COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68472 JACQUELINE R. WOOD, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION RAASHAWN McQUEEN, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 259625 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Richard C. Alkire Joel Levin NURENBERG, PLEVIN, HELLER & McCARTHY 1370 Ontario Street First Floor Standard Building Cleveland, Ohio 44113-1792 For defendant-appellee, Douglas N. Barr Raashawn McQueen: THOMPSON HINE & FLORY 1100 National City Bank Building Cleveland, Ohio 44114 For defendant-appellee, Roy A. Hulme Liberty Mutual Fire & Clifford C. Masch Insurance: REMINGER & REMINGER CO., LPA The 113 St. Clair Building Cleveland, Ohio 44114 For defendant-appellee, Larry C. Greathouse Keystone Insurance Company: QUANDT, GIFFELS & BUCK 800 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 -3- NAHRA, J.: Plaintiffs-appellants Jacqueline R. Wood and Scott G. Wood appeal from the trial court order granting defendant-appellee Liberty Mutual Fire Insurance Company's ("Liberty Mutual's") motion for summary judgment in this case, which originated as a personal injury action. On March 26, 1992, appellant Jacqueline Wood was injured in an automobile accident in the city of Ashtabula, Ohio. The driver of the other car involved in the accident was appellee Raashawn McQueen, who was approximately seventeen years old. A police officer, Gerald Cornelius, responded to the scene shortly after the accident. Cornelius was able to take a statement from Wood before she was transported to the hospital by an ambulance. He also spoke to McQueen. When asked his address, McQueen initially responded "14413 1 Potomac Avenue, Cleveland." He told the officer he was driving a friend's car and admitted he did not have a driver's license. McQueen also described his version of what had occurred and wrote out a voluntary witness statement on an accident report form. Above his signature, McQueen put both the Cleveland address and telephone number and also a vague Ashtabula address with a telephone number. McQueen told Cornelius at the scene that his mother "had put him out of the house" and he was staying with friends in the area. 1 There is no dispute that this is the address of McQueen's mother, Liberty Mutual's insured. -4- After examining the scene, Cornelius transported McQueen to the police station. McQueen's mother was called and informed of his whereabouts. While McQueen was there, appellee Teresa Osborne, the owner of the car McQueen had been driving, reported it missing. She was told to come to the police station. Once there, she admitted McQueen had been staying with her but stated she had not given him permission to drive her car. Later, McQueen corroborated Osborne's statement in deposition testimony. On October 13, 1993, appellant filed an action against McQueen and Osborne in the Cuyahoga County Court of Common Pleas for damages incurred as a result of the accident. On December 13, 1993, appellee Liberty Mutual filed a motion to intervene in the action. Liberty Mutual had issued an automobile insurance policy to McQueen's mother; in filing its motion it sought a declaratory judgment that it had no duty to defend or indemnify "any party to this action" for claims arising out of the accident. One month later, Liberty Mutual filed a "supplemental memorandum" in support of its motion to intervene which was supported by a copy of the 2 insurance policy and the affidavit of its "employee" Terri Nowlin. The insurance policy initially consisted of two computer- generated "declarations" pages. The first set forth the effective dates of the policy period and indicated the "changes made" in the type of vehicle covered and the calculation of the deductibles, 2 Nowlin did not state what her position was with the company. -5- thus arriving at the total annual premium due. The second page stated in pertinent part: YOUR PREMIUM REFLECTS THE FOLLOWING. IF INCORRECT, CONTACT YOUR SERVICE OFFICE. CLASS 28 PREFERRED RATE - NO YOUTHFUL OPERATORS - COMMUTING 3 OR MORE LESS THAN 10 MILES ONE WAY - USES AUTO LESS THAN 7500 MILES ANNUALLY - NO PRINCIPAL OPERATOR AGE 65 OR OVER. (Emphasis added.) The printed handbook of the policy itself contained the following pertinent provisions: AUTO POLICY AGREEMENT ---------------------------------------------- In return for payment of the premium and subject to all the terms of this policy, we agree with you as follows: DEFINITIONS A. Throughout this policy, "you" and "your" refer to: 1. The "named insured" shown in the Declarations * * * * * * Other words and phrases are defined. They are in quotation marks or boldfaced when used. * * * F. "Family member" means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. * * * J. "Your covered auto" means: -6- 1. Any vehicle shown in the Declarations. * * * PART A--LIABILITY COVERAGE INSURING AGREEMENT A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally responsible because of an auto accident. * * * We have no duty to defend any suit or settle any claim for "bodily injury" or "property damage" not covered under this policy. B. "Insured" as used in this Part means: 1. You or any "family member" for the ownership, maintenance or use of any auto or "trailer." 