Scott-Pontzer v. Liberty Mutual Fire Insurance

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 660

.]




      SCOTT-PONTZER, APPELLANT, v. LIBERTY MUTUAL FIRE INSURANCE
                             COMPANY ET AL., APPELLEES.
      [Cite as Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 

1999-Ohio-292

.]
Automobile liability insurance—Underinsured motorist coverage—R.C. 3937.18—
        Scope of coverage of employer’s commercial automobile liability policy
        and umbrella/excess insurance policy for employee killed in accident.
     (No. 98-442—Submitted December 16, 1998—Decided June 23, 1999.)
     Appeal from the Court of Appeals for Stark County, No. 1997CA00152.
                                  __________________
        {¶ 1} On July 10, 1994, Christopher T. Pontzer was driving an automobile
owned by his wife, Kathryn Scott-Pontzer, appellant. Pontzer was killed when the
vehicle he was driving collided with a motor vehicle driven by Troy W. Taylor.
The collision was caused by the negligence of Taylor. Taylor was insured under a
policy of automobile liability insurance with limits of $100,000 per person and
$300,000 per accident.
        {¶ 2} Before his death, Pontzer was an employee of Superior Dairy, Inc. At
the time of the accident, Superior Dairy was insured under a policy of commercial
automobile liability insurance with Liberty Mutual Fire Insurance Company
(“Liberty Fire”). Superior Dairy’s policy of insurance with Liberty Fire contained
a provision for underinsured motorist coverage. In addition to the liability policy
provided by Liberty Fire, Superior Dairy also had in effect at the time of Pontzer’s
death an “umbrella/excess” insurance policy with Liberty Mutual Insurance
Company (“Liberty Mutual”).
        {¶ 3} On July 9, 1996, appellant brought, in the Court of Common Pleas of
Stark County, an action as surviving spouse and executor of her husband’s estate
against Liberty Fire and Liberty Mutual. In the complaint appellant alleged that
                                  SUPREME COURT OF OHIO




because her husband was an employee of Superior Dairy, she was entitled to the
underinsured motorist benefits under Superior Dairy’s automobile liability policy
with Liberty Fire. Appellant also contended that she was entitled to any benefits
accruing under Superior Dairy’s umbrella policy with Liberty Mutual. On April
16, 1997, the trial court granted summary judgment in favor of Liberty Fire and
Liberty Mutual. The trial court determined that, according to the policy language
of the Liberty Fire policy, Pontzer was not a named insured and was not operating
a “covered” automobile. The trial court further found that, for purposes of the
Liberty Fire policy, no “insured” sustained “bodily injuries.” Thus, the trial court
concluded that appellant was not entitled to underinsured motorist benefits from
Superior Dairy’s commercial liability policy with Liberty Fire. The trial court also
concluded that appellant’s husband was not an executive officer, director,
stockholder, or an employee acting within the scope of his employment, and thus
he was not an insured according to the terms of Superior Dairy’s umbrella policy.
The trial court therefore held that appellant did not qualify for benefits under
Superior Dairy’s umbrella/excess insurance policy issued through Liberty Mutual.
         {¶ 4} On appeal, the court of appeals affirmed the judgment of the trial
court, but based its decision on different reasons than those of the trial court.
Specifically, the court of appeals determined that the policies in question were
“ambiguous as to the ‘insureds’ under the underinsured motorist coverages.”1 The
court of appeals concluded that, pursuant to our decision in King v. Nationwide Ins.
Co. (1988), 

35 Ohio St.3d 208

, 

519 N.E.2d 1380

, Pontzer, as an employee of


1. This language is slightly in error, since “underinsured motorist coverage” was not provided in the
Liberty Mutual umbrella policy. In determining whether the decedent was an insured under the
policies at issue, the court of appeals looked to the declarations page of both the Liberty Fire and
the Liberty Mutual policies. The court of appeals noted that there was no declarations page for
uninsured/underinsured motorist coverage in the Liberty Mutual umbrella/excess insurance policy
because such coverage was not offered. The court of appeals correctly determined, and Liberty
Mutual conceded, that such coverage was part of the umbrella/excess policy by operation of law
pursuant to R.C. 3937.18.




