IN THE SUPREME COURT OF OHIO Darno v. Davidson, 9th Dist. No. 27546, 2015-Ohio-2619 (“Darno II”), at 2 (Appx.00008). Because Darno had no insurance of his own, he made claims for

IN THE SUPREME COURT OF OHIO

THOMAS DARNO, ) Case No. _____________________

) Appellee, )

) vs. ) On Appeal from the Summit County

) Court of Appeals, Ninth Appellate WESTFIELD INSURANCE COMPANY, ) District, Case No. CA 27546

) Appellant. )

______________________________________________________________________________ MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT WESTFIELD INSURANCE COMPANY ______________________________________________________________________________ WILLIARD E. BARTEL (0025006) [email protected] JAMES D. FALVEY (0073952) [email protected] MILLER, STILLMAN & BARTEL The Hanna Building 1422 Euclid Avenue, Suite 800 Cleveland, Ohio 44115 (216) 861-6000 Fax: (216)861-6104 Counsel for Appellee Thomas Darno

RICHARD M. GARNER (0061734) [email protected] COUNSEL OF RECORD COLLINS ROCHE UTLEY & GARNER 655 Metro Place South, Suite 200 Dublin, Ohio 43017 (614) 901-9600 Fax: (614) 901-2723 DAVID G. UTLEY (0038967) [email protected] COLLINS ROCHE UTLEY & GARNER 1225 West Market Street Akron, Ohio 44313 (330) 247-2200 Fax: (330) 247-2205 Counsel for Appellant Westfield Insurance Company

Supreme Court of Ohio Clerk of Court - Filed August 14, 2015 - Case No. 2015-1344

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TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST ..............................................................................................1 STATEMENT OF THE CASE AND FACTS.................................................................................8 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW......................................................11 PROPOSITION OF LAW NO. I— Determination of whether an insured is “occupying” a motor vehicle for purposes of exclusions barring uninsured/underinsured motorists and medical payments coverage is to resolved by analysis of the immediate relationship the insured had to the motor vehicle within a reasonable geographic area at the time of the accident (Joins v. Bonner, 28 Ohio St.3d 398, 504 N.E.2d 61 (1986) applied). ...........................................................................11 PROPOSITION OF LAW NO. II— When a term of an insurance policy has been judicially interpreted by the Supreme Court of Ohio that interpretation is to be applied to that term throughout the insurance policy unless a different meaning is clearly intended .............................................11 CONCLUSION ..............................................................................................................................15 CERTIFICATE OF SERVICE ......................................................................................................16

Appx. Pages Darno v. Davidson, 9th Dist. No. 26760, 2013-Ohio-4262 .....................................................00001 Darno v. Davidson, 9th Dist. No. 27546, 2015-Ohio-2619 ......................................................00008

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST

This appeal will determine whether the meaning of standard automobile insurance policy

terms change based solely upon where they appear in a policy. Specifically, this Court will be

asked to determine whether the standard automobile insurance term--“occupying”--has a different

meaning based solely upon whether it appears in an insuring agreement or an exclusion. This

Court has never directly addressed this fundamental issue of contract interpretation, and the

analysis this Court chooses to employ to resolve this issue will provide guidance in resolution of

many other contract disputes.

The definition of “occupying”, defined as “in, upon, getting in, on, out or off” (or

substantially similar predecessors thereof), has been a staple of automobile insurance terminology

for more than half a century. It is a standardized, fundamental component of automobile liability

coverage, uninsured/underinsured motorist (“UM/UIM”) coverage, automobile medical payments

coverage and (in other states) no-fault coverage. See e.g. Annotation, Scope of clause of insurance

policy covering injuries sustained while “in or on” or “in or upon” motor vehicle, 39 A.L.R.2d

952, *1 (2008); Annotation, Automobile insurance: when is a person “occupying” an automobile

within the meaning of medical payments provision, 42 A.L.R.3d 501, *1 (2012); 6-64 Appleman

on Insurance §64.01[1](2012); Madden v. Farm Bureau Mut. Auto. Ins. Co., 82 Ohio App. 111,

79 N.E.2d 586 (1st Dist. 1948), at syllabus (examining the scope of coverage for whether a person

was “in or upon, entering or alighting from” an automobile); Joins v. Bonner, 28 Ohio St.3d 398,

401, 504 N.E.2d 61 (1986)(interpreting the scope of UM/UIM coverage with respect to “in or upon

or entering into or alighting from” a vehicle); 4 Auto. Liability Ins.4th, §49:14 (2013)(“‘occupying,

entering into or alighting from it,’ ‘in or upon or entering into or alighting from’ has been adopted

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for no-fault purposes in most states both by statute and departmental definition”). It is safe to say

that the term “occupying” has appeared in virtually every automobile insurance policy since the

1940s.

