Maher v. United Ohio Ins. Co.

2022 Ohio 1015

• Court: Ohio Court of Appeals
• Decided: March 28, 2022
• Docket: 20CA11
• Status: Published

Opinion

[Cite as Maher v. United Ohio Ins. Co., 2022-Ohio-1015.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

ANDREW MAHER, : : Case No. 20CA11 Plaintiff-Appellant, : : v. : DECISION AND JUDGMENT : ENTRY UNITED OHIO INSURANCE CO., et al., : : RELEASED: 03/21/2022 Defendants-Appellees. :

APPEARANCES:

Douglas D. Brannon and Kevin A. Bowman, Brannon & Associates, Dayton, Ohio, for Appellant.

Matthew R. Planey, Crabbe, Brown & James, LLP, Columbus, Ohio, for Appellee.

Wilkin, J.

{¶1} Appellant, Andrew Maher, appeals the Highland County Court of

Common Pleas judgment granting United Ohio Insurance Company’s (“United

Ohio”) motion for summary judgment. Maher was a passenger in an Ecotec Rail

Buggy/ATV, when the driver, Bryan Collins, lost control of the vehicle, slid into a

ditch and hit a tree.1 At the time of the accident, Maher had a commercial

insurance auto policy with United Ohio. After United Ohio denied coverage for

Maher’s medical expenses maintaining the Buggy was not a covered auto under

the policy, Maher filed a complaint claiming breach of contract and bad faith

conduct by United Ohio. The trial court agreed with United Ohio that under the

terms of the insurance policy, Maher’s medical payment and uninsured/

1 Bryan Collins is not a party to this appeal. Highland App. No. 20CA11 2

underinsured motorist (“UM/UIM”) coverage provisions were limited to a covered

auto. The only auto listed was a 2006 Nissan Titan. The trial court ruled in favor

of United Ohio on all claims.

{¶2} Maher presents two assignments of error for our review. First, Maher

asserts the trial court erred in failing to apply as written the language in the policy

pertaining to the endorsements for the medical payment and UM/UIM provisions.

According to Maher, that language expanded coverage beyond “covered auto”

and allows for coverage when Maher is occupying “any auto.” We overrule

Maher’s arguments as the policy language is clear with regard to the intent of the

parties to provide coverage solely for the 2006 Nissan Titan. The endorsements

did not modify Maher’s selection of coverage in the business auto form. Maher

paid a premium amount reflective of coverage being limited to the 2006 Nissan

Titan. The medical payment endorsement definition of insured applies when

Maher is occupying a covered auto and is struck by “any auto.” For the UM/UIM

endorsement, it expressly states that it applies to “covered auto.”

{¶3} In the second assignment of error, Maher contends the trial court

erred in granting United Ohio’s motion for summary judgment on the bad faith

claim without first bifurcating the claim and before providing him with the

opportunity to view his claims file. We reject both arguments. The trial court did

not abuse its discretion for failing to bifurcate the bad faith claim. Moreover,

Maher failed to request review of his claims file, and he failed to demonstrate the

trial court abused its discretion by not staying discovery. United Ohio did not act

arbitrarily or capriciously when investigating Maher’s claim and ultimately denying Highland App. No. 20CA11 3

it. We thus affirm the trial court’s decision granting United Ohio’s motion for

summary judgment.

FACTS AND PROCEDURAL BACKGROUND

{¶4} On January 12, 2019, at approximately 5:11 p.m., Andrew Maher was

riding as a passenger in an Ecotec Rail Buggy/ATV being driven by Defendant

Bryan Collins traveling northbound on Strain Road in the city of Hillsboro. Collins

lost control of the Buggy and slid off the roadway into a ditch and hit a tree.

Maher sustained severe and permanent injuries to his neck, back, aorta, ribs and

lungs, as well as other parts of his body. Maher proclaims his injuries were so

severe that he incurred medical expenses in excess of $300,000 and will

continue to incur additional expenses due to the accident.

{¶5} Maher’s commercial auto policy with United Ohio was active at the

time of the accident. Under the policy, Maher paid a yearly premium of $779

based on the selected coverage. For liability coverage, Maher selected coverage

with numerical symbols 7, 8, and 9. Maher, on the other hand, for auto medical

payments, and coverages for UM/UIM solely selected numerical symbol 7.

Based on those selections, the premium was $404 for liability coverage, $24,

$10, and $66, respectively for the medical payment, UM and UIM coverages.

Each numerical symbol represents a different level of coverage and as relevant

here, symbols 1, 7, 8, and 9 are defined as follows: Highland App. No. 20CA11 4

Description of Covered Auto Designation Symbol Symbols

1 Any “Auto”

Only those “autos” described in Item Three of the Declarations for which a 7 Specifically Described premium charge is shown (and for “Autos” Liability Coverage any “trailers” you don’t own while attached to any power unit described in Item Three). Only those “autos” you lease, hire, rent or borrow. This does not include any “auto” you lease, hire, rent or borrow 8 Hired “Autos” Only from any of your “employees”, partners (if you are a partnership), members (if you are a limited liability company) or members of their households. Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This 9 Non-owned “Autos” Only includes “autos” owned by your “employees”, partners (if you are a partnership), members (if you are a limited liability company) or members of their households but only while used in your business or your personal affairs.

{¶6} Maher reported a claim under his commercial business auto

insurance policy with United Ohio on February 13, 2019, and requested payment

for his medical bills. David Weithman, claims adjuster with United Ohio, first

confirmed that at the time of the accident, Maher’s policy was active and that it

provided coverage for medical payments and UM/UIM. Weithman concluded

that the coverage was limited to “Symbol 7,” which meant it applied to only those

“autos” described in Item Three of the Declaration for which a premium was

shown. Donna Elliott, Weithman’s manager, also reviewed the policy and Highland App. No. 20CA11 5

deduced that “since the ATV was not specifically listed as a covered auto on the

commercial policy, no coverage would be in effect.” On July 12, 2019, United

Ohio sent a letter to Maher advising him that “the Dune Buggy/ATV was not a

covered auto under the commercial policy Mr. Maher had with United Ohio

Insurance Company.”

