Opinion
Case No. 2:01-CV-1235
August 19, 2002
OPINION AND ORDER
In this diversity action, removed from state court, plaintiffs seek a determination of the parties' rights and obligations with respect to uninsured/underinsured motorist coverage under homeowner insurance and automobile liability insurance policies issued by defendants to plaintiffs in connection with the death of the plaintiffs' son and brother, allegedly as a result of the negligence of an uninsured motorist. With the consent of the parties, 28 U.S.C. § 636 (c), this matter is now before the Court on the parties' cross-motions for summary judgment addressing coverage issues.
I. Background
Plaintiffs Larry and Dorothy Martin and Tracy Biri are citizens of Ohio. Opinion and Order (May 15, 2002), at 1. State Farm Fire and Casualty Company ["State Farm Fire"] is an Illinois corporation with its principal place of business in Illinois. Notice of Removal, ¶ 2. State Farm Mutual Automobile Insurance Company ["State Farm Mutual"] is also an Illinois corporation with its principal place of business in Illinois. Id.
On June 18, 1995, Christopher Martin was a passenger on a motorcycle operated by Mark A. Rollins. When the motorcycle left the road, Christopher sustained injuries in the accident, eventually resulting in his death. Complaint, at 5; Answer, at 3.
At the time of the accident, the Martins, Christopher's parents, were insured under a homeowner's insurance policy, No. 35-36-6758-9, issued to them by State Farm Fire. Complaint, ¶ 2. Biri, Christopher's sister, was insured under another homeowner's insurance policy, No. 35-CZ-0424-0, issued to her by State Farm Fire. Id., ¶ 4. At the time of the accident, the Martins were also insured under an automobile liability insurance policy, No. 339-7696-A31-35L, issued to them by State Farm Mutual. Id., ¶ 1. Biri was also insured under an automobile insurance policy, No. 245 8858-AO5-35k, issued to her by State Farm Mutual. Id., ¶ 3. In June 1999, the Martins and Biri each presented a claim to State Farm Fire under their respective homeowner's insurance policies for uninsured motorist coverage. Id., ¶ 8. State Farm Fire denied plaintiffs' claims. The Martins and Biri also presented claims to State Farm Mutual under their respective automobile insurance policies for uninsured motorist coverage. State Farm Mutual denied those claims. This action was filed in state court on October 31, 2001. All parties have now filed motions for summary judgment addressing the issue of coverage.
II. Discussion
A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact. . . ." In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251. "When dealing with cross-motions for summary judgment, these same rules of review apply." Atlantic Richfield Co. v. Monarch Leasing Co., 84 F.3d 204, 206 (6th Cir. 1996).
B. Analysis
1. The Homeowner's Policies
Plaintiffs contend that they are entitled, by operation of Ohio law, to uninsured/under insured motorist benefits under State Farm Fire's homeowner's policies.
Former O.R.C. § 3937.18 required that uninsured and underinsured motorist coverage be made available under automobile liability insurance policies. O.R.C. § 3937.18(a)(1)-(2) (1995). If required uninsured and underinsured motorist coverage is not offered, it becomes part of the policy by operation of law. See Davidson v. Motorists Mut. Ins. Co., 91 Ohio St.3d 262, 264 (2001); Abate v. Pioneer Mut. Cas. Co., 22 Ohio St.2d 161 (1970). "The courts have construed [O.R.C. § 3937.18] broadly to provide coverage where none was intended by either of the parties to the contract." Hillyer v. State Farm Fire Cas. Co., No. 79176, 2001 WL 898424, at *1 (Cuyahoga Cy. Ct. App. Aug. 2, 2001). See also Scott-Ponzer v. Liberty Mutual, 85 Ohio St.3d 660, 666 (1999). The fact that the policy in question is a homeowner's insurance policy is not determinative. The Supreme Court of Ohio has stated that "the type of policy is determined by the type of coverage provided, not by the label affixed by the insurer." Selander v. Erie Ins. Group, 85 Ohio St.3d 541, 546 (1999) (quoting St. Paul Fire Marine Ins. Co. v. Gilmore, 812 P.2d 977, 983 (Ariz. 1991)). If the policy, however denominated, provides automobile liability insurance, the law governing uninsured and underinsured motorist coverage applies. Id.