As early as 1948, Ohio courts recognized that, in light of the interests involved,

“occupying” should be judicially interpreted more broadly than simply riding in an automobile.

Madden, 82 Ohio App. at 115-116 (holding that the insured was occupying an automobile while

getting a spare tire out of the trunk to change the tire). The Madden court observed:

It seems to us that it was the intent of the insurer, by the language used, to provide for coverage in every case in which the owner was using the automobile and in such a position in relation thereto as to be injured in its use. In reaching a conclusion on this subject, not only the act in which the insured was engaged at the time, but also his purpose and intent must be considered.

82 Ohio App. at 114.

In the ensuing years, courts in Ohio and across the country judicially defined “occupying”

to require a relational analysis in order to provide broad protection to insureds. See e.g. Robson v.

Lightning Rod Mut. Ins. Co., 59 Ohio App.2d 261, 263-265, 393 N.E.2d 1053 (10th Dist. 1978)

(explaining the various relational tests); USF&G v. Goudeau, 272 S.W.3d 603, 606-608, 52 Tex.

Sup. J. 216 (2008) (explaining the various relational tests employed by the different states in such

cases); Lambert v. Coregis Ins. Co., 950 So.2d 1156, 1160-1161 (Ala. Sup. Ct. 2006)(same).

When exclusions used the term, it was naturally given the same meaning since it was being used

in the same context. See e.g. Horace Mann Ins. Co. v. Neuville, 465 N.W.2d 432, 434-435 (Minn.

1991)(motorist was still occupying car while standing outside of car it broke down for purposes of

UM/UIM exclusion)

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Nearly thirty years ago, this Court formally adopted the relational definition in Joins v.

Bonner, 28 Ohio St.3d 398, 401, 504 N.E.2d 61 (1986) explaining:

In construing uninsured motorist provisions of automobile insurance policies which provide coverage to persons “occupying” insured vehicles, the determination of whether a vehicle was occupied by the claimant at the time of an accident should take into account the immediate relationship the claimant had to the vehicle, within a reasonable geographic area.

In Joins, this Court found that a passenger who was struck by an uninsured automobile while

crossing the street before reaching the curb was still “occupying” the vehicle he had just exited at

the time of the accident so as to be insured under that automobile’s UM/UIM coverage. Joins, at

syllabus. Ohio’s lower courts subsequently applied variations of this relational definition to a

myriad of situations. See e.g. Darno v. Davidson, 9th Dist. No. 26760, 2013-Ohio-4262 (“Darno

I”), at ¶8 (Appx.00004). However, until Darno v. Davidson, 9th Dist. No. 27546, 2015-Ohio-2619

(“Darno II”), at ¶2 (Appx.00008), the relational definition was apparently never considered in the

context of an exclusion.

In this case, Appellee Thomas Darno (“Darno”) was pushing his disabled Jeep on a public

road immediately prior to being struck by an underinsured motorist. Darno v. Davidson, 9th Dist.

No. 27546, 2015-Ohio-2619 (“Darno II”), at ¶2 (Appx.00008). Because Darno had no insurance

of his own, he made claims for UM/UIM and medical payments coverages under a commercial

auto policy issued by Appellant Westfield Insurance Company (“Westfield”) to Darno’s father

(“Westfield Policy”). Darno conceded that exclusions in the Westfield Policy would bar coverage

if he was “occupying” the Jeep. To avoid the exclusions, he argued that “occupying” should be

given a strict literal interpretation simply because the term appeared in exclusions. Darno II, at ¶8.

To wit, he wasn’t in the Jeep so he wasn’t “occupying” it.

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The Ninth Appellate District agreed with Darno and found that Joins’ relational definition

should only be applied if it helps a claimant obtain coverage, and should never be applied if it

results in coverage being curtailed or denied. Darno II, at ¶¶12-15. That is, “occupying” has a

different meaning in Westfield’s UM/UIM and medical payments insuring agreements than it has

in the related exclusions even though there is no evidence to suggest that any different meaning

was intended.

Westfield now appeals to this Court to reverse Darno II and enter judgment in favor of

Westfield. This appeal presents an issue of public or great general interest for the following

reasons.

First, this Court should accept this appeal to make clear that once an insurance policy term

has been judicially defined by this Court, it is no longer open to interpretation but should be given

the judicially defined meaning unless a different meaning is clearly intended. Lyttle v. Progressive

Cas. Ins. Co., 8th Dist. No. 73620, 1999 WL 61009, at *6 (“there can be no ambiguity within the

meaning of the rule for strict construction against the insurer, when a term has been judicially

defined”); United Ohio Co. v. Bird, 5th Dist. No. 00 CA 31, 2001 WL 575172, at *4 (“Since the

Ohio Supreme Court has judicially defined the word, unless the policy of insurance provides a

different definition . . . we must apply the definition”). While this wise rule of construction has

been adopted by many courts and legal authorities1, this Court has never expressly done so. Such

1 See e.g. Western World Ins. Co., Inc. v. Spevco, Inc., 109 Ohio App.3d 122, 124-125, 671 N.E.2d 1100 (10th Dist. 1996); Lyttle, at *6; Bird, at *4; Coakley v. Maine Bonding & Cas. Co., 136 N.H. 402, 409-410, 618 A.2d 777 (1992); Order of United Comm. Travelers of Am. v. Knorr, 112 F.2d 679, 682 (10th Cir. 1940); 2 Couch on Ins. §21:14 (2015).

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a salutary rule would not only resolve this case, but would help create stability in Ohio insurance

law and reduce the amount of litigation over interpretation of standardized insurance policy terms.

Second, this Court should accept this appeal to make clear that once an insurance policy

term has been judicially defined by a reviewing court, the judicially defined term should be given

the same meaning in all parts of the insurance policy unless a different meaning is clearly intended.

This rule of construction has also been adopted by other Ohio appellate courts,2 but was tacitly

rejected by the Ninth Appellate District in Darno II. When courts of appeal disagree on a rule of

law, this Court has previously held: “It must be conceded that any legal question, upon the

determination of which two Courts of Appeals disagree, is a question of public and great general

interest.” Flury v. Central Publishing House of Reformed Church in the United States, 118 Ohio

St. 154, 159, 160 N.E. 679 (1928). It is respectfully submitted that this Court should make the

determination of the rule of law to be applied in this case.

One need only read the procedural history of this case to appreciate the need for such a

rule. In 2013, in Darno I, the Ninth Appellate District reversed summary judgment for Westfield

and remanded Darno’s claims to the trial court because “Westfield was required to point to

evidence in the record that illustrated his relationship to the insured vehicle.” Darno I, at ¶9. Two

years later, in Darno II, the Ninth Appellate District ignored the expanded record it had ordered,

declared “occupying” to be ambiguous and sidestepped Joins on the basis that “occupying”

appeared in exclusions and therefore would be read liberally in favor of coverage no matter what

2 Lyttle, at *6; Bird, at *4; De Uzhca v. Derham, 2nd Dist. No. 19106, 2002-Ohio-1814, at *3-4; Dailey v. Travelers Ins. Co., 2nd Dist. No. 1589, 2003-Ohio-680, at ¶¶51-54; Casto v. Sanders, 11th Dist. No. 2004-P-0060, 2005-Ohio-6150, at ¶33; Shercock v. Ohio Municipal League Joint Self-Insurance Pool, 11th Dist. No. 2003-T-0022, 2004-Ohio-1515, at ¶13.

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Darno’s relationship to the Jeep was. Darno II, at ¶15. Thus, the student crossing the street in

Joins was “occupying” the car in which he had just been a passenger, but Darno was not

“occupying” the Jeep he had just been driving and pushing immediately prior to his accident. Not

only are such obviously inconsistent outcomes an inefficient drain on already overtaxed courts,

they undermine public perception in the integrity of the judicial system. Why should the Joins

plaintiff be “occupying” a car and Darno not when their circumstances and relevant policy

language are legally indistinguishable? Different facts do not dictate these different results, a

different rule of law dictates these different results.