                                                 2
                                January Term, 1999




Superior Dairy, was an insured under the policies issued by Liberty Fire and Liberty
Mutual for purposes of underinsured motorist coverage. The court of appeals,
however, held that underinsured motorist coverage under a corporate policy is
available only to those employees injured while acting within the scope of their
employment. Thus, the court of appeals concluded that since appellant’s husband
was not within the scope of his employment when the accident occurred,
underinsured motorist coverage was not available to appellant under the policies
issued to Superior Dairy.
       {¶ 5} This matter is now before this court pursuant to the allowance of a
discretionary appeal.
                              __________________
       John S. Coury, for appellant.
       Jan A. Saurman Law Offices and John V. Rasmussen, for appellees.
       Allen Schulman, Jr. and Christopher J. Van Blargan, urging reversal for
amicus curiae, Ohio Academy of Trial Lawyers.
                              __________________
       DOUGLAS, J.
       {¶ 6} The parties present us with three issues for our determination. The
first issue is whether Pontzer, as an employee of Superior Dairy, was an “insured,”
for purposes of underinsured motorist coverage, under the policies issued to
Superior Dairy by Liberty Fire and Liberty Mutual. If he was, then the second issue
is whether Pontzer, for coverage to be afforded, would have had to be in the course
of his employment at the time of the accident. The third question, which pertains
only to the Liberty Mutual policy, is whether, after underinsured motorist coverage
is inserted into a policy by operation of law, the exclusions in the policy that have
been written in so as to apply to the coverage for liability also pertain to the
underinsured coverage.




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                               SUPREME COURT OF OHIO




        {¶ 7} If we find Pontzer was not an insured under the policies, then our
inquiry is at an end. If we find that he was an insured, then we must proceed to the
question of “scope of employment.” If we find that for Pontzer to be covered he
must have been in the scope of his employment, again our inquiry is at an end
because it is stipulated that he was not. If, however, we find that Pontzer was an
insured and that coverage ensued even though he was not in the course of his
employment at the time of the occurrence of the accident, then our inquiry as to
coverage under the Liberty Fire policy is ended (there would be coverage) and we
then must proceed to whether Pontzer was also covered under the Liberty Mutual
policy given that there is, in that policy, a “scope of employment” requirement.
        {¶ 8} In discussing the foregoing, hereinafter “Liberty Fire” and “Liberty
Mutual” will also be referred to jointly as “appellees,” since they submitted a joint
brief to this court.
                                 I. Liberty Fire Policy
        {¶ 9} In regard to the commercial automobile liability policy issued through
Liberty Fire, appellees argue that the court of appeals erred in concluding that
Pontzer was an insured.          Appellees contend that the Liberty Fire policy
unambiguously shows that Superior Dairy was the only named insured, that Pontzer
could not be considered an insured under any language in the policy, and that,
therefore, appellant cannot claim entitlement to underinsured motorist benefits. We
disagree.
        {¶ 10} Regrettably, as so many of these types of cases do, this issue centers
on construing certain words and phrases contained within the Liberty Fire policy.
The declarations page of the Liberty Fire policy names Superior Dairy, Inc. as the
named insured.         The business auto coverage form of that policy states that
“[t]hroughout this policy the words you and your refer to the [n]amed [i]nsured
shown in the [d]eclarations.” The policy also contains an Ohio uninsured motorist




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                                 January Term, 1999




coverage form that defines an “insured” for purposes of underinsured motorist
coverage as follows:
        “B. Who Is An Insured
        “1. You.
        “2. If you are an individual, any family member.
        “3. Anyone else occupying a covered auto or a temporary substitute for a
covered auto. The covered auto must be out of service because of its breakdown,
repair, servicing, loss or destruction.
        “4. Anyone for damages he or she is entitled to recover because of bodily
injury sustained by another insured.”
        {¶ 11} It is well settled that an insurance policy is a contract and that the
relationship between the insured and the insurer is purely contractual in nature.
Nationwide Mut. Ins. Co. v. Marsh (1984), 

15 Ohio St.3d 107, 109

, 15 OBR 261,
262, 

472 N.E.2d 1061, 1062

. Appellees contend that the above-quoted policy
language indicates the intent of the parties to the insurance contract to provide that
Superior Dairy is the only named insured. According to appellees, the inclusion of
the phrase “[i]f you are an individual, any family member” removes any doubt that
“you” refers to Superior Dairy and, thus, that Superior Dairy is the sole named
insured. In other words, appellees contend that by the insertion of this conditional
language a distinction is made between “you” and an “individual,” thereby clearly
evincing the intent of the parties that the corporate entity, Superior Dairy, be the
sole named insured. While that is one interpretation of the policy, it is not the only
interpretation.
        {¶ 12} In King, 

35 Ohio St.3d 208

, 

519 N.E.2d 1380

, syllabus, Chief Justice
Moyer, speaking for the court, said that “[w]here provisions of a contract of
insurance are reasonably susceptible of more than one interpretation, they will be
construed strictly against the insurer and liberally in favor of the insured.”




