[Cite as Sarrough v. Budzar, 2015-Ohio-3674.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102422
MAY SARROUGH, ADMINISTRATOR OF THE ESTATE OF HANAN SAAH, DECEASED PLAINTIFF-APPELLEE
vs.
JOEL BUDZAR, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-784034
BEFORE: E.A. Gallagher, J., Celebrezze, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 10, 2015 ATTORNEYS FOR APPELLANT
Donald G. Drinko Jay Clinton Rice Gallagher Sharp Sixth Floor Buckley Building 1501 Euclid Avenue Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
W. Craig Bashein Bashein & Bashein Co., L.P.A. 35th Floor Terminal Tower 50 Public Square Cleveland, Ohio 44113
Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} In this insurance coverage dispute, defendant-appellant Peerless Indemnity
Insurance Company (“Peerless”) appeals from the decision of the Cuyahoga County Court
of Common Pleas granting the summary judgment motion of plaintiff-appellee May
Sarrough, administrator of the estate of Hanan Saah (“Sarrough”), and denying Peerless’s
cross-motion for summary judgment on Sarrough’s claim for breach of contract.
Sarrough alleged that Peerless had breached its insurance contract with decedent Hanan
Saah (“Saah”) by failing to pay underinsured motorist (“UIM”) benefits due under an
automobile insurance policy Peerless had issued to Saah (the “policy”) following her
involvement in a series of motor vehicle accidents.
{¶2} The parties disagree as to whether the sequence of events giving rise to
Sarrough’s claim constituted one “accident” or two “accidents” for purposes of
determining Peerless’ liability limits for UIM coverage under the policy. Peerless asserts
that the trial court erred in interpreting the policy as providing a $600,000 limit (less
setoff) for UIM coverage for two “accidents” and thereafter determining, as a matter of
law, that Peerless must tender its policy limits (less setoff). Peerless contends that there
was only one impact and thus “one accident” under the policy and that genuine issues of
material fact remain for trial regarding comparative negligence, proximate cause and the
damages resulting from each “accident.” For the reasons that follow, we affirm in part
and reverse in part the trial court’s judgment.
Procedural and Factual Background {¶3} The material facts are undisputed. On February 20, 2011, at approximately
9:30 p.m., seventeen-year-old Brittini Meadows was driving a 2005 Chevrolet Cavalier
owned by her mother, Donna Russo, eastbound on Interstate 90 toward Cleveland after
picking up her boyfriend from work. Meadows testified that due to accumulations of
water, snow and ice, she was traveling in the left lane of the highway at approximately 30
m.p.h. because she believed it was “[t]he clearest lane to drive in.” As she approached
the Rocky River-Lakewood border, Meadows testified that she could hear “water and ice
hitting up against the bottom of the car, like if you were driving through a little pond or
something” and that her vehicle then began to hydroplane and spin to the right. The
vehicle made at least one complete turn and traveled across the width of the highway
before coming to a stop in the right lane, angled toward the middle lane. Her lights
remained on, but her car was “dead” and would not start or move.
{¶4} A snow plow driver stopped behind Meadows and attempted to assist her by
directing traffic around her vehicle. Although several vehicles were able to avoid her
vehicle, within 20-30 seconds, Meadows vehicle was struck from behind by a car owned
and driven by Sarah Owings. The impact caused Meadows vehicle to cross several lanes
of traffic, ending up in the left lane of the highway. A Dodge Durango, driven by
Benitza Montgomery and owned by Mark Montgomery, then stuck Meadows vehicle a
second time. The impact pushed Meadows vehicle to the right, into the right berm.
{¶5} At around this same time, Saah was driving a Chevrolet Impala eastbound
on Interstate 90 in the right lane. Her son, Salem Saah (“Salem”), was sitting in the front
passenger seat. Salem testified that it was snowing and the road was “a little bit icy” but that he could still see the cars in front of them. He testified that as they were proceeding
down the highway, a car (i.e., Meadows vehicle) started to spin out in front of them from
the left to the right, then came to a stop. Saah steered to the left and into the center lane
to avoid the vehicle. As she did so, her vehicle started to slide. Saah’s vehicle slid left
and came to a stop, facing north toward the median, straddling the far left and center
lanes. Once Saah’s vehicle stopped, Salem looked around. He then looked at his
mother and assured her that “everything was fine” and that they “didn’t hit anything.”
Five to ten seconds later, a 2002 Nissan X-Terra driven by Joel Budzar, struck Saah’s
vehicle.
{¶6} Budzar described the weather as “horrible” with lots of snow and ice on the
road. Budzar testified that he was traveling in the right lane at a speed of 35-45 mph
when he saw two vehicles on the highway, both of which appeared to be disabled. The
first vehicle (Meadows car) was further east and was stopped sideways to the right of the
right berm near the guardrail. The second vehicle (Saah’s car) was turned sideways,
facing north, blocking part of the center and right lanes and appeared to be moving
slowly, coming to a stop. He testified that he intended to drive between the two vehicles,
hoping that Saah’s vehicle would create a path for him “[b]ecause there was no way I
could stop.” However, Saah’s vehicle did not move in time, and Budzar’s vehicle struck
the driver’s-side door of Saah’s vehicle. Saah died from the injuries she sustained in the
incident. Saah was survived by her children, Salem, Samer Saah, Rana Zaboura and
Rema Tadros, and her mother, Zuhdieh Kash. {¶7} On May 31, 2012, Sarrough filed a complaint against Joel Budzar, Benitza
Montgomery, Mark Montgomery, Sarah Owings, Brittini Meadows, Donna Russo and
Peerless to recover damages for the fatal injuries Saah sustained in the February 20, 2011
incident. Salem, Samer Saah, Rana Zaboura, Rema Tadros and Zuhdieh Kash also
asserted claims in the action. As to Peerless, Sarrough asserted a claim for breach of
contract, alleging that Peerless had failed to pay the estate the UIM benefits to which it
was entitled under Saah’s automobile insurance policy with Peerless. Peerless filed an
answer denying the material allegations of the complaint relating to the breach of contract
claim and asserting various affirmative defenses.
{¶8} At the time of the incident, Meadows was insured under a policy issued by
Century Insurance with $100,000/$300,000 liability limits, Budzar was insured by
Peerless under a policy with $100,000/$300,000 liability limits and Saah was insured
under a Peerless policy that included UIM coverage with a “single limit” of $300,000 for
“[e]ach [a]ccident.” Under the terms of its policy with Saah, Peerless had a right of
setoff against its limit of liability for “all sums paid because of ‘bodily injury’ by or on
behalf of persons or organizations who may be legally responsible.”
{¶9} Settlement conferences were conducted in April and May 2013 during which
the insurers for Meadows and Budzar each tendered their respective policy limits of
$100,000, which were accepted subject to Peerless’s approval. Peerless consented to the
estate’s acceptance of the $200,000 offered by Meadows and Budzar’s insurers and
tendered an additional $100,000, which it claimed was the balance of the $300,000 single
limit UIM coverage available under Saah’s policy after the setoff. All claims except the breach of contract claim between Saah and Peerless were settled and/or dismissed
following the settlement conferences.
{¶10} On November 25, 2013, Peerless filed a motion for summary judgment,
asserting that, based on the undisputed material facts, Peerless had fully satisfied its
obligations under the automobile insurance policy it had issued to Saah and was,
therefore, entitled to judgment as a matter of law on Sarrough’s breach of contract claim.
Peerless argued that there was only one “accident” that resulted in “bodily injury” to Saah
and that because Peerless was entitled to set off any amounts paid by other tortfeasors
under the policy, i.e., the $200,000 paid by Meadows and Budzar’s insurers, Peerless had
satisfied its obligations under the policy when it tendered $100,000 to the estate. In
support of its motion, Peerless attached a certified copy of the policy and cited to
deposition testimony from the parties and witnesses involved in the incident.
{¶11} A day later, Sarrough filed her own motion for partial summary judgment,
seeking a judicial declaration that two “accidents” had occurred — one involving
Meadows vehicle and one involving Budzar’s vehicle — and that up to $400,000 in UIM
coverage ($200,000 for each of the two accidents less the $200,000 the estate received
from Meadows and Budzar’s insurers) was available to the estate under the policy. In
support of her motion, Sarrough attached copies of the policy and the traffic crash report
from the February 20, 2011 incident and cited deposition testimony from the involved
parties and witnesses. Each party opposed the summary judgment motion filed by the
other party and filed replies in support of their own motions. Peerless also filed a motion
to strike the traffic crash report attached to Sarrough’s motion for partial summary judgment on the grounds that it was not properly authenticated, included inadmissible
hearsay and did not otherwise constitute proper summary judgment evidence under Civ.R.
56(C). Sarrough did not file a separate opposition to the motion to strike but argued in
her reply to her motion for partial summary judgment that “the witnesses were questioned
at length about numerous aspects of these investigatory materials during their discovery
depositions,” that “they all confirmed the same general version of the tragic episode” and
that Peerless’s objections were “immaterial” because “the necessary facts and
circumstances [had] been established through deposition testimony.”
{¶12} On December 4, 2014, the trial granted Sarrough’s motion for summary
judgment and denied Peerless’s motion for summary judgment. Interpreting the
insurance policy, the trial court reasoned that because the term “accident” was not defined
in the policy, it must “be broadly construed to refer to all types of unexpected or
unintended happenings” and “must be viewed from the standpoint of the insured.” The
trial court held that, based on the undisputed facts, “reasonable minds can only conclude
that there were at least two separate accidents”: (1) the accident caused by Meadows, who
forced Saah’s vehicle to change lanes and spin out of control and (2) the accident caused
by Budzar when his vehicle struck Saah’s vehicle. The trial court observed that, under
the policy, UIM coverage applies “when an insured is ‘legally entitled to recover’ from an
uninsured or underinsured tortfeasor” and that this requirement was satisfied with respect
to the “accident” involving Meadows vehicle because Meadows had settled the wrongful
death and survivorship claims brought against her arising out of the accident. The trial
court rejected Peerless’s argument that an “impact” was required in order to constitute an “accident” under the policy, noting that Peerless had taken the position that the $100,000
payment received from Meadows insurer had reduced its coverage obligation under the
policy (notwithstanding that there was no impact between Saah’s and Meadows vehicles)
and that, in the property damage section of the policy, Peerless had specifically imposed
an “impact” requirement for collision coverage and thus knew “how to adopt” such a
requirement when it applied. As the trial court explained:
[S]ince “accident” was not defined in the Ohio Uninsured/ Underinsured Motorist Endorsement, it is evident that the parties did not intend to exclude non-impact incidents. Since the evidence is undisputed that Hanan Saah’s car was left vulnerable on the highway as a result of an unexpected and unintended happening, for which her survivors are legally entitled to recover from an underinsured motorist, then the conclusion is unavoidable that an “accident” occurred before Budzar negligently caused the second one that resulted in fatal injuries.
{¶13} Because there were two “accidents,” the trial court held that Sarrough could
recover up to the $300,000 limits of liability for each accident, i.e., that the total amount
of underinsured motorist coverage available to Sarrough under the policy was $600,000
(subject to the $200,000 set-off). The trial court also found that “reasonable minds could
only conclude that, but for the negligence of both Meadows and Budzar, Hanan Saah
would not have suffered fatal injuries” and that because Sarrough was “legally entitled to
recover from both underinsured motorists for each accident they caused,” separate per
accident limits (less the $200,00 setoff) “must be tendered” by Peerless to satisfy its
obligations under the policy. The trial court held that therefore, Sarrough was “entitled
to total underinsured motorist limits from Peerless in the amount of $400,000” and
entered final judgment in favor of Sarrough and against Peerless. {¶14} Peerless timely appealed the trial court’s judgment, presenting the following
five assignments of error for review:
FIRST ASSIGNMENT OF ERROR The trial court erred in granting plaintiff’s motion for summary judgment
and in denying defendant Peerless Indemnity Insurance Company’s motion
for summary judgment.
SECOND ASSIGNMENT OF ERROR The trial court erred in its interpretation of Peerless Indemnity Insurance Company’s policy which provides a single limit of uninsured/underinsured motorists coverage of $300,000 as the “maximum limit of liability for all damages resulting from any one accident” and that “this is the most we will pay regardless of the number [of] insureds, claims made, or vehicles involved in the accident” where there was only one impact proximately causing Hanan Saah’s injuries and, therefore, the court had no valid basis for holding that there were two “accidents” thereby doubling the total policy limits of uninsured/underinsured motorists coverage available to plaintiff under the policy for Hanan Saah’s accident (reduced by $200,000 paid by those legally responsible).
THIRD ASSIGNMENT OF ERROR The trial court erred in granting plaintiff’s motion for summary judgment where plaintiff moved only for partial summary judgment.
FOURTH ASSIGNMENT OF ERROR The trial court erred in holding as a matter of law that Peerless must tender in separate “per accidents” limits for two accidents and that “plaintiff is entitled to total underinsured motorist limits from Peerless in the amount of $400,000” without a trial by jury to determine the comparative negligence of Hanan Saah and the alleged tortfeasors, which “accident” was the proximate cause of plaintiff’s damages, and the amount of those damages suffered in each accident, in violation of Peerless Indemnity’s constitutional rights.
FIFTH ASSIGNMENT OF ERROR The trial court erred in declining to rule on Peerless Indemnity Insurance Company’s “motion to strike” thereby effectively denying Peerless’[s] objection to the admissibility into evidence of an unauthenticated traffic report and its hearsay contents. Peerless’s first and second assignments of error and third and fourth assignments of error
are interrelated and will be addressed together.
Law and Analysis
Standard of Review
{¶15} An appeal of a trial court’s summary judgment ruling is subject to a de
novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio
App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997). We accord no deference to the trial
court’s decision and independently review the record to determine whether summary
judgment is appropriate.
{¶16} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue exists as to any material fact, (2) the party moving for summary judgment is entitled
to judgment as a matter of law and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion, which is adverse to
the nonmoving party.
{¶17} The moving party carries an initial burden of informing the court of the
basis for the motion and identifying those portions of the record that set forth specific
facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this
burden, summary judgment is not appropriate; if the moving party meets this burden,
summary judgment is appropriate only if the nonmoving party fails to meet its reciprocal burden, setting forth specific facts establishing that a genuine issue exists for trial. Id. at
293.
Interpretation of the Insurance Policy
{¶18} Peerless’s first two assignments of error turn on the interpretation of the
insurance policy. The Peerless policy issued to Saah included UIM coverage with a
“single limit” of $300,000 for “[e]ach [a]ccident.” The terms of Saah’s UIM coverage
are detailed in the “UNINSURED MOTORISTS COVERAGE — Ohio” endorsement to
the policy, which provides, in relevant part:
INSURING AGREEMENT
A. We [Peerless] will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of:
1. An “uninsured motor vehicle” as defined in Sections 1., 2. and 4. of the definition of an “uninsured motor vehicle” because of “bodily injury”:
a. Sustained by an “insured”; and
b. Caused by an accident.
***
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “uninsured motor vehicle.” We will pay under this coverage only if 1. or 2. below applies:
1. The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by the payment of judgments or settlements * * *
C. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
*** 2. To which a body injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is * * * [l]ess than the limit of liability for this coverage[.]
LIMIT OF LIABILITY
A. The Limit of Liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:
1. “Insureds”;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
B. With respect to coverage under Section 2. of the definition of “uninsured motor vehicle,” the limit of liability shall be reduced by all sums paid because of “bodily injury” by or on behalf of persons or organizations who may be legally responsible. * * *
The term “accident” is not defined in the policy.
{¶19} “‘An insurance policy is a contract whose interpretation is a matter of law’”
and is reviewed on a de novo basis. Sauer v. Crews, 140 Ohio St.3d 314,
2014-Ohio-3655, 18 N.E.3d 410, ¶ 10, quoting Sharonville v. Am. Emp. Ins. Co., 109
Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6; Westfield Ins. Co. v. Hunter, 128
Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12, citing Nationwide Mut. Fire Ins.
Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). {¶20} As the Ohio Supreme Court has instructed, when interpreting an insurance
policy:
When confronted with an issue of contractual interpretation, the role of a court is to give effect to the intent of the parties to the agreement. Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999), citing Employers’ Liab. Assur. Corp. v. Roehm, 99 Ohio St. 343, 124 N.E. 223, syllabus (1919); see also Section 28, Article II, Ohio Constitution. We examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411, paragraph one of the syllabus (1987). We 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. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, paragraph two of the syllabus (1978).
Westfield Ins. Co. v. Custom Agri Sys., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d
269, ¶ 8, quoting Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797
N.E.2d 1256, ¶ 11.
{¶21} “‘[W]ords and phrases used in an insurance policy must be given their
natural and commonly accepted meaning, where they in fact possess such meaning, to the
end that a reasonable interpretation of the insurance contract consistent with the apparent
object and plain intent of the parties may be determined.’” Gomolka v. State Auto. Mut.
Ins. Co., 70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347 (1982). Because, in an insurance
context, the insurer customarily drafts the contract, any ambiguity in an insurance contract
is interpreted against the insurer and in favor of the insured. Galatis at ¶ 13 (“[W]here
the written contract is standardized and between parties of unequal bargaining power, an
ambiguity in the writing will be interpreted strictly against the drafter and in favor of the
nondrafting party.”); Sharonville at ¶ 6 (“If provisions are susceptible of more than one interpretation, they ‘will be construed strictly against the insurer and liberally in favor of
the insured.’”), quoting King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380
(1988), syllabus. However, there are limits to this rule. “[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.” Sauer at ¶
12, quoting Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d
666, ¶ 16; see also Gomolka at 168 (“[W]here the provisions of an insurance policy are
clear and unambiguous courts may not indulge themselves in enlarging the contract by
implication in order to embrace an object distinct from that contemplated by the parties, *
* * nor read into the contract a meaning not placed there by an act of the parties, * * * nor
make a new contract for the parties where their unequivocal acts demonstrate an intention
to the contrary * * *[.]”). A term is not necessarily ambiguous simply because it is not
defined in the insurance contract. State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104
Ohio St.3d 559, 2004-Ohio-7102, 820 N.E.2d 910, ¶ 23; Guman Bros. Farm, 73 Ohio
St.3d at 108, 652 N.E.2d 684.
{¶22} Sarrough asserts that “[b]ased on the undisputed facts,” there were “at least
two separate accidents on February 20, 2011” that caused Saah’s fatal injuries — one
involving Meadows vehicle and one involving Budzar’s vehicle. Peerless disagrees.
Peerless argues that because Saah’s vehicle was involved in only one “impact,” there was
only one “accident” “regardless of the number of negligent motorists on the highway
during the evening of February 20, 2011, whose negligence may have contributed to this
accident.” In other words, because there was no “impact” with Saah’s vehicle as a result of the events involving Meadows vehicle, Peerless maintains that the events involving
Meadows vehicle could not be deemed a separate “accident” under the policy. Peerless
further contends that such a conclusion “affords * * * ‘accident’ its ‘natural’ and
commonly accepted meaning” and is the only reasonable interpretation of the policy
language that states that Peerless’s $300,000 “limit of liability” is “our maximum limit of
liability for all damages resulting from any one accident” and “the most we will pay
regardless of the number of * * * ‘[i]nsureds’; * * * [c]laims made; * * * or * * *
[v]ehicles involved in the accident.” We disagree.
{¶23} Applying the principles of construction set forth above, considering both
(1) the plain and ordinary meaning of “accident” and (2) Peerless’s failure to include a
more precise definition of the term in its policy, we conclude that the trial court properly
determined that the series of events involving Meadows vehicle and the separate impact
with Budzar’s vehicle constituted two “accidents” within the meaning of the policy.
{¶24} The parties agree that the plain and ordinary meaning of “accident” is “‘an
unexpected and undesirable event,’” Miller v. Motorists Mut. Ins. Co., 196 Ohio App.3d
753, 2011-Ohio-6099, 965 N.E.2d 369, ¶ 27, (11th Dist.) quoting Webster’s II New
College Dictionary 6 (1999),
“‘an event proceeding from an unexpected happening or unknown cause without design and not in the usual course of things; an event that takes place without one’s expectation; an undesigned, sudden and unexpected event; an event which proceeds from an unknown cause or is an unusual effect of a known cause and, therefore, unexpected,’”
Westfield Ins. Co. v. Our 3 Sons, Inc., 8th Dist. Cuyahoga No. 87452, 2006-Ohio-3688, ¶
28, quoting Am. State Ins. Co. v. Guillermin, 108 Ohio App.3d 547, 556, 671 N.E.2d 317 (2d Dist.1996); see also Custom Agri Sys., 133 Ohio St.3d 476, 2012-Ohio-4712, 979
N.E.2d 269, at ¶ 13 (noting that “accidental” has been defined as “‘unexpected, as well as
unintended’”), quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657,
666, 597 N.E.2d 1096 (1992).
{¶25} Applying this definition to the facts of here, one might reasonably interpret
“accident” as Peerless does, i.e., to conclude that the nearly continuous sequence of
events that allegedly combined to cause Saah’s fatal injuries constituted a single
“accident” or “unexpected happening.” However, one might also reasonably conclude
(1) that the series of events involving Meadows vehicle (including the sudden, the evasive
actions that Saah was forced to undertake to avoid a collision with Meadows vehicle and
the vulnerable position in which Saah’s vehicle came to a rest after avoiding that
collision) constituted one “accident” or “unexpected happening” and (2) that the collision
of Budzar’s vehicle with Saah’s vehicle constituted a second “accident” or “unexpected
happening.” An “impact” is not required for an incident to constitute an unexpected
event or happening. It is undisputed that the events involving Meadows vehicle occurred
before Budzar struck Saah’s vehicle (i.e., that the events were sequential, not concurrent),
that the events involved two different alleged tortfeasors engaging in separate,
independent conduct (i.e., one alleged tortfeasor’s conduct was not impacted by or
attributable to the other) and that both Saah’s vehicle and Meadows vehicle came to rest
before Budzar’s vehicle struck Saah’s vehicle, i.e., the events were not part of a single
“chain reaction.” As Salem Saah testified, he thought the incident was over once
Meadows vehicle came to rest on the right berm and Saah successfully avoided hitting Meadows vehicle. Because either of these two interpretations are reasonable
interpretations of the ambiguous, undefined language Peerless chose to include in the
policy, we must construe the ambiguity against Peerless.
{¶26} In Miller, supra, the Eleventh District reached a similar conclusion when
interpreting similar policy language. In Miller, an SUV driven by Daniel Masterson
collided with a motorcycle driven by David Perine. Miller,196 Ohio App.3d 753,
2011-Ohio-6099, 965 N.E.2d 369, at ¶ 3. A second driver, Michael Reese, who had been
following Perine’s motorcycle, tried to take evasive action to avoid Perine’s motorcycle
after it was struck by Masterson’s vehicle but was unsuccessful and also struck Perine’s
motorcycle. Id. Within 0.3 seconds of striking Perine, Masterson collided with a
second motorcycle driven by Geoffrey Davis. Id. at ¶ 4. Davis, Perine, Reese and their
respective passengers were injured in the incident. Id. at ¶ 3-4.
{¶27} Masterson was insured under a policy that provided liability coverage for
bodily injury with limits of $100,000 for each person and $300,000 for each accident.
Id. at ¶ 5. The policy contained a “limit of liability” provision, which stated that “our
maximum limit of liability for all damages resulting from any one accident * * * is the
most we will pay regardless of the number of * * * “[i]nsureds”; * * * [c]laims made; * *
* or * * * [v]ehicles involved in the accident.” The term “accident” was undefined. Id.
at ¶ 15-20. The parties disagreed whether the incident involved one “accident” or two
“accidents,” i.e., whether Masterson’s collision with Davis’s motorcycle constituted a
separate “accident” subject to separate per accident limits under Masterson’s insurance policy. Id. at ¶ 6. Davis and his passenger filed a declaratory judgment action, and the
parties filed cross-motions for summary judgment on the issue. Id. at ¶ 8.
{¶28} The trial court granted summary judgment in favor of the insurer finding
that the incident was “one continuous course of conduct” and, therefore, one “accident”
under the policy. Id. Davis and his passenger appealed, and the Eleventh District
reversed. Id. at ¶ 9, 32.
{¶29} Giving the term “accident” its plain and ordinary meaning, the Eleventh
District held that a “[a] person unversed in the technicalities of insurance law might * * *
easily conclude that [the insured’s striking of each of the vehicles], sequentially,
constituted separate accidents or occurrences, rather than the single accident or
occurrence of losing control of the [car] * * *.” Id. at ¶ 27, quoting Nationwide Mut. Ins.
Co. v. Godwin, 11th Dist. Lake No. 2005-L-183, 2006-Ohio-4167,¶ 49. The court held
that although the policy
specifically accounts for and limits [the insurer’s] liability in an event such as the first collision, a chain reaction if you will, whereby the same automobile strike causes injuries to multiple parties and vehicles[,] [t]he policy does not specifically contemplate and limit [the insurer’s] liability in a sequence of events as presented in this case, where two separate and distinct automobile strikes cause injury to multiple parties.
Miller at ¶ 31. The court observed that the insurer “had the opportunity to define
accident and construct its policy in a way which limited its liability in a situation such as
the one before us” but that because “[i]t chose not to do so,” the appellate court “must
construe the ambiguity in favor of [Davis and his passenger].” Id. at ¶ 31. Accordingly,
the court concluded that the series of collisions involving Masterson’s constituted two “accidents” under the policy. Id. at ¶ 1; see also Godwin, 2006-Ohio-4167, at ¶ 49, 51
(where insurer failed to define term “accident” or “occurrence” in insurance policy, policy
was determined to be ambiguous and was construed against the insurer such that an
incident with sequential impacts involving two different victims was deemed to
encompass two separate “accidents” or “occurrences” for purpose of policy’s liability
limits clause). A similar conclusion is warranted here. 1 Peerless’s attempt to
distinguish these cases on the ground that they involved “two separate impacts” is not
persuasive for the reasons explained above.
{¶30} Peerless further argues that even if the events involving Meadows vehicle
could be considered an “accident” that caused Saah’s injuries (notwithstanding there was
no “impact”), the court should still find that there was only one “accident” under the
policy because Saah’s injuries were the result of a single cause — “treacherous road
conditions” — that caused both Meadows and Budzar to lose control of their vehicles.
In support of its argument, Peerless points out that several Ohio courts, including this
court, have applied a “causation approach” in determining the number of accidents that
have occurred for purposes of liability coverage. See, e.g., Dutch Maid Logistics, Inc. v.
Acuity, 8th Dist. Cuyahoga Nos. 91932 and 92002, 2009-Ohio-1783; Greater Cincinnati
1 The court indicated that it could reach the same conclusion by applying a causation analysis. See discussion infra at ¶ 30, stating that in comparing the cause of the injuries to Perine, Reese and their respective passengers with the cause of the injuries to Davis and his passenger, “they appear decidedly different.” Miller at ¶ 28. The court explained: “The injuries to the former group are as a direct result of Mr. Masterson’s collision with Mr. Perine’s motorcycle. [The injuries to Davis and his passenger], however, do not stem from that collision; instead, they are a direct result of an independent collision between Mr. Masterson’s vehicle and their own motorcycle.” Id. Chamber of Commerce v. Ghanbar, 157 Ohio App.3d 233, 2004-Ohio-2724, 810 N.E.2d
455, ¶ 11 (1st Dist.); Progressive Preferred Ins. Co. v. Derby, 6th Dist. Fulton No.
F-01-002, 2001 Ohio App. LEXIS 2649 (June 15, 2001). Under the causation approach,
the terms “accident” or “occurrence” as used in an insurance policy are construed “by
determining whether there is but one proximate cause for a series of injuries.” Godwin at
¶ 31, citing Derby at *8-9. “If the injuries are the result of continuous or repeated
exposure to the same conditions, then only one accident has occurred.” Greater
Cincinnati Chamber of Commerce v. Ghanbar, 157 Ohio App.3d 233, 2004-Ohio-2724,
810 N.E.2d 455, ¶ 11 (1st Dist.), citing Banner v. Raisin Valley, Inc., 31 F.Supp.2d 591,
593 (N.D.Ohio 1998); Miller at ¶ 23 “The ‘causation approach’ to policy interpretation
focuses on the cause of the insured event, not the effects.”); see also Manor Care, Inc. v.
First Specialty Ins. Corp., N.D. Ohio No. 3:03CV7186, 2006 U.S. Dist. LEXIS 48249,
*11-12 (July 17, 2006) (In Ohio, “‘proximate cause is an integral part of any
interpretation of the words accident or occurrence as used in a contract for liability
insurance.’ * * * ‘[W]here there is but one proximate, uninterrupted and continuous
cause, all injuries and damages are included within the scope of that single proximate
cause.’ The converse is also true: Where there are multiple proximate causes, each is a
separate occurrence under an insurance contract.”), quoting Derby at *8-9.
{¶31} Peerless argues that even if Meadows negligence could be considered a
proximate cause of Saah’s injuries, her negligence, along with Budzar’s negligence, was
simply part of a “continuous chain of events caused by the treacherous road conditions,”
and, therefore, together comprised only a single “accident” under the policy. {¶32} Once again, we disagree. The authorities upon which Peerless relies for its
argument are readily distinguishable from this case. Each of those cases involved a
single tortfeasor whose continuous tortious conduct allegedly resulted in multiple injuries
to one or more victims. See Dutch Maid Logistics, Inc. v. Acuity, 8th Dist. Cuyahoga
Nos. 91932 and 92002, 2009-Ohio-1783, ¶ 29 (where semitruck driver caused a
multivehicle accident resulting in two deaths and bodily injuries to three others, court
concluded that there was one “accident” for purpose of applying policy limits based on
finding that “there was but one continuous accident that caused all the bodily injury
claims that flowed from it” and definition of “accident” in policy that “encompass[ed] as
many vehicles and injuries as caused by the same tortfeasor”); Ghanbar at ¶ 9-12 (actions
of insured in driving drunk, “plowing through a crowd of people” at a city festival and
“injur[ing] them almost simultaneously” constituted a single accident for purposes of
limits of liability coverage; injuries occurred as a result of “a single, indivisible course of
conduct” by the insured and were, therefore, the result of a single “sudden, unexpected
and unintended occurrence” within the meaning of “accident” as defined in the policy);
Derby, 2001 Ohio App. LEXIS 2649 (rejecting claim that two “accidents” occurred for
purposes of determining applicable liability limits under employer’s insurance policy for
injuries to traffic control flagger that occurred when dump truck operator backed over
her, then immediately shifted into forward gear and drove over her a second time,
reasoning that “[a]ll of these events were in a continuous series, closely linked in both
time and space” and, therefore, involved a single “accident” within meaning of insurance
policy). This case, however, is not a case in which one continuous, indivisible course of conduct by one individual is alleged to have injured the victim. Here, we arguably have
the reverse, i.e., multiple alleged causes of fatal injuries to a single victim.
{¶33} Further, although these courts referenced the causation approach in
determining that one accident or occurrence had occurred, the court’s decision in each of
these cases was based primarily on the definition of “accident” included in the policy at
issue. In Dutch Maid Logistics and Derby, the policies at issue defined “accident” to
include “a continuous or repeated exposure” to the same or substantially the same
conditions. Dutch Maid Logistics at *21-22 (policy included provision stating that “[a]ll
bodily injury * * * resulting from continuous or repeated exposure to the same conditions
will be considered as resulting from one accident” and defined “accident” as including
“continuous or repeated exposure to the same conditions resulting in bodily injury * * *
”): Derby at *6-7 (“accident” defined, in relevant part, as “a sudden, unexpected and
unintended event, or a continuous or repeated exposure to substantially the same
conditions to that event that causes bodily injury * * * ”). In this case, by contrast, the
term “accident” was left undefined by the insurer.
{¶34} Further, although the policy in this case states that Peerless’s “maximum
limit of liability for all damages resulting from any one accident” is “the most [it] will pay
regardless of the number of * * * ‘[i]nsureds’; * * * [c]laims made; * * * or * * *
[v]ehicles involved in the accident,” it is noticeably silent with regard to the number of
alleged tortfeasors. See Ross v. State Auto. Mut. Ins. Co., 5th Dist. Licking No. 00CA69,
2001 Ohio App. LEXIS 733 (Feb. 26, 2001) (where the decedent died as the result of the
negligence of two underinsured tortfeasors, court construed policy language against the insurer, finding that policy did not limit the coverage available to a single claim and that
policy’s $300,000 per accident limits applied to each tortfeasor separately, such that the
total amount of UIM coverage available to appellees was $600,000).
{¶35} Even if we were to apply the causation approach to the facts here, we would
find that there is more than one alleged cause of Saah’s fatal injuries and thus, more than
one potential “accident” for liability limits purposes. Here, the alleged causes of Saah’s
injuries were separate acts of negligent conduct by Meadows and Budzar. The “cause”
considered under the causation approach is the tortious conduct that allegedly caused the
injuries at issue, not, as Peerless contends, the surrounding circumstances that allegedly
led to the tortious conduct. If, as Peerless contends, Saah’s injuries had been caused by
the road conditions rather than by the negligence of Meadows and/or Budzar, UIM
coverage would not be an issue because UIM coverage under the policy is limited to
“compensatory damages which an ‘insured’ is legally entitled to recover from the owner
or operator of [an underinsured vehicle].”
{¶36} Accordingly, the trial court properly determined that the policy provided up
to $200,000 in UIM coverage ($300,000 less the $100,000 setoff) for each of the two
“accidents” alleged to have caused Saah’a fatal injuries in this case (for a total of up to
$400,000 in UIM coverage). Peerless’s first and second assignments of error are
overruled.
Trial Court’s Determination that Peerless Was Required to Tender and That Sarrough Was Entitled to $400,000 in UIM Benefits {¶37} In its third and fourth assignments of error, Peerless argues that the trial
court erred in entering full summary judgment on Sarrough’s breach of contract claim and
determining as a matter of law that Sarrough was entitled to total underinsured motorist
benefits from Peerless in the amount of $400,000 because Sarrough (1) moved only for
partial summary judgment and (2) presented no evidence of damages caused by either
“accident.” Peerless argues that “the comparative negligence of [Saah] and the alleged
tortfeasors,” whether each accident was the proximate cause of Sarrough’s damages, and
the amount of damages, if any, caused by each accident were issues of fact for the jury to
decide.
{¶38} Sarrough concedes that she “had not requested an adjudication of damages”
and that Peerless “is fully entitled to explain to a jury how [d]ecedent was really at fault
for her own death and [that] her family’s wrongful death/survivorship damages are not
worth the policy limits.” She contends that Peerless’s arguments are based on a
misreading of the trial court’s December 3, 2014 opinion and order, i.e., that the
December 3, 2014 opinion and order did not grant her full summary judgment but simply
declared the amount of the policy limits that were potentially available on her breach of
contract claim. She asserts that “[e]veryone understood that damages had yet to be
determined” and that the December 3, 2014 judgment entry was not a final order because
“the amount of the judgment to be imposed” had not yet been decided. We disagree.
{¶39} The trial court, in its December 3, 2014 opinion and order, did not simply
declare that there were two accidents and that a separate $300,000 limit of liability (less
setoff) was potentially available to Sarrough for each accident under the policy. The trial court went further, finding (1) that “reasonable minds could only conclude that, but for
the negligence of both Meadows and Budzar, Hanan Saah would not have suffered fatal
injuries” and (2) that “[s]ince plaintiff is legally entitled to recover from both
underinsured motorists for each accident they caused, separate ‘per accidents’ limits must
be tendered for a total of $600,000” (emphasis added), less the setoffs — issues as to
which there are clearly facts in dispute. Based on these findings, the trial court
concluded that Sarrough was “[t]herefore, * * * entitled to total underinsured limits from
Peerless in the amount of $400,000.00.” Nothing in the trial court’s order made
Peerless’s liability for this amount contingent upon any further findings or
determinations. The trial court journalized its order as a “final” judgment entry, and all
other claims in the case had been previously dismissed. As such, the December 3, 2014
judgment entry was a final, appealable order. R.C. 2505.02(B); see also State ex rel.
White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 546, 684 N.E.2d 72 (1997)
(observing that the general rule is that orders deciding liability but “deferring” the issue of
damages are not final appealable orders under R.C. 2505.02 “because they do not
determine the action or prevent a judgment” but that an exception to this rule exists such
that even “a judgment not completely determining damages is a final appealable order
where the computation of damages is mechanical and unlikely to produce a second appeal
because only a ministerial task similar to assessing costs remains”).
{¶40} Sarrough concedes that, based on the evidence submitted by the parties in
support of their motions for summary judgment, genuine issues of material fact remain
regarding negligence, causation and damages. Although the trial court properly held, based on the interpretation of the policy, that as to each “accident,” Peerless bears
underinsured motorist liability of up to $200,000 (its $300,000 per accident policy limits
less the $100,000 already received from Meadows and Budzar’s insurers), the trial court
went too far, based on the summary judgment record here, in conclusively deciding issues
of negligence, causation and damages on summary judgment. We sustain Peerless’s
third and fourth assignments of error.
Motion to Strike
{¶41} In its fifth and final assignment of error, Peerless argues that the trial court
erred in failing to strike the traffic crash report and “its hearsay contents” attached to
Sarrough’s motion for partial summary judgment. Peerless further contends that we
should “presume” that the trial court relied on these improper evidentiary materials in
ruling on the parties’ summary judgment motions.
{¶42} The trial court did not rule on Peerless’s motion to strike before granting
Sarrough’s motion for summary judgment. As such, it is presumed to be denied. See,
e.g., Mayfair Village Condo. Owners Assn. v. Grynko, 8th Dist. Cuyahoga No. 99264,
2013-Ohio-2100, ¶ 4, fn. 2 (“Although the trial court never ruled on the motion, if a
motion is not expressly decided by the trial court when the case has concluded, the motion
is presumed to have been denied.”), citing Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, 770 N.E.2d 58. Even assuming that all or part of the traffic crash
report constituted inadmissible hearsay, there is nothing in the record that suggests that
the trial court considered the traffic crash report or any information contained in the
traffic crash report in deciding the parties’ cross-motions for summary judgment. The parties agree that the material facts upon which the trial court’s summary judgment ruling
was based are undisputed. Those facts were established independently of the traffic
crash report based on the deposition testimony of the witnesses. Peerless has not
claimed, much less demonstrated, any prejudice resulting from the trial court’s denial of
its motion to strike. Accordingly, any such error was harmless and did not affect the
substantial rights of the parties. Civ.R. 61. Peerless’s fifth assignment of error is
{¶43} Judgment affirmed in part and reversed in part. Case remanded for further
proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
__________________________________________ EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and SEAN C. GALLAGHER, J., CONCUR