COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68324/68553 JOHN SANDERS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MOTORISTS MUTUAL INSURANCE : COMPANY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 19, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 233905 JUDGMENT Modified and affirmed. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: LEON M. PLEVIN, ESQ. JOSEPH W. PAPPALARDO, ESQ. JOEL LEVIN, ESQ. JOHN T. MURPHY, ESQ. DAVID M. PARIS, ESQ. Gallagher, Sharp, Fulton SANDRA J. ROSENTHAL, ESQ. & Norman Nurenberg, Plevin, Heller Bulkley Building, 7th Floor & McCarthy Co., L.P.A. 1501 Euclid Avenue Standard Bldg., 1st Floor Cleveland, Ohio 44115 Cleveland, Ohio 44113-1792 - 2 - JAMES M. PORTER, J., Defendant-appellant Motorists Mutual Insurance Company appeals the summary judgment of the trial court in favor of plaintiff- appellee John Sanders on his uninsured motorist's claim and the award of costs thereon. For the reasons hereinafter stated, we affirm the summary judgment but modify the award of costs. Plaintiff-appellee John Sanders is the son of Gerald Sanders, an employee of Wolf Imports, Inc. The company supplied a car to the father for business and personal use. It was covered by a Comprehensive General Liability Insurance Policy with Motorists. The named insureds on said policy were Ed Wolf Shaker Saab, Inc., Wolf Imports, Inc., Donald Wolf, Edward W. Wolf and Ray G. Longhitano. The policy defined "Persons Insured" under the uninsured motorist portion of the policy as follows: The Named Insured and, Any Designated Insured and, while residents of the same household, the spouse and relatives of either; *** On March 8, 1987, plaintiff was a passenger in an uninsured vehicle owned and driven by a friend. The friend lost control of the car and plaintiff sustained severe injuries in the resulting accident. He filed against Motorists for uninsured motorist coverage because he was a member of his father's household, but not an employee of Ed Wolf Shaker Saab, Inc. or Wolf Imports, Inc. Motorists denied coverage claiming appellee did not fall within the policy definition of "Persons Insured." - 3 - On June 17, 1992, plaintiff brought suit against Motorists seeking a declaratory judgment that Motorists was obliged to pay benefits under the uninsured motorist provisions of the policy. Motorists filed for summary judgment claiming plaintiff was not covered by the policy. Plaintiff opposed the motion and filed his own motion for summary judgment arguing that the language of the policy afforded coverage to his father as an employee of Wolf Imports, Inc. As a relative residing with his father, plaintiff claimed he was also covered. The trial court overruled Motorists' motion for summary judgment and subsequently granted plaintiff's motion. A trial was held in November 1994 to determine damages. On December 5, 1994, the jury rendered its verdict in favor of plaintiff for $118,000 upon which judgment was entered. The court also granted plaintiff's motion to tax costs against Motorists for video deposition expenses. This timely appeal ensued. We will address the assignments of error in the order presented. I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN DENYING IT'S (SIC) MOTION FOR SUMMARY JUDGMENT AND IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT THEREBY PERMITTING PLAINTIFF-APPELLEE ACCESS TO THE UNINSURED MOTORIST COVERAGE ISSUED BY DEFENDANT-APPELLANT. Motorists argues, under R.C. 3937.18, coverage is restricted to "insureds." Neither the father nor the son were named insureds under the policy. The named insureds included the two Wolf - 4 - corporations and specific individuals. Motorists argues that since there are individual named insureds, the resident/relative clause does not render the term "insureds" ambiguous. Rather, the reasoning goes that the resident/relative clause only pertains to the specified individuals named as "insureds" under the policy and not, as the trial court concluded, to other employees of the corporation, i.e., the unnamed father. Motorists argues that the claimant is neither a named insured nor a relative of a named insured; he was not an employee of a named insured; he was not operating a vehicle owned by an insured; and he was not acting on behalf of or in any way connected with any named insured. Nevertheless, the trial court held as a matter of law that when a policy issued to a corporation as a named insured includes family-oriented language ("*** and