Grange Mut. Cas. Co. v. Clifford

230 N.E.2d 686, 13 Ohio Misc. 12, 41 Ohio Op. 2d 433, 1967 Ohio Misc. LEXIS 268
CourtCourt of Common Pleas of Ohio, Hamilton County
DecidedOctober 31, 1967
DocketNo. A-207853
StatusPublished
Cited by4 cases

This text of 230 N.E.2d 686 (Grange Mut. Cas. Co. v. Clifford) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Hamilton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grange Mut. Cas. Co. v. Clifford, 230 N.E.2d 686, 13 Ohio Misc. 12, 41 Ohio Op. 2d 433, 1967 Ohio Misc. LEXIS 268 (Ohio Super. Ct. 1967).

Opinion

Bettman, J.

This is an action for a declaratory judgment in which the court is asked to declare which, if either, of two insurance policies covers the damages caused by an automobile driven by defendant Robert E. Clifford. The facts, in brief, are as follows:

Clifford owned a 1954 Pontiac which was rapidly going to pieces in various respects. On October 21, 1963, he entered into an agreement of purchase of a 1957 Pontiac from Lytle Chevrolet and took possession of the 1957 Pontiac that day. He drove the 1954 Pontiac to his parents’ house and parked it, intending to junk it.

On October 31, 1963, while driving the 1957 Pontiac, Clifford had an accident which is alleged to have caused various property damage and personal injuries. On that date there was in effect a policy of liability insurance issued by Grange Mutual Casualty Company to Clifford. The vehicle described therein was the 1954 Pontiac. On the date of the accident title to the 1957 Pontiac was in the name of Lytle Chevrolet which carried a so-called dealer’s liability policy with State Auto Mutual Insurance Company. A certificate of title for the 1957 Pontiac was issued to Clifford on November 4, 1963.

I

Does the State Auto Mutual, policy provide coverage?

[14]*14This policy generally covers all vehicles owned by Lytle Chevrolet. It provides however “None of the following is an insured: * * * (iii) any person or organization other than the named insured with respect to an automobile. * * * (b) possession of which has been transferred to another by the named insured pursuant to an agreement of sale

It is argued that unless the agreement of sale required transfer of possession before the issuance of the certificate of title, Clifford’s possession was not pursuant to an agreement of sale. This would appear a rather strained meaning. Whether the contract required delivery at that time or not the fact remains that Clifford and Lytle Chevrolet entered into a contract of sale for this particular vehicle and possession was thereupon transferred. By anyone’s understanding, Lytle did not lend Clifford an automobile or simply give him permission to use an automobile. They delivered this 1957 Pontiac to him pursuant to the agreement of sale. Under the rule laid down in Cook v. Kozell (1964), 176 Ohio St. 332, the State Auto policy would not provide coverage.

n

Does the Grange Mutual Casualty Company policy insuring Robert E. Clifford provide coverage?

The listed vehicle in the Grange Mutual policy is the 1954 Pontiac, not the 1957 Pontiac. However, it is contended that the policy provides coverage under one or more of three provisions hereinafter discussed.

Paragraph IV (a) states, “* * * the word ‘automobile’ means: * * * (4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the named insured or his spouse * * * if (i) it replaces an automobile owned by either and covered by this policy ***.’’ On the facts of this case there is no doubt that under the common law or under the law of many states the 1957 Pontiac was “an automobile, ownership of which was acquired by the named insured,” etc. See Home Mutual Insurance Comany v. Rose (1945), 150 Fed. 2d 201 (C. A. 8th Neb.); Maryland Casualty Company v. Toney (1941), 178 Va. 196, 16 S. E. 2d 340; Dean v. Niagara Fire Insurance (1937), 24 [15]*15Cal. App. 2d Supp. 762, 68 P. 2d 1021; Farm Bureau Auto Insurance v. Martin (1951), 97 New Hampshire 196, 84 A. 2d 823.

However, the key words in the paragraph are “ownership of which is acquired.” It is clear in Ohio that the line between ownership and nonownership under the provisions of Section 4505.04, Revised Code, is drawn with the issuance of a certificate of title. Where an automobile is delivered by a dealer to a purchaser, and an accident occurs before the issuance of a certificate of title to the purchaser “ownership,” under Ohio law, is in the dealer. Brewer v. DeCant (1958), 167 Ohio St. 411. See also In re Estate of Case (1954), 161 Ohio St. 288; Garlick v. McFarland (1954), 159 Ohio St. 539; Veltri v. City of Cleveland (1957), 167 Ohio St. 90. There is some language in Carpenter v. Gasper (1962), 116 Ohio App. 45, which could be interpreted otherwise but such language is dicta and if it implies a contrary result it has been superseded by the cases cited above. Since “ownership” was not in Clifford, the provisions of paragraph IV (a) (4) do not give him coverage.

It is also contended that the policy provides coverage under the following paragraph: “V — Use or Other Automobiles : If the first named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverage A, B-l and D-l with respect to said automobile applies with respect to any other automobile, subject to the following provisions: * * * (d) This insuring agreement does not apply: (1) to an automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse.”

This paragraph clearly covers any liability of the named insured while driving any other automobile unless such other automobile is “owned” by him or “furnished for regular use.” Under the decisions cited ábove Clifford [16]*16did not ‘ ‘ own ’ ’ the 1957 Pontiac under Ohio law. The issue then arises: Was the 1957 Pontiac “furnished for (his) regular use” so as to except it from the general coverage provided by paragraph V.

An analysis of the extensive annotation on this question in 86 A. L. R. 2d 937 commands the conclusion that in this type of situation the general rules will be applied (a) that an insurance policy must be interpreted to give effect to the intention of the parties, and (b) where there is an ambiguity the policy should be construed strictly against the insurance company and liberally in favor of the insured.

Light is cast on the intention of the parties as to the meaning of these specific words by considering the policy as a whole and by determining in layman’s terms the spirit with which it is written and doubtless sold. IV (3) provides the insured with coverage while driving a “temporary substitute automobile” while his own is broken down or being serviced or repaired. IV (4) covers the insured for thirty days on a new additional automobile. V covers the insured when he is driving any other automobile with certain exceptions of which it is argued the present situation is one. Considering the whole policy, therefore, the evident intention is to cover all the risks of normal driving done by an average person and to give the insured a reasonable time to advise his insurer if he alters or increases the risk.

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Cite This Page — Counsel Stack

Bluebook (online)
230 N.E.2d 686, 13 Ohio Misc. 12, 41 Ohio Op. 2d 433, 1967 Ohio Misc. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grange-mut-cas-co-v-clifford-ohctcomplhamilt-1967.