There is some superficial appeal to an approach that exclusions are different and should

always be construed liberally in favor of coverage. However, we are not dealing with abstractions

in this case. “Occupying” has been given a relational definition by Ohio courts for more than half

a century in cases including, but not limited to, Joins. It appears in both the insuring agreements

and the exclusions in the Westfield Policy, and no one has provided even a hint of evidence that a

different meaning was intended based upon where it was found in the Westfield Policy. In similar

contexts, courts throughout the country have applied a relational definition to “occupying” when

it appears in exclusions.3

3 See e.g. Farmers Ins. Co. of Washington v. Clure, 41 Wash App. 212, 217, 702 P.2d 1247 (1985) (motorcyclist was still occupying motorcycle he was thrown from for purposes of UM/UIM coverage exclusion); Mackie v. Unigard Ins. Co., 90 Or. App. 500, 752 P.2d 1266 (1988)(motorist was still occupying car after exiting car to get package from trunk of purposes of UM/UIM exclusion); Horace Mann, 465 N.W.2d at 434-435 (Minn. 1991)(motorist was still occupying car while standing outside of car it broke down for purposes of UM/UIM exclusion); Industrial Fire & Cas. Ins. Co. v. Collier, 334 So.2d 148, 149-150 (Fla. 1976)(motorist was still occupying car after exiting to replace flat tire for purposes of exclusion in no fault coverage).

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Darno II’s conclusion otherwise not only judicially injects an internal inconsistency into

the Westfield Policy, it is inconsistent with the intent of such exclusions. In Lager v. Miller-

Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, at ¶¶16-21, this Court found such exclusions to be

clear, unambiguous and intended “to limit coverage for bodily injuries incurred in ‘the vehicles

specifically covered under the insurance policy.’” Id., at ¶26. It is has always been undisputed

that Darno drove his uninsured Jeep to the scene of the accident, it broke down and he had been

pushing it immediately prior to the accident. He would not have been injured in the accident if he

did not have an immediate geographic relationship with the Jeep. To hold that Darno was not

“occupying” the Jeep at the time of the accident because he was not in the driver’s seat is to

“improperly allow” him to “choose not to insure[]” the Jeep and “bear no financial risk for the

decision”. Id., at ¶31. If a cardinal rule of contract interpretation is that a reviewing court “give

effect to the intent of the parties,” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-

5849, at ¶11, then Darno II is a decision that undermines the intent of the contracting parties based

solely upon an abstraction that exclusions should always be interpreted in a manner that provides

coverage. This goes far beyond “interpreting” the Westfield Policy and becomes “rewriting” the

Westfield Policy.

Finally, the Propositions of Law put forward by Westfield go far beyond Darno’s UM/UIM

and medical payments claims. They ask this Court to supplement its formal rules of contract

interpretation in a way that will help Ohio’s courts and litigants better understand common

insurance contracts thereby reducing the need to litigate such matters.

Based upon the foregoing, this Court should accept jurisdiction over this appeal, reverse

Darno II and enter judgment for Westfield.

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STATEMENT OF THE CASE AND FACTS

On November 13, 2010, Darno went “mudding” in his Jeep with friends. After dark, Darno

ended up on a public road where the Jeep stalled while straddling two opposing lanes of travel.

Darno and a friend attempted to push the Jeep off of the road as a vehicle driven by Terrance

Davidson (“Davidson”) quickly approached. At the last moment, Darno and his friend tried to run

away from Davidson’s car, but “after taking only a couple of steps from his Jeep, [Darno] was

struck by [Davidson’s] vehicle.” Darno II, at ¶2.

Darno’s Jeep was uninsured and intended to be an off-road vehicle only. Davidson’s

vehicle carried automobile liability coverage limits of only $12,500 per person. Darno claimed

injuries that exceeded this amount.

At the time of the accident, Darno’s father was insured under the Westfield Policy which

covered multiple vehicles used in his business, but not the Jeep. In pertinent part, it provided

UM/UIM coverage with limits of $300,000.00 per accident and medical payments coverage with

limits of $5,000 per person. It is undisputed that Darno qualified as an insured for both coverages

(as a residential family member of his father). However, it is also undisputed that both the

UM/UIM and medical payments coverages included identical exclusions for: “‘Bodily injury’

sustained by any ‘family member while ‘occupying’ or struck by any vehicle (other than a covered

‘auto’) owned by or furnished or available for the regular use of any ‘family member.’”