{¶7} Maher also attempted to get compensation for his medical expenses

by having Collins submit a claim under Collins’ auto and homeowners insurance

policies with Allstate. Allstate on January 9, 2020, denied coverage finding:

The recreational vehicle that Mr. Collins was driving is not an “auto” and therefore not an “insured auto” under the auto policy. In addition, the recreational vehicle is a motor vehicle, and therefore its use falls within the motor vehicle exclusion in Allstate’s homeowners policy. Consequently, no coverage is available under either policy for Mr. Maher’s claim.

{¶8} On January 27, 2020, Maher filed a complaint for personal injury

against Bryan Collins and for breach of contract and bad faith against United

Ohio.2 Maher requested declaratory judgment that United Ohio breached its

contract with Maher by refusing to negotiate in good faith and declining coverage

under the medical payment and UM/UIM provisions.

{¶9} United Ohio filed an answer, a counterclaim, and requested

declaratory judgment in its favor. Similar to its position when it initially denied

coverage, United Ohio asserted the Buggy was not a covered auto under the

policy. United Ohio maintained that Maher elected to pay a premium for

“covered autos” only under the medical payment and UM/UIM provisions, and

2The complaint incorrectly named Ohio Mutual Insurance Group as the defendant insurance company. A stipulation was entered into in February 2020, correcting the insurance company’s name to United Ohio Insurance Company. Highland App. No. 20CA11 6

since the Buggy was not listed as a covered auto, Maher was not entitled to

coverage.

{¶10} Maher filed an answer to United Ohio’s counterclaim denying

several of the insurance company’s allegations and argued that the policy speaks

for itself. Approximately three months later, in June 2020, Maher filed a motion

for summary judgment on his claims. Maher submitted there was no genuine

issue of material fact and that he was entitled to coverage under the medical

payment and UM/UIM endorsement provisions.

{¶11} The endorsement provision for medical payment identified an

insured as “You while ‘occupying’ or, while a pedestrian, when struck by any

‘auto’.” Maher reads the endorsement provision to include payments for medical

expenses arising from an accident while the insured (he) is occupying any auto.

In his opinion, limiting the endorsement to pedestrians or passengers who are

struck by their own covered auto would be absurd. Thus, United Ohio’s refusal

to provide Maher with the benefits per the policy was in bad faith.

{¶12} Maher similarly argued that the UM/UIM endorsement coverage

language is controlling and as read means that coverage is available for any

accident whether in a covered auto or not. The language Maher relies on is that

United Ohio “Will pay all sums the ‘insured’ is legally entitled to recover as

compensatory damages from the owner or driver of an ‘uninsured motor vehicle’

or ‘underinsured motor vehicle’ because of ‘bodily injury’ sustained by the

‘insured’ and caused by an ‘accident’.” Highland App. No. 20CA11 7

{¶13} United Ohio filed its own motion for summary judgment and

opposed Maher’s request for relief. In the motion, United Ohio emphasized that

the declaration provision is controlling. Maher elected to solely have coverage

under the medical payment and UM/UIM provisions for “covered autos” and the

only auto listed is the 2006 Nissan Titan. United Ohio also challenged Maher’s

bad faith claim in that the company was not unreasonable in reviewing and

investigating his request for payment under the policy.

{¶14} Both Maher and United Ohio filed reply memoranda and reiterated

their previous positions. The trial court on September 30, 2020, granted United

Ohio’s motion for summary judgment and denied Maher’s motion. The trial court

held:

Plaintiff’s argument is that the provisions of the endorsements referring to “autos” should be interpreted to include the dune buggy in which he was a passenger. This would ignore the other provisions of the policy which clearly delineate that the Plaintiff was only covering the 2006 Nissan Truck and no other vehicles. Had Plaintiff purchased and paid a premium for []Any “auto” under symbol 1, he would have been entitled to collect under those coverages. Unfortunately, he did not and is therefore not entitled to payments under any of them.

*** Therefore, it is hereby ordered and adjudged that the Plaintiff’s motion for summary judgment be and is hereby denied, and that the Defendant’s motion for summary judgment is hereby granted, and Defendant is granted judgment in its favor as to all of the claims against it set forth in the complaint. The claims against Defendant Bryan Collins are not affected by this judgment.

Pursuant to Civ. R. 54(B), the trial court certified its entry granting United Ohio’s

motion for summary judgment as a final appealable order and indicated there Highland App. No. 20CA11 8

was no just reason for delay. The trial court’s decision is now before us on

appeal.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT UNITED OHIO INSURANCE COMPANY ON APPELLANT ANDREW MAHER’S CLAIMS FOR COVERAGE UNDER HIS POLICY.

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT UNITED OHIO INSURANCE COMPANY ON APPELLANT ANDREW MAHER’S CLAIM FOR BAD FAITH.

I. FIRST ASSIGNMENT OF ERROR

{¶15} Under the first assignment of error, Maher challenges the trial

court’s finding that the medical payment and UM/UIM coverage provisions were

limited to a covered auto. Maher claims the trial court ignored the endorsement

section of the policy; especially the writing at the top that “[t]his endorsement

changes the policy.” Each endorsement has its own definition of an insured and

coverage. Based on the specific wording in each endorsement, Maher asserts

the endorsements allow for coverage when he is occupying “any” auto.

