Instone v. Motorists Mut. Ins. Co.
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[Cite as Instone v. Motorists Mut. Ins. Co., 2002-Ohio-3664.] IN THE COURT OF APPEALS OF WOOD COUNTY Jay Instone, et al. Court of Appeals No. WD-01-046 Appellants Trial Court No. 01-CV-136 v. Motorists Mutual Insurance Company, et al. DECISION AND JUDGMENT ENTRY Appellees Decided: March 22, 2002 * * * * * James D. Caruso and John A. Borell, Jr., for appellants. Robert J. Bahret and Keith J. Watkins, for appellee. * * * * * HANDWORK, Judge. {¶1} This is an appeal from a judgment of the Wood County Court of Common Pleas which granted summary judgment to appellee, Motorists Mutual Insurance Company ("Motorists"), in this dispute concerning underinsured motorist ("UIM") coverage pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. For the reasons stated herein, this court affirms the judgment {¶2} of The following the facts are trial relevant to court. this appeal. Appellant, Jay Instone, was injured in a motor vehicle collision on March 29, 1999. On March 23, 2001, appellant filed a complaint i which set forth a UIM claim pursuant to Scott-Pontzer, supra, and a bad faith claim against Motorists under a policy issued to North Baltimore Convenience Station, Inc. ("North Baltimore"). At the time of the accident, appellant was employed by North Baltimore. {¶3} On May 21, 2001, Motorists filed a motion for summary judgment. In its motion, Motorists argued that because the insurance policy at issue was a business policy consisting of coverages labeled "Business Owners Coverage" and "Liquor Liability Coverage" and did not list, schedule or specifically identify any motor vehicles, it was not an "automobile liability or motor vehicle liability policy of insurance" within the meaning of R.C. 3937.18(L)(1). "automobile Therefore, because the policy at issue was not an liability or motor vehicle liability policy of insurance" within the meaning of 3937.18(L)(1), it was not required to offer or provide UM/UIM coverages and, thus, the denial of appellant's UIM claims under the policy at issue was not in bad faith. {¶4} On May 29, 2001, appellant filed a motion for partial summary judgment against Motorists and opposed the summary {¶5} judgment motion filed by Motorists. On August 30, 2001, the trial court granted summary judgment to Motorists. The trial court denied appellant's motion for partial summary judgment. Appellant filed a timely notice of appeal. {¶6} {¶7} 2. Appellant sets forth the following assignment of error: "ASSIGNMENT OF ERROR NO. 1 {¶8} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE AS THE MOTORISTS POLICY IS AN AUTOMOBILE LIABILITY POLICY FOR THE PURPOSES OF R.C. SEC. 3937.18." {¶9} Appellant's assignment of error is found not well-taken on the authority of this court's decision in Burkholder v. German Mutual Ins. unreported. is affirmed. Co. (Mar. 15, 2001), Lucas App. No. L-01-1413, The judgment of the Wood County Court of Common Pleas Costs assessed to appellant. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Peter M. Handwork, J. ____________________________ JUDGE Melvin L. Resnick, J. James R. Sherck, J. CONCUR. ____________________________ JUDGE ____________________________ JUDGE __________________ i In his complaint, appellant also asserted a claim against the tortfeasor. Appellant's wife also asserted a loss of consortium claim. For simplicity we shall refer to appellant in the singular. 3.
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