Opinion
No. 84-586
Decided December 31, 1984.
Insurance — Typewritten endorsement designations controlling, when — Rules of construction.
O.Jur 2d Insurance §§ 214, 229.
1. When the printed references in a declarations page of an insurance policy contain typewritten numerical designations relating to endorsements, the typewritten endorsement designations are controlling where the endorsement provisions conflict with the printed references in the same declarations page.
2. Where a "liability insurance endorsement" refers to the typewritten designation "Bldg," as being the "Property Covered," and where the same endorsement refers to another endorsement, designated as MP100A, as being applicable, both endorsements create an ambiguity and must be read in pari materia to provide coverage as if these were part of the body of the policy.
APPEAL from the Court of Appeals for Richland County.
Plaintiff-appellee American Hardware Mutual Insurance Company executed and issued to defendant-appellant Mansfield Auto Truck Plaza ("Plaza") two insurance policies known as: (1) Garage Policy No. 9-8069359, and Special Multi-Peril Policy No. 9-8309105, which were in full force and effect on December 3, 1979, the date of the loss giving rise to the claims in this case. On that date, a semi-trailer owned by defendant-appellant Joseph F. Reynolds was delivered to Plaza for repair work. The trailer contained merchandise owned by defendant-appellant Crist, Inc. It is a stipulated fact that while the trailer was in the care and custody of the Plaza, an employee of Plaza, defendant-appellant Vern Muntain, negligently caused the trailer to catch fire. Both the trailer and its merchandise contents were damaged.
Defendants Reynolds and Crist, Inc. instituted a suit against Plaza, its employee, and defendant-appellant Union Oil Company of California for damages to the trailer and its contents.
Plaintiff acknowledged that coverage existed for the damage to the semi-trailer under Garage Policy No. 9-8069359. It further acknowledged that certain limited coverage existed (up to but not exceeding $2,000) for the loss of merchandise contained in the semi-trailer under Special Multi-Peril Policy No. 9-8309105. American Hardware denied that insurance coverage existed under these two insurance policies for any other losses and/or damages claimed in the action brought by Reynolds and Crist, Inc.
The Declarations Page (the first or cover page) to the Special Multi-Peril Policy provided in Section I for Property Coverage, designating a limit of liability of $277,000 for "Personal Property of The Insured," but leaving blank the line opposite "Personal Property of Others." Section I is preceded by this language in item 5:
"In consideration of the premium, insurance is provided the named insured with respect to the designated premises shown in item 4 above and with respect to those coverages and kinds of property for which a specific limit of liability is shown, subject to all of the terms of this policy including forms and endorsements made a part hereof:"
Flowing from the "forms and endorsements" language in item 5, and following Sections I and II toward the bottom of the Declarations Page, is item 6 which reads:
"Forms and Endorsements made part of this Policy at time of issue in addition to Special Multi-Peril Policy Conditions and Definitions Form MP-4 07-77
"Forms and Endorsements Only For:
"Section I MP101A 7-77[,] MP143 7-77[,] 11-6011[,] MP101 7-77[,] 111 5-23
"(MP100A 7-77 Applies To 11-6011 Only)
"Section II
"Section III"
A review of these endorsements reveals that liability coverage for damage to personal property of others is afforded. Endorsement 11-6011 describes "Bldg" as "Property Covered" with a $200,000 limit of liability, and contains this provision:
"Subject to all the provisions and stipulations otherwise applicable to Section I of this policy except the Coinsurance Clause, the Reporting Provisions and the Deductible Clause and to the limit of liability specified above for the property covered and the premises at which the damage or destruction occurs, the Company agrees with the named Insured to pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property of others in the care, custody or control of the Insured, including the loss of use thereof, caused by accident and arising out of the perils insured against. For the purposes of this insurance, `perils insured against' shall mean the perils, as defined and limited in the forms and endorsements listed above, for each premises specified and also subject to the provisions of this endorsement."
Under Section I, subdivision I, Property Covered, endorsement Form MP100A provides:
"Personal Property Of Others: This insurance shall cover for the account of the owners (other than the named insured) personal property belonging to others in the care, custody or control of the insured, while (1) in or on the buildings, or (2) in the open (including within vehicles) on or within 100 feet of the designated premises."
Paragraph G of subdivision III, Extensions of Coverage, in Form MP100A also provides:
"Non-Owned Personal Property: The insured may apply at each location up to 2% of the limit of liability specified for Personal Property of the Insured at such location, but not exceeding $2,000, as an additional amount of insurance, to cover for the account of the owners thereof (other that the named insured) direct loss by a peril insured against to personal property, similar to that covered by this policy, belonging to others while in the care, custody or control of the named insured and all while (1) in or on the buildings, or (2) in the open (including within vehicles) on or within 100 feet of the designated premises."
The record supports the trial court's findings of fact and conclusions of law that the Special Multi-Peril Policy No. 9-8069359 endorsement 11-6011 is a part of the insurance contract issued by plaintiff to Plaza.
The trial court held that liability coverage is found in Special Multi-Peril Policy No. 9-8309105 for the loss of the merchandise contained in the semi-trailer claimed by defendants Reynolds and Crist, Inc., with limits of liability of $200,000, plus $2,000, the latter of which represents the amount of extended coverage beyond the $200,000 limit. In construing the American Hardware policy the trial court found "at best, that an ambiguity is created which must be interpreted in favor of its insured."