while residents of the same household, the spouse and relatives of either") an ambiguity is created which must be construed against the insurer. The trial court followed the Ohio Supreme Court's ruling in King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208 hereinafter discussed. We believe, as applied to the facts of this case, the trial court's interpretation and application of King was correct. Initially, we note an insurance policy is a contract and the relationship between the insurer and the insured is purely contractual in nature. Nationwide Mut. Ins. Co. v. March (1984), 15 Ohio St.3d 107. Thus, when interpreting the language of an - 5 - insurance policy, we must give a reasonable construction in conformity with the intentions of the parties as we would any other contract. Dealers Dairy Products Co. v. Royal Ins. Co. (1960), 170 Ohio St. 336. Where the policy is clear and unambiguous within its four corners, courts may not alter the provisions of the policy. See Progressive Specialty Ins. Co. v. Easton (1990), 66 Ohio App.3d 177. "However, it is well-settled that where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured." King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 209, 211, citing Faruque v. Provident Life & Acc. Ins. Co. (1987), 31 Ohio St.3d 34, syllabus and other cases. Generally, it should be noted that R.C. 3937.18(A) requires every insurance company selling automobile liability insurance in this state to also provide uninsured and underinsured motorist coverage. The coverage has to be within the same limits as the liability coverage, unless the named insured rejects the coverage or requires optional lesser amounts but no less than the state's minimum statutory limits. R.C. 3937.18(C). In its recent decisions, the Supreme Court has given a very broad interpretation to the statute. In Martin v. Midwestern Group Insurance Company (1994), 70 Ohio St.3d 478, the Court extended - 6 - coverage to a person injured while riding in a vehicle not even listed as an insured vehicle under the policy. The syllabus in Martin states in full, as follows: 1. Pursuant to R.C. 3937.18, uninsured motorist coverage was designed by the General Assembly to protect persons, not vehicles. (Abate v. Pioneer Mut. Cas. Co. [1970], 22 Ohio St.2d 161, 51 O.O.2d 229, 258 N.E.2d 429, followed.) 2. The validity of an insurance policy exclusion of uninsured motorist coverage depends on whether it conforms to R.C. 3937.18. 3. An automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid. (State Farm Auto. Ins. Co. v. Alexander [1992], 62 Ohio St.3d 397, 583 N.E.2d 309, syllabus, approved and followed; Hedrick v. Motorists Mut. Ins. Co. [1986], 22 Ohio St.3d 42, 22 OBR 63, 488 N.E.2d 840, overruled.) The Court thus gave a broad reading to its decision in Alexander by holding that the injured party need not be occupying an insured vehicle to claim the benefits of the statute. The Court stated as follows at 481-82: The rationale of Alexander is not limited to the analyzed exclusion. Instead, this court made clear that R.C. 3937.18 is the yardstick by which all exclusions of uninsured motorist coverage must be measured. Under Alexander, the 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. * * * - 7 - Because we do not believe Hedrick is in accord with the law of our state, which is that uninsured motorist coverage was designed by the General Assembly to protect persons, not vehicles, we now expressly overrule it. If an insured is negligently injured by an uninsured motorist, he cannot be denied uninsured motorist coverage by a policy exclusion requiring that he be occupying an insured automobile under the policy. * * * Pursuant to R.C. 3937.18(A)(1), such insurance must provide coverage for "bodily injury *** for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ***." The statute does not permit insurers to eliminate this required coverage on the basis that the injury was incurred in a vehicle not listed in the policy. * * * Appellant paid a premium for uninsured motorist insurance which covered him, not his vehicles. It certainly cannot be argued that appellant would not be covered if he had been injured by this same tortfeasor while standing on a sidewalk, or riding or driving a vehicle owned by another. Id. at 481-482. We are compelled by the foregoing authority to hold that the fact that plaintiff was not riding in a "covered" vehicle, i.e., one listed in or owned or driven by the named insureds in the