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                              SUPREME COURT OF OHIO




(Citations omitted.) The language of the Liberty Fire policy under consideration
here is, in our view, subject to various interpretations.
       {¶ 13} Contrary to appellees’ contentions, the policy language of the
Liberty Fire policy can be interpreted to include company employees. Assuming
arguendo that “you” does refer solely to Superior Dairy, this does not foreclose the
inclusion of Pontzer as an insured under the policy. We note again, as we have
often in the past, that uninsured motorist coverage, mandated by law pursuant to
R.C. 3937.18, was designed by the General Assembly to protect persons, not
vehicles. Martin v. Midwestern Group Ins. Co. (1994), 

70 Ohio St.3d 478

, 

639 N.E.2d 438

, paragraph one of the syllabus.           Since R.C. 3937.18 mandates
underinsured as well as uninsured motorist coverage, obviously the same rationale
applies to underinsured motorist coverage. It would be contrary to previous dictates
of this court for us now to interpret the policy language at issue here as providing
underinsured motorist insurance protection solely to a corporation without any
regard to persons. See Ady v. W. Am. Ins. Co. (1982), 

69 Ohio St.2d 593

, 

23 O.O.3d 495

, 

433 N.E.2d 547

. Rather, it would be reasonable to conclude that “you,” while
referring to Superior Dairy, also includes Superior’s employees, since a corporation
can act only by and through real live persons. It would be nonsensical to limit
protection solely to the corporate entity, since a corporation, itself, cannot occupy
an automobile, suffer bodily injury or death, or operate a motor vehicle. Here,
naming the corporation as the insured is meaningless unless the coverage extends
to some person or persons—including to the corporation’s employees.
       {¶ 14} We recognize that insurers can draft policy language that provides
varying arrays of coverage to any number of individuals. However, in drafting
contracts of insurance, insurers must do so with language that is clear and
unambiguous and that comports with the requirements of the law. See King, 

35 Ohio St.3d 208

, 

519 N.E.2d 1380

, and Martin, 

70 Ohio St.3d 478

, 

639 N.E.2d 438

.




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                               January Term, 1999




       {¶ 15} We therefore agree with the court of appeals that the language in the
Liberty Fire policy concerning the identity of “insureds” is ambiguous. Courts
universally hold that policies of insurance, which are in language selected by the
insurer and which are reasonably open to different interpretation, will be construed
most favorably to the insured. Further, as we said in Faruque v. Provident Life &
Acc. Ins. Co. (1987), 

31 Ohio St.3d 34

, 31 OBR 83, 

508 N.E.2d 949

, syllabus,
“[l]anguage in a contract of insurance reasonably susceptible of more than one
meaning will be construed liberally in favor of the insured and strictly against the
insurer.” Accordingly, we conclude that Pontzer, at the time of his death, was an
insured under the Liberty Fire policy for purposes of underinsured motorist
coverage.
                            II. Liberty Mutual Policy
       {¶ 16} We also conclude that Pontzer was an insured under the
umbrella/excess policy issued to Superior Dairy through Liberty Mutual. Liberty
Mutual failed to offer uninsured/underinsured motorist coverage under Superior
Dairy’s umbrella/excess insurance policy. Thus, unlike the Liberty Fire policy, the
Liberty Mutual umbrella policy did not contain an uninsured motorist coverage
form that defined insureds for purposes of underinsured motorist coverage.
       {¶ 17} In Duriak v. Globe Am. Cas. Co. (1986), 

28 Ohio St.3d 70, 72

, 28
OBR 168, 170, 

502 N.E.2d 620, 622-623

, we held that excess liability insurance
must comport with R.C. 3937.18 and thus uninsured (and underinsured) motorist
coverage must be tendered. Further, in Gyori v. Johnston Coca-Cola Bottling
Group (1996), 