The homeowner insurance policies at issue in this case provide in pertinent part:
SECTION II — EXCLUSIONS
Coverage [does] not apply to:
* * *
e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of . . .
(2) a motor vehicle owned or operated by or rented or loaned to any insured. . . .
This exclusion does not apply to bodily injury to a residence employee arising out of and in the course of the residence employee's employment by an insured. . . .Exhibits E and F attached to Complaint. The policy also includes a definition of "motor vehicle":
a. a motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an insured location is not a motor vehicle;
b. a trailer or semi-trailer designed for travel on public roads or subject to motor vehicle registration. A boat, camp, home or utility trailer not being towed by or carried on a vehicle included in [subsection a.] is not a motor vehicle.Id. [emphasis omitted].
The Supreme Court of Ohio declined to address in Davidson v. Motorist Mut. Ins. Co., supra, 91 Ohio St.3d 262 whether the "residence employee" exception found in a homeowner's insurance policy converted that policy into an automobile liability insurance subject to the uninsured and underinsured motorist provisions of O.R.C. § 3937.18 because the issue had not been raised in the lower courts. Id., at 265 n. 2. The decision in that case nevertheless provides this Court with some guidance in resolving the issue presented in this case. In Davidson, the Supreme Court of Ohio held:
Due to a conflict in the Ohio courts of appeal, the following issue has been certified to the Supreme Court of Ohio:
When a homeowner's insurance policy provides express liability for damages arising from a motor vehicle accident when the injured party is the homeowner's residence employee and the injury occurred in the course of that employment, is the policy deemed an automobile liability or motor vehicle policy subject to the requirement of former R.C. 3937.18 to offer uninsured and underinsured motorist coverage?Lemm v. The Hartford, 93 Ohio St.3d 1475 (2001).
A homeowner's insurance policy that provides limited liability coverage for vehicles that are not subject to motor vehicle registration and that are not intended to be used on a public highway is not a motor vehicle liability policy and is not subject to the requirement of former R.C. 3937.18 to offer uninsured and underinsured motorist coverage.Id., at 263, syllabus. The Davidson court based its decision on several factors. First, the court distinguished its decision in Selander v. Erie Ins. Group, 85 Ohio St.3d 541 (1999):
In Selander, we were construing a general business liability policy that expressly provided insurance against liability arising out of the use of automobiles that were used and operated on public roads. . . . In contrast, the policy at issue in this case is a homeowner's policy that does not include coverage for liability arising out of the use of motor vehicles generally. Instead, the homeowner's policy provides incidental coverage to a narrow class of motorized vehicles that are not subject to motor vehicle registration and are designed for off-road use or are used around the insured's property.Id., at 267. The court stated, "Clearly, the policy in Selander was deemed an automobile liability or motor vehicle policy precisely because there was express liability coverage arising from the use of automobiles." Id., at 267-68. The Ohio Supreme Court
never intended Selander to be used to convert every homeowner's policy into a motor vehicle liability policy whenever any incidental coverage is afforded for some specified type of motorized vehicle. Instead, Selander stands only for the proposition that UM/UIM coverage is to be offered where a liability policy of insurance expressly provides coverage for motor vehicles without qualification as to design or necessity for motor vehicle registration.Id., at 268 [emphasis added].
Second, the Davidson court based its decision on the differing purposes of homeowner's insurance policies on the one hand and uninsured and underinsured motorist coverage on the other:
[I]n the case of bodily injury, homeowner's liability insurance is essentially designed to indemnify against liability for injuries that noninsureds sustain themselves, typically while in the insured's home. In contrast, the purpose of uninsured motorist coverage is "to protect persons from losses which, because of the tortfeasor's lack of liability coverage, would otherwise go uncompensated."Id., at 262 (quoting Cincinnati Indemn. Co. v. Martin, 85 Ohio St.3d 604, 608 (1999)). Finally, the Ohio Supreme Court stated, "Common sense alone dictates that neither the insurer nor the insured bargained for or contemplated that such homeowner's insurance would cover personal injuries arising out of an automobile accident that occurred on a highway away from the insured's premises." Id., at 269.
Following the Davidson decision, several courts — including this Court — have addressed the issue of whether a residence employee provision similar to that at issue in this case converts a homeowner's insurance policy into an automobile liability insurance policy. Some courts have concluded that such a provision does not render the policy subject to uninsured/under insured motorist coverage. E.g., Tate v. State Farm Fire Casualty Co., No. 2:00-CV-642, Opinion and Order (S.D. Ohio January 15, 2002) [interpreting the same language]; Mizen v. State Farm Fire Cas. Co., No. 1:00CV1249, Opinion and Order (N.D. Ohio July 2, 2001)[interpreting the same language]; Rogers v. State Farm Fire Cas. Co., No. 1:00CV2317, Opinion and Order (N.D. Ohio July 2, 2001)[interpreting the same language]; Burnett v. Amex Assurance Co., No. 79082, 2001 WL 1110335 (Cuyahoga Cy. Ct. App. Sept. 13, 2001); Panozzo v. Allstate Ins. Co., No. 79083, 2001 WL 1075772 (Cuyahoga Cy. Ct. App. Sept. 13, 2001); Hillyer v. State Farm Fir Cas. Co., No. 79176, 2001 WL 898424 (Cuyahoga Cy. Ct. App. Aug. 2, 2001); Jones v. Nationwide Ins. Co., No. 2000CA00329, 2001 WL 842024 (Stark Cy. Ct. App. July 23, 2001); Davis v. Shelby Ins. Co., No. 78610, 2001 WL 674854 (Cuyahoga Cy. Ct. App. June 25, 2001). Other courts have concluded that a residence employee exception in a homeowner's insurance policy converts that policy into an automobile liability insurance policy subject to uninsured! underinsured motorist coverage. E.g., Allen v. Nationwide Ins. Co., No. 01AP-909, 2002 WL 723497 (Franklin Cy. Ct. App. April 25, 2002); Lemm v. The Hartford, No. 01AP-251, 2001 WL 1167585 (Franklin Cy. Ct. App. Oct. 4, 2001); Wodrich v. Farmers Ins. of Columbus, Inc., No. 98CA103, 1999 WL 317448 (Greene Cy. Ct. App. May 21, 1999) [decided prior to Davidson v. Motorists Mut. Ins. Co., 91 Ohio St.3d 262].
The Davidson decision signals a greater emphasis on the express language used in insurance policies. In the case at bar, the homeowner's policy offers no express liability coverage for motor vehicles. Indeed, the policy specifically excludes from coverage bodily injury arising out of the use of a motor vehicle. "While there is an exception for injuries to residence employees involving motor vehicle accidents arising out of the course of their employment with the insured, this is not the equivalent of express provision of coverage for a class of motor vehicles." Mizen v. State Farm Fire Cas. Co., No. 1:00CV1249, Opinion and Order (N.D. Ohio July 2, 2001), at 11. See also Rogers v. State Farm Fire Cas. Co., No. 1:00CV2317, Opinion and Order (N.D. Ohio July 2, 2001), at 12.
The homeowner's policy in this case is similar to the Selander policy to the extent that it provides motor vehicle liability coverage under certain circumstances for accidents involving vehicles that are subject to registration. However, the limited liability coverage in [the] homeowner's policy does not arise from an express provision. It is merely implied. In Selander, the insurance policy sets forth in detail the circumstances under which motor vehicle liability coverage will be provided in a discrete subsection titled "Non-Owned Automobile Liability." In contrast, a number of subsections must be read together before it becomes apparent that [the] homeowner's policy provides motor vehicle liability coverage under certain limited circumstances.Marino v. Cincinnati Ins. Co., No. CV-414468, Opinion and Order (Cuyahoga Common Pleas Ct. May 14, 2001), at 7-8.