“Occupying” was expressly defined as “in, upon, getting in, on, out or off.” “Occupying” appeared

in both the insuring agreements and the exclusions.4

4 The insuring agreements extended insured status to : [1] “anyone else ‘occupying” a covered ‘auto’ for both UM/UIM and medical payments coverage and [2] Darno and Darno’s father as insureds when “occupying” any “auto” for purposes of medical payment coverage.

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Darno subsequently sued Westfield for UM/UIM and medical payments coverage under

the Westfield Policy for damages arising from the accident in excess of Davidson’s limits. Based

upon a limited record of the requests for admissions and the Westfield Policy, Westfield moved

for early summary judgment on the basis that the foregoing exclusions barred coverage for Darno’s

claims. In discovery, Darno had been unable to admit or deny whether he was “occupying” the

Jeep, but, in response to Westfield’s Motion for Summary Judgment, Darno argued that:

(1) if he “was ‘occupying’ the . . . Jeep . . . at the time when he was struck by the tortfeasor’s vehicle then [the exclusion] will apply and operate to deny him coverage.”

(2) “the term ‘occupying’ is an unambiguous term that has a commonly

understood, plain and ordinary meaning . . . The Westfield policy further removes any ambiguity by defining the term to mean ‘in, upon, getting in, on, out or off’. These definitions remove any possible ambiguity concerning the term ‘occupying.’”

(3) “the critical issue of whether Plaintiff was ‘occupying’ the [Jeep]

revolves around what Plaintiff was doing at the time he was injured, what he did prior to being injured, how much time transpired after he exited the vehicle, where Plaintiff was at the time he sustained bodily injuries and the location of the vehicle itself”.

The trial court found the exclusions applied and entered summary judgment for Westfield.

On appeal, in Darno I, Darno again argued the sole issue presented for resolution was

whether he was “occupying” the Jeep at the time of the accident, that “occupying” was not

ambiguous but that “genuine issues of material fact remain as to where Thomas Darno was in

relationship to the vehicle and how long had passed since Thomas Darno had any physical contact

with the vehicle.”

The Ninth Appellate District reversed and remanded because:

In order to establish that Mr. Darno was excluded from coverage because he occupied the vehicle when the accident happened, Westfield was

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required to point to evidence in the record that illustrated his relationship to the insured vehicle as explained above [citing Joins and its progeny]. The discovery responses upon which the motion was based do not demonstrate Mr. Darno’s relationship to the vehicle beyond the general propositions that he had finished pushing it to the side of the road and had run for some distance. This is insufficient to demonstrate that he was “occupying” the vehicle when the accident occurred.

Darno I, at ¶9.

On remand, Westfield conducted discovery and again moved for summary judgment on an

expanded record. This time, because evidence demonstrated that Darno had a close temporal and

geographic relationship with the Jeep at the time of the accident, Darno argued that “occupying”

was ambiguous as applied to his circumstances. Because of the alleged ambiguity, Darno argued

that, notwithstanding Joins and its progeny, “occupying” must be interpreted in a manner that

would provide him with coverage. Again, the trial court entered summary judgment for Westfield

and found that Darno was “occupying” the Jeep at the time of the accident. Again, Darno appealed.

On appeal in Darno II, Darno again conceded that if he was “occupying” the Jeep at the

time of the accident, then coverage under the Westfield Policy would be excluded. To get around

his close temporal and geographic relationship with the Jeep, Darno now argued that “occupying”

was ambiguous as applied to him. Therefore, it should be interpreted as narrowly as necessary to

afford him coverage.

The Ninth Appellate District again reversed summary judgment for Westfield. In so doing,

the court of appeals explained:

Here, the policy at issue defines “occupying” as “in, upon, getting in, on, out or off” of the vehicle. Applying this definition to the facts of this case, the only question is whether Mr. Darno was still “occupying” the Jeep at the same time he was running away from it. In giving the policy’s definition of “occupying” a liberal, but plain and ordinary reading, we determine that the policy is ambiguous. On the one hand, Mr. Darno had completely exited

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the Jeep and was running away from it when he was struck by the oncoming vehicle. On the other hand, Mr. Darno was two or three feet away from the Jeep when he was struck, thus within a close geographical proximity.

* * * As we previously noted, courts have . . . applied various tests “where a gray area exists concerning whether a person was an occupant of a vehicle and thus entitled to coverage . . . Applying these tests in situations like this one, where being an occupant of a vehicle excludes a claimant from coverage, would be self-defeating and would contradict the well-settled rule of liberal construction in favor an insured against the insurer . . . Because we determined that the term “occupying” within the policy is ambiguous, the policy must be strictly construed against Westfield, which requires us to conclude that Mr. Darno was not an occupant of his Jeep at the time of the accident. The trial court therefore erred in determining as a matter of law that Mr. Darno was occupying his Jeep because he had a “sufficient relationship” with the vehicle at the time of the accident.