76 Ohio St.3d 565

, 568, 

669 N.E.2d 824, 827

, we stated that failure
by the insurer to offer such coverage results in the provision of such coverage by
operation of law. Absent any showing that underinsured coverage was offered and
rejected, such coverage is included in the policy. Therefore, we conclude that
Pontzer, as an employee of Superior Dairy, was also an insured under Superior




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                             SUPREME COURT OF OHIO




Dairy’s umbrella/excess insurance policy and that said policy includes
underinsured motorist coverage, as such coverage is mandated by operation of law.
                            III. Scope of Employment
       {¶ 18} Having concluded that Pontzer was an insured under both policies at
issue, we must now determine whether appellant is entitled to underinsured
motorist benefits.    Appellant argues that the court of appeals erred when it
determined that underinsured motorist benefits under both the Liberty Fire and
Liberty Mutual policies would be available to appellant only if her husband was
acting during the scope of his employment when he was killed. We agree with
appellant.
       {¶ 19} In King v. Nationwide Ins. Co., 

35 Ohio St.3d at 214

, 

519 N.E.2d at 1386

, we noted that “[i]n the construction of insurance contracts, ‘[w]here
exceptions, qualifications or exemptions are introduced into an insurance contract,
a general presumption arises to the effect that that which is not clearly excluded
from the operation of such contract is included in the operation thereof.’ ” (Quoting
Home Indemn. Co. v. Plymouth [1945], 

146 Ohio St. 96

, 

32 O.O. 30

, 

64 N.E.2d 248

, paragraph two of the syllabus.) The Liberty Fire policy contains no language
requiring that employees must be acting within the scope of their employment in
order to receive underinsured motorist coverage. Thus, we find that appellant is
entitled to underinsured motorist benefits under the Liberty Fire policy.
       {¶ 20} On the other hand, Liberty Mutual’s umbrella/excess insurance
policy did restrict coverage to employees acting within the scope of their
employment. However, we have already found that Liberty Mutual had failed to
offer underinsured motorist coverage through the umbrella policy issued to
Superior Dairy.      Thus, any language in the Liberty Mutual umbrella policy
restricting insurance coverage was intended to apply solely to excess liability
coverage and not for purposes of underinsured motorist coverage. See, e.g.,
Demetry v. Kim (1991), 

72 Ohio App.3d 692, 698

, 

595 N.E.2d 997, 1001

.




                                         8
                                January Term, 1999




Therefore, there is no requirement in the umbrella policy that Pontzer had to be
acting during the scope of his employment to qualify for underinsured motorist
coverage. Therefore, appellant is entitled to underinsured motorist benefits under
the Liberty Mutual umbrella policy as well.
                                        IV.
       {¶ 21} We realize that the conclusion reached herein may be viewed by
some as a result that was not intended by the parties to the insurance contracts at
issue. Nonetheless, we believe that to adopt appellees’ position in this matter would
clearly produce absurd results. For instance, appellees’ position is that only those
employees occupying a “covered auto” are insureds under the Liberty Fire policy.
Appellees’ attorney conceded during oral argument that this position precluded
coverage for employees driving their personal motor vehicles while acting during
the scope of their employment. As a result, through the doctrine of respondeat
superior, Superior Dairy would be potentially liable, without the protections
afforded by automobile liability insurance (not to mention uninsured/underinsured
motorist coverage), for tortious conduct by such employees. It could hardly have
been the intent of Superior Dairy to place itself in such a precarious position. In
any event, as the law is clear in this regard, we will not guess at the intent of the
parties to the insurance contract when the insurer introduces ambiguous terms into
the policy.
       {¶ 22} Accordingly, we reverse the judgment of the court of appeals and we
vacate the judgment of the trial court. We remand this matter to the trial court with
instructions to enter judgment in favor of appellant on the issue of coverage as to
both policies.
                                                                 Judgment reversed
                                                               and cause remanded.
       RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
       MOYER, C.J., and COOK, J., dissent.




