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Indiana Insurance Co. v. Farmers Insurance of Columbus9/9/2003
and rejection of UM/UIM coverage pursuant to the Ohio Supreme Court's decision in Linko v. Indemn. Ins. Co. of N. Am., 90 Ohio St.3d 445, 2000-Ohio-92. The Linko case requires that in making a written offer, the insurer must inform the insured of the availability of UM/UIM coverage, set forth the premium, describe the coverage and state the coverage limits. Id. at 449. Failure to do so results in UM/UIM coverage arising by operation of law. Therefore, Federal's commercial umbrella policy provides UIM coverage by operation of law.
Federal next argues the decedent's estate and the estate's beneficiaries are not "persons insured under the policy" and therefore, are not entitled to UIM coverage under Coverage A of the commercial umbrella policy. We disagree with this argument based upon the definition of "Insured" contained in Coverage A of the commercial umbrella policy. This definition provides:
"Insured means:
"1. the Named Insured stated in Item 1 of the Declarations;
"2. Any person or organization included as an insured in underlying insurance; and
"3. at your option and subject to the terms of this policy at the time of claim or suit, persons or organizations included as additional insureds in underlying insurance, but only for their liability arising out of operations of the Named Insured."
Pursuant to this definition, we conclude the decedent and Vernon McDonald are UIM insureds under Federal's commercial umbrella policy, Coverage A, because we previously determined they are insureds under Federal's business auto policy, an underlying policy. Accordingly, the trial court did not err when it determined the decedent and Vernon McDonald are insureds entitled to UIM coverage under Coverage A of Federal's commercial umbrella policy with the applicable policy limit of excess coverage in the amount of $20,000,000.
Federal's Second Assignment of Error is overruled.
III, IV
Federal's Third and Fourth Assignments of Error raise issues concerning the arbitration proceeding. We find these assignments of error moot having determined that coverage exists under both the business auto policy and commercial umbrella policy. "Cross-Appeal"
I.
In their First Assignment of Error, on cross-appeal, appellees maintain the trial court erred when it denied their request to grant judgment, in the full amount of the arbitration award less applicable set offs, against Federal. We disagree.
In support of this argument, appellees cite the Ohio Supreme Court's decision in Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842. The Goodyear case involves a lawsuit filed by Goodyear Tire & Rubber Company against Aetna Casualty & Surety Company and several other insurance companies. Id. at 1. Goodyear sought declaratory judgments concerning insurance claims for pollution cleanup costs at twenty-two sites. Id.
One of several issues the Ohio Supreme Court addressed on appeal concerned the issue of allocation of coverage. The Court decided to adopt the "all sums" approach of allocation which "* * * permits the policyholder to seek coverage from any policy in effect during the time period of injury or damage." Id. at 6. "The `all sums' approach allows Goodyear to seek full coverage for its claims from any single policy, up to that policy's coverage limits, out of the group of policies that has been triggered." Id.
In adopting the "all-sums" approach, the Court held:
"1. When a continuous occurrence of environmental pollution triggers claims under multiple primary ins
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