Summary
finding the only relevant time in an insurance contract dispute was whether the driver was licensed at the time of the accident
Summary of this case from Collins v. Auto-Owners Ins. Co.Opinion
No. 87-206
Decided February 17, 1988.
Appellate procedure — Time requirements for filing cross-appeal mandatory and jurisdictional — App. R. 4(A).
O.Jur 3d Appellate Review §§ 184, 199.
1. The time requirements for filing a cross-appeal pursuant to App. R. 4 (A) are mandatory and jurisdictional.
2. A court of appeals does not acquire jurisdiction over belated cross-appeals merely because an appeal by an opposing party has been properly perfected.
APPEAL from the Court of Appeals for Cuyahoga County.
This action arose from an automobile accident that occurred on the afternoon of August 22, 1980. Haifa Takieddine was driving a 1980 Chrysler LeBaron owned by appellee, Agency Rent-A-Car (hereinafter "Agency"). The vehicle had been rented from Agency by Haifa's brother-in-law, Rafik Takieddine. At the time of the accident, Haifa was driving Rafik to his physician's office.
Rafik Takieddine purchased automobile insurance through Agency when he rented the car. In paragraph four of page two of the rental agreement signed by Rafik, Agency agreed "to indemnify and hold harmless customer and authorized operators only, for liability claims up to $50,000.00 per occurrence during the term of this contract * * * unless otherwise excluded in said contract." Paragraph two of page two of that document also provided that: "Under no circumstances shall vehicle be used, operated or driven * * * (F) by any person except Renter, or a qualified licensed driver provided Renter's permission be first obtained." When the collision occurred, Haifa Takieddine was driving with an expired Ohio driver's license. The license had expired on August 1, 1980. The license was renewed by Haifa on August 26, 1980 as permitted by R.C. 4507.10(B).
Haifa's husband, Fayez Takieddine, had an automobile insurance policy issued by appellant, State Farm Mutual Automobile Insurance Company (hereinafter "State Farm"), on another car that he owned. This car was not involved in the accident. However, the State Farm policy provided coverage for use of "non-owned cars." A non-owned car was defined as follows:
" Non-Owned Car — as used in Sections I and II means a car, including a six wheel truck that has one set of dual wheels, not:
"1. owned by,
"2. registered in the name of, or
"3. furnished or available for the regular or frequent use of: you, your spouse, or any relatives.
"The use has to be within the scope of consent of the owner or person in lawful possession of it." (Emphasis sic.)
The policy defined "relative" as: "* * * a person related to you or your spouse by blood, marriage or adoption who lives with you. * * *" (Emphasis sic.)
On July 1, 1982, John Kaplysh filed a complaint alleging that Haifa Takieddine was negligent in the operation of her vehicle and that such negligence was the proximate cause of his injuries. Haifa Takieddine answered the Kaplysh complaint and filed a third-party complaint for declaratory judgment against State Farm. The third-party complaint alleged that she was an insured under her husband's State Farm policy and that she was subject to indemnification based on such policy. On August 8, 1984, State Farm answered the third-party complaint and filed a fourth-party complaint against Agency. State Farm alleged that Agency had contracted with Rafik Takieddine to provide Haifa Takieddine with insurance coverage and, as a result, State Farm was subject to indemnification to the extent of such insurance coverage. Agency denied coverage based on the fact that Haifa Takieddine was driving with an expired driver's license at the time of the accident. Thus, Agency concluded that Haifa Takieddine was not an authorized user of the rented automobile because she was not a "qualified licensed driver" under the terms of the rental agreement.
The trial court entered findings of fact and conclusions of law on January 16, 1985. That judgment failed to adjudicate the claims of all parties and the judgment entry failed to contain the phrase "no just reason for delay" as required by Civ. R. 54(B). State Farm and Agency both appealed. On August 9, 1985, the court of appeals dismissed the appeal, sua sponte, because the judgment entry failed to comply with Civ. R. 54(B).
On October 29, 1985, the trial court entered, in pertinent part, the following conclusions of law:
"2. At the time of the accident on August 22, 1980, Haifa Takieddine was a qualified licensed driver as those terms are utilized in the Agency Rent-A-Car contract with Rafik Takieddine.
"* * *
"5. Agency Rent-A-Car must indemnify and hold Haifa Takieddine harmless from plaintiff's liability claims up to $50,000.00.
"* * *
"9. The Agency Rent-A-Car agreement to provide insurance coverage up to $50,000.00 is applicable to the August 22, 1980 occurrence. Agency Rent-A-Car is the primary insurer as to that occurrence.
"10. The Agency Rent-A-Car vehicle involved in the accident of August 22, 1980 does qualify as a non-owned automobile pursuant to the State Farm policy. The State Farm Mutual Automobile Insurance Company policy is applicable to the accident of August 22, 1980, only as an excess insurer."
Agency and State Farm both appealed. The court of appeals found that Haifa Takieddine was not a qualified licensed driver under the terms of the rental agreement and reversed the trial court's holding requiring Agency to indemnify Haifa Takieddine and pay her attorney fees. The court of appeals also dismissed State Farm's cross-appeal because it was not timely filed.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Meyers, Hentemann, Schneider Rea Co., L.P.A., and Henry A. Hentemann, for appellant.
McNeal, Schick, Archibald Biro Co., L.P.A., and Steve J. Handlovics, for appellee.
The primary issues presented in this action are (1) whether Haifa Takieddine was a qualified licensed driver at the time of the accident and (2) whether the court of appeals erred in dismissing State Farm's cross-appeal. We hold in the negative on both issues and, accordingly, affirm the decision of the court of appeals.
As observed above, paragraph two of page two of the rental agreement states:
"Under no circumstances shall vehicle be used, operated or driven * * * (F) by any person except Renter, or a qualified licensed driver provided Renter's permission be first obtained." (Emphasis added.)
This paragraph serves as an exclusion to relieve Agency from its obligations to indemnify authorized operators pursuant to paragraph four of page two of the rental agreement. There is no dispute as to whether Haifa Takieddine had Rafik's permission to drive the vehicle at the time of the accident. Therefore, the ultimate query becomes whether Haifa Takieddine, as a driver with an expired driver's license, was a "qualified licensed driver," as the term is utilized in the rental agreement.
Appellant State Farm contends that the term "qualified licensed driver" was used in the rental agreement only to prevent the renter from allowing the automobile to be driven by one who had never been licensed or whose license had been revoked or suspended. State Farm then maintains that Haifa Takieddine was qualified to drive because her license had merely expired and was renewed without examination within four days of the accident. Thus, State Farm reasons, the rental agreement did not include her within the policy prohibition. State Farm further argues that because the agreement between Agency and Rafik Takieddine was a contract of adhesion, the contract should be construed strictly against Agency as the insurer and in favor of Haifa Takieddine as the insured. We find these arguments to be unpersuasive.
It is well-established that language in a contract of insurance reasonably open to different interpretations will be construed liberally in favor of the insured and strictly against the insurer. Faruque v. Provident Life Acc. Ins. Co. (1987), 31 Ohio St.3d 34, 31 OBR 83, 508 N.E.2d 949; Great American Mut. Indemn. Co. v. Jones (1924), 111 Ohio St. 84, 144 N.E. 596. However, State Farm urges this court to delve into the parties' intent and formulate our own meaning of this agreement when the words of the agreement are clear and unambiguous. "When the meaning of the contract can be fully and clearly ascertained from its own words, we are at liberty to go no further in search of aid in its interpretation." Rose v. New York Life Ins. Co. (1933), 127 Ohio St. 265, 273, 187 N.E. 859, 862. The rental vehicle in question was to be driven only by the renter or a qualified licensed driver with the permission of the renter. State Farm places great emphasis on the qualifications of Haifa Takieddine as a driver and the fact that she was able to renew her expired license four days after the accident without an examination. Nevertheless, the contract provided that a driver not only be qualified, but also licensed. "It is elementary that an insurance policy is a contract, and in the construction thereof, just as other contracts, words therein employed should be given their usual and ordinarily accepted meaning." Great American, supra, at 86, 144 N.E. at 596.
Former R.C. 4507.10 provided in pertinent part:
"(B) The registrar may waive the examination of any person applying for the renewal of an operator's or chauffeur's license, or motorcycle operator's endorsement issued under Chapter 4507. of the Revised Code, provided that the applicant presents either an unexpired license or endorsement or a license or endorsement which has expired not more than six months prior to the date of application."
The term "licensed" means: "1. having a license: permitted or authorized by license * * *." Webster's Third New International Dictionary (1981) 1304. Haifa Takieddine's license to drive expired on August 1, 1980, pursuant to R.C. 4507.09. The word "expire" is defined as follows: "to come to an end: CEASE: * * * to reach a close (as of a period of time): TERMINATE * * *: to become void through the passage of time * * *." Webster's, supra, at 801. See, also, Frontier-Embers Supper Club, Inc. v. Bd. of Liquor Control (1960), 112 Ohio App. 325, 328, 15 O.O. 2d 393, 394, 172 N.E.2d 717, 719. Likewise, Black's Law Dictionary (5 Ed. 1979) 519, defines the term "expiration" as: "Cessation; termination from mere lapse of time, as the expiration of a lease, insurance policy, statute, and the like. Coming to close; termination or end." Haifa Takieddine's license to drive expired twenty-one days before the accident of August 22, 1980. She was not a licensed driver. The fact that she was subsequently issued a license pursuant to R.C. 4507.10 is not relevant. R.C. 4507.10 empowers the Registrar of Motor Vehicles to waive, at his discretion, an examination of a person applying for a renewal of an operator's license. That statute does not serve to retroactively renew a previously expired license. Rafik Takieddine violated the terms of the rental agreement by permitting an unlicensed driver to operate the rented vehicle. The language of that contract is clear and this court will not inquire into the intent of the specific provision in question. "Words which have a plain and commonly understood meaning ought not to be rationalized to a different meaning in an attempt to avoid the results of reading them as they are." Travelers Indemn. Co. v. Reddick (1974), 37 Ohio St.2d 119, 124, 66 O.O. 2d 259, 262, 308 N.E.2d 454, 457.
Former R.C. 4507.09 provided in relevant part:
"Every operator's and chauffeur's license issued on and after January 1, 1973, shall expire on the birthday of the applicant in the fourth year after the date it is issued, but in no event shall any such license be issued for a period longer than four years.
Haifa Takieddine was also in violation of former R.C. 4507.02 which stated in pertinent part:
" No person, except those expressly exempted under sections 4507.03, 4507.04, and 4507.05 of the Revised Code, shall operate any motor vehicle upon a highway or any public or private property used by the public for purposes of vehicular travel or parking in this state unless such person, upon application, has been licensed as an operator * * * by the registrar of motor vehicles under sections 4507.01 to 4507.39, inclusive, of the Revised Code." (Emphasis added.)
In the event that we were required to examine the intent of this contractual provision, it would not be unreasonable to conclude that an automobile rental company would want to require that its automobiles be driven by those with unexpired driver's licenses. One in possession of an expired driver's license may be viewed as irresponsible or inclined to disregard the law. Furthermore, it is arguable that an automobile rental company should bear the burden of defending itself in an action for violation of that portion of former R.C. 4507.02 which read in part:
"No person shall permit the operation of a motor vehicle upon any public or private property used by the public for purposes of vehicular travel or parking knowing such operator does not have a valid license, as an operator or chauffeur, issued to such operator by the registrar of motor vehicles under sections 4507.01 to 4507.39, inclusive, of the Revised Code.
Finally, State Farm cites Butche v. Ohio Cas. Ins. Co. (1962), 174 Ohio St. 144, 21 O.O. 2d 418, 187 N.E.2d 20, in support of its proposition that because the contract between Agency and Rafik Takieddine was one of adhesion, it should be liberally construed in favor of Haifa Takieddine. Butche states in paragraph three of the syllabus that: "Policies of insurance, which are in language selected by the insurer and which are reasonably open to different interpretations, will be construed most favorably for the insured." (Emphasis added.) This principle of law initially requires contractual language reasonably susceptible of different interpretations. As discussed above, the instant agreement is clear and unambiguous in its declaration that only the renter and qualified licensed drivers may operate the rental vehicle. With this rule of liberal construction in mind, we are also well aware that "it is axiomatic that this rule can not be employed `to create ambiguity where there is none.' * * *" (Citation omitted.) Dairyland Ins. Co. v. Finch (1987), 32 Ohio St.3d 360, 363, 513 N.E.2d 1324, 1327.
Accordingly, we hold that because Haifa Takieddine was not a licensed driver at the time of the accident and because the rental agreement stated that only the renter and qualified licensed drivers could operate the rental vehicle, Agency is not required to indemnify and defend Haifa Takieddine.
We also affirm the determination of the court of appeals that Haifa Takieddine is not entitled to attorney fees.
Finally, we address the issue of whether the court of appeals properly dismissed State Farm's cross-appeal. The court of appeals held that it did not have jurisdiction to hear the cross-appeal due to the fact that it was not timely filed. App. R. 4(A) provides in relevant part:
"Appeals in civil cases. In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. A notice of appeal filed before entry of such judgment or order shall be treated as filed after such entry and on the day thereof. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires." (Emphasis added.)
State Farm concedes that its cross-appeal was filed approximately twelve days late, but argues that the time requirements for filing cross-appeals provided by App. R. 4 are procedural only and not jurisdictional. State Farm further asserts that once the original appeal is timely filed, the court of appeals has jurisdiction over any cross-appeal. We disagree.
While there is a connection with regard to the times in which a party may file an appeal and cross-appeal, appeals and cross-appeals remain distinct entities in several respects. An appellee who does not cross-appeal generally cannot oppose the final judgment on appeal, or attack it to enlarge his own rights or lessen the rights of his adversary. But without filing a cross-appeal, an appellee can "urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it." United States v. American Ry. Express Co. (1924), 265 U.S. 425, 435. Because a cross-appeal is a separate attempt by an appellee to enlarge his own rights or lessen the rights of his adversary, we hold that the time requirements for filing a cross-appeal pursuant to App. R. 4(A) are mandatory and jurisdictional. Therefore, a court of appeals does not acquire jurisdiction over belated cross-appeals merely because an appeal by an opposing party has been properly perfected. Richland Knox Mut. Ins. Co. v. Kallen (C.A. 6, 1967), 376 F.2d 360, 364. See Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc. (C.A. 11, 1986), 793 F.2d 1529; In re Interstate Agency, Inc. (C.A. 6, 1985), 760 F.2d 121; Savage v. Cache Valley Dairy Assn. (C.A. 10, 1984), 737 F.2d 887. Thus, State Farm's untimely cross-appeal was properly dismissed by the court of appeals.
Fed. App. R. 4(a)(3) states:
"If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires."
Based on the foregoing, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.