holding that spouse of employee killed in an automobile accident while acting outside the scope of his employment was entitled to recover underinsured motorists coverage under employer’s policy up to full amount of liability coverage where insurer failed to present the employer with written offer of underinsured motorists coverage in accordance with Ohio Revised Code § 3937.18
How later courts described this case
- holding that spouse of employee killed in an automobile accident while acting outside the scope of his employment was entitled to recover underinsured motorists coverage under employer’s policy up to full amount of liability coverage where insurer failed to present the employer with written offer of underinsured motorists coverage in accordance with Ohio Revised Code § 3937.18
- noting the Supreme Court holdings requiring that “excess liability insurance must comport with R.C. 3937.18 and thus uninsured (and underinsured) motorist coverage must be tendered” and that “failure by the insurer to offer such coverage results in the provision of such coverage by operation of law”
- holding that "a corporation itself, cannot occupy an automobile, suffer bodily injury or death or operate a motor vehicle."
- stating that if a court finds that the claimant "was not an insured under the polic[y], then [the] inquiry is at an end"
Written by the judges who cited it.
Later courts went against this
Overruled by Westfield Insurance v. Galatis, 100 Ohio St. 3d 216 (2003)
85 Ohio St.3d 660, 710 N.E.2d 1116, 1119 (1999) overruled in part by Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 797 N.E.2d 1256 (2003).
Questioned — as noted by 2 later courts
Co. v. Galatis, 100 Ohio St. 3d 216,2003-Ohio-5849, the Ohio Supreme Court limited its holding inScott-Pontzer.
2 citing opinionsLimited by Jones v. Federal Insurance Company, Unpublished Decision (12-15-2003), 2003 Ohio 6847 (2003)
The Ohio Supreme Court recently limited its holding in Scott-Pontzer.
Distinguished
Distinguished by Pyros v. Loparo, Unpublished Decision (2-15-2005), 2005 Ohio 577 (2005)
{¶ 32} Plaintiffs contend that Galatis should not be applied in this case because "Utica First has waived any claim that Scott-Pontzer is inapplicable here" and because "courts should apply Galatis prospectively only.
Distinguished by Williams v. Jones, Unpublished Decision (10-12-2004), 2004 Ohio 5512 (2004)
{¶ 14} We expressly reject Williams' argument that he possesses a contractual right that arose under Scott-Pontzer
Distinguished by Comeans v. Clark, Unpublished Decision (5-14-2004), 2004 Ohio 2420 (2004)
Fire Ins.Co., 85 Ohio St.3d 660, 1999-Ohio-292, 710 N.E.2d 1116, is inapplicable; (2) the self-retention in the policy did not negate the applicability of R.C. 3937.18; and (3) a genuine issue of fact remained regarding whether the UM/UIM coverage within the policy was properly offered and rejected.
Distinguished by Snyder v. Westfield Insurance Co., Unpublished Decision (11-05-2003), 2003 Ohio 5904 (2003)
Appellees have presented evidence indicating that Scott-Pontzer is inapplicable to the present matter.
The opinion
Cook, J.,
dissenting. I differ with the majority’s UIM coverage analysis as to both policies. As to the commercial automobile policy, I would hold that it covers Superior Dairy’s insurable interests. As to the excess policy, I would hold that even if UIM coverage is deemed provided by operation of law, it is provided to the named insured, Superior Dairy, but not to its off-duty employee.
The Commercial Auto Policy
Despite the named insured (“you”) being Superior Dairy, the majority finds coverage for an off-duty employee driving his wife’s car by saying that because UIM coverage protects persons and not vehicles, and because corporations cannot drive cars or sustain injuries, UIM coverage cannot protect a corporate entity. But, of course, a corporate entity has insurable interests for which countless policies are issued every day. See, e.g., Indemn. Ins. Co. of N. Am. v. Dow (C.A.6, 1949), 174 F.2d 168, 169-170 , citing Wurzburg v. New York Life Ins. Co. (1918), 140 Tenn. 59 , 203 S.W. 332 (manufacturing company had an insurable interest in the life of its manager). See, also, R.C. 3911.091. This concept of Superior Dairy having corporate insurable interests defeats the majority’s reasoning for extending coverage to the off-duty employee as an “insured.” Though business entities like Superior Dairy operate through their employees, this employee was not acting for Superior Dairy at the time of this accident. So, there is no basis for saying he qualifies as an insured by virtue of his Superior Dairy employment.
'Moreover, public policy would prevent Superior Dairy from validly insuring its business against damages to Scott-Pontzer’s personal automobile, or insuring against Scott-Pontzer’s liability arising outside the scope of Superior Dairy’s business. As a matter of public policy, the validity of an insurance. contract is dependent upon the insured having an insurable interest in the subject of the insurance. 1 Holmes, Appleman on Insurance 2d (1996) 555-557, Section 4.32. See, also, id. at 11-15, Section 1.3; Phillips v. Cincinnati Ins. Co. (1979), 60 Ohio *668 St.2d 180, 181 , 14 O.O.3d 413, 414 , 398 N.E.2d 564, 565 ; Great Am. Ins. Co. v. Curl (App.1961), 88 Ohio Law Abs. 516, 517 , 18 O.O.2d 481, 482 , 181 N.E.2d 916, 918 , citing 30 Ohio Jurisprudence 2d (1958) 305, Insurance, Section 305. An insurable interest exists when “the insured derives pecuniary benefit or advantage by the preservation or continued existence of the property or will sustain pecuniary loss from its destruction.” 4 Appleman, Insurance Law and Practice (1969) 35, Section 2123; Phillips, 60 Ohio St.2d at 182 , 14 O.O.3d at 415 , 398 N.E.2d at 566 . Here, Superior Dairy could incur no liability because of this employee’s off-duty operation of his wife’s car.
Thus, no legitimate reason supports the judgment of the majority that this policy covers this employee’s injuries in this accident; Scotb-Pontzer is not an “insured” under the commercial auto policy.
The Excess Policy
The majority’s holding that the UIM coverage provided by operation of law in the Liberty Mutual excess policy covers this off-duty employee is likewise untenable. R.C. 3937.18 mandates extension of UIM coverage only to “insureds.” Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 481 , 639 N.E.2d 438, 441 . Because Scott-Pontzer is not an “insured” under this policy, any UIM coverage deemed provided by operation of law does not insure him for this accident, but would instead insure the named insured, Superior Dairy.
Conclusion
The effect of the majority opinion is to afford comprehensive automobile insurance coverage to any employee working for an employer prudent enough to insure itself. This cannot be what the majority means to do. I therefore respectfully dissent.
Moyer, C.J., concurs in the foregoing dissenting opinion.