concedes that she “had not requested an adjudication of damages”

and that Peerless “is fully entitled to explain to a jury how [d]ecedent was really at fault

for her own death and [that] her family’s wrongful death/survivorship damages are not

worth the policy limits.” She contends that Peerless’s arguments are based on a

misreading of the trial court’s December 3, 2014 opinion and order, i.e., that the

December 3, 2014 opinion and order did not grant her full summary judgment but simply

declared the amount of the policy limits that were potentially available on her breach of

contract claim. She asserts that “[e]veryone understood that damages had yet to be

determined” and that the December 3, 2014 judgment entry was not a final order because

“the amount of the judgment to be imposed” had not yet been decided. We disagree.

{¶39} The trial court, in its December 3, 2014 opinion and order, did not simply

declare that there were two accidents and that a separate $300,000 limit of liability (less

setoff) was potentially available to Sarrough for each accident under the policy. The trial court went further, finding (1) that “reasonable minds could only conclude that, but for

the negligence of both Meadows and Budzar, Hanan Saah would not have suffered fatal

injuries” and (2) that “[s]ince plaintiff is legally entitled to recover from both

underinsured motorists for each accident they caused, separate ‘per accidents’ limits must

be tendered for a total of $600,000” (emphasis added), less the setoffs — issues as to

which there are clearly facts in dispute. Based on these findings, the trial court

concluded that Sarrough was “[t]herefore, * * * entitled to total underinsured limits from

Peerless in the amount of $400,000.00.” Nothing in the trial court’s order made

Peerless’s liability for this amount contingent upon any further findings or

determinations. The trial court journalized its order as a “final” judgment entry, and all

other claims in the case had been previously dismissed. As such, the December 3, 2014

judgment entry was a final, appealable order. R.C. 2505.02(B); see also State ex rel.

White v. Cuyahoga Metro. Hous. Auth.,

,

(1997)

(observing that the general rule is that orders deciding liability but “deferring” the issue of

damages are not final appealable orders under R.C. 2505.02 “because they do not

determine the action or prevent a judgment” but that an exception to this rule exists such

that even “a judgment not completely determining damages is a final appealable order

where the computation of damages is mechanical and unlikely to produce a second appeal

because only a ministerial task similar to assessing costs remains”).

{¶40} Sarrough concedes that, based on the evidence submitted by the parties in

support of their motions for summary judgment, genuine issues of material fact remain

regarding negligence, causation and damages. Although the trial court properly held, based on the interpretation of the policy, that as to each “accident,” Peerless bears

underinsured motorist liability of up to $200,000 (its $300,000 per accident policy limits

less the $100,000 already received from Meadows and Budzar’s insurers), the trial court

went too far, based on the summary judgment record here, in conclusively deciding issues

of negligence, causation and damages on summary judgment. We sustain Peerless’s

third and fourth assignments of error.

Motion to Strike

{¶41} In its fifth and final assignment of error, Peerless argues that the trial court

erred in failing to strike the traffic crash report and “its hearsay contents” attached to

Sarrough’s motion for partial summary judgment. Peerless further contends that we

should “presume” that the trial court relied on these improper evidentiary materials in

ruling on the parties’ summary judgment motions.

{¶42} The trial court did not rule on Peerless’s motion to strike before granting

Sarrough’s motion for summary judgment. As such, it is presumed to be denied. See,

e.g., Mayfair Village Condo. Owners Assn. v. Grynko, 8th Dist. Cuyahoga No. 99264,

(“Although the trial court never ruled on the motion, if a

motion is not expressly decided by the trial court when the case has concluded, the motion

is presumed to have been denied.”), citing Kostelnik v. Helper,

,

,

. Even assuming that all or part of the traffic crash

report constituted inadmissible hearsay, there is nothing in the record that suggests that

the trial court considered the traffic crash report or any information contained in the

traffic crash report in deciding the parties’ cross-motions for summary judgment. The parties agree that the material facts upon which the trial court’s summary judgment ruling

was based are undisputed. Those facts were established independently of the traffic

crash report based on the deposition testimony of the witnesses. Peerless has not

claimed, much less demonstrated, any prejudice resulting from the trial court’s denial of

its motion to strike. Accordingly, any such error was harmless and did not affect the

substantial rights of the parties. Civ.R. 61. Peerless’s fifth assignment of error is

overruled.

{¶43} Judgment affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this opinion.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

__________________________________________ EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and SEAN C. GALLAGHER, J., CONCUR