2. Any person using "your covered auto." * * * EXCLUSIONS A. * * * B. We do not provide Liability Coverage for the ownership, maintenance or use of: * * * 3. Any vehicle, other than "your covered auto," which is: a. owned by any "family member;" or b. furnished or available for the regular use of any "family member." (Emphasis added.) In her affidavit, Nowlin stated that Liberty Mutual had no duty to defend or indemnify McQueen because the company "was -7- informed that [he] was not living in his mother's home at the time of the accident" and because the terms of the policy "exclude[d]" from coverage a person who "would be classified" as a "youthful driver." Over appellant's objection, the trial court granted Liberty Mutual's motion to intervene. Discovery proceeded in the action. On May 9, 1994, Liberty Mutual filed a motion for summary judgment. Liberty Mutual argued it had no duty to defend or indemnify McQueen in the action, basing its argument on three grounds: 1) McQueen was not a covered "family member" because he was not a resident of his mother's household; 2) McQueen was excluded from coverage because his mother "accepted" a preferred rate for "no youthful drivers;" and 3) the car McQueen was driving was not a "covered auto" because it was furnished or available for his regular use. Once again, Liberty Mutual attached to this motion a copy of the insurance policy with the declarations pages and Nowlin's affidavit. On July 11, 1994, appellants responded to Liberty Mutual's motion for summary judgment with a brief in opposition. Therein, they argued Liberty Mutual had failed to present sufficient evidence pursuant to Civ.R. 56(C). Specifically, appellants contended genuine issues remained concerning: 1) McQueen's residence at the time of the accident since McQueen's statements were contradictory; 2) the interpretation of the term "youthful driver" since it was not defined in the policy; and 3) whether Osborne's car fit within a specific exclusion of the policy. -8- Appellants attached to their brief several documentary items, viz., 1) a copy of Cornelius' accident report; 2) McQueen's responses to appellants' first request for admissions; and 3) 3 portions of McQueen's deposition testimony. On July 26, 1994, Liberty Mutual filed a "reply." It reiterated its position that McQueen was not a resident of his mother's household, attaching McQueen's answers to appellants' first set of interrogatories as support for its position. With regard to appellants' contention concerning ambiguity in the policy, Liberty Mutual stated: * * * "Youthful driver" clearly encompasses at a minimum persons under the age of majority. Mrs. McQueen knowingly excluded youthful drivers from her insurance coverage cognizant of the fact that she had a son who was seventeen years old. Had she wanted her son to be covered by her insurance and any question existed regarding the term "youthful" the alleged ambiguity would have been raised at the time the policy was issued. No issue regarding the term "youthful" however has been raised except by [appellants]. Therefore, * * * the term "youthful" is not ambiguous * * * . Finally, Liberty Mutual claimed that simply because Osborne permitted McQueen to live with her, her automobile was "available." On September 23, 1994, appellants filed a "supplemental brief" which supported their argument that the issue of McQueen's status as a "resident" of his mother's household was unresolved. 3 Appellants filed the complete transcript of McQueen's deposition testimony contemporaneously with their brief in opposition to Liberty Mutual's motion. -9- Appellants attached a portion of officer Cornelius' deposition 4 testimony. On October 6, 1994, Liberty Mutual responded with a "second supplemental brief" in support of its motion for summary judgment. Therein, Liberty Mutual argued Cornelius' testimony only supported its position that McQueen was not a resident of his mother's household, therefore, it was entitled to a declaration that it had no duty to defend or indemnify McQueen in the case. No new evidentiary materials were presented. On November 18, 1994, on a half-sheet entry, the trial court granted Liberty Mutual's motion for summary judgment. The trial court stated that McQueen was clearly excluded from his mother's policy of insurance with [Liberty Mutual], as a "youthful operator," a term which this ct. (sic) finds to be unambiguous and dispositive of the issue involved herein. Following the entry of a final judgment in the case, appellants filed a timely appeal in this court. They present the following as their sole assignment of error: THE TRIAL COURT ERRED IN GRANTING LIBERTY MUTUAL'S MOTION FOR SUMMARY JUDGMENT AS NO VALID CONTRACTUAL EXCLUSION EXISTS WHICH PRECLUDES COVERAGE PURSUANT TO THE POLICY AT ISSUE. Appellant argue the trial court had no proper basis upon which to award summary judgment to Liberty Mutual. 4 Appellants filed the complete transcript, with exhibits, contemporaneously with their supplemental brief. -10- Initially, they contend the words "youthful operator" on the declarations page are ambiguous and, further, do not constitute a valid exclusion. In its appellate brief, Liberty Mutual not only apparently concedes the trial court's decision on this ground may have been "erroneous," but it presents a completely new argument. Liberty Mutual asserts coverage pursuant to the words "youthful operator" was precluded because McQueen's mother misrepresented a "material fact" when applying for the policy, viz., that she had no "youthful operators." This argument, however, was never presented to the trial court, therefore, appellants were unable to present evidence to contest it and this court will not consider it. State v. Williams (1977), 51 Ohio St.2d 112; Sachs v. Am. Economy Ins. Co. (1992), 78 Ohio App.3d 440; Wilson & Reitman v. Berick (Dec. 24, 1992), Cuyahoga App. No. 63975, unreported; cf., Leonhard v. Motorists Mut. Ins. Co. (Mar. 31, 1994), Franklin App. No. 93AP- 449, unreported, at footnote 1. Additionally, a review of the policy at issue herein leads to the conclusion appellants are correct in their initial contention. The policy itself is a small printed booklet. It details the provision of the agreement between the parties in a specific manner. The declarations pages, however, are completely different. They are obviously computer-generated and are eight-by-ten inches in size. The items listed show the basis for the computation of the premium; McQueen's mother received a "preferred rate." See, -11- e.g., Murry v. Bankers Fire & Marine Insurance Company (1967), 198 S.2d 532. Since they are not a part of the actual contract, they were neither conditions of coverage nor actual exclusions from coverage. See, e.g., Dairyland Ins. Co. v. Finch (1987), 32 Ohio St.3d 360 at 362-363; State Farm Fire & Cas. Co. v. Davidson (1993), 87 Ohio App.3d 101; cf., Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Shane & Shane Co., L.P.A. (1992), 78 Ohio App.3d 765; Ohio Cas. Ins. Co., Inc. v. Lawson (1993), 91 Ohio App.3d 83. Moreover, the term "youthful" is nowhere defined in the policy. Thus, it becomes even more evident that it operated only as a basis for Liberty's Mutual's computation of the premium; Liberty Mutual did not think it any more necessary to explain this term than to explain the words "preferred rate." Cf., King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208. It could not legitimately define the term after the fact within an affidavit of one of its employees. Weil v. Este Oils Co. (1994), 93 Ohio App.3d 759; Brannon v. Rinzler (1991), 77 Ohio App.3d 749. For the foregoing reasons, the trial court improperly granted Liberty Mutual's motion for summary judgment on this ground. Next, appellants contend an award of summary judgment could not be based on another of the grounds asserted by Liberty Mutual in its motion, viz., that the vehicle McQueen was driving was one "furnished or available for his regular use." Again, this court agrees. The evidence before the trial court clearly demonstrated McQueen had never previously driven Osborne's car and did not have -12- permission to drive it on this occasion. His statements to the effect that he thought Osborne would not mind do not rise to the level of a "reasonable belief" that he could use it. See, e.g., Buckeye Union Ins. Co. v. Lawrence (1990), 70 Ohio App.3d 76; cf., Blount v. Kennard (1992), 82 Ohio App.3d 613. Therefore, Liberty Mutual's arguments on this ground were baseless. Finally, appellants contend that a genuine issue of material fact remains concerning whether McQueen was a covered "family member" under the policy. In the trial court, Liberty Mutual argued McQueen was no longer a resident of his mother's household, therefore, he did not qualify as an "insured" under the policy. Ohio law requires liberal interpretation of insurance policies; ambiguities are resolved in favor of the insured. Bobier v. National Cas. Co. (1944), 143 Ohio St. 215; Dairyland Ins. Co. v. Finch, supra; Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84; Adkinson v. Republic-Franklin Ins. Co. (1991), 76 Ohio App.3d 611; Sachs v. Am. Economy Ins. Co., supra. McQueen's deposition testimony and his answers to appellant's interrogatories revealed a genuine issue of fact concerning whether he was still a "resident of" his mother's "household." At his deposition, McQueen testified as follows: Q. Please give me your present address? A. 14413 Potomac. * * * Q. Who do you live with there? A. My mother. -13- Q. What's your mother's name? A. Susan McQueen. Q. How long have you lived at that address? A. Mostly all of my life. Except a couple of months I didn't stay there a lot. But mostly all my life. * * * Q. In -- strike that. When did you for the very first time in your life leave your mother's home and stay somewhere else for more than one week? A. I don't remember the first time. I don't remember the first time. But I remember a couple of times. * * * Q. Let's go over this. You stayed in Ashtabula for about six months? A. Uh-huh. Q. Is that a yes? A. Yes. Q. And who was in Ashtabula? A. Who? Q. Yes. That you stayed with? A. I stayed with a lot of people. I didn't stay with no particular person. That's when my mother kicked me out I was just staying out there. * * * Q. Did you stay anywhere in Ashtabula on a permanent basis? A. Uh-uh. -14- Q. That's a no? A. No. * * * Q. * * * [Y]ou indicated that when you went you had no intention of going back home, did I hear you correctly? A. Yeah. Q. All right. And indeed you took all of your stuff when you left your mother's house, you took all of your stuff with you? A. Yeah. Q. All right. When you left your mother's house did your mother tell you anything about that you still had insurance coverage of any kind? A. No. Q. All right. When you left your mother's house is it fair to say, Mr. McQueen, that you didn't believe that you had any insurance of any kind through your mother, is that a fair statement? MR. GREATHOUSE: Objection. A. Right. Q. Did your mother provide you any financial support, give you any cash after you left the house? A. No. Q. Did you ever drive your mom's car? A. Alone a while ago. Not the one -- I have before with her a while ago. * * * Q. You didn't tell the policeman on this police report that you lived on Potomac Avenue because that was your home, did you? -15- A. No. I just told him that because I told him I was 17 at the time and I wasn't supposed to be staying with no adults. So I just told him home. (Emphasis added.) McQueen also testified that although he had no "intent" to return to his mother's home at the time of the accident, he had on other previous occasions left what he continuously referred to as "home" and later returned, as he did after this incident. He further described what had occurred after the accident: he was placed in custody; his mother later came to juvenile court in response to a judge's summons, and when McQueen finally came back to her home, she took him in, as she had in the past. In his interrogatory answers, McQueen stated he was "residing" in Ashtabula at the time of the accident. However, in reply to appellants' requests for admissions, McQueen admitted he informed officer Cornelius he "resided" at his mother's address. Cornelius' testimony supported this evidence. The Ohio Supreme Court has recently determined that when a party's sworn statements are inconsistent with his deposition testimony, summary judgment is improper because "there exists a question of credibility which can be resolved only by the trier of fact." Turner v. Turner (1993), 67 Ohio St.3d 337. In part, Liberty Mutual attempted to overcome McQueen's equivocation by relying on Nowlin's affidavit to prove McQueen was no longer a "resident" of his mother's household. Nowlin's affidavit, however, was not competent evidence because it was not -16- based upon personal knowledge and contained hearsay. Brannon v. Rinzler, supra. Moreover, Liberty Mutual failed to present any evidence that McQueen's mother did not consider her son a "resident" of her household. Courts in this state have examined several factors when there is a question concerning a person's status as a "resident" in the insured's household, including the amount of time the person spends at the household, the person's age, the person's intent, and whether the insured is "legally obligated" to the person. See, e.g., Shear v. West American Ins. Co. (1984), 11 Ohio St.3d 162; Thompson v. Preferred Risk Mut. Ins. Co. (1987), 32 Ohio St.3d 340; Farmers Ins. of Columbus, Inc. v. Taylor (1987), 39 Ohio App.3d 68; Malone v. Nationwide Mutual Insurance Company (Jan. 31, 1986), Erie App. No. E-85-3, unreported; Fay v. Motorists Ins. Co. (1992), 80 Ohio App.3d 63; State Farm Fire & Cas. Co. v. Davidson, supra; Rosinger v. State Farm Ins. Co. (1992), 78 Ohio App.3d 696; Napier v. Banks (1969), 19 Ohio App.2d 152; Snedegar v. Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64; Visocky v. Farmer's Ins. of Columbus (1994), 98 Ohio App.3d 118, citing Tavzel v. Aetna Life & Cas. Co. (June 16, 1988), Cuyahoga App. No. 53931, unreported. This court is required to view the evidence most strongly in favor of the party opposing the motion for summary judgment. Petrey v. Simon (1984), 19 Ohio App.3d 285. In this case, the deposition testimony, the exhibits submitted, McQueen's answers to interrogatories, and McQueen's admissions all demonstrate a genuine -17- issue of material fact exists concerning whether McQueen was still a "resident" of his mother's household at the time of the accident. McQueen was a minor whose status as emancipated was questionable and whose intent to reside elsewhere permanently was unclear. State Farm Fire & Cas. Co. v. Davidson, supra; Kemper Group Insurance Companies v. O'Malley (Dec. 12, 1993), Cuyahoga App. No. 64178, unreported. Under these circumstances, Liberty Mutual's motion for summary judgment was improperly granted. Accordingly, appellants' assignment of error is sustained. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. Reversed and remanded. -18- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. 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. SPELLACY, P.J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA 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 .