COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68196 : SARA E. KEIDER, CO-EXECUTOR, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION FEDERAL INSURANCE COMPANY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-258317 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: BRADFORD D. ZELASKO, ESQ. D. JOHN TRAVIS, ESQ. PETERSON & ZELASKO GALLAGHER, SHARP, FULTON The Hoyt Block - Suite 302 & NORMAN 700 West St. Clair Avenue Seventh Floor, Bulkley Bldg. Cleveland, Ohio 44113 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - KARPINSKI, J.: This appeal arises from an underinsured motorist insurance coverage dispute involving an employee seeking to recover under a business automobile liability policy issued to his employer. Plaintiffs Sara Keider and George Pelesky, co-executors of the estate of Stephen Keider, deceased, and Sara Keider individually filed a complaint for declaratory judgment against defendants Federal Insurance Company, Fireman's Fund Insurance Company of Ohio and Fireman's Fund Insurance Company in the trial court on September 20, 1993. Plaintiffs alleged Stephen Keider was killed and Sara Keider was injured in an automobile collision with an underinsured motorist who crossed the center-line and struck their rental vehicle "head-on." Plaintiffs were on vacation in Boulder City, Nevada, and riding in a rented automobile when the collision occurred. Count I of plaintiffs' complaint sought to recover under the underinsured motorist coverage of a business automobile liability insurance policy issued by Federal Insurance Company to Stephen Keider's corporate employer Origin Technology In Business, Inc. ("Origin"). Counts II and III sought to recover under the underinsured motorists coverage of a personal automobile liability insurance policy and a homeowners' insurance policy issued to the Keiders by the Fireman's Companies. Federal Insurance Company filed a motion for summary judgment on June 2, 1994, supported by a copy of the insurance - 3 - policy, declarations, and uninsured motorist endorsement issued to decedent's employer. Federal Insurance Company's motion for summary judgment argued plaintiffs did not qualify as an "insured" under the unambiguous terms of the business automobile 1/ liability insurance policy. Plaintiffs filed a cross-motion for summary judgment against Federal Insurance Company the following day, supported by the following documents, viz.: (1) an affidavit of Sara Keider, (2) a letter to decedent from Origin concerning the terms of his employment, (3) a traffic accident report, (4) decedent's death certificate, (5) the autopsy report, (6) the tortfeasor's automobile liability insurance policy declarations, (7) an affidavit of plaintiffs' counsel, Bradford Zelasko, (8) and two letters concerning payment by the tortfeasor's insurer. Plaintiffs argued that the term "insured" in the underinsured motorist endorsement was ambiguous, that they qualified as "insureds" under the policy, and that the underinsured motorist endorsement violated R.C. 3937.18. Plaintiffs and Federal Insurance Company thereafter filed briefs in opposition to their opponent's respective motion for summary judgment. The trial court granted Federal Insurance Company's motion for summary judgment and denied plaintiffs' cross-motion for summary judgment in an order journalized September 20, 1994. Plaintiffs' claims against the Fireman's Companies were 1/ Federal Insurance Company also argued the policy did not provide coverage for rental cars, but has withdrawn this argument in its brief on appeal. (Brief at p. 17.) - 4 - thereafter settled by agreed judgment entry on October 27, 1994. Plaintiffs timely appeal raising the following sole assignment of error: THE TRIAL COURT ERRED, TO THE PREJUDICE OF PLAINTIFF-APPELLANTS [SIC], IN DENYING SAID PARTIES' MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, THEREBY PRECLUDING ACCESS TO THE UNDERINSURED MOTORIST COVERAGE ISSUED BY FEDERAL INSURANCE COMPANY. Plaintiffs' sole assignment of error lacks merit. Plaintiffs argue (1) the trial court improperly concluded they did not qualify as an "insured" under the business automobile liability uninsured motorist coverage, and (2) the uninsured motorist endorsement issued by Federal Insurance Company violates R.C. 3937.18. Based on our review of the record, plaintiffs have failed to show any error in the trial court's judgment. Definition of the Term "Insured" The Ohio Uninsured Motorists Coverage Endorsement to the business automobile liability insurance policy issued by Federal Insurance Company to decedent's employer provides in pertinent part as follows: A. COVERAGE 1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" because of "bodily injury" caused by an "accident". *** B. WHO IS AN INSURED 1. You - 5 - 2. If you are an individual, any "family member". 3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction. 4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured". Plaintiffs argue the definition of "insured" under this endorsement is ambiguous in this case. Plaintiffs cite several cases which found the term "insured" was ambiguous in uninsured motorist provisions when the policy was issued to a business organization and extended coverage to "relatives" and "family members." See King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208 and Decker v. CNA Insurance Company (1990), 66 Ohio App.3d 576. However, these cases and the unreported cases cited by plaintiffs are distinguishable because they do not contain the policy language used in the case sub judice. The Ninth District Court of Appeals construed the identical policy language and rejected plaintiffs' precise arguments in The Michigan Property & Casualty Guaranty Assoc. v. Booth (Sept. 2, 1992), Wayne App. No. 2722, unreported, stating as follows: Appellant argues that ambiguities are evident in the clause setting forth "Who is an Insured" under the policy. He asserts that when "you" refers to a corporation and provides recovery for "bodily injury," no coverage is in fact afforded, as a corporation cannot suffer "bodily injury." Similarly, when category 2 refers to a "family member," no coverage is given as a corporation cannot have "family members." According to appellant, these provisions create ambiguities similar to those found in King v. - 6 - Nationwide Ins. Co. (1988), 35 Ohio St.3d 208. In King, the Supreme Court of Ohio held that a personal insurance policy which was issued to a corporation and which contained references to relatives and other personal language afforded coverage to employees of the corporation. Id. at 212. King, however, is distinguishable from the case at bar in several respects. The policy involved in King was a standard