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Roper v. State Automobile Mutual Insurance Co.6/28/2002
DECISION.
Judgment Appealed From Is: Reversed and Cause Remanded
. Plaintiffs-appellants, Katrice and Yolanda Roper (the "Ropers"), individually and as executor of the estate of Vivian Roper, deceased, appeal the January 24, 2001, decision by the trial court denying their motion for summary judgment and granting summary judgment in favor of defendant-appellee State Automobile Mutual Insurance Co. ("State Auto"). For the following reasons, we reverse the judgment of the trial court and remand the cause for further consideration not inconsistent with this opinion.
. On September 18, 1999, Vivian Roper ("the decedent") was involved in a fatal automobile accident. The driver of the automobile that struck and killed the decedent was defendant Otis Hill III. The owner of the vehicle driven by Hill was defendant Vanessa Maddox. According to the Ropers' complaint, Hill did not possess automobile insurance. The automobile was, however, insured by Maddox through defendant Progressive Insurance Agency Inc. ("Progressive"). Progressive's insurance policy provided coverage in the amount of $12,500 per person and $25,000 per accident. Because the policy did not cover the total damages suffered, the Ropers sought underinsured motorist ("UIM") coverage under several different insurance policies. Pertinent to this review, we address the policy possessed by The Days Inn of Cincinnati ("Days Inn").
. The decedent was an employee of Days Inn. At the time of the accident, Days Inn was insured under a commercial insurance policy with State Auto. The policy contained a provision for uninsured ("UM") and UIM coverage in excess of $1,000,000. Days Inn had also purchased an umbrella policy from State Auto that provided $1,000,000 in automobile liability coverage and $2,000,000 in general liability coverage. It is uncontested that, at the time of the accident, the decedent was not acting within the scope of her employment.
. In the complaint filed by the Ropers, they alleged that, as beneficiaries of the decedent, they were entitled to UIM coverage under both the commercial insurance policy and the umbrella policy held by Days Inn. State Auto filed an answer along with a counterclaim for declaratory judgment, asserting that the decedent and the Ropers were not insureds under either the commercial or the umbrella policy.
. Subsequently, State Auto filed a motion for summary judgment. State Auto asserted that the decedent was not an insured under the commercial policy, which clearly and unambiguously defined an "insured" as a business organization having no family members. State Auto further claimed that, because the umbrella policy supplemented the commercial policy, the terms concerning who was an insured were identical under both policies.
. The Ropers also filed a motion for summary judgment as to State Auto's counterclaim. The Ropers relied on Scott-Pontzer v. Liberty Mut. Fire Ins. Co. to support their contention that the decedent, as an employee of Days Inn, was an insured under the commercial policy because the language of the policy included not only Days Inn as a business entity but also the employees of Days Inn. The Ropers maintained that, because the decedent was an employee of Days Inn and because nothing in the contract mandated that coverage would exist only if employees were acting within the scope of their employment, UIM coverage should have been extended to the decedent and her heirs under the commercial policy. The Ropers also argued that the decedent was entitled to UIM coverage under the umbrella policy because the definition of an insured in the umbrella policy was ambiguous and because coverage arose by operation of law
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