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Indiana Insurance Co. v. Farmers Insurance of Columbus9/9/2003
e of `bodily injury sustained by another insured.' "
This is the identical language the Ohio Supreme Court considered in Scott-Pontzer when it concluded coverage extended to the employees of Superior Dairy. However, Federal maintains this case is distinguishable from Scott-Pontzer because a "Drive Other Car Broadened Coverage" endorsement identifies John, Elizabeth and Richard Raese as named insureds under the business auto policy
In Still v. Indiana Ins. Co., Stark App. No. 2001CA00300, 2002-Ohio-1004, we held:
"Upon reviewing the automobile policy in the instant case, we fail to find that the endorsement to the policy including these two individuals distinguishes this case from Scott-Pontzer * * * in that the ambiguity still exists, i.e. the policy still list the corporation as the name insured, thereby extending coverage to the corporation's employees." Id. at 3.
We have reached this same conclusion in Amore v. Grange Ins. Co., Richland App. No. 02CA75, 2003-Ohio-3208; Dalton v. Lumbermens Mut. Ins. Co., Stark App. No. 2002CA00198, 2003-Ohio-2897; Moore v. Hartford Fire Ins. Co., Delaware App. No. 02CAE-10-048, 2003-Ohio-2037; Heidt v. Federal Ins. Co., Stark App. No. 2002CA00314, 2003-Ohio-1785; Jordan v. Travelers Prop. Cas. Ins. Co., Stark App. No. 2002CA00248, 2003-Ohio-1309; Pahler v. Motorists Mut. Ins. Co., Stark App. No. 2002CA00022, 2002-Ohio-5762; Burkhart v. CNA Ins. Co., Stark App. No. 2001CA00265, 2002-Ohio-903.
Accordingly, based upon these previous decisions, we conclude the inclusion of John, Elizabeth and Richard Raese in the "Drive Other Car Broadened Coverage" endorsement, in Federal's business auto policy, does not remove the Scott-Pontzer ambiguity. Therefore, pursuant to Ezawa v. Yasuda Fire & Marine Ins. Co., 86 Ohio St.3d 557, 1999-Ohio-124, the trial court did not err when it concluded the decedent qualified as an insured under the business auto policy since the decedent, as a "family member" of Vernon McDonald's, was employed by Federal's named insured, Greer.
We also conclude the trial court properly determined that both Federal and Cincinnati must share in the proportion each policy's limit bears to the total of the available limits pursuant to an "Other Insurance" clause. Both Federal's and Cincinnati's policies contain equal limits of $1,000,000. Thus, under a pro-rata analysis, both Federal and Cincinnati are required to pay $500,000 in UIM coverage to the decedent's estate.
Federal's First Assignment of Error is overruled.
II.
In its Second Assignment of Error, Federal contends the trial court erred when it concluded the decedent, John McDonald, qualified as an insured under its business auto and commercial umbrella policies. We disagree.
We determined, in Federal's First Assignment of Error, that both the decedent and Vernon McDonald are insureds under Federal's business auto policy. Therefore, as to this assignment of error, we will discuss only whether they qualify as insureds under the commercial umbrella policy. Federal's umbrella policy provides only liability coverage and features two insuring agreements: Coverage A, "Excess Follow Form Liability Coverage" and Coverage B, "Umbrella Liability Coverage." Federal maintains, and we agree, that Coverage B does not provide any coverage for claims arising out of the use of a motor vehicle. Accordingly, appellees claims for UIM coverage are limited to Coverage A.
Although Federal's commercial umbrella policy only provides liability coverage, we find UM/UIM coverage arises by operation of law because Federal does not have a valid and enforceable written offer
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