Other Owned Vehicle Exclusion Applied and Upheld
Blair v. Cincinnati Ins. Co., (2005) 163 Ohio App.3d 81, 2005-Ohio-4323:
In Blair v. Cincinnati Ins. Co., a dispute arose when an insured was operating a motorcycle that was not listed on the policy. When seeking uninsured/underinsured motorists benefits, the insurance company argued that the “other owned auto” exclusion prevented coverage for those injuries.
The Court began its analysis by reviewing the analytical tools relied upon in the interpretation of any insurance contract. In paragraph 8 of its opinion, the Court stated the following:
“The interpretation of an insurance policy is a question of law that an appellate court reviews de novo, without deference to the trial court. (Citations omitted.) In interpreting an insurance policy, a court’s role “is to give effect to the intent of the parties to the agreement.” (Citation omitted.) In doing so, ‘[w]e examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. We look to the plain and ordinary meaning of the language used in the policy unless another meaning is clearly apparent from the contents of the policy. When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. As a matter of law, a contract is unambiguous if it can be given a definite legal meaning.’”
The Court concluded that the motorcycle was not specifically identified in the policy and, therefore, did not fit the definition of “covered autos.”
An additional argument arose with regard to the application of a commercial general liability policy to the subject vehicle. In particular, an argument was advanced that an endorsement could trigger uninsured/underinsured motorist coverage. In paragraph 24 of its opinion, the Court summarized this argument and stated the following:
“The Blairs also argue that the endorsement itself provides UM/UIM coverage. Specifically, the Blairs rely on section (A)(3) of the endorsement, which states, ‘We will provide the uninsured/underinsured motorists coverage required by statute.’ The Blairs contend that the endorsement was actually drafted in 1992 and, at that time, the offering of UM/UIM coverage was statutorily required. Therefore, the endorsement must be interpreted as providing UM/UIM coverage.”
The Court rejected this argument and, in paragraphs 25 – 26 of its opinion, so indicated stating the following:
“The Ohio Supreme Court has held that the statutory law in effect at the time the parties enter into a contract for insurance controls the rights and duties of the contracting parties for determining the scope of coverage of an underinsured-motorist claim. (Citations omitted.) “The commercial general liability policy issued to Classi Images has an effective date of December 15, 1998, well after the legislature added the definition of ‘motor vehicle policy’ to R.C. 3937.18. The date that the endorsement was actually drafted has no relevance.
Because the commercial general liability policy does not specifically identify any automobiles, it cannot serve as proof of financial responsibility and is not a ‘motor vehicle policy’ as defined in R.C. 3937.18. Thus, CIC was not required to offer UM/UIM insurance to Classi Images, and its failure to do so does not result in coverage by operation of law.”
Wrongful Death – Warning of Risks Associated with Consumption of Oysters Sufficient – Summary Judgment for the Defendant was Appropriate
Woeste v. Washington Platform Saloon & Restaurant, (2005) 163 Ohio App.3d 70, 2005-Ohio-4694:
In Woeste v. Washington Platform Saloon & Restaurant, the Court reviewed the granting of summary judgment in favor of a restaurant wherein Thomas Woeste had consumed raw oysters and subsequently died. The nexus between oysters and his death was summarized by the Court in paragraph 2 of its opinion:
“Thomas Woeste died as a result of contracting the bacteria vibrio vulnificus after eating raw oysters at Washington Platform. Vibrio is a naturally occurring bacteria in oysters that are harvested in warm waters. The oysters ingest the bacteria as they filter feed. Vibrio has no effect on the large majority of the population; however, it can cause death or serious bodily injury to certain people with weakened or impaired immune systems. Woeste suffered from Hepatitis C and cirrhosis of the liver, making him particularly susceptible to vibrio.”
The menu had included a specific warning of the risks associated with consuming shell fish as well as an indication that if a person suffers from a immune disorder, the shell fish should be eaten cooked, as opposed to in its raw form. The Court noted that Ohio has adopted Section 402A of the Second Restatement of Torts regarding strict liability. Said section was summarized in paragraph 7 of the Court’s opinion and stated the following:
“This section provides, ‘One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused ...’ Thus, for strict liability to be imposed, the product must be defective, and the defect must make the product unreasonably dangerous. A product may be defective because of an inadequate warning even if it contains no design or manufacturing defect. For purposes of the claim against Washington Platform, we address only whether the warning provided was adequate.”
The warning at issue succinctly stated the following and was reproduced in paragraph 11 of the opinion:
“Consumer Information: There may be risks associated when consuming shell fish as in the case with other raw protein products. If you suffer from chronic illness of the liver, stomach or blood, or if you are pregnant or if you have other immune disorders, you should eat these products fully cooked.”
The estate argued that the warning was inadequate because it did not warn of the possibility of death. The Court rejected this argument and, in paragraph 11 of its opinion, stated the following:
“We disagree. The warning complied with the standard established in R.C. 2307.76. Washington Platform was aware of the dangers associated with the oysters. This was evidenced by the warning present in its menu. We are persuaded that the warning provided was one that a manufacturer exercising reasonable care would have issued. It adequately put a patron on notice of the risks associated with eating raw shellfish, including raw oysters.”
The Court went on to uphold summary judgment in favor of Washington Platform Saloon as well as a second defendant.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
FIRM UPDATES
On November 29 through December 2, 2005, Curtin & Associates LLP tried the case of “Faustina v. Hopp,” Case No. CV 05 556150 in the Cuyahoga County Court of Common Pleas. The plaintiff had accumulated approximately $5,000 in medical bills and, at the age of 72, argued that although she had suffered from pre-existing musculoskeletal problems in the past, she had never experienced neck symptoms of the type that she felt following the accident. In support thereof, she produced Dr. Saridakis as well as a treating chiropractor, both of whom testified that the motor vehicle accident caused an injury to the neck resulting in the medical care and treatment. The negligence of the defendant was stipulated prior to trial.
The plaintiff demanded $12,500 before and during the trial to settle the case and an offer of $2,000 was made immediately before the trial. The jury heard the case for nearly one week and thereafter returned a unanimous verdict for the defendant, Gary Hopp.
Other Owned Vehicle Exclusion Applied and Upheld
Blair v. Cincinnati Ins. Co., (2005) 163 Ohio App.3d 81, 2005-Ohio-4323:
In Blair v. Cincinnati Ins. Co., a dispute arose when an insured was operating a motorcycle that was not listed on the policy. When seeking uninsured/underinsured motorists benefits, the insurance company argued that the “other owned auto” exclusion prevented coverage for those injuries.
The Court began its analysis by reviewing the analytical tools relied upon in the interpretation of any insurance contract. In paragraph 8 of its opinion, the Court stated the following:
“The interpretation of an insurance policy is a question of law that an appellate court reviews de novo, without deference to the trial court. (Citations omitted.) In interpreting an insurance policy, a court’s role “is to give effect to the intent of the parties to the agreement.” (Citation omitted.) In doing so, ‘[w]e examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. We look to the plain and ordinary meaning of the language used in the policy unless another meaning is clearly apparent from the contents of the policy. When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. As a matter of law, a contract is unambiguous if it can be given a definite legal meaning.’”
The Court concluded that the motorcycle was not specifically identified in the policy and, therefore, did not fit the definition of “covered autos.”
An additional argument arose with regard to the application of a commercial general liability policy to the subject vehicle. In particular, an argument was advanced that an endorsement could trigger uninsured/underinsured motorist coverage. In paragraph 24 of its opinion, the Court summarized this argument and stated the following:
“The Blairs also argue that the endorsement itself provides UM/UIM coverage. Specifically, the Blairs rely on section (A)(3) of the endorsement, which states, ‘We will provide the uninsured/underinsured motorists coverage required by statute.’ The Blairs contend that the endorsement was actually drafted in 1992 and, at that time, the offering of UM/UIM coverage was statutorily required. Therefore, the endorsement must be interpreted as providing UM/UIM coverage.”