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                              SUPREME COURT OF OHIO




       LUNDBERG STRATTON, J., dissents.
                               __________________
       COOK, J., dissenting.
       {¶ 23} I differ with the majority’s UIM coverage analysis as to both
policies. As to the commercial automobile policy, I would hold that it covers
Superior Dairy’s insurable interests. As to the excess policy, I would hold that even
if UIM coverage is deemed provided by operation of law, it is provided to the
named insured, Superior Dairy, but not to its off-duty employee.
                            The Commercial Auto Policy
       {¶ 24} Despite the named insured (“you”) being Superior Dairy, the
majority finds coverage for an off-duty employee driving his wife’s car by saying
that because UIM coverage protects persons and not vehicles, and because
corporations cannot drive cars or sustain injuries, UIM coverage cannot protect a
corporate entity. But, of course, a corporate entity has insurable interests for which
countless policies are issued every day. See, e.g., Indemn. Ins. Co. of N. Am. v. Dow
(C.A.6, 1949), 

174 F.2d 168, 169-170

, citing Wurzburg v. New York Life Ins. Co.
(1918), 

140 Tenn. 59

, 

203 S.W. 332

 (manufacturing company had an insurable
interest in the life of its manager). See, also, R.C. 3911.091. This concept of
Superior Dairy having corporate insurable interests defeats the majority’s reasoning
for extending coverage to the off-duty employee as an “insured.” Though business
entities like Superior Dairy operate through their employees, this employee was not
acting for Superior Dairy at the time of this accident. So, there is no basis for saying
he qualifies as an insured by virtue of his Superior Dairy employment.
       {¶ 25} Moreover, public policy would prevent Superior Dairy from validly
insuring its business against damages to Scott-Pontzer’s personal automobile, or
insuring against Scott-Pontzer’s liability arising outside the scope of Superior
Dairy’s business. As a matter of public policy, the validity of an insurance contract
is dependent upon the insured having an insurable interest in the subject of the




                                          10
                                January Term, 1999




insurance. 1 Holmes, Appleman on Insurance 2d (1996) 555-557, Section 4.32.
See, also, id. at 11-15, Section 1.3; Phillips v. Cincinnati Ins. Co. (1985), 

60 Ohio St.2d 180, 181

, 

14 O.O.3d 413, 414

, 

398 N.E.2d 564, 565

; Great Am. Ins. Co. v.
Curl (App.1961), 

88 Ohio Law Abs. 516, 517

, 

18 O.O.2d 481, 482

, 

181 N.E.2d 916, 918

, citing 30 Ohio Jurisprudence 2d (1958) 305, Insurance, Section 305. An
insurable interest exists when “the insured derives pecuniary benefit or advantage
by the preservation or continued existence of the property or will sustain pecuniary
loss from its destruction.” 4 Appleman, Insurance Law and Practice (1969) 35,
Section 2123; Phillips, 

60 Ohio St.2d at 182

, 

14 O.O.3d at 415

, 

398 N.E.2d at 566

.
Here, Superior Dairy could incur no liability because of this employee’s off-duty
operation of his wife’s car.
       {¶ 26} Thus, no legitimate reason supports the judgment of the majority that
this policy covers this employee’s injuries in this accident; Scott-Pontzer is not an
“insured” under the commercial auto policy.
                                The Excess Policy
       {¶ 27} The majority’s holding that the UIM coverage provided by operation
of law in the Liberty Mutual excess policy covers this off-duty employee is likewise
untenable. R.C. 3937.18 mandates extension of UIM coverage only to “insureds.”
Martin v. Midwestern Group Ins. Co. (1994), 

70 Ohio St.3d 478, 481

, 

639 N.E.2d 438, 441

. Because Scott-Pontzer is not an “insured” under this policy, any UIM
coverage deemed provided by operation of law does not insure him for this
accident, but would instead insure the named insured, Superior Dairy.
                                    Conclusion
       {¶ 28} The effect of the majority opinion is to afford comprehensive
automobile insurance coverage to any employee working for an employer prudent
enough to insure itself. This cannot be what the majority means to do. I therefore
respectfully dissent.
       MOYER, C.J., concurs in the foregoing dissenting opinion.