{¶16} For medical payment coverage, Maher in support of his argument

relies on the “insured” definitions of “You while ‘occupying’ or, while a pedestrian,

when struck by any ‘auto,’ ” and “anyone else ‘occupying’ a covered ‘auto’ or a

temporary substitute for a covered ‘auto’.” According to Maher, the use of

covered auto when defining an insured who is “anyone else” supports his claim

that the policy could have limited coverage for the individual insurer to covered

auto but instead used the word “any auto.” Thus, the trial court’s interpretation of Highland App. No. 20CA11 9

“any auto” to still be limited to the 2006 Nissan Titan was erroneous and ignored

the express language in the endorsement.

{¶17} Similarly for the UM/UIM endorsement language, Maher bases his

claim on the definition of insured that includes the “named insured,” in this case

him, while when defining an insured as “anyone else” there is the additional

language that the person must be “ ‘occupying’ a covered ‘auto’ or a temporary

substitute for a covered ‘auto’.” Further, Maher recites the language in the

coverage section of the endorsement: “We will pay all sums the ‘insured’ is

legally entitled to recover as compensatory damages from the owner or driver of

an ‘uninsured motor vehicle’ or underinsured motor vehicle’ because of ‘bodily

injury’ sustained by the ‘insured’ and caused by an ‘accident’.” Maher interprets

these provisions as allowing payment for his medical expenses for occupying the

Buggy. He argues then that the trial court’s contrary finding was erroneous.

{¶18} In summary, Maher submits that the business auto coverage form

that defines the selection of what auto is covered does not control. Rather, the

endorsements control since they include language that they “change[] the policy.”

Further, when applying the definitions of insured and coverage within the

endorsements, the only conclusion is that “any” auto is covered.

{¶19} United Ohio responds by maintaining that the parties entered into a

contract in which medical payment and UM/UIM coverages were purchased for a

specific automobile. The intent of the parties is clear by the express language of

the policy that is unambiguous. The wording and definition of what covered auto

Maher selected in the business auto declaration and form control. And in this Highland App. No. 20CA11 10

case, the Buggy was not listed as a covered auto. United Ohio is of the opinion

that the endorsements only apply to a “covered auto,” which is in the introductory

language of the UM/UIM endorsement.

A. Summary judgment standard of review

{¶20} We review de novo a decision granting or denying a motion for

summary judgment based on an insurance contract. Ohio N. Univ. v. Charles

Constr. Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11.

“De novo review means that this court uses the same standard that the trial court

should have used, and we examine all the Civ.R. 56 evidence, without deference

to the trial court, to determine whether, as a matter of law, no genuine issues

exist for trial.” EMOI Servs., LLC v. Owners Ins. Co., 2d Dist. Montgomery No.

29128, 2021-Ohio-3942, ¶ 21, citing Ward v. Bond, 2d Dist. Champaign No.

2015-CA-2, 2015-Ohio-4297, ¶ 8. In order to obtain summary judgment, the

movant must demonstrate

(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150, 152.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d

241.

{¶21} In the matter at bar, the parties both submit there is no genuine

issue of material fact. Maher was a passenger in a Buggy that was involved in

an accident, and he sustained bodily injury. Their arguments are based on the Highland App. No. 20CA11 11

language in the policy, including Maher’s selection of coverage and the wording

in the medical payment and UM/UIM endorsement provisions. Thus, the issue

comes down to whether the expressed language in the policy allows for coverage

beyond what is specifically listed as a “covered auto” in the declaration, or

whether the wording in the endorsement provisions expanded coverage to “any”

auto.

B. Insurance policies are contracts

{¶22} “An insurance policy is a contract; in interpreting contracts, courts

must give effect to the intent of the parties, and that intent is presumed to be

reflected in the plain and ordinary meaning of the contract language.” Granger v.

Auto-Owners Ins., 144 Ohio St.3d 57, 2015-Ohio-3279, 40 N.E.3d 1110, ¶ 20,

citing Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-

4917, 875 N.E.2d 31, ¶ 7. “And when a written contract’s language is clear, we

look no further than the writing itself to determine the parties’ intent.” Charles

Constr. Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11,

citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146

(1978), paragraph two of the syllabus. But if a contract is “reasonably

susceptible of more than one interpretation,” then the contract is ambiguous and

must be construed in favor of the insured. Wayne Mut. Ins. Co. v. McNabb,

2016-Ohio-153, 45 N.E.3d 1081, ¶ 22 (4th Dist.). “This rule, however, will not be

applied to create an unreasonable interpretation of the policy provisions.” Id.,

citing Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio-3308,

41 N.E.3d 1224, ¶ 9. Highland App. No. 20CA11 12

C. Maher’s insurance policy - medical payment

{¶23} Maher and United Ohio entered into a commercial auto insurance

policy that was in effect at the time of the Buggy accident. The policy document

begins with a declaration summary page outlining in “Item One” the description of

Maher’s business, carpentry, and the type of business, individual. Next, the

policy includes in “Item Two” an auto declaration page in which it lists in a table

the coverage type, the selected auto for that coverage, the limit of coverage, and

finally the premium associated with the coverage selection. For medical payment

coverage, the table indicates Maher’s selection of the numerical symbol “7” as

the type of auto coverage. The associated yearly premium is $24. On the

second page of the declaration is “Item Three” which includes the schedule of

covered autos Maher owns and solely lists a 2006 Nissan Titan.

{¶24} The business auto coverage form begins by stating:

Item Two of the Declarations shows the “autos” that are covered “autos” for each of your coverages. The following numerical symbols describe the “autos” that may be covered “autos”. The symbols entered next to a coverage on the Declarations designate the only “autos” that are covered “autos”.

Numerical Symbol 7 is defined as “Only those ‘autos’ described in Item Three of

the Declarations for which a premium charge is shown (and for Liability Coverage

any ‘trailers’ you don’t own while attached to any power unit described in Item

Three).”