policy, does not take the plaintiff's claim outside of the statute or the instant policy. The critical issue then becomes whether plaintiff, a non- employee of the Wolf companies and not a named insured himself, is - 8 - nevertheless covered by the policy. For plaintiff to be an insured under the policy, his father, an employee of Wolf Imports, Inc., must be covered by the policy. However, the father is not a named insured under the policy. Notwithstanding that fact, defense counsel conceded at oral argument that, even though the father was not a named insured under the policy, he would be covered as an employee of the named corporation under the liability provisions of the policy. We agree with the trial court that the outcome of this case is governed by King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208. In King, the insurance policy designated the named insured as a legal entity (ASCAA), but also contained family oriented language. Significantly, the policy provided uninsured motorists insurance to "you or your legal representative" and "[r]elatives living in your household ***." The policy defined the words "you" and "your" as meaning "the policyholder named in the attached Declarations ***." The named policyholder was ASCAA. The King Court found that a deceased employee of ASCAA was covered under the policy. In reaching this decision, the Court held that when a contract of insurance is reasonably susceptible of more than one interpretation, it will be construed strictly against the insurer and liberally in favor of the insured. The Court stated as follows: Because "you" and "your" refer to ASCAA as a legal entity, the ordinary meaning of the phrase "[r]elatives living in your household" used in the policy is "manifestly absurd." - 9 - However, in the context of the policy as a whole "[r]elatives living in your household," may be interpreted as referring to all employees of ASCAA, as referring to designated drivers only, or as a nullity. Therefore, the phrase is ambiguous and must be construed in favor of the insured. Id. at 212. Defendant argues that the instant case is distinguishable from King in that there are three individual named insureds herein to whom the family oriented language has a logical nexus and therefore there was no ambiguity, i.e., the "relatives living in your household" only applied to the individuals and not the corporate named insureds. Although this is a reasonable construction of the policy, it is by no means the only one, and the ambiguity remains. In fact, a similar argument was advanced by Nationwide in the King case and disposed of as follows by the Supreme Court: Nationwide argues that we should interpret the stipulations to mean that only those drivers who were listed by name for the specific vehicles they were going to drive for ASCAA were covered by the Nationwide policy and that Dale Gordon was not covered because he was not named as a designated driver. The difficulty we have in adopting Nationwide's argument is that there simply is no language in the policy or in the stipulations that would cause us to conclude that such a legal conclusion flows from the facts before us. King at 211. We also note that it would be incongruous to designate the Wolf corporations as named insureds under the uninsured motorists sections of the policy unless their employees were meant to be covered. R.C. 3937.18(A) requires such coverage "for the - 10 - protection of persons insured thereunder who 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." Accordingly, the policy herein provides under COVERAGE U (Damages for Bodily Injury) that: "The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured ***." Since the Wolf corporations themselves cannot occupy an automobile nor suffer bodily injury or death, naming them as insureds is meaningless unless the coverage extends to their employees. In short, under King and the construction of the instant policy, we are constrained to find that "residents of the same household" could refer to the relatives residing with the employees of the Wolf companies and the trial court did not err in reaching that conclusion as a matter of law. We are supported in that determination by subsequent cases applying King. Aetna Cas. and Surety Co. v. Borden (Sept. 15, 1989), Lake App. No. 88-L-13-163, unreported, found the daughter of a corporation's employee entitled to underinsured motorists coverage under the corporation's policy. The policy in Borden contained language