COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72457 FRANK BONAIUTTO, ET AL : : Plaintiffs-Appellants : JOURNAL ENTRY : -vs- : AND : ALLSTATE INSURANCE COMPANY : OPINION : Defendant-Appellee : Date of Announcement of Decision: MARCH 26, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 305396 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiffs-Appellants: For Defendant-Appellee: GEORGE W. MACDONALD, ESQ. JOSEPH G. RITZLER, ESQ. 848 Rockefeller Building Keller & Curtin Co., L.P.A. 614 West Superior Avenue 330 Hanna Building Cleveland, Ohio 44113 1422 Euclid Avenue Cleveland, Ohio 44115-1901 -2- JAMES M. PORTER, J.: Plaintiffs-appellants Frank Bonaiutto and his girlfriend, Jody Christman, appeal from the trial court's grant of summary judgment in favor of defendant-appellee Allstate Insurance Company denying coverage on Ms. Christman's policy for the theft of Mr. Bonaiutto's automobile. Plaintiffs contend they were entitled to summary judgment in their favor under construction of the policy. We find no error and affirm. Mr. Bonaiutto's 1987 Buick Grand National automobile was stolen on August 18, 1994, while Bonaiutto and Ms. Christman were together at the movies. At the time of the theft, the car was titled to Mr. Bonaiutto, but not listed on Ms. Christman's policy. Bonaiutto had no automobile policy in his own name. Frank Bonaiutto and Ms. Christman had been living together for about three years prior to the date of loss. From the beginning of their relationship until April 12, 1993, the 1987 Buick Grand National remained titled in Frank Bonaiutto's name. On April 12, 1993, by agreement, he transferred title to Ms. Christman because he had gotten into some financial troubles and his driver's license had been suspended. At all times on and after April 12, 1993, the 1987 Buick was not listed as an insured vehicle under any policy of insurance. On April 12, 1993, Ms. Christman was the owner of a 1993 Saturn which was insured through Allstate. It was the only vehicle listed on her policy. When title to the 1987 Buick was transferred to her, Ms. Christman checked with her Allstate agent to obtain -3- additional coverage upon the transferred car. She decided against obtaining any extra coverage because she did not drive the 1987 Buick and there would be an extra premium for the additional coverage. Specifically, Ms. Christman stated: Q. And at the time that the Grand National was transferred from Frank's name to your name in April of `93, shortly thereafter you checked with your Allstate agent to obtain additional coverage for the Grand National, correct? A. I talked to Jeff. I thought about it, but I didn't drive the car, so I figured I am not going to pay the extra money. (Christman Depo. at 9). The 1987 Buick was titled in Ms. Christman's name from April 12, 1993 through August 12, 1994. During this sixteen month period she denied ever driving the car. She maintained that during this entire period the car remained in the driveway while Frank Bonaiutto did various work on it. (Christman Depo. at 10-11). However, on April 12, 1993, the date of transfer to Ms. Christman, the car had an odometer reading of 66,138 miles according to the certificate of title. (PX 6). On August 12, 1994, when Ms. Christman re-transferred the car back to Bonaiutto, it had an odometer reading of 85,372. Bonaiutto claimed he only drove the car a couple of times to his part time job at the Record Exchange when he still had work driving privileges. These privileges were revoked March 9, 1994. On August 12, 1994, title to the vehicle was transferred from Ms. Christman back to Bonaiutto due to the fact that his financial problems had improved and he was going to be re-acquiring his -4- driver's license in the near future. (Christman Depo. at 12). On August 12, 1994, Frank Bonaiutto was also the titled owner of a 1970 GTO and a Mazda which also were not insured on any policy. On August 18, 1994, six days after the re-transfer, the vehicle was stolen while plaintiffs were at the movies. Upon discovery of the theft of the 1987 Buick, Christman submitted a theft loss claim to Allstate. Allstate denied coverage and plaintiff instituted the present suit. From summary judgment for Allstate, plaintiffs filed a timely appeal. Their two assignments of error will be considered together. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. Under Civ.R. 56, summary judgment is proper when: (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved -5- in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** -6- [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. The fundamental rules of construction to be applied to insurance policies were stated in Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84, 89: The fundamental goal in insurance policy interpretation is to ascertain the intent of the parties from a reading of the contract in its entirety, and to settle upon a reasonable interpretation of any disputed terms in a manner calculated to give the agreement its intended effect. The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible. Karabin v. State Auto. Mut. Ins. Co. (1984), 10 Ohio St.3d 163, 167, 10 OBR 497, 500, 462 N.E.2d 403, 406, quoting German Fire Ins. Co. v. Roost (1897), 55 Ohio St. 581, 4 NE 1097, paragraph one of the syllabus ***. The words in a policy must be given their plain and ordinary meaning, and only where a contract of insurance is ambiguous and therefore