COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59024, 59848 MOTORISTS MUTUAL INSURANCE COMPANY : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : JOYCE ALBERT, ETC., ET AL. : OPINION : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 163,022. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Thomas E. Dover, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue Cleveland, OH 44115 Patrick M. Foy, Esq. 6th Floor Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 For Defendant-Appellee Steven L. Wasserman, Esq. Albert Joyce: 1717 East Ninth Street Cleveland, OH 44114 For Defendant-Appellee Warren Rosman, Esq. Royal Insurance Company: 2500 Terminal Tower Cleveland, OH 44113 -2- MATIA, P.J.: This cause arises from the judgment of the Cuyahoga County Court of Common Pleas which denied plaintiff-appellant, Motorists Mutual Insurance Company's motion for summary judgment. The court granted defendant-appellee Royal Insurance Company's motion for summary judgment. Appellant Motorists Mutual Insurance Company (Motorists) timely appeals the court's judgment, assigning two errors for review. THE FACTS This cause arises out of a fatal car accident which occurred on November 17, 1987. On that day, Steve Albert, the decedent and President of State Supply Company was killed by tortfeasor Thomas Healy, when Healy's car rear-ended the car driven by Albert. Mr. Albert was driving a 1987 Cadillac Sedan DeVille which was titled in his name and driven by him exclusively. Mr. Albert was driving in the course of his business when the accident occurred. The tortfeasor, Thomas Healey, had a liability insurance policy with the Dairyland Insurance Company with limits of $12,500.00. Steve Albert had, at the time of the accident, an insurance policy on the Cadillac with appellee Royal Insurance Company. This policy provided primary underinsured motorist coverage with $500,000.00 limits and an umbrella (excess) endorsement with $1,000,000.00 limits. -3- Mr. Albert's business State Supply Company had a commercial insurance policy with Motorists Mutual Insurance Company, also in effect at the time of the accident. This policy provided business automobile coverage for uninsured/underinsured motorist coverage in the amount of $500,000.00, excess coverage for any covered auto not owned by State Supply. THE CASE On January 10, 1989, appellant Motorists Mutual filed a declaratory judgment action against Joyce Albert, the wife and executrix of the estate of Steven Albert. Motorists claimed it owed no underinsured Motorists' benefits to the Alberts. At about the same time, Royal Insurance, not a party to the lawsuit at that time, was contacted by counsel for the Alberts concerning arbitration of the matter. Appellee Joyce Albert answered Motorists' complaint and filed a counterclaim. Appellee Albert alleged that she was entitled to coverage from appellant Motorists and that she should be permitted to "stack" the Motorists Mutual's insurance policy with that of Royal Insurance Company to arrive at on aggregate total of $2,000,000.00 in underinsured motorist coverage. Appellee Royal Insurance Company filed a motion to intervene as a co-defendant in the lawsuit. The trial court granted Royal's motion. Royal then filed a cross-claim and counterclaim arguing that Royal had $500,000.00 primary underinsured motorist coverage; that after that amount was exhausted Motorists' coverage was excess coverage; and that Motorists should be -4- responsible for 33 percent of all excess coverage to a limit of $1,000,000.00. All parties then filed motions for summary judgment. The parties addressed the issues of whether or not Motorists owed any underinsured coverage to Joyce Albert, and if so, what was the allocation of that insurance coverage in relationship to the coverage provided by Royal. On November 27, 1989, the trial court denied Motorists' motion for summary judgment. On December 12, 1989, the court granted Royal's motion for summary judgment. In these rulings, the trial court essentially held the following: "1.That Motorists did owe underinsured motorist coverage to Joyce Albert; "2.That the Royal policy providing underinsured motorist coverage to Joyce Albert in the amount of $500,00 was primary; "3.That the aggregate total of underinsured motorist coverage available to Joyce Albert was $1,500,000; and "4.That after the $500,000 primary underinsured motorist coverage of Royal's was exhausted, that Motorists would be responsible for 33% of the excess coverage to a limit of $1,000,000." On December 27, 1989, an arbitration hearing was held in regard to the damages sustained by the estate of Steve Albert. On December 29, 1989, an arbitration award in the amount of $1,079,472.88 was