identical to the policy in question here. The Borden court read King to: indicate[s] that the Supreme Court did not concern itself with making a functional - 11 - declination or distinction as to whether the employee was to be construed as "the you" [the named insured] or "the relative." It simply held that the employee was covered under the language of the policy. Id. at 9. Thus, "the named insured" could mean either the corporation or its employees. Construing this language in favor of the insured, the named insured included the corporation's employees, and the terms "resident relatives" included relatives of the corporation's employees, i.e., the injured daughter. See, also, Simon v. Midwestern Indemnity (Aug. 31, 1988), Lorain App. No. 4346, unreported. Decker v. CNA Ins. Co. (1990), 66 Ohio App.3d 576 applied the same principle and found that a deceased's estate was entitled to underinsured coverage under a policy similar to the one here. The deceased was an employee of the corporation which alone was designated as the insured. He was jogging and not in the scope of his employment when killed by an underinsured motorist. The policy provided that "you or any family member" was insured and that "you" or "your" was "the person or organization shown as the named insured." The Decker court concluded that the corporate named insured (Envirodyne Industries) and family oriented language presented an ambiguity to be construed in favor of the insured citing Border, Simon and King. "As a matter of law, in the interpretation of these provisions, courts have construed the language to include the employee under the protection of the policy." Id. at 582. - 12 - This Court has also held that where a corporation is the named insured, the employees of the corporation are also insureds even in the absence of family oriented language. Heritage Muts. Inc. Co. v. Lake Erie Auto Repair, Inc. (Jan. 4, 1990), Cuyahoga App. No. 63970, unreported. Likewise, in Prather v. Liberty Mut. Ins. Co. (June 25, 1992), Cuyahoga App. No. 60830, unreported, we concluded that the resident relative of an employee of a corporation (Harvey Hubbel, Inc.) to which the subject policy was issued was covered under the policy. The policy provided underinsured motorists coverage to "you or any family member," with "you" meaning the named insured (the employer corporation). This Court, applying the logic of King, found the policy ambiguous, and construed the insurance policy in favor of the insured. The trial court correctly ruled in denying Motorists' motion for summary judgment and in granting plaintiff's motion for summary judgment. Appellant's first assignment of error is overruled. II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION TO TAX COSTS. Defendant asserts in its second assignment of error that the trial court erred in taxing costs against defendant in the amount of $842.64. The itemized deposition expenses which were taxed as costs were described as follows in plaintiff's motion: 1. 11/8/94 - Merit Reporting Services $144.64 (Transcript of Richard Kaufman, M.D.) - 13 - 2. 11/22/94 - Mehler & Hagestrom 618.00 Court Reporters (Attendance, Transcript and Videotape Recording of Deposition of Robert Zaas, M.D.) 3. 11/29/94 - Robert Rosa 80.00 (Courtroom editing of Deposition of Robert Zaas, M.D.) Total: $842.64 Civ. R. 54(D) governs the award of costs. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. Civ. R. 54(D) grants the trial court discretion to order that the prevailing party bear all or part of his or her own costs. Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555. The Court made clear in Vance that "costs" mean traditional statutory costs. The Court citing Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d 295 stated: "This court has consistently limited the categories of expenses which qualify as 'costs.' 'Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action *** and which the statutes authorize to be taxed and included in the judgment ***. *** Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute ***.'" State, ex rel. Commrs. of Franklin County v. Guilbert (1907), 77 Ohio St. 333, 338-339 [83 N.E. 80, 81], quoted, in part, with approval in Benda v. Fana (1967), 10 Ohio St.2d 259, 262-263 [39 O.O.2d 410, 413, 227 N.E.2d 197, 200-201]. - 14 - "Today, we reaffirm the principle that '[t]he subject of costs is one entirely of statutory allowance and control.'" [Cases omitted.] Id. at 555. The cost of traditional depositions