{¶25} The auto medical payment endorsement begins with “This

endorsement changes the policy. Please read it carefully.” Then it states “This

endorsement modifies insurance provided under the following: business auto Highland App. No. 20CA11 13

coverage form.” But then clarifies “With respect to coverage provided by this

endorsement, the provisions of the Coverage Form apply unless modified by the

endorsement.” The endorsement continues with defining:

A. Coverage We will pay reasonable expenses incurred for necessary medical and funeral services to or for an “insured” who sustains “bodily injury” caused by “accident”. We will pay only those expenses incurred, for services rendered within three years from the date of the “accident”.

B. Who Is An Insured 1. You while “occupying” or, while a pedestrian, when struck by any “auto”. 2. If you are an individual, any “family member” while “occupying” or, while a pedestrian, when struck by any “auto”. 3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.

{¶26} Maher submits that the ultimate issue here is the definition of

insured, and he asserts that he is an insured because he was occupying the

Buggy, which meets the “any auto” requirement. We disagree with Maher’s

interpretation that the medical payment endorsement changes the policy to now

provide him coverage when he is occupying “any” auto. We reject this argument

because it is clear from the language of the policy and the amount of premium

paid that the intent of the parties is to limit coverage to “covered auto” only.

Expanding the policy to now provide coverage for Maher’s medical expenses

when he was occupying the Buggy beyond what Maher selected is not a

reasonable interpretation.

{¶27} When comparing the definition of “insured” in the business coverage

form and the definition in the endorsement, we find that the endorsement yields

situations in which coverage applies as opposed to expanding coverage to all Highland App. No. 20CA11 14

autos. The definition of insured in the business coverage form includes, in

relevant part, the following: “a. You for any covered “auto”. b. Anyone else while

using with your permission a covered “auto” you own, hire, or borrow[.]” The

definition in the business coverage form is all encompassing and has no

restrictions when involving Maher in a covered auto. Thus, Maher is covered if

he is the driver or the occupier of the covered auto and is involved in a one-

vehicle accident or multi-vehicle accident. Similarly, for “anyone else,” the

business coverage form provides that the person is covered if driving the covered

auto with Maher’s permission.

{¶28} The endorsement with regard to “anyone else” expanded coverage

by providing it for “anyone else” who is also occupying the covered auto. On the

other hand, for the insured it simply provided specific scenarios when coverage

applies such as when Maher is occupying a covered vehicle “when struck by any

auto” or is a pedestrian “when struck by any auto.” The phrase “when struck by

any auto” is continuous and is not separated by any comas. By using the

ordinary rules of grammar and common usage, the word “any” modifies the auto

striking Maher, not the vehicle Maher is occupying. Therefore, the endorsement

did not deviate from the coverage provided in the business auto form. Per the

business auto form language, Maher selected and is paying for coverage for the

2006 Nissan Titan as the only listed “covered auto.”

{¶29} As a matter of law therefore, Maher’s claim for coverage for medical

payments under the terms of the policy cannot succeed. There being no genuine

issue of material fact and there being only one reasonable interpretation of the Highland App. No. 20CA11 15

policy, we affirm the trial court’s decision granting United Ohio’s motion for

summary judgment and overrule Maher’s argument.

D. Maher’s insurance policy - UM/UIM

{¶30} Maher selected numerical symbol 7 for both UM and UIM

coverages, thus limiting coverage to covered auto, the 2006 Nissan Titan. The

yearly premium for each is $10 and $66, respectively. The endorsement

provision within the policy applies to both UM and UIM and begins by stating

“This endorsement changes the policy. Please read it carefully.” But then has

the following: “For a covered ‘auto’ licensed or principally garaged in, or ‘auto

dealer operations’ conducted in, Ohio, this endorsement modifies insurance

provided under the following: * * * business auto coverage form.” It clarifies “With

respect to coverage provided by this endorsement, the provisions of the

Coverage Form apply unless modified by the endorsement.” It then defines:

A. Coverage We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle” or “underinsured motor vehicle” because of “bodily injury” sustained by the “insured” and caused by an “accident”. The owner’s or operator’s liability for these damages must result from the ownership, maintenance, or use of the “uninsured motor vehicle” or “underinsured motor vehicle”.

B. Who Is An Insured If the Named Insured is designated in the Declarations as: 1. An individual, then the following are “insureds”: a. The Named Insured and any “family members”. b. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its break-down, repair, servicing, “loss”, or destructions. However, no coverage is provided for anyone occupying an “auto” which is not a covered auto for Uninsured Motorists and/or Underinsured Motorists Coverage under this Coverage Form. Highland App. No. 20CA11 16

{¶31} Contrary to Maher’s claim, there is nothing in the UM/UIM

endorsement that modifies coverage as outlined in the business auto form to now

include any auto Maher occupies. Maher is hung up on the wording in the

endorsement of “all sums the ‘insured’ is legally entitled to[.]” The same wording

is used in the business auto form when defining coverage: “We will pay all sums

an ‘insured’ legally must pay[.]” Thus, the words “all sums” and “legally” are not

unique to the endorsement provision.

{¶32} Similarly, there is nothing in the definition of insured as it relates to

Maher that has been modified. Under the business auto coverage form, insured

is defined as “You for any covered ‘auto’.” In the endorsement it defines insured

as “[t]he named insured[,]” which in this case is Maher. The endorsement does

not include any language that would permit coverage for any auto. It simply

reiterates that Maher is the insured. The written policy language is clear and we

cannot look beyond the writing itself and add words to it. See Charles Constr.

Servs., Inc., 155 Ohio St.3d 197, 2018-Ohio-4057, 120 N.E.3d 762, ¶ 11.