susceptible to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks coverage. [Citations omitted.] Nevertheless, it is axiomatic that the general rule of liberal construction cannot be employed to create an ambiguity where there is none. Karabin, supra, at 166-167, 462 N.E.2d at 406. Quoted and followed in Mapletown Foods v. Motorists. Mut. Ins. (1995), 104 Ohio App.3d 345, 347-48. At the time of the loss, Frank Bonaiutto was the owner of the 1987 Buick, but he was not a named insured nor was his car listed -7- on the Allstate policy. Therefore, if coverage applies it must be found among the definitions or implied terms of the policy. The coverage issue on this appeal focuses on the following definition of an insured auto contained in Ms. Christman's Allstate policy (p. 26): A non-owned auto used with the permission of the owner. This auto must not be available or furnished for the regular use of you or any resident of your household. Allstate does not dispute that the first portion of this policy definition was met in that a non-owned auto was used with the permission of the owner. (Aple's Brf. at 9). The titled owner, Frank Bonaiutto, gave Ms. Christman permission to drive the car to the movies. However, we agree with Allstate that the facts in this case establish that the second aspect of the definition of non-owned auto is not met. The second aspect is that: This auto must not be available or furnished for the regular use of you or any resident of your household. Specifically,we find that the auto in question was furnished for the regular use of the insured and the resident of the insured's household, Frank Bonaiutto. Therefore, the stolen car was owned by a resident of the insured's household, and as such, was available or furnished for the regular use by a resident of the insured's auto, Frank Bonaiutto, and the insured. The record shows that from April 12, 1993 until August 12, 1994, which is the time period that Jody Christman had title to the car, the car accumulated 19,174 miles. Although on appeal the plaintiffs contend that the mileage was attributable to his using -8- the car for work privileges, in his deposition Bonaiuto stated that while Christman had title to the car: I drove it a couple of times, but that was only when I had insurance, and had driving privileges. I drove it to work a couple of times, but otherwise it pretty much sat in the garage all of the time. (Bonaiutto Depo. at 25.) Therefore, it seems incredible that over 19,000 miles in mileage could have been accumulated on the car just by driving it to work a couple of times. He also admitted in his deposition that Christman also drove the car while it was titled in her name. Well, it was previously titled to her, and we would use it to drive around, she used to drive it. I couldn't actually give you the exact times and dates, I can't recall. At that time it pretty much sat all the time. (Bonaiuto Depo. at 25.) The mileage on the car during the time Christman had title indicates regular use by someone, either Christman or plaintiff. Although, as plaintiffs point out, this period of time was when the car was owned by Christman and not covered under the provision before us, this prior usage, given the minimal amount of time of six days between when Christman had title and when she transferred it and it was subsequently stolen, makes the prior usage relevant. See Sanders v. Motorists Insurance Companies and Debra Cassel (April 10, 1991), Montgomery App. No. 12155, unreported at 10 (although use of the car at time of loss governs, past use of the car may be relevant); American Casualty Co. v. Lattanzio (N.J. S.Ct. 1963), 188 A.2d 637,641 ( Evidence as to past history of the -9- use of the automobile is of assistance in determining [what the] arrangement [was regarding the use of the vehicle. ). Furthermore, Bonaiutto admitted that once title was transferred to him, Christman could use the car all she wanted: When it was in my name, yes. I would give her all the permission she wanted. (Bonaiutto Depo. at 29). Therefore, even if Christman did not use the car during the time title was transferred back to Bonauitto, it was available for her use. See Chon v. Allstate Ins. Co. (La. App. 5 Cir., 1988), 522 So.2d 690, 692 (vehicle was available for his regular use because it was accessible, obtainable, and ready for immediate use. ); Lumbermen's Mutual Casualty Co. v. Lesley (Fla. App. 1 Dist., 1983), 433 So.2d 1299, 1300 (use of car once a week; no difficulty in obtaining owner's permission; access to separate set of keys kept at house all amounted to available for regular use. ); Waggoner v. Wilson (Co. App. 1973), 507 P.2d 482, 485 ( `furnish' suggests that it refers to instances when automobile was actually utilized *** [W]e construe `available' to require *** potential use of the automobile be under control of the insured or [household member]. ). Therefore, based on the above analysis, the use of the Grand National falls within the provision excluding the automobile from coverage and the trial court did not err in granting summary judgment in the defendant's favor. For the reasons hereinbefore stated, Assignments of Error I and II are overruled. -10- Judgment affirmed. -11- It is ordered that appellee recover of appellants 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 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. BLACKMON, A.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .