Kaiser v. Goff

[Cite as Kaiser v. Goff, 

.]



                      IN THE COURT OFAPPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO



 DONNA KAISER,                                :     APPEAL NO. C-220097
                                                    TRIAL NO. A-1805973
   and                                        :

 MERL KAISER,                                 :        O P I N I O N.

         Plaintiffs-Appellants,               :

   VS.                                        :

 TROY D. GOFF, JR., et al.,                   :

       Defendants,                            :

   and                                        :

 SAFECO INSURANCE COMPANY OF                  :
 ILLINOIS,

       Defendant-Appellee.                    :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 29, 2022


The Offices of Blake R. Maislin, LLC, and Blake R. Maislin, for Plaintiffs-Appellants,

Freund, Freeze & Arnold and Anne P. Keeton, for Defendant-Appellee.
                    OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.


       {¶1}    The plaintiffs-appellants Donna Kaiser (“Donna”) and her husband

Merl Kaiser (collectively referred to as the “Kaisers”) appeal from the trial court’s entry

of summary judgment for defendant-appellee Safeco Insurance Company of Illinois

(“Safeco”).    The Kaisers asserted a claim against Safeco for uninsured

motorist/underinsured motorist (“UM/UIM”) coverage potentially triggered by any

fault of Donna’s daughter for injuries Donna sustained while a passenger in her own

car while her daughter was driving. For the reasons that follow, we affirm.

       {¶2}    The undisputed facts relevant to this appeal are as follows.            On

November 8, 2016, Donna sustained serious injuries as a passenger in her own car, a

Toyota Solara, that was driven by Donna Williams (“Williams”), Donna’s daughter.

The injuries were sustained when Donna’s car and a car driven by defendant Troy Goff,

an employee of Pizza Hut, collided.

       {¶3}    Donna had automobile insurance for herself and the Toyota Solara with

Safeco. Because liability for the November 8 collision was disputed, Donna sued both

Williams and Goff/Pizza Hut. Donna also sued Safeco for UM/UIM benefits to cover

any percentage of fault assessed to Williams and Goff, alleging that Williams and Goff

were “uninsured motorist[s]” and/or “underinsured motorist[s]” as defined in

Donna’s policy with Safeco.

       {¶4}    Safeco moved for summary judgment on Donna’s UM/UIM motorist

claim tied to Williams’s negligence, arguing that the policy did not afford UM/UIM

coverage because the vehicle Williams was driving did not constitute an “uninsured

vehicle” as defined under the Kaisers’ insurance policy with Safeco (“Safeco Policy”),

regardless of the available limits of Williams’s liability insurance or the fault of

                                            2
                      OHIO FIRST DISTRICT COURT OF APPEALS




Williams. Safeco submitted with its motion an authenticated copy of the Safeco Policy

in effect at the time of the accident that removed a car owned by Donna from the

definition of an uninsured motor vehicle.

        {¶5}    The Kaisers filed a memorandum opposing summary judgment for

Safeco on the claim for UM/UIM benefits.               They argued the Safeco Policy was

unenforceable as written because Safeco offered Donna a policy with both liability

coverage and UM/UIM coverage, yet that policy contained a gap in coverage when

Donna was a passenger in her own car and injured by the negligence of her driver.

Characterizing the Safeco Policy as a contract of adhesion with an “odious,

unintended, unexpected” “passenger seat defense” that was contrary to “public

policy,” the Kaisers contended the policy terms were unenforceable. The Kaisers

additionally argued that the Safeco Policy should not be enforced as written because

the policy terms “did not reflect the parties’ intent when entering into the contract.”

The Kaisers did not place in evidence any material facts with respect to the making of

the contract, including evidence that the Safeco Policy terms did not reflect the intent

of one or both of the parties.

        {¶6}    On September 9, 2021, the trial court granted summary judgment to

Safeco on the UM/UIM claim. That decision became final on February 16, 2022,

when, after the Kaisers settled their claims against Goff, the trial court entered a final

judgment disposing of all the remaining claims.1




1Appeals from the trial court’s September 2021 interlocutory order were dismissed by this court on
January 19, 2022.
                                                3
                        OHIO FIRST DISTRICT COURT OF APPEALS



                                            Analysis

          {¶7}    Though the Kaisers have set forth four separate assignments of error,

all challenge the trial court’s grant of summary judgment to Safeco on the claim for

UM/UIM coverage tied to Williams’s alleged negligence while operating Donna’s car.

We review the grant of summary judgment de novo, applying the standards set forth

in Civ.R. 56. See Comer v. Risko, 

, 

, 

, ¶ 8. To prevail on a motion for summary judgment, the movant must demonstrate

that there remains no genuine issue of material fact and, when construing the evidence

most strongly in favor of the nonmoving party, reasonable minds can only conclude

that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

                                      UM/UIM Coverage

          {¶8}    At issue in this case is the scope of UM/UIM coverage in the Kaisers’

2016 Safeco Policy.2 Generally, the purpose of UM/UIM coverage is “to put the

insured in the same position as if the tortfeasor were insured.” LexisNexis Practice

Guide: New Appleman Insurance Law 2023 Edition Section 2.03 (accessed Dec. 14,

2022).

          {¶9}    R.C. 3937.18 governs UM/UIM coverage in Ohio, and that statute has a

turbulent legislative history that became more stable after 2001. See, e.g., State Farm

Mut. Auto. Ins. Co. v. Grace, 

, 

, 

, ¶

19-29; Snyder v. Am. Family Ins., 

, 

, 

. In 2001, the General Assembly, through the enactment of Am.Sub.S.B.

No. 97 (“S.B. 97”), amended this statute to eliminate the requirement that insurers

must offer UM/UIM coverage. See Grace at ¶ 23. At that same time, the General


2   The pleadings include a claim against Safeco for UM/UIM coverage only, not liability coverage.
                                                 4
                   OHIO FIRST DISTRICT COURT OF APPEALS




Assembly also modified a provision, first added in 1997, that allowed an insurer to

“include terms and conditions that preclude [UM/UIM] coverage” for bodily injury or

death suffered by an insured. See id at ¶ 24.

       {¶10} The 2001 amendment expanded the circumstances under which an

insurer could limit the scope of the UM/UIM coverage in a policy, eliminating the

requirement that any terms and conditions precluding UM/UIM coverage had to

conform to those limitations specifically stated in former R.C. 3937.18. See R.C.

3937.18(I), interpreted in Grace at ¶ 26-30; Snyder at ¶ 28. As noted by the court in

Grace, the General Assembly in the uncodified language of the implementing

legislation expressed “the public policy of this state to not only eliminate the

mandatory offer of UM/UIM coverage, but also to permit insurers to incorporate

exclusionary or limiting provisions in their policies to limit or exclude UM/UIM

coverage.” Grace at ¶ 29.

       {¶11} A 2012 amendment varied the language in R.C. 3937.18(I) in a way that

affects intrafamily claims for wrongful death. Pursuant to that 2012 amendment, the

limitations and exclusions for UM/UIM coverage are subject to the terms of R.C.

3937.46, which was also enacted in 2012. R.C. 3937.46 renders unenforceable an

“intrafamily liability exclusion” in a policy that precludes liability coverage for an

intrafamily wrongful-death claim unless the policy includes UM/UIM coverage that

does not contain an intrafamily exclusion. See R.C. 3937.46. “Intrafamily liability

exclusion” is specifically defined as “any provision included in an automobile

insurance policy that excludes liability insurance coverage for the owner or operator

of a motor vehicle against a claim for injury or death suffered by a family member of

that owner or operator.” R.C. 3937.46(C)(1).

                                          5
                     OHIO FIRST DISTRICT COURT OF APPEALS




       {¶12} In summary, R.C. 3937.18(I) now contains examples of provisions

limiting and excluding UM/UIM coverage, but allows for policies that include any

terms and conditions precluding coverage as long as these circumstances are specified

in the policy and do not conflict with the content of R.C. 3937.46 regarding wrongful-

death claims. It is undisputed that the Safeco Policy at issue in this case is governed

by the current version of R.C. 3937.18 and that the provision Safeco cited as precluding

UM/UIM coverage is not set forth as an example in R.C. 3937.18(I).

                                  Policy Provisions

       {¶13} The Safeco Policy provided coverage in the amount of $250,000 per

person and $500,000 per accident in both the liability and UM/UIM portions of the

policy. With respect to liability coverage, the Safeco Policy contained a clause that

excluded liability coverage for bodily injury sustained “by any named insured or

resident family member.” This section of the policy additionally explained that Safeco

had no duty to defend any suit or settle any claim for bodily injury not covered under

the liability coverage of the policy.

       {¶14} In support of summary judgment on the claim for UM/UIM coverage,

Safeco cited several provisions in Part C of the policy, labeled UNINSURED

MOTORIST COVERAGE and governing both UM and UIM coverage. Safeco began

with the paragraph on the general provision of coverage:

       A. We will pay damages which an insured is legally entitled to recover

       from the owner or operator of:

       1. An uninsured motor vehicle as defined in Section 1., 2., and 4. of

       the definition of an uninsured motor vehicle because of bodily injury:

       a. sustained by that insured; and
                                           6
                      OHIO FIRST DISTRICT COURT OF APPEALS




       b. caused by an accident.

       2. An uninsured motor vehicle as defined in Section 3. of the

       definition of an uninsured motor vehicle because of bodily injury

       sustained by an insured.

       {¶15} Safeco then identified the provision defining what does, and does not

constitute an uninsured vehicle:

       C. “Uninsured motor vehicle” means a land motor vehicle or trailer

       of any type:

       1. To which no bodily injury liability or policy applies at the same time

       of the accident.

       2. To which a bodily injury liability bond or policy applies at the same

       time of the accident if its limit for bodily injury liability is less than

       minimum limits for bodily injury liability.

       3. Which is a hit-and-run vehicle whose operator or owner cannot be

       identified and which hits or causes bodily injury * * *[.]

       4. To which a bodily injury liability bond or policy applies at the time of

       the accident, but the bonding or insuring company:

       a. denies coverage; or

       b. is or becomes insolvent.

       However, “uninsured motor vehicle” does not include any vehicle

       or equipment:

       1. Owned by or furnished or available for the regular use of you, a

       family member or any other rated driver listed in the Declarations.

(Emphasis in original.)
                                           7
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶16} Because Donna owned the Solara in which she was a passenger when

she sustained her injuries, the trial court concluded that UM/UIM coverage was not

available because the language of Part C, including Paragraph C, excluded certain

tortfeasors’ vehicles from the UM/UIM portion of the policy, including a vehicle

Donna owned. The trial court did not find merit to the Kaisers’ arguments against

enforcement of this provision.

       {¶17} On appeal, the Kaisers do not argue the trial court misconstrued the

policy language. They maintain, however, that the policy provisions as written are

unenforceable for several reasons. We conclude these arguments are meritless.

                                    Public Policy

       {¶18} Initially, we address the Kaisers’ second assignment of error. According

to the Kaisers, the Safeco Policy should be found contrary to the public policy of the

state, and thus, unenforceable, because the provisions allow the insurer to deny both

liability coverage and uninsured coverage when an insured is injured as a passenger

in her own insured automobile.

       {¶19} Contract provisions that contravene the clear public policy of the state

are void. See, e.g., Lamont Bldg. Co. v. Court, 

, 

 (1947); John Hancock Mut. Life Ins. Co. v. Hicks, 

, 

 (10th Dist.1931) (“A policy of insurance is a voluntary contract, and may be made

upon such terms and conditions as are agreed upon by the parties thereto so long as

they are not in conflict with the public policy.”), cited in Casey v. Calhoun, 

, 

 (8th Dist.1987); Hedeen v. Autos Direct Online, Inc.,

, 

, ¶ 44 (8th Dist.) (“A court may refuse to enforce a

contract when it violates public policy.”).
                                              8
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶20} Freedom of contract, however, is the general rule, and the Ohio

Supreme Court has cautioned the courts against invalidating contracts on public-

policy grounds. See Lamont Bldg. Co. at 185. (“At best, ‘public policy’ is an uncertain

and indefinite term. When judges come to apply the doctrine, they must take care not

to infringe on the rights of parties to make contracts which are not clearly opposed to

some principle or policy of the law.”).

       {¶21} To prevail on their argument that the Safeco Policy is unenforceable on

public-policy grounds, the Kaisers were required to demonstrate that the Safeco Policy

is “clearly opposed to some policy or principle of law.” Id. at 185. The Kaisers argue

that both the judiciary and the legislature have articulated a clear policy against the

enforceability of the Safeco Policy because it leaves a gap in coverage even though the

insured purchased a “full coverage policy,” a policy with both liability and UM/UIM

coverage.

       {¶22} In support of their public-policy argument, the Kaisers direct this court

to the Ohio Supreme Court case of Kyle v. Buckeye Union Ins. Co., 

,

, 

. In Kyle, however, a majority of the justices upheld

an intrafamily exclusion that left a gap in coverage though the policy had both liability

and UM/UIM coverage.

       {¶23} In Kyle, Kathryn Kyle was injured when riding as a passenger in a car

negligently driven by her sister Andrea Kyle. Id. at ¶ 2. At the time, both Andrea and

Kathryn lived with their parents and were insured under their parents’ automobile

policy with the Buckeye Union Insurance Company.            Id. This insurance policy

provided coverage in the amount of $100,000 per person and $300,000 per accident

in the both the liability and UM/UIM portions of the policy. Id. Further, the policy

                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS




covered three cars and named Andrea as the rated driver of the car involved in the

collision. Id. at ¶ 3.

        {¶24} The Kyles’ policy “contained a standard clause that excluded liability

coverage for an insured for bodily injury sustained by any named insured or resident

family member” which the Kyles did not contest precluded Kathryn from collecting

under the liability portion of the policy since Andrea was not entitled to liability

coverage. Id. at ¶ 3-4. The Kyles asserted, however, that since Andrea was not entitled

to liability coverage, Andrea was an uninsured driver. When Buckeye Union denied

the UM claim, the Kyles filed a complaint for a declaratory judgment seeking a

declaration that they could collect under the UM/UIM provisions of the policy. Id.

        {¶25} Buckeye Union moved for summary judgment on the ground that

UM/UIM coverage was not available because the Kyles’ policy contained a provision

that excluded from the definition of an uninsured motor vehicle a tortfeasor motor

vehicle owned by any family member. Additionally, at the time the policy was entered

into, R.C. 3937.18 contained a similar limitation on UM/UIM coverage when the

tortfeasor who caused the insured’s loss had operated a vehicle owned by an insured.

Former R.C. 3937.18(K) stated that “ ‘uninsured motor and underinsured motor

vehicle’ do not include any of the following motor vehicles: (1) a motor vehicle that

has applicable liability coverage in the policy under which the insured and

underinsured motorist coverages are provided; (2) A motor vehicle owned by,

furnished to, or available for the regular use of a named insured, a spouse, or a resident

relative of the named insured.”

        {¶26} The Kyles argued that language in former subsection (K) conflicted with

former R.C. 3937.18(J)(1), which permitted the exclusion of UM/UIM coverage when

                                           10
                    OHIO FIRST DISTRICT COURT OF APPEALS




the injured insured was occupying a vehicle owned by an insured but not covered

under the liability portion of the policy (the “other-owned-vehicle exclusion”). As

such, according to the Kyles, an ambiguity existed, subdivision (J) controlled, and

coverage was available because Kathryn, the injured insured, was not occupying a

vehicle that fell under the other-owned-vehicle exclusion. Kyle, 

,

, 

, at ¶ 5 and 9. The trial court rejected the ambiguity

argument, found a lack of coverage, and granted summary judgment to Buckeye

Union. That judgment was affirmed on appeal by the Sixth District Court of Appeals.

       {¶27} The Ohio Supreme Court also affirmed summary judgment for Buckeye

Union but, as emphasized by the Kaisers in this appeal, three justices dissented. The

dissenters argued that the construction set forth in the plurality opinion undermined

the clear purpose behind the legislature’s enactment of R.C. 3937.18: “to protect

persons from losses that, because of the tortfeasor’s lack of liability coverage, would

otherwise go uncompensated.” See id. at ¶ 27 (Sweeney, J., dissenting). These

dissenting justices, however, were unable to persuade the four justices who voted to

affirm. Thus, the Kaisers’ reliance on Kyle in support of their public-policy argument

is misplaced.

       {¶28} The Kaisers also cite in support an intermediate appellate court opinion

that was later reversed by the Ohio Supreme Court, see Burnett v. Motorists Mut. Ins.

Co., 

, 

, 

, and cases from other

jurisdictions regarding the intrafamily exclusion. These cases are insufficient to

support the Kaisers’ argument that enforcement of the Safeco Policy as written

contravenes the “clear” public policy of the state of Ohio.



                                           11
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶29} Finally, the Kaisers cite the 2012 amendment to R.C. 3937.18 that

effectively restricts the enforcement of an intrafamily exclusion to leave a gap in

coverage in wrongful-death cases. We are not persuaded from the legislature’s action

to remedy the situation involving a wrongful-death claim that the Safeco Policy

provision precluding UM/UIM coverage in this case is also unenforceable.

       {¶30} Before the 2012 amendment, the Supreme Court had repeatedly

explained that R.C. 3937.18 now “permits policies with uninsured-motorist coverage

to limit or exclude coverage under circumstances that are specified in the policy even

if those circumstances are not also specified in the statute” and “provide[s] insurers

considerable flexibility in devising specific restrictions on any offered uninsured- or

underinsured-motorist coverage.” Snyder, 

, 

, 

, quoted in Grace, 

, 

, 

, at ¶ 28. These holdings are tied to the General Assembly’s express legislative

intent in the uncodified language of S.B. 97, setting a public policy in the state echoing

the court’s sentiment years prior that it would be “for the buyers and sellers of

insurance to decide” whether certain claims are insured based on the “forces of our

free market economy.” Shearer v. Shearer, 

, 

(1985) (abrogating parental and interspousal immunity).

       {¶31} Appellate courts in Ohio, including this court, have enforced R.C.

3937.18(I) as written. See Custer v. Custer, 

, 

 (7th Dist.),

and cases cited therein; Kelly v. Auto-Owners Ins. Co., 1st Dist. Hamilton No. C-

050450, 

. Courts have enforced R.C. 3937.18(I) as written even when

the injured party denied a benefit is a named insured and the vehicle is insured under

the policy. See, e.g., Custer (involving policy specifically excluding UM coverage for

                                           12
                     OHIO FIRST DISTRICT COURT OF APPEALS




“a motor vehicle which is insured under the Automobile Liability Insurance of [the]

policy”); Bousquet v. State Auto Ins. Co., 8th Dist. Cuyahoga No. 89601, 2008-Ohio-

922 (R.C. 3937.18(I) allows insurers to exclude owned vehicles listed in a policy of

insurance from UM/UIM coverage, as the list of situations contained within the

statute where UM/UIM coverage could be excluded was not exhaustive); Kelly, 1st

Dist. Hamilton No. C-050450, 

 (involving intrafamily exclusion to

preclude coverage for husband’s serious bodily injuries).

          {¶32} Notwithstanding this precedent, the General Assembly only amended

R.C. 3937.18(I) to require UM/UIM coverage consistent with the limitation on the

enforceability of an “intrafamily exclusion” in a “wrongful death” case, and this course

of action suggests legislative intent to retain the existing law unaffected by the

amendment. See Ohio Neighborhood Fin., Inc. v. Scott, 

, 2014-

Ohio-2440, 

 (“[L]egislative inaction in the face of knowledge of

longstanding statutory interpretation may suggest a legislative intent to retain existing

law.”).

          {¶33} The General Assembly has not restricted the use of UM/UIM coverage

limitations based on the tortfeasor’s vehicle, the coverage limitation that governs in

this case. That tortfeasor-vehicle limitation applies regardless of whether the claimant

is related to the tortfeasor, and the limitation is similar to a coverage limitation at one

point afforded under Ohio law and accepted by the Ohio Supreme Court. See Burnett

v. Motorists Mut. Ins. Co., 

, 

, 

; Kyle, 

, 

, 

, at ¶ 13-16, 21

(interpreting former R.C. 3937.18(K)(2) to state that a UM/UIM vehicle does not



                                            13
                     OHIO FIRST DISTRICT COURT OF APPEALS




include “[a] motor vehicle owned by, furnished to, or available for the regular use of a

named insured, a spouse, or a resident relative of a named insured.”).

       {¶34} The Kaisers argue that what they call the “passenger seat defense” is the

most draconian of coverage limitations. However, they have not cited an Ohio case

that conflicts with these authorities that interpret and apply the current version of R.C.

3937.18 in a manner contrary to the Kaisers’ public-policy argument. Nor have the

Kaisers cited legislation that reflects a clear public policy in their favor.

       {¶35} After considering the Kaisers’ public-policy argument, we hold that the

Kaisers have failed to demonstrate that enforcement of the policy’s specific limitation

eliminating UM/UIM coverage for a “vehicle * * * [o]wned or furnished or available

for the regular use of you, a family member or any other rated driver listed in the

Declarations” is contrary to the clear public policy of the state, even though the policy

also excludes liability coverage for an injury to Donna, a named insured.             The

responsibility of a court is to determine when the public-policy exception must be

recognized, but it is the “legislative branch [that] is ‛the ultimate arbiter of public

policy.’ ” Arbino v. Johnson & Johnson, 

, 

, 

, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite

Information Network v. Dupuis, 

, 

, 

, cited in Cincinnati City School Dist. Bd. of Edn. v. Conners, 

,

, 

, ¶ 17.

       {¶36} While the General Assembly in 2012 chose to limit the freedom of

contract embodied in former R.C. 3937.18(I) in a significant way, it targeted

intrafamily exclusions in the context of wrongful-death claims. This course of action,

we believe, is fatal to the Kaisers’ public-policy argument. Because the trial court did

                                             14
                   OHIO FIRST DISTRICT COURT OF APPEALS




not err by failing to find the Safeco Policy provisions unenforceable on public-policy

grounds, we overrule the second assignment of error.

              Enforcement of Insurance Contract Provisions

       {¶37} The Kaisers remaining assignments of error implicate the law on

contract formation and interpretation. The first and fourth assignments of error

specifically implicate the law on adhesion contracts. The trial court found no merit to

the Kaisers’ argument that the insurance policy was an unenforceable adhesion

contract. The Kaisers argue the trial court misapplied the law with respect to adhesion

contracts and that the provisions precluding coverage should be found unenforceable.

       {¶38} With respect to automobile insurance contracts, the Ohio Supreme

Court has said:

       When confronted with an issue of contractual interpretation, the role of

       a court is to give effect to the intent of the parties to the agreement.

       Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 

, 

 (1999), citing Employers’ Liab. Assur. Corp. v.

       Roehm, 

, 

 (1919), syllabus. See, also, Section

       28, Article II, Ohio Constitution. We examine the insurance contract as

       a whole and presume that the intent of the parties is reflected in the

       language used in the policy. Kelly v. Med. Life Ins. Co., 

, 

 (1987), paragraph one of the syllabus. 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.

       Alexander v. Buckeye Pipe Line Co., 

, 

       (1978), paragraph two of the syllabus. When the language of a written
                                          15
              OHIO FIRST DISTRICT COURT OF APPEALS




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. Gulf Ins. Co. v.

Burns Motors, Inc., 

, 

(Tex.2000).

       On the other hand, where a contract is ambiguous, a court may

consider extrinsic evidence to ascertain the parties’ intent. Shifrin v.

Forest City Enterprises, Inc., 

, 

 (1992).

A court, however, is not permitted to alter a lawful contract by imputing

an intent contrary to that expressed by the parties. Id.; Blosser v.

Enderlin, 

, 

 (1925), paragraph one of the

syllabus (“there can be no intendment or implication inconsistent with

the express terms [of a written contract]”).

       It is generally the role of the finder of fact to resolve ambiguity.

See, e.g., Davis v. Loopco Industries, Inc., 

, 

 (1993). However, where the written contract is standardized and

between parties of unequal bargaining power, an ambiguity in the

writing will be interpreted strictly against the drafter and in favor of the

nondrafting party. Cent. Realty Co. v. Clutter, 

,

 (1980). In the insurance context, the insurer

customarily drafts the contract. Thus, an ambiguity in an insurance

contract is ordinarily interpreted against the insurer and in favor of the

insured. King v. Nationwide Ins. Co., 

, 

 (1988), syllabus.

                                    16
                       OHIO FIRST DISTRICT COURT OF APPEALS




Westfield Ins. Co. v. Galatis, 

, 

.

        {¶39} The last paragraph of this passage from Galatis demonstrates that

automobile insurance contracts are not per se unenforceable though they are adhesive

in nature. As with any contract, the rights and duties of a party to an adhesion contract

are derived from the terms of the agreement. See, e.g., Neuro-Communication Servs.

v. Cincinnati Ins. Co., Slip Opinion No. 

 (“[i]n interpreting a

contract [of insurance], we seek to give effect to the intent of the parties to the

agreement”), citing Galatis at ¶ 11. The Kaisers did not oppose summary judgment on

the ground that the terms with respect to the UM/UIM coverage were ambiguous.3

Moreover, R.C. 3937.18 does not displace contract-law principles. See Snyder, 

, 

, 

.

        {¶40} To avoid enforcement of an unambiguous provision in an insurance

contract that does not violate the law or public policy, a party must establish one of the

traditional contract defenses. See, e.g., Hatfield v. Whisman, 4th Dist. Scioto No.

16CA3738, 

 (reviewing argument that a two-year statute of limitations

in an insurance policy was unconscionable under the standards set forth in U.C.C.

Section 2-302 for sales contracts, as adopted in R.C. 1302.15); Ackerman v. State

Farm Mut. Auto. Ins. Co., 1st Dist. Hamilton No. C-990332, 

, 16 (Dec. 10, 1999) (affirming summary judgment because insured failed to prove

that policy was an unconscionable adhesion contract).


3An appellant may not use a reply brief to raise new assignments of errors or new issues, especially
those not raised in the trial court. See App.R. 16(C); City of Cincinnati v. Triton Servs., 1st Dist.
Hamilton No. C-210475, 

. Thus, to the extent that the Kaisers in their reply
brief are attempting to challenge the language in Section C, Paragraph C, as containing an
ambiguity in light of an exclusion in that section, they are precluded from doing so.
                                                 17
                    OHIO FIRST DISTRICT COURT OF APPEALS




                                Unconscionability

       {¶41} The Kaisers rely on unconscionability, arguing that it would be

unreasonable and unexpected for Donna or any other insured to pay for a policy with

liability and UM/UIM coverage when that policy invalidates all coverages if she is

injured while sitting as a passenger in her own car.

       {¶42} The Ohio Supreme Court has said that unconscionability includes both

“an absence of meaningful choice on the part of one of the parties together with

contract terms which are unreasonably favorable to the other party.” Lake Ridge

Academy v. Carney, 

, 

 (1993), quoting Williams

v. Walker-Thomas Furniture Co., 

, (D.C.Cir.1965), quoted in Hayes

v. Oakridge Home, 

, 

, 

.

       {¶43} The party asserting unconscionability of a contract bears the burden of

proving that the agreement is procedurally and substantively unconscionable by a

“quantum” of both prongs. (Internal quotation omitted.) See Taylor Bldg. Corp. of

Am. v. Benfield, 

, 

, 

; 

; Hedeen, 

, 

, at ¶ 27. Whether a written contact is

unconscionable is a question of law. Taylor at ¶ 35.

       {¶44} While     the   Kaisers   allude   to     the   Safeco   Policy’s   possible

unconscionability, they have not offered evidence sufficient to raise a genuine issue of

material fact as to either procedural or substantive unconscionability. As to the

substantive prong, their assertion that the challenged provision invalidates all

UM/UIM coverage for Donna when she is a passenger in her own car is factually

inaccurate. The challenged provision only applies when the tortfeasor’s vehicle is

“[o]wned by or furnished or available for the regular use of you, a family member, or
                                          18
                    OHIO FIRST DISTRICT COURT OF APPEALS




any other rated driver listed in the Declarations.” Safeco did not invoke this provision

to deny UM/UIM coverage that related to Goff, who was not driving a vehicle

referenced in the challenged provision.

       {¶45} Further, the Kaisers’ reasonable-expectation argument is defeated by a

reading of the policy. Under Ohio law, an insured has a duty to examine the coverage

provided and is charged with knowledge of the contents of her own insurance contract.

See Kincaid v. Erie Ins. Co., 

, 

, 

, ¶

16. Though Donna’s arguments resonate with us as insureds, we cannot ignore that

the lack of coverage challenged by Donna as unreasonable and unexpected is derived

from the unambiguous terms of the agreement and that identical and similar terms,

all leaving the insured without UM/UIM coverage, have been found enforceable by

Ohio courts. See Bousquet, 8th Dist. Cuyahoga No. 89601, 

 (R.C.

3937.18(I) allows insurers to exclude owned vehicles listed in a policy of insurance

from UM/UIM coverage, as the list of situations contained within the statute where

UM/UIM coverage could be excluded was not exhaustive.); Kelly, 1st Dist. Hamilton

No. C-050450, 

; Custer, 

, 

, and cases

cited therein.

       {¶46} With respect to procedural unconscionability, the record is limited to

the general recognition that insurance contracts are adhesive in nature. However,

“even a contract of adhesion is not in all instances unconscionable per se.” Taylor, 

, 

, 

; Hedeen, 

, 

, at ¶ 35-36. The Kaisers do not cite case law indicating that this disparity

alone is sufficient to raise a genuine dispute as to any material fact with respect to

unconscionability. For these reasons, we conclude that the Kaisers have failed to

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                   OHIO FIRST DISTRICT COURT OF APPEALS




demonstrate that summary judgment should have been denied based their claim that

the UM/UIM provision is unconscionable. Accordingly, we overrule the first and

fourth assignments of error.

                         Reformation Based on Mistake

       {¶47} In their third assignment of error, the Kaisers maintain that the Safeco

Policy must be reformed, instead of being enforced as written, “to correctly integrate

the agreement of the parties.” Under Ohio law, an insurance policy may be “reformed”

to correct a mutual mistake by the insured and the insurer, or to correct a unilateral

mistake made by the insurer in failing to issue a policy in accordance with a prior

agreement of the parties. Amankwah v. Liberty Mut. Ins. Co., 

, 

, ¶ 26 (1st Dist.), citing Snedegar v. Midwestern Indemn. Co., 

, 

 (10th Dist.1988).         Because reformation is an

equitable remedy, available to a complaining party who has acted with reasonable

diligence, where a complaining party has failed to read a contract, equitable relief in

the form of contract reformation is generally prohibited. See Amankwah at ¶ 26.

       {¶48} To prevail, the party seeking reformation must, among other things,

present evidence on the intent of the parties. See, e.g., 

. As we

previously noted, the Kaisers failed to place into evidence any material facts on the

formation of the contract that support reformation of the policy language. Thus, the

Kaisers failed to demonstrate that a genuine issue of material fact exists for trial on

the issue of reformation. Accordingly, we overrule the third assignment of error.

                                    Conclusion

       {¶49} In conclusion, we affirm the decision of the trial court entering

summary judgment in favor of Safeco. The summary-judgment record establishes that
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                   OHIO FIRST DISTRICT COURT OF APPEALS




the Safeco Policy provides no UM/UIM coverage for Donna’s injuries to the extent

they resulted from the fault of Williams, who was driving Donna’s car.

                                                                   Judgment affirmed.

MYERS, P.J., and BOCK, J., concur.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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