{¶33} Moreover, in the business auto form, one of the definitions for

“insureds” is “Anyone else while using with your permission a covered ‘auto’ you

own, hire, or borrow[.]” The endorsement modified this definition of insured by

now including “anyone else ‘occupying’ a covered ‘auto’[.]” This modification

expanded coverage to now include anyone else occupying the covered auto and

not simply a person driving it with permission. No such modification was added

to the definition of “The Named Insured.” We disagree with Maher’s

interpretation that simply because the insured definition of “anyone else” includes Highland App. No. 20CA11 17

the words “covered auto” is indicative of an inference to exclude it from the

definition of “The Named Insured.” As the Supreme Court of Ohio recently

reiterated:

“a court cannot create ambiguity in a contract where there is none,” Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008- Ohio-4838, 896 N.E.2d 666, ¶ 16. This includes creating an ambiguity by asking whether the parties could have included different or more express language in their agreement. See 11 Lord, Williston on Contracts, Section 30:4 (4th Ed.2021).

AKC, Inc. v. United Specialty Ins. Co., Ohio St.3d , 2021-Ohio-3540, N.E.

3d , ¶ 12.

{¶34} When reviewing Maher’s insurance policy as written, we cannot

conclude that the UM/UIM endorsement grants Maher the highest level of

coverage while paying a premium for a lower coverage. That, to us, is not a

reasonable interpretation. This conclusion is further supported by the

introductory language in the endorsement “For a covered ‘auto’ ” and in the

matter at bar, the only covered auto based on Maher’s selection is the 2006

Nissan Titan. In addition, our interpretation of the policy is consistent with the

lead and concurring opinions from the Second District Court of Appeals in

Kirkwood v. Motorist Mut. Ins. Co., 2d Dist. Miami No. 2011-CA-23, 2012-Ohio-

23.

{¶35} In Kirkwood, the Second District affirmed the trial court’s summary

judgment in favor of the insurance company. Id. at ¶ 1. The lead opinion

outlined the basic policy language in which Kirkwood selected UM/UIM coverage

for “covered auto” only and the introductory language in the UM/UIM

endorsement that it applies “For a covered ‘auto’ licensed.” Id. at ¶ 17. Based Highland App. No. 20CA11 18

on the specific wording in the policy, the lead opinion held that the “modifications

to coverage in this endorsement, upon which the Kirkwoods rely, only apply with

respect to a covered auto.” Id. at ¶ 17. The concurring opinion agreed that the

“result here is logical and should have been reasonably contemplated by the

parties,” because “the subject provisions are unambiguous as written[.]” Id. at ¶

23, 31 (Cannon, J., concurring). The dissenting opinion without providing an

analysis concluded that the policy as written was ambiguous. Id. at ¶ 34

(Froelich, J., dissenting).

{¶36} Maher in addition to citing to some of the language in Kirkwood,

relies on cases from other jurisdictions to support his argument that the policy is

ambiguous and should be read in his favor as providing coverage when he

occupies any auto. We do not find any of the cases persuasive.

{¶37} In Haberman v. The Hartford Insurance Group, Dr. Joann

Haberman was a passenger in an SUV driven by Tamara Mooney. 443 F.3d

1257, 1259 (10th Cir.2006). Mooney lost control of the SUV and spun off the

highway. Id. Haberman sustained a fractured pelvis and multiple contusions. Id.

Haberman is the sole shareholder of a professional corporation that had a

commercial auto policy with Hartford. Id. Haberman filed a claim for coverage

under the policy’s UM/UIM provision even though the SUV driven by Mooney

was not a covered auto. Id. at 1260. The Tenth Circuit in affirming the jury’s

verdict and finding Haberman’s injuries were covered under the policy focused

on the first sentence of the UM/UIM endorsement language that “[t]his

endorsement changes the policy.” Id. at 1267. Based on that language, the Highland App. No. 20CA11 19

court held that the endorsement “modified the entire policy” and did not expressly

limit coverage to only covered autos. Id. at 1268. The Tenth Circuit, however,

made no reference as to whether or not the UM/UIM endorsement provision

included language that it applies “For a covered ‘auto’ licensed” as we have here.

We find this distinction critical because it corroborates the limited coverage in the

business auto form to “covered auto” only.

{¶38} The Seventh Circuit in Grinnell Mutual Reinsurance Co. v. Haight,

affirmed the summary judgment granted to Haight. 697 F.3d 582 (7th Cir.2012).

Nicole Haight was a passenger in a car driven by Brian Day that was involved in

a single-vehicle accident. Id. at 584. Haight’s medical bills exceeded the amount

covered under Day’s policy so she made a UM/UIM claim under the commercial

auto policy issued to her father with Grinnell. Id. The Seventh Circuit focused on

the definition of insured under the UM/UIM endorsement to determine whether

Nicole was covered under her father’s policy. Id. at 586-587. The policy defined

insured:

If the Named Insured is designated in the Declarations as: 1. An individual then the following are “insureds”: a. The named Insured and any “family members”. b. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”[.] *** [I]f the named insured is “a partnership, limited liability company, corporation, or any other form of organization,” then “insureds” include: a. Anyone “occupying a covered “auto” or a temporary substitute for a covered “auto”. The covered auto must be out of service because of its breakdown, repair, servicing, “loss” or destruction. b. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured”. Highland App. No. 20CA11 20

Id. at 586-587.

The court concluded that the lack of the qualifying term “covered auto” within the

definition of family members as insured was indicative of Grinnell’s intention to

distinguish categories. Id. at 588. Therefore, the court held that the UM/UIM

endorsement provides coverage for an insured and his family with “no

requirement that they occupy a covered auto.” Id. at 590. We do not find the

Seventh Circuit’s interpretation persuasive and disagree with such an

interpretation that requires adding words to a policy. It is not this court’s place to

ask “whether the parties could have included different or more express language

in their agreement.” AKC, Inc., Ohio St.3d , 2021-Ohio-3540, N.E. 3d ,¶

12.