Darno II, at ¶¶13-15 (emphasis in original; citations omitted).

Westfield has now appealed to this Court.

COMBINED ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. I— Determination of whether an insured is “occupying” a motor vehicle for purposes of exclusions barring uninsured/underinsured motorists and medical payments coverage is to resolved by analysis of the immediate relationship the insured had to the motor vehicle within a reasonable geographic area at the time of the accident (Joins v. Bonner, 28 Ohio St.3d 398, 504 N.E.2d 61 (1986) applied). PROPOSITION OF LAW NO. II— When a term of an insurance policy has been judicially interpreted by the Supreme Court of Ohio that interpretation is to be applied to that term throughout the insurance policy unless a different meaning is clearly intended. It is undisputed that resolution of this appeal is based upon whether Darno was “occupying”

his Jeep at time of the accident. If he was, the exclusions bar coverage. If we was not, then he is

entitled to coverage.

Furthermore, there is no real factual dispute about whether Darno had a sufficiently close

temporal and geographic relationship with the Jeep as to be “occupying” it under Joins’ relational

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definition. This appeal is ultimately about whether that relational definition should be applied to

exclusions at all. For the reasons that follow, it should be and judgment should be entered for

Westfield thereafter.

First, the standard terms in this case and Joins are legally indistinguishable.5 While Joins

considered the language in the context of a UM/UIM insuring agreement, and this case considers

the language in the context of UM/UIM and medical payments exclusions, no explanation has ever

been offered for why this should affect the meaning of “occupying” in this case—particularly since

“occupying” appears in both the insuring agreements and the exclusions in the Westfield Policy

and is expressly defined the same way. If the meaning of the same term is different based upon

whether it is found in the insuring agreements or the exclusions, does that mean the same term is

to be given different meanings in different parts of the Westfield Policy? How can this be said to

comport with the intent of the contracting parties when the Westfield Policy expressly defines

“occupying” and expressly states that such definition is applicable to the entire UM/UIM and

medical payments coverage endorsements? This Court has warned lower courts against judicial

abstractions that reach results that appear contrary to the intent of the contracting parties. Galatis,

at ¶39. Instead, “the interpretation which makes a rational and probable agreement must be

preferred.” Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 316-317, 1996-Ohio-393.

Second, “occupying” is a standardized insurance term that should be given a standardized

5 Joins defined “occupying” as “in or upon or entering into or alighting from.” 28 Ohio St.3d at 399. The Westfield Policy defines “occupying” as “in, upon, getting in, on, out or off”. In McCallum v. Am. States Ins. Co., 6th Dist. No. L-90-354, 1991 WL 254150, at *3-4, Ohio’s Sixth Appellate District found the Westfield Policy language to be “broader” than the Joins language and found that the Joins’ relational definition remained applicable to such language.

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meaning unless a different meaning is clearly intended. In Westfield Ins. Co. v. Galatis, 100 Ohio

St.3d 216, 2003-Ohio-5849, at ¶¶15, 40, this Court acknowledged that standardized insurance

language should be interpreted consistently:

The insurance industry customarily uses standardized forms promulgated by the Insurance Services Office, Inc. (“ISO). The ISO forms are generically written to provide for the insurance needs of a wide range of policyholders. Combinations of the various standardized forms are used to create a customized policy for each policyholder.

* * * Insurance policies are no longer written in manuscript for each policyholder, but rather are standard forms designed to insure a variety of entities, including individuals. “There is nothing sinister about an insurer’s use of a ‘one size fits all’ policy form.” [citation omitted].

After making these observations, this Court considered its earlier interpretation of standardized

language in Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999-Ohio-292 to be

incorrect, unworkable and creating “massive widespread confusion”. Galatis, at ¶¶49-50.

Accordingly, it limited Scott-Pontzer, and summarily ruled upon 93 other pending appeals that

addressed the same standardized policy language because the meaning was to be the same in each

case. In Re: Uninsured and Underinsured Motorist Coverage Cases, 100 Ohio St.3d 302, 2003-

Ohio-5888.6

6 Consistent interpretation of standardized terms cuts both ways. Earlier, UM/UIM claimants in multiple pending appeals were summarily victorious based upon the new judicial interpretation set forth in Scott-Pontzer. See e.g. Headley v. Ohio Govt. Risk Mgt. Plan, 86 Ohio St.3d 64, 1999-Ohio-341; Estate of Dillard v. Liberty Mut. Ins. Co., 86 Ohio St.3d 316, 1999-Ohio-177; Bagnoli v. Northbrook Property & Cas. Co., 86 Ohio St.3d 314, 1999-Ohio-108; Ezawa v. Yasuda Fire & Marine Ins. Co. of Am., 86 Ohio St.3d 557, 1999-Ohio-124. That more cases were summarily reversed when Galatis was decided is more a function of the legal market than it was a function of a different rule of law.

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Third, when policy language has been judicially interpreted by this Court, lower courts are

to apply this Court’s interpretation of such policy language. See e.g. Bird, at *4 (“Since the Ohio

Supreme Court has judicially defined the word, unless the policy of insurance provides a different

definition . . . we must apply the definition”).

Fourth, lower courts are to apply this Court’s judicial interpretation of policy language in

insuring agreements to the same language in exclusions. While Darno II is apparently the first

case to address this issue in the context of the Joins relational definition, other Ohio courts of

appeals grappled with this principle during the Scott-Pontzer era. For instance, in De Uzhca, the

Second Appellate District held that this Court’s Scott-Pontzer interpretation of “you,” to include

corporate employees, also applied to exclusions using the term “you.” The Second Appellate

District explained:

The policy gives “you” the same meaning throughout the policy. We believe that a consistent interpretation of the word is preferable to ascribing it different meanings depending on where in the policy it appears. Thus, “you” includes employees of the corporate insured wherever it appears in the policy.

Id., at *4; see also, Bird, at *3 (“interpretation of the word ‘you’ must be applied consistently to

all provisions of the contract”).

Finally, application of a relational definition to Darno is consistent with the purpose of the

exclusions in this case. Lager, supra. Darno was not a pedestrian far removed from the Jeep. He

was a motorist trying to push his Jeep off a public roadway when it became disabled. But for

Darno’s recent operation of, and immediate proximity to, the Jeep he would not have been involved

in the accident. Darno concedes that Westfield expressly intended to exclude coverage for the

accident if he was “occupying” the Jeep. The Joins’ relational definition gives effect to this intent,

15

and its application is not unreasonable under these circumstances. Indeed, it is hard to imagine

that a reasonable insured would believe that he or she was entitled to coverage under the Westfield

Policy based upon having taking taken “a couple of steps” away from the Jeep at the last second

to get out of the area of impact between Davidson’s vehicle and the Jeep.

CONCLUSION

Based upon the foregoing, the Ninth Appellate District’s decision that Joins’ relational

definition of “occupying” does not apply to exclusions presents an issue of public or great general

interest. It creates internal inconsistencies in the Westfield Policy, it is contrary to analogous

decisions across Ohio and the country, and it leads to a result which is manifestly contrary to the

intent to the contracting parties. This Court should accept jurisdiction over this matter, reverse

Darno II and enter judgment for Westfield.

Respectfully submitted,

/s/ Richard M. Garner RICHARD M. GARNER (0061734) [email protected] COUNSEL OF RECORD COLLINS ROCHE UTLEY & GARNER 655 Metro Place South, Suite 200 Dublin, Ohio 43017 (614) 901-9600 Fax: (614) 901-2723 DAVID G. UTLEY (0038967) [email protected] COLLINS ROCHE UTLEY & GARNER 1225 West Market Street Akron, Ohio 44313 (330) 247-2200 Fax: (330) 247-2205 Counsel for Appellant Westfield Insurance Company

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CERTIFICATE OF SERVICE

I hereby certify that the forgoing was served by ordinary U.S. Mail and email, on this 14th

day of August, 2015 upon:

WILLIARD E. BARTEL (0025006) [email protected] JAMES D. FALVEY (0073952) [email protected] MILLER, STILLMAN & BARTEL The Hanna Building 1422 Euclid Avenue, Suite 800 Cleveland, Ohio 44115 Counsel for Appellee Thomas Darno

/s/ Richard M. Garner RICHARD M. GARNER (0061734) Counsel for Appellant Westfield Insurance Company

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