personal insurance policy which had been issued commercially. In analyzing the provisions contained therein in a commercial context, there were evident ambiguities which had to be construed to include the employees of the corporation. Had the provisions not been so construed, only the corporation and no individuals capable of sustaining bodily injury would have been entitled to coverage. Such a construction would have nullified that portion of the policy and, in fact, provided no coverage whatsoever. The Ohio Supreme Court held in Buckeye Union Ins. Co. v. Price (1974), 39 Ohio St.2d 95, syllabus, that: "Language in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer." Absent ambiguity, however, the words of a policy must be given their plain and ordinary meaning. Burris v. Grange Mut. Co. (1989), 46 Ohio St.3d 84, 89. Additionally, the rule of liberal interpretation in favor of the insured does not require a court to adopt a forced or strained construction of an insurance contract. New Amsterdam Casualty Co. v. Johnson (1914), 91 Ohio St. 155, 157-158; Western Reserve Mutual Casualty Co. v. Eberhart (Aug. 7, 1991), Summit App. No. 14986, unreported. We find that the policy issued by OGIC to Mid-Atlantic is unambiguous on its face and its terms do not require interpretation beyond their plain and ordinary meaning. It is evident that, unlike the policy in King, Mid-Atlantic's policy indeed provided coverage to some individuals. Those persons falling under category 3 of the section entitled "Who is an Insured," namely those persons "occupying a covered auto," are provided coverage for bodily injury sustained due to an underinsured motorist. The parties to this case stipulated that the drilling rig which Stephenson was operating was not a "covered auto." Category 3, therefore, does not apply to Stephenson. - 7 - Category 1 refers to "you," which is plainly defined in the policy as meaning only the Mid-Atlantic Corporation itself. While Category 2 seems to create an ambiguity if applied to a corporation because it refers to a corporation's "family members," a plain reading shows that the provision applies only when the insured is an individual. Unlike the policy in King, a distinction is made between "you" and "an individual." As the appellee correctly points out in its brief, a business insurance policy can be issued to an individual when, for example, such individual is running a sole proprietorship. It is only in these situations, and not when a policy is issued to a corporation, that Category 2 would apply. As Stephenson does not fit any of the three categories of "insureds" under the policy, he would not be included in coverage for injuries sustained due to an underinsured motorist. *** Id. at pp. 3-4 (Footnote omitted). Plaintiffs' citation to King, Decker and several unreported cases to support their argument to the contrary is misplaced because they did not involve the same policy language. In the case at bar, there is no dispute that the term "you" under the first definition of "insured" unambiguously refers to decedent's employer. The introductory paragraph of the business automobile coverage form defines the term "you" as follows: Throughout this policy the words "you" and "your" refer to the Named Insured shown on the Declarations. Since the policy declarations identified Origin, the corporation employing decedent, as the Named Insured, the term "you" refers solely to Origin corporation and not to the individual plaintiffs. King v. Nationwide Ins. Co., supra at 212. Plaintiffs contend the second definition of "insured," which extends coverage to family members, is ambiguous and extends - 8 - coverage to them in this case. However, unlike the cases cited by plaintiffs, the uninsured motorist endorsement in the case sub judice does not extend coverage to "you or any family member" in an unqualified manner. Rather, the uninsured motorist endorsement in this case eliminates any ambiguity by restricting coverage to individuals as follows: 2. If you are an individual, any "family member". Since the term "you" unambiguously refers to the Origin corporation, which is not an individual, the condition is not satisfied. By its own terms, this provision does not extend coverage to "family members" unless the named insured is an individual. None of the authority cited by plaintiffs holds otherwise. Validity of Definition of Insured Plaintiffs contend the uninsured motorist endorsement in this case violates R.C. 3937.18 because it improperly limits coverage to persons occupying "covered vehicles" under the third provision set forth above. Plaintiffs argue this requirement violates the principle that uninsured motorist coverage protect "persons" rather than "vehicles." However, plaintiffs' argument completely ignores the fact that R.C. 3937.18 mandates the extension of uninsured coverage only to "insureds." The statute invalidates uninsured motorist policy exclusions only after the claimant qualifies as an insured - 9 - under the policy. The Ohio Supreme Court has recently held as follows: *** [T]he statute mandates coverage if (1) the claimant is an insured under a policy which provides uninsured motorist coverage; (2) the claimant was injured by an uninsured motorist; and (3) the claim is recognized by Ohio tort law. (Emphasis added.) Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 481. As noted above, plaintiffs did not satisfy the fundamental requirement of qualifying as "insureds" under the policy in this case. This case does not involve any improper policy exclusion. Plaintiffs' citation to Landis v. Grange Mutual Ins. Co. (1994), 95 Ohio App.3d 422, to support their argument to the contrary lacks merit for the same reason. The injured employee in Landis was listed as a "designated insured" in his employer's policy. Id. at 425. The Landis Court invalidated exclusions that would require claimants to be within the scope of their employment and occupying a covered vehicle, if the claimant qualified under the policy as an insured. The case at bar does not challenge improper policy exclusions which impose on insureds additional conditions to recovery. Under R.C. 3937.18, insurance companies are required to offer uninsured motorist coverage only to their "insureds." The courts have expanded coverage for an insured only when the definition of the insured in the policy is ambiguous. Because the language is not ambiguous here, plaintiffs are not entitled to coverage. - 10 - Accordingly, plaintiffs' sole assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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. LEO M. SPELLACY, P.J., and PATRICIA A. BLACKMON, J., CONCUR. DIANE KARPINSKI 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 .