{¶39} The Maryland Court of Appeals in Bushey v. Northern Assurance

Co. of America, also considered the UM/UIM endorsement language involved in

a commercial auto insurance policy issued to the grandfather, Earl Weeks, of the

vehicle driven by the victim and resulted in her death and that of the passenger.

362 Md. 626, 766 A.2d 598 (2000). In the declaration provision of the policy,

Weeks elected coverage under UM/UIM for covered autos only. Id. at 633. The

UM/UIM endorsement language included wording that it changes the policy and

then provided several definitions for who is insured and liability coverage. Id. at

634-636. The court concluded the policy is ambiguous because the UM/UIM

endorsement, although had “For covered ‘auto’ ” in its heading, it also included

modifying language of “occupying a covered auto” when defining insured, and

when excluding coverage for bodily injury sustained by a family member in “any Highland App. No. 20CA11 21

vehicle owned by that family member that is not a covered ‘auto.’ ” Id. The court

held the clarifying language was unnecessary if the “For covered” wording was

intended to be applied uniformly, making the policy ambiguous. Id.

{¶40} We do not find Maryland Court of Appeals’ decision in Bushey

persuasive in which it based its conclusion on the inference that inclusion of

“covered auto” in certain parts of the endorsement equated to exclusion from

other parts. We do not find that conclusion to be a reasonable interpretation.

{¶41} In Reisig v. Allstate Ins. Co., Raymond Reisig was a passenger in a

1985 Chevrolet pickup truck when the driver lost control on an ice-covered

portion of the highway and went off the roadway into a ditch. 264 Neb. 74, 75,

645 N.W.2d 544 (2002). Reisig submitted a claim for recovery of medical

expenses under his commercial auto policy with Allstate. Id. at 75. Similar to the

situation here and the previous case, Reisig selected coverage for “covered auto”

under UM/UIM and the policy had UM/UIM endorsement provisions. Id. at 76-78.

The endorsement provision included introductory language that “This

endorsement changes the policy,” and the phrase “For a covered ‘auto.’ ” Id. at

81. The endorsement then defines insured as simply “you.” The Nebraska

Supreme Court held the endorsement was ambiguous because the word “you” is

susceptible to different interpretations based on what modified word in the

endorsement is used. Id. at 81-82. That is, if the court focuses on the language

that the endorsement changes the policy, then the coverage is not limited to

covered auto. Id. If the “For covered ‘auto’ ” is used, as it is in the matter at

hand, then coverage is limited to covered auto. Id. Highland App. No. 20CA11 22

{¶42} As we previously concluded, the only reasonable interpretation of

Maher’s insurance policy is that the premium paid is for the 2006 Nissan Titan.

The UM/UIM endorsement did not modify the coverage when it expressly stated

“For a covered ‘auto’ ” and reiterated that Maher is the insured individual. The

language that “This endorsement changes the policy” does not automatically

mean all previous definitions and provisions stated in the business auto coverage

form should now be discounted, especially when the endorsement includes the

caveat language: “the provisions of the Coverage Form apply unless modified by

the endorsement.” The business auto coverage form specifically provides that

UM/UIM coverage is limited to numerical symbol 7, a “covered auto,” and the

only listed auto is the 2006 Nissan Titan.

{¶43} Accordingly, we affirm the trial court’s decision granting United

Ohio’s motion for summary judgment and overrule Maher’s first assignment offer.

E. Definition of “Auto”

{¶44} We begin by acknowledging that the trial court did not grant United

Ohio’s motion for summary judgment based on the policy’s definition of auto;

however, as we review the case de novo, we want to note that there is no

evidence the Buggy meets the definition of auto.

{¶45} The business auto coverage form includes the following introductory

language: “Other words and phrases that appear in quotation marks have special

meaning.” As our previous references to several provisions within the insurance

policy demonstrate, the word “auto” always appears in quotation marks. This is

because it has a special meaning: Highland App. No. 20CA11 23

1. A land motor vehicle, “trailer” or semitrailer designed for travel on public roads; or 2. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged.

{¶46} United Ohio in its counterclaim for declaratory judgment averred that

at “the time of said accident, Defendant Bryan K. Collins was operating a vehicle

that was designed for use mainly off public roads.” In addition, when Allstate

denied coverage under Collins’ auto policy it maintained that “The recreational

vehicle that Mr. Collins was driving is not an ‘auto’ and therefore not an ‘insured

auto’ under the auto policy.” While there is no other argument at the lower court

for this position, Maher stated in his appellate brief that the Buggy is a

recreational vehicle. Pursuant to the clear definition of “auto” in the insurance

policy, and the evidence that is before us, we conclude that the Buggy is not a

vehicle designed for public roadway. This finding supports our holding affirming

the trial court’s summary judgment decision and overruling Maher’s first

assignment of error.

II. SECOND ASSIGNMENT OF ERROR

{¶47} In the second assignment of error, Maher makes several arguments

in support of his claim that the trial court erred in granting United Ohio’s motion

for summary judgment on all claims, including bad faith. First, Maher contends

the trial court erred by failing to bifurcate the case per United Ohio’s request

since R.C. 2315.21 mandates bifurcation once a motion is filed. Second, Maher

asserts he was denied the opportunity to review his claims’ file prior to the trial Highland App. No. 20CA11 24

court’s decision. Thus, Maher avers it was premature for the trial court to have

granted United Ohio’s motion for summary judgment on the bad faith claim.

{¶48} In response, United Ohio maintains that it acted with reasonable

justification in denying Maher’s demand for coverage under the medical payment

and UM/UIM provisions.