The court of appeals reversed the trial court and held that Special Multi-Peril Policy No. 9-8309105 provides coverage not exceeding $2,000 for loss of personal property contained in the Reynolds semi-trailer, and that no insurance coverage for loss and damage of personal property not owned by Mansfield Auto Truck Plaza should be afforded beyond the $2,000.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Baran Baran Co., L.P.A., and Mr. Gary A. Piper, for appellee.
Messrs. Sauter Hohenberger and Mr. Wayne P. Hohenberger, for appellants Joseph F. Reynolds, Crist, Inc. and Firemen's Fund Ins. Co.
Messrs. Brown, Bemiller, Murray McIntyre and Mr. D. Kim Murray, for appellant Mansfield Auto Truck Plaza.
Messrs. Weldon, Huston Keyser and Mr. Richard R. Fowler, for appellant Vern Muntain.
Messrs. Calhoun, Benzin, Kademenos Heichel and Mr. James A. Calhoun, for appellant Union Oil Co. of California.
This cause requires interpretation of an insurance contract where there is a conflict between the declarations page and its endorsements appearing on later pages, thereby creating an ambiguity. The printed references in the declarations page seemingly provided no coverage for personal property of another, but the typewritten numerical designations relating to endorsements conflicted therewith and provided such coverage. The defendants Reynolds and Crist, Inc. have a right to payment of their losses up to a limit of $200,000 plus $2,000 extended coverage based on the following principles.
When the printed references in a declarations page of an insurance policy contain typewritten numerical designations relating to endorsements, the typewritten endorsement designations are controlling where the endorsement provisions conflict with the printed references in the same declarations page. See Moorman v. Prudential Ins. Co. (1983), 4 Ohio St.3d 20; Munchick v. Fidelity Cas. Co. (1965), 2 Ohio St.2d 303 [31 O.O.2d 569]; Toms v. Hartford Fire Ins. Co. (1945), 146 Ohio St. 39 [31 O.O. 538]; Mumaw v. Western Southern Life Ins. Co. (1917), 97 Ohio St. 1.
Where a "liability insurance endorsement" refers to the typewritten designation "Bldg," as being the "Property Covered," and where the same endorsement refers to another endorsement, designated as MP100A, as being applicable, both endorsement, create an ambiguity and must be read in pari materia to provide coverage as if these were part of the body of the policy. Workman v. Republic Mut. Ins. Co. (1944), 144 Ohio St. 37 [28 O.O. 564]; German Fire Ins. Co. v. Roost (1897), 55 Ohio St. 581; Aetna Ins. Co. v. Houston Oil Transport Co. (C.A. 5, 1931), 49 F.2d 121.
The trial court correctly determined that the provisions in Form MP100A are not limited to liability insurance coverage only for loss of the insured's building and for loss to its own personal property, but provide liability coverage for the loss to personal property of others, that is, the personal property losses of defendants Reynolds and Crist, Inc. with limits of liability of $200,000 plus $2,000, the latter of which represents the extended coverage beyond the $200,000 limit.
Therefore, the judgment of the court of appeals is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
W. BROWN, SWEENEY and J.P. CELEBREZZE, JJ., concur.
CELEBREZZE, C.J., LOCHER and HOLMES, JJ., dissent.
While I am in complete agreement with the legal maxim that ambiguous language within a policy of insurance should be construed strictly against the insurer, Moorman v. Prudential Ins. Co. (1983), 4 Ohio St.3d 20, 22, I am unpersuaded that application of that maxim in the appeal sub judice compels reversal of the judgment of the court of appeals.
The Declarations Page of the instant policy provides a space for noting coverage for loss of the personal property of others. This space in the policy in question is blank while other coverages are noted on the Declarations Page with specific policy limitations. Thus, one can reasonably conclude only that no coverage was intended for loss of the personal property of others.
With respect to the purported ambiguity in the policy created by virtue of certain endorsements, the majority necessarily assumes that certain endorsements, MP100A in particular, extend coverage for loss to the personal property of others and thereby create an ambiguity between the endorsements and the Declarations Page which must then be resolved in favor of the insured. In my view, these endorsements are anything but clear in their alleged extension of the coverage sought by appellants.
The majority heavily relies on the endorsement designated as MP100A which is referred to on the Declarations Page as applying to "11-6011 only." The endorsement designated as 11-6011 is, in my view, simply designed to cover the building in question. Although Form MP100A does speak to coverage for loss of the personal property of others in its Section I, the portion of Form MP100A made operative by its addition to 11-6011 is Subdivision IV which sets forth the "Perils Insured Against." This particular section does not provide or extend coverage for loss to the personal property of others. As a consequence, endorsement 11-6011 in combination with Form MP100A does not extend the coverage sought by appellants.
The policy only extends a maximum of $2,000 coverage for "Non-Owned Personal Property." Therefore, I would hold that appellee's limit of liability for loss to the personal property of others is $2,000.
Accordingly, since I would affirm the judgment of the court of appeals, I dissent.
LOCHER and HOLMES, JJ., concur in the foregoing dissenting opinion.