may not be taxed as costs. Wiltsie v. Teamor (1993), 89 Ohio App. 380, 387. See, also, Vance v. Roedersheimer (1992), 64 Ohio St.3d 552. However, videotaped depositions are another matter. Civ. R. 54(D) states that "[e]xcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party ***." See, e.g., Civ. R. 83 ("The expression 'Rule of court' as used in these rules means a rule promulgated by the Supreme Court ***"). Rule 12(D) of the Rules of Superintendence for Courts of Common Pleas promulgated by the Supreme Court states as follows: (D) Costs. (1) Video Depositions. (a) The expense of videotape as a material, shall be borne by the proponent. (b) The reasonable expense of recording testimony on videotape shall be costs in the action. (c) The expense of playing the videotape recording at trial shall be borne by the court. (d) The expense of playing the videotape recording for the purpose of ruling upon objections shall be borne by the court. (e) The expense of producing the edited version of the videotape recording shall be costs in the action, provided that the expense of the - 15 - videotape, as a material, shall be borne by the proponent of the testimony. (f) The expense of a copy of the videotape recording and the expense of an audiotape recording of the videotape sound track shall be borne by the party requesting the copy. (2) Videotape Trials. Subsection (D)(1) applies to videotape trials. Pursuant to C.P. Sup.R.12(D)(1)(b), the reasonable expense of recording testimony on videotape shall be costs in the action. However, this does not include the expense of the videotape as material, C.P. Sup.R.12(D)(1)(a); Siders v. Reynoldsburg School Dist. (1994), 99 Ohio App.3d 173, 198. Nor does it include the expense of transcribing and copying the videotape recording, C.P. Sup.R.12(D)(1)(f). A review of the invoices listed as exhibits to defendant's motion reveals that defendant was improperly charged $220.50 for a transcript of Dr. Zaas' videotape deposition. These exhibits further reveal that defendant was improperly charged $144.64 for a traditional transcript of Dr. Kaufman's deposition. This expense was improperly taxed as costs as well. C.P. Sup.R.12(D)(1)(f); Wiltsie v. Teamor (1993), 89 Ohio App.3d 301. Additionally, the cost ($80.00) for playing the videotape recording at trial is to be borne by the court, not the defendant. C.P. Sup.R.12(D)(1)(c); Shipman v. Alamo Rent-A-Car, Inc. (1990), 70 Ohio App.3d 333, 335; McCarthy v. Allstate Insurance Co. (Oct. 27, 1994), Cuyahoga App. No. 66978, unreported. Thus, the only costs properly chargeable to defendant was for the attendance of the reporter and videotape recording of Dr. Zaas - 16 - in the amount of $397.50. Cincinnati, ex rel. Simmons v. Cincinnati (1993), 86 Ohio App.3d 258, 267. Defendant's Assignment of Error II is partially sustained, costs taxed to defendant are $397.50; the judgment of the trial court is accordingly modified and affirmed. - 17 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. KARPINSKI, J., CONCURS. DAVID T. MATIA, P.J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) JAMES M. PORTER 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68324 and 68553 JOHN SANDERS : : PLAINTIFF-APPELLEE : : : D I S S E N T I N G v. : : O P I N I O N : MOTORISTS MUTUAL : INSURANCE COMPANY : : DEFENDANT-APPELLANT : : DATE: OCTOBER 19, 1995 MATIA, P.J., DISSENTING: I respectfully dissent from the majority's judgment in this appeal. While I cannot argue the validity of Martin v. Midwestern Group Insurance Company (1994), 70 Ohio St.3d 478, I believe its application to the facts of this case produces a result not anticipated by the Ohio Supreme Court. When a company or corporation provides an automobile to an employee, the insurance provided should apply to the automobile and the insureds using the automobile. That is what the company/corporation and insurance company had bargained for. Without distinguishing personal and commercial automotive insurance policies in situations as this, we are left with what I believe is an unreasonable construction of the commercial insurance contract. -2- Moreover, the result of this holding is that any member of the Sanders family residing in the household need not obtain automobile insurance as they are completely covered regardless whether he/she is injured by an uninsured motorist while standing on a sidewalk or riding/driving another's vehicle. Again, this is a result I believe not anticipated by the insured and the .