The Court rejected this argument and, in paragraphs 25 – 26 of its opinion, so indicated stating the following:
“The Ohio Supreme Court has held that the statutory law in effect at the time the parties enter into a contract for insurance controls the rights and duties of the contracting parties for determining the scope of coverage of an underinsured-motorist claim. (Citations omitted.) “The commercial general liability policy issued to Classi Images has an effective date of December 15, 1998, well after the legislature added the definition of ‘motor vehicle policy’ to R.C. 3937.18. The date that the endorsement was actually drafted has no relevance.
Because the commercial general liability policy does not specifically identify any automobiles, it cannot serve as proof of financial responsibility and is not a ‘motor vehicle policy’ as defined in R.C. 3937.18. Thus, CIC was not required to offer UM/UIM insurance to Classi Images, and its failure to do so does not result in coverage by operation of law.”
Wrongful Death – Warning of Risks Associated with Consumption of Oysters Sufficient – Summary Judgment for the Defendant was Appropriate
Woeste v. Washington Platform Saloon & Restaurant, (2005) 163 Ohio App.3d 70, 2005-Ohio-4694:
In Woeste v. Washington Platform Saloon & Restaurant, the Court reviewed the granting of summary judgment in favor of a restaurant wherein Thomas Woeste had consumed raw oysters and subsequently died. The nexus between oysters and his death was summarized by the Court in paragraph 2 of its opinion:
“Thomas Woeste died as a result of contracting the bacteria vibrio vulnificus after eating raw oysters at Washington Platform. Vibrio is a naturally occurring bacteria in oysters that are harvested in warm waters. The oysters ingest the bacteria as they filter feed. Vibrio has no effect on the large majority of the population; however, it can cause death or serious bodily injury to certain people with weakened or impaired immune systems. Woeste suffered from Hepatitis C and cirrhosis of the liver, making him particularly susceptible to vibrio.”
The menu had included a specific warning of the risks associated with consuming shell fish as well as an indication that if a person suffers from a immune disorder, the shell fish should be eaten cooked, as opposed to in its raw form. The Court noted that Ohio has adopted Section 402A of the Second Restatement of Torts regarding strict liability. Said section was summarized in paragraph 7 of the Court’s opinion and stated the following:
“This section provides, ‘One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused ...’ Thus, for strict liability to be imposed, the product must be defective, and the defect must make the product unreasonably dangerous. A product may be defective because of an inadequate warning even if it contains no design or manufacturing defect. For purposes of the claim against Washington Platform, we address only whether the warning provided was adequate.”
The warning at issue succinctly stated the following and was reproduced in paragraph 11 of the opinion:
“Consumer Information: There may be risks associated when consuming shell fish as in the case with other raw protein products. If you suffer from chronic illness of the liver, stomach or blood, or if you are pregnant or if you have other immune disorders, you should eat these products fully cooked.”
The estate argued that the warning was inadequate because it did not warn of the possibility of death. The Court rejected this argument and, in paragraph 11 of its opinion, stated the following:
“We disagree. The warning complied with the standard established in R.C. 2307.76. Washington Platform was aware of the dangers associated with the oysters. This was evidenced by the warning present in its menu. We are persuaded that the warning provided was one that a manufacturer exercising reasonable care would have issued. It adequately put a patron on notice of the risks associated with eating raw shellfish, including raw oysters.”
The Court went on to uphold summary judgment in favor of Washington Platform Saloon as well as a second defendant.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
FIRM UPDATES
On November 29 through December 2, 2005, Curtin & Associates LLP tried the case of “Faustina v. Hopp,” Case No. CV 05 556150 in the Cuyahoga County Court of Common Pleas. The plaintiff had accumulated approximately $5,000 in medical bills and, at the age of 72, argued that although she had suffered from pre-existing musculoskeletal problems in the past, she had never experienced neck symptoms of the type that she felt following the accident. In support thereof, she produced Dr. Saridakis as well as a treating chiropractor, both of whom testified that the motor vehicle accident caused an injury to the neck resulting in the medical care and treatment. The negligence of the defendant was stipulated prior to trial.
The plaintiff demanded $12,500 before and during the trial to settle the case and an offer of $2,000 was made immediately before the trial. The jury heard the case for nearly one week and thereafter returned a unanimous verdict for the defendant, Gary Hopp.