[Cite as Miller v. Troyer, 2018-Ohio-3419.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
JODY MILLER C.A. No. 17AP0018
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ELI TROYER, et al. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellee CASE No. 2016 CVC-C 000458
DECISION AND JOURNAL ENTRY
Dated: August 27, 2018
CARR, Judge.
{¶1} Plaintiff-Appellant Jody Miller, individually, and as executrix of the estate of
Matthew E. Miller (“the Estate”), appeals the judgment of the Wayne County Court of Common
Pleas. This Court reverses and remands the matter for further proceedings consistent with this
opinion.
I.
{¶2} On July 28, 2015, decedent, Mr. Miller was operating a motorcycle northbound
on Prairie Lane in Wooster. His wife, Jody Miller, was a passenger. At the time, Defendant Eli
Troyer was traveling southbound on the same road operating a horse-drawn buggy. The horse-
drawn buggy veered left of center and struck the motorcycle, resulting in Mr. Miller’s death and
causing Mrs. Miller injury. The Estate filed a claim with its insurance company, Defendant-
Appellee Westfield National Insurance Company (“Westfield”). While Westfield paid the Estate 2
certain benefits under the policy, it denied the Estate’s claim for uninsured/underinsured
motorists coverage.
{¶3} In November 2015, the Estate filed a complaint against Eli Troyer and Westfield.
With respect to Eli Troyer, the Estate alleged that Eli Troyer negligently operated the horse-
drawn buggy and asserted claims for wrongful death/negligence, survivorship, and negligence.
In addition, the Estate filed a claim seeking declaratory judgment against Westfield. The Estate
argued that Mr. and Mrs. Miller qualified as insureds under a policy underwritten by Westfield
and that such policy provided uninsured/underinsured motorists coverage. The Estate further
alleged that Eli Troyer may be an uninsured/underinsured motorist and that the Estate was
entitled to recover under the policy. Finally, the Estate requested a declaration that the
provisions Westfield relied on to deny the Estate benefits under the policy be found “void and
invalid and unconscionable or violative of Ohio law and/or public policy.”
{¶4} Westfield answered the complaint and filed a counterclaim against the Estate and
a crossclaim against Eli Troyer. Westfield asserted it was entitled to a declaration that the Estate
was not owed uninsured/underinsured motorist coverage because the horse-drawn buggy did not
meet the definition of an uninsured or underinsured motor vehicle in the policy. With respect to
Eli Troyer, Westfield maintained that it was entitled to recover the payments it had made to the
Estate as a result of the accident caused by Eli Troyer’s negligence.
{¶5} After receiving leave, the Estate filed an amended complaint adding Enos Troyer,
the father of Eli Troyer and the owner of the horse and buggy, as a defendant. The amended
complaint included claims of negligent entrustment and negligence/liability of owner of
domestic animal against Enos Troyer. 3
{¶6} Thereafter, Westfield filed a motion for judgment on the pleadings, or, in the
alternative, motion for summary judgment, on the Estate’s claim against it and on its
counterclaim. Westfield argued that, based upon the definitions of motor vehicle and trailer in
the general provisions section of the policy, the horse-drawn buggy did not qualify as an
uninsured/underinsured motor vehicle under the policy and therefore the Estate was not entitled
to coverage under the uninsured/underinsured motorists coverage section of the policy.
{¶7} The Estate filed a motion in opposition and a cross-motion for summary judgment
on the Estate’s claim. In support of its motion, the Estate filed the deposition of a representative
of Westfield. The Estate maintained that the horse-drawn buggy qualified as an uninsured motor
vehicle based upon the definitions of motor vehicle and trailer provided in the policy, which the
Estate argued were ambiguous. The Estate also asserted that the policy included multiple
definitions of the word “trailer[.]”
{¶8} Westfield replied arguing that, even if the policy was ambiguous, no reasonable
construction of the terms would allow for the conclusion that a horse-drawn buggy qualified as
either a motor vehicle or trailer as those terms were defined in the general provisions section of
the policy.
{¶9} The trial court granted summary judgment to Westfield concluding that the policy
covered only uninsured motor vehicles and that the horse-drawn buggy did not meet the
definition of motor vehicle. Additionally, the trial court concluded that the insurance policy did
not violate public policy. Subsequently, the trial court issued an entry adding Civ.R. 54(B)
language to its judgment.
{¶10} The Estate appealed; however, this Court dismissed the appeal for lack of a final
appealable order. The trial court entered judgment again, this time additionally finding that the 4
insurance policy was not void as unconscionable or violative of Ohio law. The Estate again
appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING APPELLEE WESTFIELD NATIONAL INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT.