rendered in favor of the estate of Joyce Albert. -5- On December 27, 1989, Motorists filed this timely notice of appeal from the trial court's overruling of Motorists' motion for summary judgment and for granting of Royal's motion for summary judgment. ASSIGNMENTS OF ERROR I AND II Assignments of Error I and II are interrelated. Accordingly, the two assignments will be discussed as one. "I.THE TRIAL COURT ERRED IN OVERRULING APPELLANT MOTORISTS MUTUAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT IN THAT MOTORISTS MUTUAL OWED NO UNDERINSURED MOTORIST COVERAGE TO THE ESTATE OF STEVE ALBERT." "II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT ROYAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND IN ITS APPORTIONMENT OF THE INSURANCE COVERAGES OF ROYAL AND MOTORISTS MUTUAL IN THAT MOTORISTS MUTUAL OWED NO UNDERINSURED MOTORIST COVERAGE TO THE ESTATE OF STEVE ALBERT WITHIN THE FACTS OF THIS LAWSUIT." Appellant argues in its two assignments of error that the trial court erred in overruling their motion for summary judgment and in granting appellee's motion for summary judgment. Specifically, appellant argues that they owe no underinsured motorist coverage to the estate of Steve Albert. I. The issue presented for resolution is whether the personal automobile of Steven Albert was provided underinsured motorist coverage by appellant Motorist Mutual Insurance Company. -6- Appellant Motorists' argument that their commercial policy issued to State Supply Company did not provide coverage for the 1987 Cadillac Sedan DeVille, titled to Steven Albert personally, is contraindicated on the face of the policy. The business coverage clearly provided for Mr. Albert's car in two categories, "any auto" and "non-owned autos." The Motorists' policy defines non-owned autos as: "NONOWNED 'AUTOS' ONLY. Only those 'autos' you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes 'autos' owned by your employees or partners or members of their households but only while used in your business or your personal affairs." (See Commercial Auto Policy, p. 1 of 9.) At the time of Steve Albert's death, the record indicates that he was driving a 1987 Cadillac Sedan DeVille which was titled in his name and owned by him personally. The record further reflects that Mr. Albert was conducting business for State Supply at the time of the accident. Page 1 of 9 of the Commercial Auto Policy, specifically indicates that "autos" owned by employees or partners are covered while used in the business. Therefore, it follows, without further discussion, that Steve Albert's personal car was covered by Motorists Mutual's insurance policy at the time of the within accident. II. Appellant then argues that the "non-owned" auto Mr. Albert was driving had been specifically excluded from underinsured motorist coverage. Appellant Motorist relies on -7- Section "C" of the Ohio Uninsured Motorist Coverage endorsement which states that: "This insurance does not apply to: "4. 'Bodily injury' sustained by you or any 'family member' while 'occupying' or struck by, any vehicle owned by you or any 'family member' which is not a covered 'auto.'" Appellant then refers back to the Schedule of Covered Autos and Coverages Form, on which the "non-owned" auto coverage specifically lacks an uninsured motorist designation. Appellant Motorists argues that R.C. 3937.18 provides for the restriction of uninsured motorist coverage if it is rejected by the insurer, and that State Supply Company expressly rejected uninsured motorist coverage on the Schedule of Covered Autos form. R.C. 3937.18 sets out the requirements for uninsured motorist coverage and provides in pertinent part: "(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issue for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following are provided: "'(1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury or death under provisions approved by the superintendent of insurance, for the protection of persons insured thereunder who -8- are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; "'*** "'(C) The named insured may only reject or accept both coverages offered under division (A) of this section. The named insured may require the issuance of such coverages for bodily injury or death in accordance with a schedule of optional lesser amounts approved by the superintendent, that shall be no less than the limits set forth in section 4509.20 of the Revised Code for bodily injury or death. ***'" Clearly, R.C. 3937.18(A)(1) and (C) require that automobile liability insurance policies provide uninsured motorist coverage in the equivalent amounts to the automobile liability coverage unless the insured rejects this equivalent amount and opts for lesser