{¶49} We overrule Maher’s assignment of error because the trial court did

not abuse its discretion in denying the motion to bifurcate, Maher did not request

to view his claims file, and the evidence before us demonstrates United Ohio did

not act in an arbitrary or capricious manner.

{¶50} On July 9, 2020, after the parties filed their respective motions for

summary judgment, United Ohio filed a motion to bifurcate pursuant to Civ.R.

42(B) claiming bifurcation of the bad faith claim is necessary to avoid prejudice

from Maher having access to its internal claims file. Maher did not oppose the

motion nor did he file a separate motion for bifurcation. The trial court did not

rule on United Ohio’s bifurcation request before issuing its decision granting

United Ohio’s motion for summary judgment on September 14, 2020.

{¶51} We presume the trial court overruled United Ohio’s bifurcation

motion. See State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692

N.E.2d 198 (1998) (“when a trial court fails to rule on a pretrial motion, it may

ordinarily be presumed that the court overruled it.”) The trial court has the

discretion to grant or deny a motion to bifurcate, a decision reviewed by an

appellate court under the abuse of discretion standard. Am. Family Ins. Co. v.

Hoop, 4th Dist. Adams No. 13CA983, 2014-Ohio-3773, ¶ 50, citing Prokos v. Highland App. No. 20CA11 25

Hines, 4th Dist. Athens Nos. 10CA51 and 10CA57, 2014-Ohio-1415, ¶ 81. An

abuse of discretion “is more than a mere error of law or judgment; it implies that a

trial court’s decision was unreasonable, arbitrary or unconscionable.” State v.

Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 27, citing

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶52} Maher relies solely on R.C. 2315.21(B) to claim the trial court erred

in denying United Ohio’s motion to bifurcate because according to him, R.C.

2315.21(B) mandates automatic bifurcation as soon as the motion is filed. First,

United Ohio’s motion to bifurcate was requested per Civ.R. 42(B) and the motion

made no reference to R.C. 2315.21. Second, R.C. 2315.21(B) applies when the

action is tried to a jury. R.C. 2315.21(B)(1) states:

In a tort action that is tried to a jury and in which a plaintiff makes a claim for compensatory damages and a claim for punitive or exemplary damages, upon the motion of any party, the trial of the tort action shall be bifurcated as follows:

(a) The initial stage of the trial shall relate only to the presentation of evidence, and a determination by the jury, with respect to whether the plaintiff is entitled to recover compensatory damages for the injury or loss to person or property from the defendant. During this stage, no party to the tort action shall present, and the court shall not permit a party to present, evidence that relates solely to the issue of whether the plaintiff is entitled to recover punitive or exemplary damages for the injury or loss to person or property from the defendant.

(b) If the jury determines in the initial stage of the trial that the plaintiff is entitled to recover compensatory damages for the injury or loss to person or property from the defendant, evidence may be presented in the second stage of the trial, and a determination by that jury shall be made, with respect to whether the plaintiff additionally is entitled to recover punitive or exemplary damages for the injury or loss to person or property from the defendant. (Emphasis added.) Highland App. No. 20CA11 26

{¶53} Maher demanded a jury trial when he filed his complaint, but the

matter was resolved at summary judgment and no evidence was presented to a

jury. See Ford Motor Credit Co. v. Ryan & Ryan, Inc., 10th Dist. Franklin Nos.

17AP-304 and 17AP-375, 2018-Ohio-3960, ¶ 24 (R.C. 2315.21(B)(1) does not

apply when the matter is tried to the bench since it only applies when the action

is tried to a jury.) We find that R.C. 2315.21(B) is inapplicable here. As Maher

fails to present any additional argument, we conclude that the trial court did not

abuse its discretion when it denied United Ohio’s motion to bifurcate.

{¶54} We further overrule Maher’s assertion that he was denied the

opportunity to review his insurance claims file. Maher in his memorandum

opposing United Ohio’s motion for summary judgment stated that he did not

request his claims file and that he would be entitled to it “only after the coverage

issue under the insurance contract is determined.” But then in that same

memorandum Maher “formally move[s] that a 56(F) stay be granted until after

[he] has received the claims file to which he is entitled under the rule of Boone.”

Maher, however, failed to submit an affidavit with his filing opposing United

Ohio’s motion for summary judgment as required in Civ. R. 56(F). The rule

provides:

Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

{¶55} The trial court did not rule on Maher’s in-passing request to stay

discovery. By granting United Ohio’s motion for summary judgment on all claims, Highland App. No. 20CA11 27

we presume the trial court denied Maher’s request to stay discovery. Maher fails

to present any argument that the trial court’s denial was an abuse of discretion

and we do not find the trial court’s decision to be arbitrary, unreasonable or

unconscionable. See Lawless v. Bd. of Educ. of Lawrence Cty. Educ. Serv. Ctr.,

2020-Ohio-117, 141 N.E.3d 267, ¶ 29 (4th Dist.), appeal not accepted, 159 Ohio

St. 3d 1464, 2020-Ohio-3882, 150 N.E.3d 118 (“The court did not abuse

its discretion when it denied the motion to stay discovery.”)

{¶56} We also hold that the trial court’s decision granting United Ohio’s

motion for summary judgment should be affirmed.3 Maher maintains that “the

case remains at too premature a stage to consider issues of bad faith” and relies

on the Fifth District Court of Appeals case in Brown v. Nationwide Property &

Gas Ins. Co., 5th Dist. Stark No. 2014CA00037, 2014-Ohio-5057. In Brown,

unlike the case at bar, the trial court granted the motion to bifurcate and stayed

the bad faith claim pending resolution of the breach of contract claim. Id. at ¶ 31.

Here, we have no discovery request for the claims file, no stay as to discovery,

and no bifurcation. What we have is United Ohio’s motion for summary judgment

claiming it acted in good faith supported by an affidavit from its claims adjuster,

David Weithman.

3 On the bad faith claim, the trial court did not provide any analysis and simply held that it grants United Ohio’s motion on all claims. We find the lack of any analysis harmless since we review the trial court’s decision de novo. See Phillips v. Dayton Power & Light Co., 93 Ohio App. 3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (“although a reasoned analysis by the trial court in rendering summary judgment would be helpful, the lack of any analysis is necessarily harmless since an appellate court's review of a summary judgment is de novo.”) Highland App. No. 20CA11 28

{¶57} As we previously outlined in the first assignment of error, we review

de novo the trial court’s decision on a motion for summary judgment. Gerken v.

State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, ¶ 35 (4th Dist.)

“Accordingly, we afford no deference to the trial court’s decision and independently review the record to determine whether summary judgment is appropriate.” Snyder v. Stevens, 4th Dist. Scioto No. 12CA3465, 2012-Ohio-4120, ¶ 11.

Under Civ.R. 56(C), summary judgment is appropriate only if “‘(1) no genuine issue of any material fact remains, (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 construing the 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.’” DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15, quoting State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9.

Id. at ¶ 35-36.

{¶58} To prevail on his claim of bad faith, Maher must demonstrate that

United Ohio “ ‘lacked a reasonable justification for the manner in which it handled

[his] claims[.]’ ” Id. at ¶ 47, quoting Captain v. United Ohio Ins. Co., 4th Dist.

Highland No. 09CA14, 2010-Ohio-2691, ¶ 22.

“An insurer lacks reasonable justification when it acts in an arbitrary or capricious manner.” Captain at ¶ 30, citing Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 277, 452 N.E.2d 1315 (1983). The term “arbitrary” means “[w]ithout fair, solid, and substantial cause and without reason given; without any reasonable cause; in an arbitrary manner * * * fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.” Thomas v. Mills, 117 Ohio St. 114, 121, 157 N.E. 488 (1927); Captain at ¶ 30. Similarly “caprice” is defined as “ ‘ “[w]him, arbitrary, seemingly unfounded in motivation * * *.” ’ ” Captain at ¶ 30, quoting 4D Investments, Inc. v. City of Oxford, Highland App. No. 20CA11 29

12th Dist. Warren. No. CA98-04-082, 1999 WL 8357, *2, in turn quoting Black’s Law Dictionary 192 (5th Ed.1979).

Id. at ¶ 48.

{¶59} When considering the merit of the bad faith claim, there is no

genuine issue of material fact since the only evidence outlining the investigation

of Maher’s claim by United Ohio was Weithman’s uncontradicted affidavit. In his

affidavit, Weithman confirmed that Maher reported a claim under the policy on

February 13, 2019, and that a denial letter dated July 12, 2019, was mailed that

same day to Maher’s counsel. Weithman detailed the progress of the

investigation during that five-month period.

{¶60} On the same day that Maher requested coverage under the policy,

Weithman reviewed the policy and contacted Maher’s counsel’s office.

Weithman was advised that Maher was a passenger in the Buggy and that the

Buggy was not insured. During that phone conversation, Weithman requested a

copy of the accident report and advised counsel’s office that coverage may not

be available since it is a commercial auto policy. Weithman that same day also

contacted Maher’s insurance agent and requested a certified copy of Maher’s

commercial auto insurance policy and a copy of any auto policy under Maher’s

name. On February 15, 2019, Weithman received a certified copy of Maher’s

commercial auto insurance policy and emailed Maher’s counsel’s office with a

duplicate. Weithman also telephoned counsel’s office and left a voice message

requesting information regarding Maher’s personal auto insurance.

{¶61} Weithman asked his unit manager, Donna Elliott, to review the file.

She agreed that under the coverage selection of symbol 7, the Buggy would not Highland App. No. 20CA11 30

be covered under Maher’s commercial auto policy. She also questioned whether

Maher had a personal auto insurance policy. After not hearing back from

Maher’s counsel’s office, on May 1, 2019, Weithman contacted counsel and

spoke with staff member Karen. Weithman reiterated that the commercial auto

policy was limited to a covered auto and the Buggy was not a listed auto in the

policy. Karen confirmed that Maher did not have any other auto policies.

{¶62} Discussions between Weithman and Maher’s counsel’s office

continued and on June 28, 2019, Weithman advised Maher’s counsel that the

claim will be reviewed with management at United Ohio and a decision as to

coverage will be forthcoming. On July 12, 2019, Weithman prepared a letter

denying coverage concluding that the Buggy was not a covered auto under the

policy. The letter was mailed to Maher’s counsel’s office that same day.

{¶63} Applying the standards set forth for granting a motion for summary

judgment and Maher’s burden to demonstrate United Ohio acted arbitrarily or in a

capricious manner on his claim for bad faith, we hold that United Ohio as a

matter of law is entitled to judgment on the bad faith claim. There is no evidence

United Ohio’s denial of coverage was without a fair review of the claim and

without substantial cause. To the contrary, Weithman’s affidavit establishes that

several of United Ohio’s staff members reviewed the policy in light of Maher’s

request for medical expenses. United Ohio also maintained contact with Maher’s

counsel and kept him advised of the investigation. Moreover, our holding under

the first assignment of error that Maher was not entitled to coverage supports the

conclusion that United Ohio did not arbitrarily deny his claim. Highland App. No. 20CA11 31

{¶64} Accordingly, Maher’s second assignment of error is overruled and

we affirm the trial court’s decision granting United Ohio’s motion for summary

judgment on the bad faith claim.

CONCLUSION

{¶65} Having overruled Maher’s two assignments of error, we affirm the

trial court’s judgment entry granting United Ohio’s motion for summary judgment.

JUDGMENT AFFIRMED. Highland App. No. 20CA11 32

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________ Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.