This Court concludes that the homeowners policies involved in this case do not "include coverage for liability arising out of the use of motor vehicles [as in Selander, 85 Ohio St.3d 541, but] . . . provides "incidental coverage [as does the policy in Davidson, 91 Ohio St.3d 262]." Mizen, No. 1:00CV1249, Opinion and Order, at 11. See also Rogers, No. 1:00CV2317, Opinion and Order, at 12. Furthermore, "[w]hile the vehicles in Davidson were not subject to motor vehicle registration and were designed for off-road use or use around the insured's property, this distinction alone is insufficient to bring the instant policy within the parameters of [R.C.] § 3937.18." Mizen, No. 1:00CV1249, Opinion and Order, at 11. See also Rogers, No. 1:00CV2317, Opinion and Order, at 12. Thus, plaintiffs are not entitled to uninsured! under insured motorist coverage under State Farm Fire's homeowner's policies.
2. The Automobile Policies
The automobile liability insurance policy issued to plaintiffs by State Farm Mutual provide uninsured/underinsured motorist benefits. Defendants take the position that the action was not commenced within the time period required by the policies: "There is no right of action against us under uninsured motor vehicle coverages unless such action is commenced within two years after the date of the accident." Exhibits A and B attached to Complaint. Because the motorcycle accident giving rise to this action occurred in June 1995, and plaintiffs did not make claims under the policies until June 1999 and did not file this action until October 2001, defendants characterize the action as untimely. Plaintiffs respond that, because of an ambiguity and inaccuracy elsewhere in the policies, this limitations provision should not be enforced. The Court agrees with the defendants that these claims are untimely.
Plaintiffs in this action seek recovery for their own alleged legal — not bodily — injuries as wrongful death beneficiaries of their decedent. Policy endorsement form 6093C.1, which is attached to the automobile insurance policies issued to both the Martins and Biri by State Farm Mutual, amended the uninsured/underinsured motorist benefits provided by the policies. The amendment reads:
The second paragraph of SECTION III is changed to read:
We will pay damages for bodily injury an insured:
(1) is legally entitled to collect from the owner or driver of an uninsured motor vehicle; or
(2) would have been legally entitled to collect except for the fact that the owner or driver of the uninsured motor vehicle has an immunity, whether based upon statute or common law.
The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.Exhibits A and B attached to Complaint [emphasis original]. Although this language would appear to exclude from coverage the injuries claimed by plaintiffs in this case, the Supreme Court of Ohio held, in Moore v. State Automobile Mut. Ins. Co., 88 Ohio St.3d 27 (2000), which also involved a wrongful death claim, that Ohio law
does not permit an insurer to limit uninsured motorist coverage in such a way that an insured must suffer bodily injury, sickness, or disease in order to recover damages from the insurer. Therefore, we find that the limitation in [the] policy requiring that the insured suffer bodily injury in order to recover uninsured motorist benefits is an attempt to provide lesser coverage than that which is mandated by law. As such, we find that the limitation is invalid and unenforceable.Id., at 32-33. Defendant State Farm Mutual concedes that its purported limitation on coverage to bodily injury is unenforceable. Answer, ¶ 6.
Plaintiffs argue that where, as here, an insurance policy inaccurately informs potential claimants that they have no rights under the policy, the policy's time limitation for asserting claims should be unenforceable as well. Plaintiffs specifically argue that their policies' two year time limitation for bringing suit against State Farm Mutual should not be enforced because the unenforceable "bodily injury" limitation falsely informed plaintiffs, potential claimants, that they had no rights under the policies and therefore failed to clearly and conspicuously advise them of the need to assert their claims within the required time period. In this regard, plaintiffs do not argue that the policies' time limitation provisions are themselves ambiguous. Plaintiffs' Memorandum contra Cross Motion for Summary Judgment and Reply in Support of Motion for Partial Summary Judgment, at 4. Rather, plaintiffs argue that the provision purporting to limit coverage to bodily injury, unenforceable under Moore, renders the contractual limitations provisions so ambiguous as to be unenforceable as well.
In order to resolve this matter, three inquiries must be made. First, are contractual time limitations such as that found in the State Farm Mutual policies valid and enforceable? Second, if they are enforceable, was the action brought within that time period? And finally, was the inclusion of the "bodily injury" limitation in the plaintiffs' policies so contrary to Ohio law as to constitute a misrepresentation by State Farm Mutual to its insureds?
Time limitations contained in insurance policies can be valid and enforceable. In Miller v. Progressive Cas. Ins. Co., 69 Ohio St.3d 619 (1994), the Supreme Court of Ohio held:
Generally, in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, as between the parties, the time for bringing an action on such contract to a period less than that prescribed in a general statue of limitations provided that the shorter period shall be a reasonable one.Id., at 624 (quoting Colvin v. Globe American Cas. Co., 69 Ohio St.2d 293, 295 (1982)). That court held, however, that a one year limitations provision is void as against public policy. Id., syllabus. On the other hand, the court suggested in dictum that a two-year limitation on uninsured motorist claims would not violate public policy:
Finally, we do not suggest that time-limitation provisions of the type at issue in this case are altogether prohibited. Consistent with our analysis, a two-year period, such as that provided for bodily injury actions in R.C. 2305.10, would be a reasonable and appropriate period of time for an insured who has suffered bodily injuries to commence an action or proceeding for payment of benefits under the uninsured or underinsured motorist provisions of an insurance policy.Id., at 624-25. It is only when the contractual limitation period purports to dilute or eliminate the rights of the insured to coverage required by statute that such a provision is rendered void and unenforceable. Id., at 624. In that instance, the fifteen-year statute of limitations otherwise applicable to claims based on a written contract will apply. Id.
In the case at bar, the two-year time limitation contained in the State Farm Mutual policies would be valid and enforceable when analyzed by reference to the standard articulated in Miller. The limitations period found in the policies is two years. The statutory limitation for wrongful death actions in Ohio is also two years. O.R.C. § 2125.02(d). Therefore, the contractual limitation period does not dilute or eliminate the rights of the insureds. Further, the plaintiffs do not dispute that the contractual limitations period is otherwise enforceable. Cf. Grange Mut. Ins. Co., v. Fodor, 21 Ohio App.3d 258 (Cuyahoga Cy. Ct. App. 1984). Instead, they argue that such provision is unenforceable because it was rendered ambiguous and misleading by the unenforceable "bodily injury" provision found elsewhere in the policies.
The plaintiffs did not assert their claims prior to the expiration of the contractual limitations period. In Kraly v. Vannewkirk, 69 Ohio St.3d 627 (1994), the Supreme Court of Ohio determined that the "validity of a contractual period of limitations governing a civil action brought pursuant to the contract is contingent upon the commencement of the limitations period on the date that the right of action arising from the contractual obligation accrues." Id., syllabus. "[A] cause of action accrues when the injury occurs, even if the cause of action has not been recognized under Ohio law at that time." Olinik v. Nationwide Mut. Ins. Co., 133 Ohio App.3d 200, 211 (Mahoning Cy. Ct. App. 1999) (quoting Squire v. Castle Ins. Co., 1996 WL 761232 (Trumbull Cy. Ct. App. Dec. 13, 1996)). Moreover, "a change in a common-law ruling by the Ohio Supreme Court does not begin a new statute of limitations relating to those injuries occurring and completed prior to the decision." Id. (citing Carter v. Am. Aggregates Corp., 82 Ohio App.3d 181, 184-186 (Franklin Cy. Ct. App. 1992)). "Similarly, a change in case law should not revive a cause of action or extend a contractual period of limitations to revive the claim." Id.
Plaintiffs argue that the reasoning of Olinik, and the cases cited therein, should not be applied to them because there has been no change in the law of Ohio governing "bodily injury" limitations since 1982, and that the "bodily injury" provision in State Farm Mutual's policies is wholly indefensible. This Court concludes that the relevant law of the State of Ohio has changed over the years and that, at the time plaintiffs' policies were issued in 1995, the "bodily injury" limitation was not so misleading as to render unenforceable the provision requiring that uninsured motorist claims be made within two years.
In 1982, the Ohio Supreme Court held that the Ohio statute governing uninsured and underinsured motorist coverage, O.R.C. § 3937.18, required coverage by an insured for the wrongful death of a non-resident relative. Sexton v. State Farm Mut. Auto. Ins. Co., 69 Ohio St.2d 431 (1982). In 1994, and prior to the time that the plaintiffs' policies were issued, the Ohio General Assembly amended O.R.C. § 3937.18. Many Ohio courts construed that amendment to supercede Sexton. See Gilkey v. Gibson, No. 97APE11-1477, 1998 WL 514109 (Franklin Cy. Ct. App. 1998); Spence v. Westfield Nat'l Ins. Co., No. 797, 1998 WL 574802 (Monroe Cy. Ct. App. 1998); Wilson v. Nationwide Ins. Co., No. 71734, 1997 WL 723419 (Cuyahoga Cy. Ct. App. 1997); Kocel v. Farmers Ins. of Columbus, Inc., No 69058, 1996 WL 100943 (Cuyahoga Cy. Ct. App. 1996); Simone v. Western Reserve Mut. Cas. Co., No. 266239, 1996 WL 257485 (Cuyahoga Cy. Ct. App. 1996). In 2000, however, the Ohio Supreme Court, in Moore, supra, 88 Ohio St.3d 27, characterized the amended statute as ambiguous and, after determining the intent of the General Assembly in promulgating the amendment, held that the amended statute does not permit an insurer to limit uninsured motorist coverage to claims of bodily injury, sickness, or disease.
The former version of O.R.C. § 3937.18(A), construed by Sexton, provided that
No automobile liability . . . policy of insurance . . . shall be delivered or issued for delivery in this state . . . unless an equivalent amount of coverage for bodily injury or death is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.
The 1994 amendment to O.R.C. § 3937.18, contained in Am. Sub. S.B. No. 20, provided
No automobile liability . . . policy of insurance . . . shall be delivered or . . . issued for delivery in this state . . . unless both of the following coverages are provided to persons insured under the policy for loss due to bodily injury or death suffered by such persons:
(1) Uninsured motorist coverage, which . . . shall provide protection for bodily injury or death . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, suffered by any person insured under the policy.
The 1994 amendment to O.R.C. § 3937.18 was indisputably a change in the law. That the Ohio Supreme Court eventually construed the new statute in a manner consistent with the former statute does not alter this fact. To the extent that there was any ambiguity, it was the state of the law that was itself ambiguous, and not the defendants' policies of insurance. As previously stated, a number of Ohio courts construed the new statute to authorize "bodily injury" restrictions similar to that contained in the plaintiffs' policies. Under these circumstances, it cannot be said that State Farm Mutual's inclusion of that provision, notwithstanding the eventual holding in Moore, was so misleading as to render the timeliness provision in those policies unenforceable.
In the case at bar, plaintiffs' decedent, Christopher Martin, was involved in an accident on June 18, 1995, which resulted in his death. Despite the fact that the statute of limitations for wrongful death claims is two years, O.R.C. § 2125.02(d), and the fact that the automobile insurance policies issued to plaintiffs by State Farm Mutual required that suit be brought against it within two years of the date of the accident, plaintiffs failed to notify State Farm Mutual of their uninsured motorist claims until June 1999. Complaint, ¶ 8. As did the plaintiff in Moore, plaintiffs could have challenged the "bodily injury" limitation within the contractual period, i.e., the two years following the accident, thus preserving their claims for uninsured motorist benefits under the automobile insurance policies. Plaintiffs, who chose not to make their claims until June 1999, or to file this action until October 31, 2001, now wish to "ride the coattails" of the insured plaintiff in Moore, who complied with the limitations period within that insurance policy. See Olinik, 133 Ohio App.3d at 209. See also Veloski v. State Farm Mut. Auto. Ins. Co., 130 Ohio App.3d 27, 29 (Cuyahoga Cy. Ct. App. 1998). "To permit an unending period of time [in which to bring claims] would allow policyholders to sit on their claims indefinitely while waiting for the law to change." Veloski, 130 Ohio App.3d at 30. Therefore, the Court concludes that the plaintiffs' claims under the automobile liability insurance policies are untimely.
WHEREUPON, plaintiffs' motion for partial summary judgment is DENIED, and the defendants' motion for summary judgment is GRANTED.
The Clerk shall enter FINAL JUDGMENT for defendants.