{¶11} In its sole assignment of error, the Estate argues that the trial court erred in
granting Westfield’s motion for summary judgment. Because we conclude that the parties and
the trial court failed to consider certain policy language in determining whether coverage is
warranted, we remand that matter to the trial court so that the issue can be briefed by the parties
and considered by the trial court.
{¶12} “An insurance policy is a contract whose interpretation is a matter of law. [O]ur
task when interpreting an insurance policy is to examine the insurance contract as a whole and
presume that the intent of the parties is reflected in the language used in the policy. Moreover,
[w]e look to the plain and ordinary meaning of the language used in the policy unless another
meaning is clearly apparent from the contents of the policy.” (Internal quotations and citations
omitted.) Frank v. Westfield Natl. Ins. Co., 9th Dist. Summit No. 27925, 2017-Ohio-1026, ¶ 11.
“When determining whether a provision of an insurance contract is ambiguous, Courts must
examine the contract as a whole and pay careful attention to context. [A] court cannot create
ambiguity in a contract where there is none. Ambiguity exists only when a provision at issue is
susceptible of more than one reasonable interpretation. [I]f provisions are susceptible of more
than one interpretation, they will be construed strictly against the insurer and liberally in favor of
the insured.” (Internal quotations and citations omitted.) Id. at ¶ 12. 5
{¶13} With respect to uninsured motorists coverage, the policy at issue provides in
relevant part:
We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of:
A. An uninsured motor vehicle as defined in Section A., C. and D. of the definition of uninsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
(Emphasis in original.)
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[Cite as Miller v. Troyer, 2018-Ohio-3419.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
JODY MILLER C.A. No. 17AP0018
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ELI TROYER, et al. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellee CASE No. 2016 CVC-C 000458
DECISION AND JOURNAL ENTRY
Dated: August 27, 2018
CARR, Judge.
{¶1} Plaintiff-Appellant Jody Miller, individually, and as executrix of the estate of
Matthew E. Miller (“the Estate”), appeals the judgment of the Wayne County Court of Common
Pleas. This Court reverses and remands the matter for further proceedings consistent with this
opinion.
I.
{¶2} On July 28, 2015, decedent, Mr. Miller was operating a motorcycle northbound
on Prairie Lane in Wooster. His wife, Jody Miller, was a passenger. At the time, Defendant Eli
Troyer was traveling southbound on the same road operating a horse-drawn buggy. The horse-
drawn buggy veered left of center and struck the motorcycle, resulting in Mr. Miller’s death and
causing Mrs. Miller injury. The Estate filed a claim with its insurance company, Defendant-
Appellee Westfield National Insurance Company (“Westfield”). While Westfield paid the Estate 2
certain benefits under the policy, it denied the Estate’s claim for uninsured/underinsured
motorists coverage.
{¶3} In November 2015, the Estate filed a complaint against Eli Troyer and Westfield.
With respect to Eli Troyer, the Estate alleged that Eli Troyer negligently operated the horse-
drawn buggy and asserted claims for wrongful death/negligence, survivorship, and negligence.
In addition, the Estate filed a claim seeking declaratory judgment against Westfield. The Estate
argued that Mr. and Mrs. Miller qualified as insureds under a policy underwritten by Westfield
and that such policy provided uninsured/underinsured motorists coverage. The Estate further
alleged that Eli Troyer may be an uninsured/underinsured motorist and that the Estate was
entitled to recover under the policy. Finally, the Estate requested a declaration that the
provisions Westfield relied on to deny the Estate benefits under the policy be found “void and
invalid and unconscionable or violative of Ohio law and/or public policy.”
{¶4} Westfield answered the complaint and filed a counterclaim against the Estate and
a crossclaim against Eli Troyer. Westfield asserted it was entitled to a declaration that the Estate
was not owed uninsured/underinsured motorist coverage because the horse-drawn buggy did not
meet the definition of an uninsured or underinsured motor vehicle in the policy. With respect to
Eli Troyer, Westfield maintained that it was entitled to recover the payments it had made to the
Estate as a result of the accident caused by Eli Troyer’s negligence.
{¶5} After receiving leave, the Estate filed an amended complaint adding Enos Troyer,
the father of Eli Troyer and the owner of the horse and buggy, as a defendant. The amended
complaint included claims of negligent entrustment and negligence/liability of owner of
domestic animal against Enos Troyer. 3
{¶6} Thereafter, Westfield filed a motion for judgment on the pleadings, or, in the
alternative, motion for summary judgment, on the Estate’s claim against it and on its
counterclaim. Westfield argued that, based upon the definitions of motor vehicle and trailer in
the general provisions section of the policy, the horse-drawn buggy did not qualify as an
uninsured/underinsured motor vehicle under the policy and therefore the Estate was not entitled
to coverage under the uninsured/underinsured motorists coverage section of the policy.
{¶7} The Estate filed a motion in opposition and a cross-motion for summary judgment
on the Estate’s claim. In support of its motion, the Estate filed the deposition of a representative
of Westfield. The Estate maintained that the horse-drawn buggy qualified as an uninsured motor
vehicle based upon the definitions of motor vehicle and trailer provided in the policy, which the
Estate argued were ambiguous. The Estate also asserted that the policy included multiple
definitions of the word “trailer[.]”
{¶8} Westfield replied arguing that, even if the policy was ambiguous, no reasonable
construction of the terms would allow for the conclusion that a horse-drawn buggy qualified as
either a motor vehicle or trailer as those terms were defined in the general provisions section of
the policy.
{¶9} The trial court granted summary judgment to Westfield concluding that the policy
covered only uninsured motor vehicles and that the horse-drawn buggy did not meet the
definition of motor vehicle. Additionally, the trial court concluded that the insurance policy did
not violate public policy. Subsequently, the trial court issued an entry adding Civ.R. 54(B)
language to its judgment.
{¶10} The Estate appealed; however, this Court dismissed the appeal for lack of a final
appealable order. The trial court entered judgment again, this time additionally finding that the 4
insurance policy was not void as unconscionable or violative of Ohio law. The Estate again
appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING APPELLEE WESTFIELD NATIONAL INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT.
{¶11} In its sole assignment of error, the Estate argues that the trial court erred in
granting Westfield’s motion for summary judgment. Because we conclude that the parties and
the trial court failed to consider certain policy language in determining whether coverage is
warranted, we remand that matter to the trial court so that the issue can be briefed by the parties
and considered by the trial court.
{¶12} “An insurance policy is a contract whose interpretation is a matter of law. [O]ur
task when interpreting an insurance policy is to examine the insurance contract as a whole and
presume that the intent of the parties is reflected in the language used in the policy. Moreover,
[w]e look to the plain and ordinary meaning of the language used in the policy unless another
meaning is clearly apparent from the contents of the policy.” (Internal quotations and citations
omitted.) Frank v. Westfield Natl. Ins. Co., 9th Dist. Summit No. 27925, 2017-Ohio-1026, ¶ 11.
“When determining whether a provision of an insurance contract is ambiguous, Courts must
examine the contract as a whole and pay careful attention to context. [A] court cannot create
ambiguity in a contract where there is none. Ambiguity exists only when a provision at issue is
susceptible of more than one reasonable interpretation. [I]f provisions are susceptible of more
than one interpretation, they will be construed strictly against the insurer and liberally in favor of
the insured.” (Internal quotations and citations omitted.) Id. at ¶ 12. 5
{¶13} With respect to uninsured motorists coverage, the policy at issue provides in
relevant part:
We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of:
A. An uninsured motor vehicle as defined in Section A., C. and D. of the definition of uninsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
(Emphasis in original.)
{¶14} The uninsured/underinsured endorsement defines uninsured motor vehicle in
“Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
A. To which no bodily injury liability bond or policy applies at the time of the accident.
***
C. To which a bodily injury liability bond or policy applies at the time of the accident. In this case, its limit for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of Ohio.
D. To which a bodily injury bond or policy applies at the time of the accident but the bonding or insuring company:
1. Denies coverage; or
2. Is or becomes insolvent.
{¶15} The argument below, and on appeal, ultimately centered on whether the horse-
drawn buggy was an uninsured motor vehicle,1 i.e. whether it was “a land motor vehicle or trailer
1 While the complaint was framed in terms of uninsured/underinsured claims, the representative of Westfield acknowledged in her deposition that the tortfeasor was uninsured. 6
of any type.” Westfield argued that the definitions of motor vehicle and trailer in the general
provisions section of the policy were controlling. The Estate also relied on the definition of
motor vehicle in the general provisions section but has additionally pointed out that the definition
of uninsured motor vehicle references trailer of any type, yet the general provisions section
contains a more limited definition of trailer.
{¶16} The general provisions section of the policy provides the following definitions of
motor vehicle and trailer:
“Motor Vehicle” means:
a. A self-propelled land or amphibious vehicle; or
b. Any trailer or semi-trailer, which is being carried on, towed by or hitched for towing by a vehicle described in a. above.
“Trailer” means a vehicle designed to be pulled by a:
a. Private passenger auto; or
b. Pickup or van.
However, a trailer does not include a mobile home or any vehicle used as an office, store, display, residence or passenger conveyance.
{¶17} Yet, what neither side has pointed out or discussed is the fact that none of the
words in the terms “land motor vehicle” and “trailer of any type” are in bold and italics in the
uninsured motorists coverage portion of the policy. The general provisions portion of the policy,
which states in a parenthetical that it is applicable to all sections of the policy, also states under
Given the foregoing, and the fact that the focus of the briefing and the trial court’s entry was whether the horse-drawn buggy was an uninsured motor vehicle as defined by the policy, we will limit our discussion accordingly. Nonetheless, we note that the underinsured portion of the policy also defines an underinsured motor vehicle in part as “a land motor vehicle or trailer of any type[.]” 7
the definitions of you, your, we, us, and our, that “[o]ther words and phrases are defined. They
are bold italics when used.” Two of those defined terms include motor vehicle and trailer. In
other portions of the policy, motor vehicle and trailer do appear in bold and italics,
presumptively because the policy is referring to the previously defined terms. However, “land
motor vehicle” and “trailer of any type[,]” as those terms are stated in the uninsured motorists
coverage section of the policy, do not contain any words in bold and italics. Thus, there is an
argument to be made that the definitions of motor vehicle and trailer contained in the general
provisions portion of the policy might not apply to the terms used in the uninsured motorists
coverage portion of the policy. See Frank, 2017-Ohio-1026, at ¶ 11; see also Schroeder v. Auto-
Owners Inc. Co., 6th Dist. Lucas No. L-03-1349, 2004-Ohio-5667, ¶ 28-29 (discussing the
significance of varying typefaces in insurance policies). It appears that neither side considered
this issue as it was not briefed below.
{¶18} And while this Court generally does not raise issues sua sponte, the issue before
the trial court was whether the horse-drawn buggy qualified as an uninsured motor vehicle under
the policy. In order to review the trial court’s determination of that issue, this Court cannot
ignore certain language in the policy merely because an argument regarding that language was
not raised below. See Frank at ¶ 11 (“[O]ur task when interpreting an insurance policy is to
examine the insurance contract as a whole and presume that the intent of the parties is reflected
in the language used in the policy.”). As neither side has had the opportunity to brief this issue,
and because the trial court has not had the opportunity to consider how this issue might affect the
ultimate issue of coverage, we determine it is appropriate to reverse the trial court’s judgment
and remand the matter for briefing by the parties, and consideration by the trial court. As a
reviewing Court, this Court’s role is not to decide matters in the first instance. See, e.g., 8
Montville Lakes Cluster Homeowners Assn. Phase One v. Montville Lakes Homeowners Assn.,
9th Dist. Medina No. 16CA0082-M, 2017-Ohio-7920, ¶ 17.
{¶19} The Estate’s assignment of error is sustained to the extent discussed above. To
the extent the Estate has challenged the trial court’s determinations that the insurance policy does
not violate public policy and is not void as unconscionable or violative of Ohio law, review of
those determinations are no longer properly before us in light of the remand.
III.
{¶20} To the extent discussed above, the Estate’s assignment of error is sustained and
this matter is remanded for proceedings consistent with this opinion. The judgment of the
Wayne County Court of Common Pleas is reversed.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee. 9
DONNA J. CARR FOR THE COURT
TEODOSIO, P. J. CONCURS.
HENSAL, J. CONCURRING IN JUDGMENT ONLY.
{¶21} I agree that the judgment must be reversed and remanded but for a different
reason. Under the parties’ contract, uninsured motorists coverage is provided if an “uninsured
motor vehicle” caused bodily injury. An “uninsured motor vehicle” can be either a land “motor
vehicle” or “trailer of any type[.]” The trial court concluded that there was no coverage because
the horse and buggy “does not meet the definition of a motor vehicle * * *.” It appears to have
failed to consider, however, whether the horse and buggy were a “trailer of any type[.]” That is
an issue it must resolve in the first instance. On remand, I would direct the court to examine
whether the horse and buggy were a “trailer of any type[,]” taking into consideration the issue
identified by the lead opinion regarding the usage of bold and italicized terms in the contract.
APPEARANCES:
MICHAEL D. GOLDSTEIN and JOSEPH N. CINDRIC, Attorneys at Law, for Appellant.
CARI FUSCO EVANS, Attorney at Law, for Appellee.