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American Motorists Insurance Co. v. Intihar9/25/2003
. This is an appeal from an order of Judge Brian J. Corrigan that granted summary judgment to The American Motorist Insurance Company ("AMICO") on appellant Diane Intihar's claim for uninsured motorist ("UM") coverage under its comprehensive automobile insurance policy issued to her employer. Mrs. Intihar claims it was error to find that a "covered auto designation" in the policy's UM terms barred her from coverage because she was driving her husband's car at the time she was injured. AMICO asserts a cross-assignment of error that claims it was also entitled to summary judgment on the alternative ground that Intihar failed to promptly notify it of her claim. We reverse and remand.
. The undisputed facts are as follows: On October 31, 1998, Mrs. Intihar was driving a car, titled to her husband, southbound on Interstate 71 in Cuyahoga County when it collided with one operated by Paul Lowery, and which caused her to sustain severe personal injuries. Lowery, who was insured, claimed that the collision was caused by a third automobile that left the scene and could not be identified. Mrs. Intihar, therefore, submitted a UM claim to her insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), in August of 1999, received the $100,000 UM policy limit, and she and her husband executed a subrogation agreement allowing State Farm to take action against other responsible parties.
. On February 26, 2001, she notified her employer, Southwest Community Health System, Inc., that she intended to seek UM benefits from AMICO, its commercial motor vehicle insurer. On January 2, 2002, AMICO filed its complaint for declaratory judgment, and she filed an answer and counterclaim for declaratory judgment. Both parties moved for summary judgment and the judge granted AMICO's motion, stating that Mrs. Intihar could not recover because she did not own the car she was driving and the policy extended UM coverage only to "owned autos."
. We review the grant of summary judgment de novo, and consider the evidence in the light most favorable to the non-moving party to determine whether a material dispute of fact exists. Mrs. Intihar submits that the AMICO policy's "covered auto" limitation does not prevent her from recovering UM benefits because she is an insured under the UM provisions and no exclusion removes that coverage. Insurance policies must comport with applicable statutory mandates. Because insurance policies are strictly construed against the insurer and liberally in favor of the insured, the policy's terms generally must show an unambiguous intent to deny the claimed benefits or they will be allowed.
. The commonly used "Business Auto Coverage ["BAC"] Form" in the AMICO policy describes "covered auto designation symbols" used on its Business Automobile Coverage Part Declarations Page, Item II. Liability coverage is provided to 01, "any `auto'"; auto medical payments coverage extends to 07, "specifically described `autos'" listed in Item III; uninsured motorist coverage is provided to 02, "owned `autos' only"; comprehensive coverage is provided to 02, 07, and 08, "hired `autos' only"; and collision coverage extends to 02, 07, and 08. The schedule referred to as "Item III" specifically identifies seventeen vehicles owned by the named insured and reveals that four of the vehicles are not insured for medical payments and eight are not insured for collision or comprehensive coverage.
. AMICO argues that unless an insured is injured while using a covered auto, UM coverage is not available. This reasoning, however, ignores the distinction between UM and liability coverages. Under its liability coverage, AMICO will pay for personal injury and propert
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