amounts. Appellant Motorists contends that State Supply Company, as insured, expressly rejected uninsured motorist coverage for "non- owned" autos. The Schedule of Covered Autos and Coverages lists only bodily injury (BI) and property damage (PD) coverage for the "non-owned" auto. The court in Inman v. National Union Fire Insurance Company of Pittsburgh (1989), 49 Ohio App. 3d 122, quoting Ady v. West American Insurance Co. (1982), 69 Ohio St. 2d 593, reasoned with reference to R.C. 3937.18: "Therefore, we conclude that because the statute mandates that full coverage be offered, any restriction must be closely scrutinized to be sure that it complies with -9- the statutory purpose. Furthermore, an exclusion must be conspicuous and in terminology easily understood by a customer. A customer must be aware of the provision, understand the meaning and voluntarily agree to any restrictions on the full coverage statutorily mandated. ***" Viewing the policy, we find that we can infer from the face of the policy that State Supply intended to restrict its uninsured motorist coverage to what was designated on the Schedule of Covered Autos and Coverages, i.e., uninsured motorist coverage for the 1976 and 1974 Fords. This intent is reflected in the designation for each vehicle, and is also reflected in the price paid for the premium. From the evidence, State Supply appeared to be aware that it was rejecting the extra coverage pertaining to the uninsured motorist endorsement for the non- owned auto. III. The Declarations page of the policy, however, shows that liability insurance was procured for the designation of "any auto." R.C. 3937.18(A)(1) clearly provides that uninsured motorist coverage attaches in an equivalent amount to automobile liability coverage. Therefore, it follows that "any auto," therefore, Steven Albert's auto, was covered by appellant Motorists Mutual Insurance to the limit of $500,000.00. Appellant's argument that the mandates of R.C. 3937.18 apply to "owned" autos is without merit. Since Motorists' coverage extends to "any auto" to the limit of $500,000.00 liability, the -10- statute demands that an equivalent amount of uninsured/underinsured coverage apply to the covered "auto." In accord with Donnell v. Motorists Mutual Insurance Company (1988), Cuyahoga App. No. 55100, unreported, if this $500,000.00 were primary coverage, Motorists would not owe the estate of Steve Albert any compensation. Royal's primary coverage of $500,000.00 would be the maximum limit because of the anti- stacking provisions. However, appellant Motorists anti-stacking provision refers to a separate "other insurance" clause. The "other insurance" provisions of the business auto policy states as follows: "Other Insurance "a.For any covered 'auto' you own, this coverage form provides primary insurance. For any covered 'auto' you don't own, the insurance form is excess over any other collectible insurance. "*** "c.When this coverage form and any other coverage form or policy covers on the same basis either excess or primary, we will pay only our share. Our share is the proportion that the limit of insurance of our coverage form bears to the total of the limits of all the coverage forms and policies covering on the same basis. (Emphasis added.)" Accordingly, the highest applicable excess coverage is Royal's $1,000,000.00 umbrella endorsement. Accordingly, Motorists' $500,000.00 excess coverage is in the proportion of 1:2 to that of Royal's $1,000,000.00 coverage. -11- That is, Motorists is liable for one-third (l/3) of the excess coverage available to the estate of Steven Albert. IV. We hold that the trial court did not err in overruling appellant Motorists Mutual Insurance Company's motion for summary judgment and granting Royal's motion for summary judgment. Appellant Motorists was liable to the estate of Steven Albert for liability coverage on the designated covered "any auto," which clearly applies to the auto driven by Mr. Albert at the time of his accident. We further find that the uninsured, underinsured coverage derived from the liability coverage of "any auto" is in the amount of $500,000.00. Motorists' liability attaches pursuant to its own policy which provides for "excess" coverage for a "non- owned" auto. Therefore, Motorists is liable for its proportion of the excess coverage limit, which is Royal's $1,000,000.00. Thus, under the Royal policy and under the Motorists policy, Motorists is liable for one-third (l/3) of the arbitration award over $500,000.00 or $193,157.63. Accordingly, the trial court is affirmed. -12- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. Exceptions. BLACKMON, J., CONCURS; SPELLACY, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .