COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68983 PROGRESSIVE INSURANCE CO. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION STATE FARM INSURANCE COMPANY : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-276590 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JAY S. HANSON, ESQ. HENRY A. HENTEMANN, ESQ. PAMELA A. BARKER, ESQ. J. MICHAEL CREAGAN, ESQ. Suite 918, Terminal Tower MEYERS, HENTEMANN, SCHNEIDER 50 Public Square & REA CO., L.P.A. Cleveland, Ohio 44113 2121 The Superior Building Cleveland, Ohio 44114 - 2 - DYKE, J.: Plaintiff-appellant, Progressive Insurance Company ("Progressive") appeals a summary judgment granted in favor of Defendant-appellee, State Farm Insurance Company ("State Farm") in a declaratory judgment action filed for the purpose of determining whether it owed primary or excess coverage on an automobile insurance policy after its named insured's mother, also insured by State Farm, became involved in an accident. Upon review, we find that the trial court did not err in finding that Progressive owed primary coverage as the proviso making coverage excess, did not apply to resident relatives of its named insured. Hence, we affirm the judgment of the trial court. On December 19, 1991 State Farm's named insured, Catherine Kelly, became involved in an accident while driving a vehicle owned by her son Michael Kelly and insured by Progressive in Michael's name. Holly Roush, the driver of the other vehicle, sued Catherine Kelly for personal injuries in Common Pleas Case No. 252444. Progressive defended the action. However, Roush was ultimately granted an arbitration award in the amount of Nineteen Thousand Five Hundred Dollars ($19,500). On September 8, 1994 Progressive filed the instant action seeking a declaration that the "Other Insurance" clause of its policy rendered its coverage excess over State Farm's coverage or a declaration that it was required to defend and/or indemnify Kelly only for its pro rata share of the loss. On January 17 and February 14, 1995 Progressive and State - 3 - Farm respectively filed a motion and cross-motion for summary judgment. The court granted State Farm's cross-motion finding that Progressive owed primary coverage for the $19,500 award and that State Farm owed excess coverage for that portion which exceeded 1 2 Progressive's liability limit of $12,500. This appeal followed. I THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF/APPELLANT PROGRESSIVE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT/APPELLEE STATE FARM INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND DECLARING THAT PROGRESSIVE'S POLICY AFFORDS PRIMARY COVERAGE AND STATE FARM'S POLICY AFFORDS EXCESS COVERAGE. Summary judgment is proper, pursuant to Civ.R. 56(C) if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth 1 On the date of the accident, Progressive's policy provided liability limits in the amount of Twelve Thousand Five Hundred Dollars ($12,500) per person and Twenty-Five Thousand Dollars ($25,000) per accident. State Farms's policy provided liability limits in the amount of Fifty Thousand Dollars ($50,000) per person and One Hundred Thousand Dollars ($100,000) per accident. 2 It is undisputed that State Farm's liability is excess as Kelly was operating a non-owned vehicle. Progressive's dispute is that its policy also provides excess coverage. - 4 - specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id. 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. See, Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. Where terms of a contract are clear and unambiguous, a court cannot find a different intent from that expressed in the contract. See, E.S. Preston Assoc., Inc. v. Preston (1986), 24 Ohio St.3d 7, 10. In its assignment of error Progressive argues that its "Other Insurance" clause, appearing at page seven of its policy, dictates that coverage for the loss must be afforded between itself and 3 State Farm on a pro rata basis. We find Progressive's argument to be unpersuasive as it has constructed same by immediately citing to 3 The "Other Insurance" provisions of Progressive's policy read as follows: 1. If there is other applicable liability insurance or a bond, we will pay our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. 2. The insurance with respect to a person driving your insured car with permission shall be excess over any other collectible bond or collectible liability insurance. 3. The insurance with respect to a non-owned car shall be excess over any other collectible bond or collectible insurance. - 5 - and relying upon its "Other Insurance" clause, to wit, a succeeding, restrictive clause while ignoring preceding provisions to wit, its "Liability to Others" provisions which appear at page three of its policy and describe coverage. These provisions read as follows: Part 1 - Liability to Others Coverage A - Bodily Injury Coverage B - Property Damage We will pay damages, OTHER THAN PUNITIVE OR EXEMPLARY DAMAGES, for which an insured person is legally liable because of bodily injury or property damage arising out of an accident. We will defend any lawsuit for damages payable under this policy or settle any claim for those damages that we think appropriate. We are not obligated to defend any lawsuit or make any additional payments after we have paid or offered to pay the Limit of Liability for this coverage. Additional Definitions Used in This Part Only When used in Part I, "Insured person" or "Insured persons" means: 1. you or a relative with respect to an accident involving your insured car, a non-owned car, or a utility trailer while being towed by your insured car. (Underlined for emphasis) 2. any person driving your Insured car with your permission and within the scope of such permission; HOWEVER, ANY INSURANCE AFFORDED UNDER THIS PART SHALL BE EXCESS OVER ANY OTHER COLLECTIBLE BOND OR COLLECTIBLE LIABILITY INSURANCE. * * * As argued by State Farm, the above cited paragraphs create two classes of insured persons. Paragraph one creates a class of insureds which expressly includes resident relatives of the named 4 insured. Although paragraph one does not expressly refer to 4 Progressive, at page two of its policy, defines the term "Relative" as "a person living in your household, related to you by blood, marriage or adoption, including a ward or foster - 6 - primary coverage, it would be anomalous to assume that such coverage (barring any self-imposed disqualification) would not be afforded to a named insured operator. The fact that Progressive expressly includes resident relatives in this category of coverage is highly significant making it similarly anomalous to assume that primary coverage would not be afforded to these operators as well. In light of the express language of paragraph one, paragraph two, as argued by State Farm, creates a class of insureds which includes all permissive operators of the insured vehicle other than the 5 named insured and his or her resident relatives. State Farm further argued in its cross-motion and we agree, that the capitalized proviso making liability coverage excess, applies not to resident relatives described in paragraph one but to non- relative permissive drivers described in paragraph two. We find this analysis to be persuasive because, as State Farm points out, the proviso is not separated from paragraph two by a period leaving it free to apply to both preceding paragraphs. On the contrary, it is attached to paragraph two by a semi-colon causing it to apply exclusively to same. Hence, no genuine issue of material fact remains with respect to whether Progressive owes primary or excess coverage as Catherine Kelly was a resident relative of its named child." 5 If Progressive had wished to include relatives in its "any person" designation in paragraph two it could easily have written the phrase to read "any person, including relatives, driving your car with your permission... ." However, it did not do so. - 7 - 6 insured and an authorized operator at the time of the accident. Providing primary coverage is not only consistent with the express terms of Progressive's policy, it is also consistent with a reasonable contemplation of the parties, to wit, that resident relatives are very likely to be operators of the insured vehicle. Providing primary coverage is also consistent with well established precedent that insurance follows the automobile. See, Motorists Mutual Ins. Co. v. Lumbermens Mutual Ins. Co. (1965), 1 Ohio St.2d 105. Progressive's immediate citation to its "Other Insurance" clause gives immediate effect to a succeeding, restrictive clause before giving any consideration or effect to preceding provisions which actually describe coverage. Such citation is preemptive and represents a disordered and strained approach to contract interpretation. Progressive's contention that its proviso applies to paragraph one is also unpersuasive as such application operates to nullify the coverage expressly provided to resident relatives and results in the anomalous situation of providing express primary and purported excess coverage to resident relatives at the same 7 time. Progressive's assignment of error is overruled. The judgment of the trial court is affirmed. 6 See, Affidavits attached to State Farm's Cross-Motion for Summary Judgment. See, also, Progressive's policy at page 4 which excludes coverage for unauthorized operators. 7 In its reply brief, Progressive argues that the two paragraphs which appear on page three are merely qualifying "definitions." We disagree as the definitions appear in the coverage section of Progressive's policy. - 8 - 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. SPELLACY, C.J., CONCURS. KARPINSKI, J., CONCURS IN JUDGMENT ONLY ANN DYKE 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 .