COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73286 BARBARA ANN DAVIS : : Plaintiff : : JOURNAL ENTRY -vs- : AND : OPINION COMMERCIAL UNION INSURANCE CO. : : Defendant-Appellant : : -and- : : LIBERTY MUTUAL INSURANCE CO. : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION AUGUST 27, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-326702 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff: A. DANIEL WHITTINGTON (#0017236) Dan Whittington & Associates 815 Superior Avenue, N.E. 1717 Superior Building Cleveland, Ohio 44114 (CONTINUED) For Defendant-Appellant: DONALD P. SCREEN (#0044070) Thompson Hine & Flory LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1216 CHRISTOPHER M. BECHHOLD -ii- (#0014192) Thompson Hine & Flory LLP 312 Walnut Street, 14th Floor Cincinnati, Ohio 45202-4029 For Defendant-Appellee: TERESA G. STANFORD (#0030387) Law Offices of Jan A. Saurman 14650 Detroit Ave., Ste. 450 Lakewood, Ohio 44107 SPELLACY, J.: Defendant-appellant Commercial Union Insurance Company ( Commercial Union ) appeals from the trial court's order granting summary judgment in favor of defendant-appellee Liberty Mutual Insurance Company ( Liberty Mutual ). Commercial Union assigns the following error for our review: I. THE TRIAL COURT ERRED IN GRANTING LIBERTY -2- MUTUAL'S MOTION FOR SUMMARY JUDGMENT. Finding Commercial Union's appeal to lack merit, the judgment of the trial court is affirmed. I. On October 3, 1992, plaintiff Barbara Ann Davis was involved in a motor vehicle accident with Andrew Sekely. At the time of the accident, Sekely was driving an automobile owned by Amy Freiberg. Sekely had Freiberg's expressed permission to drive her vehicle at that time and place. In fact, Freiberg was a passenger in her automobile when the accident occurred. Sekely did not have a valid driver's license on the date of the accident. Freiberg discovered that Sekely did not have a driver's license after the accident. Freiberg allowed Sekely to drive her automobile on approximately six to ten different occasions prior to the accident. During this time, Freiberg assumed that Sekely had a valid driver's licence. Sekely did not have automobile insurance at the time of the accident. Davis was insured through Liberty Mutual. The insurance policy Liberty Mutual issued to Davis included uninsured motorist coverage. Freiberg's automobile was insured by Commercial Union. Commercial Union's policy contained the following exclusion: We do not provide Liability Coverage for any person: * * * Using a vehicle without a reasonable belief that that person is entitled to do so. Davis filed a lawsuit and, on May 4, 1995, she was granted a default judgment against Sekely in the amount of Ten Thousand One -3- Hundred Forty-Five Dollars ($10,145.00) plus costs. Commercial Union claimed that Sekely was excluded from its liability coverage and refused to pay this judgment. Liberty Mutual claimed that Sekely was insured by Commercial Union's policy and denied uninsured motorist coverage. On January 23, 1997, Davis filed the instant lawsuit against Commercial Union and Liberty Mutual. In her complaint, Davis asserted that either: (1) Commercial Union was responsible for the judgment pursuant to the policy issued to Freiberg; or (2) Liberty Mutual was under a contractual obligation to pay the judgment pursuant to the uninsured motorist coverage it provided to Davis. On July 31, 1997, Liberty Mutual filed a motion for summary judgment. In its motion, Liberty Mutual asserted that Sekely was an insured of Commercial Union under the policy issued to Freiberg. As such, Liberty Mutual was entitled to summary judgment on the uninsured motorist claim. On September 15, 1997, the trial court granted Liberty Mutual's motion for summary judgment. II. In its sole assignment of error, Commercial Union claims that the trial court erred in granting Liberty Mutual's motion for summary judgment. Summary judgment is appropriate where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds construing the evidence in favor of the nonmoving party could reach but one conclusion, which is adverse to the nonmoving party. -4- Bostic v. Connor (1988), 37 Ohio St.3d 144, 146. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. (1991), 69 Ohio St.3d 108, 111. Moreover, in response to a properly supported motion for summary judgment, the nonmoving party must set forth specific facts which demonstrate that there is a genuine issue of material fact for trial in order to avoid summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Appellant argues that Sekely was unable to have a reasonable belief that he was entitled to drive because he did not have a driver's license. Ohio courts have consistently rejected this argument. See Broz v. Winland (1994), 68 Ohio St.3d 521, 526; Blount v. Kennard (1992), 82 Ohio App.3d 613, 617; Cincinnati Cas. Co. v. Rickard (Oct. 25, 1990), Morrow App. No. CA-726, unreported; Grange Mut. Cas. Co. v. Nationwide Ins. Co. (Nov. 18, 1997), Mahoning App. No. 95 C.A. 230, unreported. In Blount, supra, the insurance policy at issue excluded liability coverage for any person [u]sing a vehicle without a reasonable belief that that person is entitled to do so. The insurer claimed that the driver was unable to hold a reasonable belief that he was entitled to operate the insured vehicle because he knew that he did not have a valid driver's license. The court stated that the test under the language employed in the insurance policy was not whether he believed he was licensed to drive, but -5- whether [he] reasonably believed that [he] was authorized to drive the car, notwithstanding the means of obtaining the authorization." Blount, 82 Ohio App.3d at 617, quoting Cincinnati Cas. Co., supra. The same argument was rejected by the Supreme Court of Ohio in Broz, supra. The Supreme Court of Ohio, citing Blount, found that an unlicensed driver could have a reasonable belief that he is entitled to operate a motor vehicle. Broz, 68 Ohio St.3d at 526. It is established that when language in a contract of insurance is reasonably susceptible of more than one meaning, the language will be strictly construed against the insurer that drafted the policy. See State Farm Mut. Ins. Co. v. Blevins (1990), 49 Ohio St.3d 165, 170-171; Faruque v. Provident Life & Acc. Ins. Co. (1987), 31 Ohio St.3d 34, 38; Ohio Farmers Ins. Co. v. Wright (1969), 17 Ohio St.2d 73. As the court noted in Blount: If an insurance company "elects to include language forbidding its insured parties from allowing 'disabled' (license suspended) drivers to use covered vehicles, then it is the drafter's prerogative to do so, and in plain language." Blount, 82 Ohio App.3d at 617, quoting Cincinnati Cas. Co., supra. Pursuant to Blount and its progeny, we find that the test under Commercial Union's policy was not whether Sekely had a valid driver's license but whether he reasonably believed he was authorized to drive Freiberg's automobile at the time of the accident. If Commercial Union wanted to exclude unlicensed drivers from its liability coverage, it should have drafted such exclusion in plain language. Commercial Union also argues that Sekely obtained permission -6- to drive Freiberg's automobile through lies and deceit and, thus, could not have had a reasonable belief that he was authorized to drive the vehicle. We note that the record is devoid of any evidence that Sekely expressly told Freiberg, or even implied, that he had a valid driver's license. Freiberg merely assumed that Sekely had a license. Moreover, the test under the language employed in the insurance policy was whether [he] reasonably believed that [he] was authorized to drive the car, notwithstanding the means of obtaining the authorization." Blount, 82 Ohio App.3d at 617 (emphasis added), quoting Cincinnati Cas. Co., supra. Finally, Commercial Union argues that the term reasonable belief connotes a question of fact and precludes summary judgment. We disagree. In the instant case, Liberty Mutual presented the trial court with ample evidence that Sekely reasonably believed that he was authorized to drive Freiberg's automobile. In her deposition, Freiberg acknowledged that she gave Sekely permission to drive her vehicle. In fact, Freiberg was a passenger in her vehicle when the accident occurred. Moreover, Freiberg had allowed Sekely to drive her automobile on several other occasions prior to the accident. We note that proof of past permission has been held to constitute a valid basis for reasonable belief . See Patterson v. Betarie (Mar. 29, 1996), Lake App. No. 95-L-132, unreported; Blount, 82 Ohio App.3d 616-617. Liberty Mutual clearly satisfied their initial burden, pursuant to Dresher, supra, by producing evidence that Sekely had a reasonable belief that he was authorized to drive Freiberg's -7- automobile. Pursuant to the Supreme Court of Ohio's holding in Dresher, Commercial Union then had a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there was a genuine issue for trial. Dresher, 75 Ohio St.3d at 293. However, Commercial Union failed to present any evidence which indicated that Sekely did not have a reasonable belief that he was authorized to drive Freiberg's automobile. Therefore, Liberty Mutual was entitled to summary judgment. Accordingly, Commercial Union's assignment of error is without merit and its appeal is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. -8- 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. ANN DYKE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .