Opinion
Case No. 3:19-cv-01132-JGC
09-15-2020
METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff v. MOTORISTS MUTUAL INSURANCE COMPANY, et al., Defendants.
For the Plaintiff: John A. Rubis, Thomas M. Coughlin, Jr., Ritzler, Coughlin & Paglia, Cleveland Ohio. For Motorists Mutual Insurance Co.: Merle D. Evans, III, Milligan Pusateri, Canton, Ohio. For American Road Insurance Co.: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Sean P. McCormick, Thompson Hine, Miamisburg, Ohio. For Horst and Susan Herzog: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Frank S. Carson, Frost Brown Todd, Columbus, Ohio. For Ford Motor Co.: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Sean P. McCormick, Thompson Hine, Miamisburg, Ohio. For Horst Herzog, and Susan Herzog: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Frank S. Carson, Frost Brown Todd, Columbus, Ohio. For Oregon Ford, Inc.: Kenneth J. White, Marshall & Melhorn, Toledo, Ohio. For James E. Witter and Robin G. Witter: Michael A. Saltzer, Kisling, Nestico & Redick, Cleveland, Ohio. For Walmart Stores, Inc. Associates’ Health and Welfare Plan: J. Gordon Howard, Russell, Oliver & Stephens, Memphis Tennessee.
For the Plaintiff: John A. Rubis, Thomas M. Coughlin, Jr., Ritzler, Coughlin & Paglia, Cleveland Ohio.
For Motorists Mutual Insurance Co.: Merle D. Evans, III, Milligan Pusateri, Canton, Ohio.
For American Road Insurance Co.: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Sean P. McCormick, Thompson Hine, Miamisburg, Ohio.
For Horst and Susan Herzog: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Frank S. Carson, Frost Brown Todd, Columbus, Ohio.
For Ford Motor Co.: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Sean P. McCormick, Thompson Hine, Miamisburg, Ohio.
For Horst Herzog, and Susan Herzog: Erin E. Orndorff, Frost Brown Todd, Columbus, Ohio, Kevin C. Schiferl, Frost Brown Todd, Indianapolis, Indiana, Frank S. Carson, Frost Brown Todd, Columbus, Ohio.
For Oregon Ford, Inc.: Kenneth J. White, Marshall & Melhorn, Toledo, Ohio.
For James E. Witter and Robin G. Witter: Michael A. Saltzer, Kisling, Nestico & Redick, Cleveland, Ohio.
For Walmart Stores, Inc. Associates’ Health and Welfare Plan: J. Gordon Howard, Russell, Oliver & Stephens, Memphis Tennessee.
ORDER
James G. Carr, Sr. U.S. District Judge
This is an insurance coverage declaratory judgment action arising out of an automobile accident involving a "loaner" vehicle which, at the time of the accident, defendant Susan Herzog was driving, and another car, driven by co-defendant/cross claimant Robin Witter. Pending are summary judgment motions by Oregon Ford (unopposed), (Doc. 61), Motorists Mutual Insurance Company (Doc. 60) ("Motorists"), and Metropolitan Group Property and Casualty Insurance Company ("Metropolitan"). (Doc. 62). At issue is whether Motorists has coverage liability and the priority of under/uninsured motorist coverage as between Metropolitan and the American Road Insurance Company ("American Road").
For the reasons that follow, I grant Motorists’ motion, Oregon Ford's motion, and Metropolitan's motion as to coverage priority.
Background
On April 18, 2018, Horst Herzog brought his vehicle to Oregon Ford for service. (Doc. 60, pgID 367-68). He rented a 2017 Ford Edge automobile from Oregon Ford to use while his own vehicle was under repairs. (Id. , pgID 367). Later that day, his wife, Susan Herzog, while driving the rented, collided with Robin Witter's vehicle. (Id. , pgID 367).
Mrs. Witter and her husband, James Witter, brought negligence and negligent entrustment claims against, respectively, Mrs. Herzog and Mr. Herzog. (Doc. 16, pgID 144-46). The merits of those claims are not at issue in the pending summary judgment motions.
Three insurance companies potentially provide coverage for the Witters’ claims.
Motorists issued a Garage Coverage policy to Oregon Ford. (Doc. 60-1). That policy defined "[w]ho is an insured" as including "Anyone else, while using with your permission a covered auto you own, hire, or borrow ...." (Id., pgID 386). That policy also defined as an insured "Anyone liable for the conduct of an ‘insured’ ..." (Id., pgID 386). Motorists’ policy provides primary insurance (id., pgID 380) with policy limits of $25,000 (Doc. 60, pgID 367).
Mr. Herzog's rental agreement with Oregon Ford for the loaner vehicle (Doc. 60-2) contains a provision entitled "Who May Drive the Vehicle":
Only You and persons listed as Additional Drivers on the Rental Record may drive the Vehicle ("Authorized Drivers"). No other person(s) may drive the Vehicle except for valet parking or in an emergency as permitted by law.
(Doc. 62, pgID 406).
Mr. Herzog did not list Mrs. Herzog as an additional driver on the rental agreement. (Doc. 60-2, pgID 405).
American Road Insurance Company issued a policy to Mr. Herzog on the auto that he left at Oregon Ford. Its coverage limits are $3,000,000. (Doc. 1, pgID 5-6). The American Road policy defined "Who is an Insured" to include "Anyone else while using with your permission a covered auto you own, hire or borrow."(Doc. 64, PgID 437).
The American Road policy also includes a provision titled "Other Insurance," which states that, for any covered auto that Mr. Horst drove but did not own, the policy provides only excess coverage over any other collectible benefits. The provision also states:
When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis.
(Doc. 64, pgID 437).
Metropolitan's policy covered the Herzogs’ 2000 Ford F150. (Doc. 1-2). Susan Herzog was a named insured under the policy. (Id. pgID 34). The policy limits were $250,000 per person. (Id. ).
The Metropolitan policy contained an "other insurance" clause that states:
If there is other applicable insurance, we will pay our fair share. Our fair share is the portion that our limit bears to the total of all applicable limits. Any insurance we provide with respect to non-owned autos or substitute autos will be excess over any other collectible insurance.
(Id. at 46).
Standard of Review
Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant carries its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex, supra , 477 U.S. at 324, 106 S.Ct. 2548.
"Where, as here, parties have filed cross-motions for summary judgment, the Court grants or denies each motion for summary judgment on its own merit, applying the standards described in Fed. R. Civ. P. 56." Williams v. Ohio Dep't of Rehab. & Corrs. , 2018 WL 500167, *1 (S.D. Ohio 2018).
Discussion
1. Ohio Standard for Interpretation of Insurance Policies
Under Ohio Law, "[a]n insurance policy is a contract whose interpretation is a matter of law." Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6 (2006). "[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).
2. Motorists
Motorists’ policy provides no coverage for the accident at issue. It was for Oregon Ford's benefit and provides coverage in the minimum amount - $25,000 - needed to satisfy Ohio's compulsory or financial responsibilities laws to cover drivers who drove an Oregon Ford vehicle with its permission. (Doc. 60-1, pgID 386).
Mr. Herzog's rental agreement for Oregon Ford's 2017 Ford Edge included the Motorists insurance coverage. That agreement provides that "Only you and persons listed as Additional Drivers on the Rental Record may drive the Vehicle. No other person may drive the Vehicle ..." (Doc. 60-2, pgID 406). Mr. Herzog did not list his wife as an additional driver. (Id. , pgID 405). Therefore, she was not covered under the Motorists policy.
American Road argues that Mrs. Herzog was covered under the portion of the policy that included as an insured "Anyone liable for the conduct of an ‘insured’ described above but only to the extent of that liability." (Id. pgID 386).
American Road asserts that because the Witters filed a claim against Mr. Herzog for negligent entrustment, that clause somehow reaches into the Motorist policy. It does not. If Mr. Herzog is ultimately held liable, it will be because of his own conduct in entrusting the loaner vehicle to his wife. If Mrs. Herzog is held liable, it will be for her own alleged negligence. Neither is a person "liable for the conduct of an insured." The plain meaning of the policy's unambiguous terms is that Motorists provides no coverage that the Witters can access.
Motorists is entitled to summary judgment. 3. Priority
Metropolitan has filed a motion seeking partial summary judgment declaring that, if I hold that Motorists is not liable to provide coverage, Metropolitan's policy and American Road's policy provide pro-rata UM/UIM coverage proportionate to their share of the total such insurance available under both policy's limits: Metropolitan $250,00 + American Road $3,000,000 = $3,250,000.
Because both policies contain "other insurance" and pro rata clauses, I grant Metropolitan's motion for partial summary judgment, and declare that each shall pay any judgment for the Witters on a proportionate basis: Metropolitan, 8%; American Road, 92%.
Conclusion
In light of the foregoing, it is hereby
ORDERED that:
1. Motorists Mutual Insurance Company's motion (Doc. 60) be, and the same and hereby is granted;
2. Oregon Ford's motion (Doc. 61), be, and the same hereby is granted; and
3. Metropolitan Property and Casualty Insurance Corporation's motion for partial declaratory judgment (Doc. 62) be, and the same hereby is granted as provided herein.
The Clerk shall forthwith schedule a status/scheduling conference; parties to submit joint or separate status report(s) not later than ten days before the conference.
So ordered.