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                             SUPREME COURT OF OHIO




                               __________________
        LUNDBERG STRATTON, J., dissenting.
        {¶ 29} Once again, a majority of this court has extended the reach of
uninsured/underinsured motorist coverage as mandated by R.C. 3937.18 and
further eroded the contractual nature of the relationship between an insurer and
insured. In order to categorize this decedent as an insured under his employer’s
commercial liability insurance policy, the majority finds ambiguity in the policy
where I believe there, clearly, is none.
        {¶ 30} The majority reiterates the legal principle that an insurance policy is
a contract and the relationship between an insurer and an insured is contractual. It
is equally well settled that “[c]ontracts are to be interpreted so as to carry out the
intent of parties, as that intent is evidenced by contractual language.” Skivolocki v.
E. Ohio Gas Co. (1974), 

38 Ohio St.2d 244

, 

67 O.O.2d 321

, 

313 N.E.2d 374

,
paragraph one of the syllabus. Insurance coverage is determined by reasonably
construing the contract “ ‘in conformity with the intention of the parties as gathered
from the ordinary and commonly understood meaning of the language employed.’
” (Emphasis added.) King v. Nationwide Ins. Co. (1988), 

35 Ohio St.3d 208, 211

,

519 N.E.2d 1380, 1383

; Dealers Dairy Products Co. v. Royal Ins. Co. (1960), 

170 Ohio St. 336

, 

10 O.O.2d 424

, 

164 N.E.2d 745

, paragraph one of the syllabus. Where
the intent of the parties to a contract is evident from the clear and unambiguous
language used, a court must not read into the contract a meaning not contemplated
or placed there by an act of the parties to the contract. Gomolka v. State Auto. Mut.
Ins. Co. (1982), 

70 Ohio St.2d 166, 168

, 

24 O.O.3d 274, 276

, 

436 N.E.2d 1347, 1348

.
        {¶ 31} It appears from the overall policy that the company’s general intent
was to purchase a commercial automobile liability insurance policy to insure
Superior Dairy as a legal entity against liability arising from the use of certain
Superior Dairy vehicles. The fact that Superior Dairy is the only named insured




                                           12
                                January Term, 1999




indicates the parties’ intention to insure the company, not the private lives and
activities of its employees.     Likewise, Liberty Mutual did not contemplate
providing insurance coverage in circumstances not related to Superior Dairy.
       {¶ 32} The majority admits that its conclusion is one not intended by the
parties to the insurance contracts at issue, and yet it proceeds to find ambiguity.
There is nothing ambiguous in the Liberty Fire policy’s definition of “insured” for
purposes of underinsured motorist coverage. “Common words appearing in a
written instrument will be given their ordinary meaning unless manifest absurdity
results, or unless some other meaning is clearly evidenced from the face or overall
contents of the instrument.” Alexander v. Buckeye Pipe Line Co. (1978), 

53 Ohio St.2d 241

, 

7 O.O.3d 403

, 

374 N.E.2d 146

, paragraph two of the syllabus. “You”
unambiguously means the named insured, Superior Dairy. The policy definition of
“insured” also states that if “you” is an individual, then a family member is also an
insured. The ordinary and commonly understood meaning of individual is a single
human being. This language is not susceptible of more than one interpretation. In
this case, “you” is an entity, not an individual. Therefore, this subsection is
inapplicable in this case. There is no ambiguity and no reason to resort to conjecture
that “you” must include employees because a corporation acts by and through its
employees, or that having a corporate insured is meaningless unless the coverage
extends to some person or persons.
       {¶ 33} Assuming arguendo that the decedent was a potential insured under
the Liberty Fire policy for purposes of uninsured or underinsured motorist
coverage, there can also be no coverage if the decedent was acting outside the scope
of his employment. A commercial policy cannot be reasonably construed to
provide uninsured or underinsured motorist coverage in the case of the personal,
nonemployment-related activities of an employee. Neither party to the contract
intended to provide free uninsured motorist coverage for employees’ personal,
nonemployment-related activities, regardless of individual risk factors such as




                                         13
                             SUPREME COURT OF OHIO




driving records, other applicable personal insurance coverage, or evidence of
insurability. The insurance premium for such a policy would have to be adjusted
to account for these additional risk factors. The company that provides, as a benefit
of employment, automobile insurance for its employees’ personal lives is rare.
       {¶ 34} The majority reasons that the policy contains no language requiring
that employees be acting within the scope of their employment in order to receive
underinsured motorist coverage. However, it is inherent that a commercial policy,
purchased by and written for a corporation, applies to the corporate entity and those
acting within the scope of employment for that entity. There is no language in the
policy that would create a presumption that it applies in situations other than events
relating to Superior Dairy and its operation. Here, the decedent was engaged in a
personal, nonemployment-related activity in a noncovered vehicle. Coverage
under a commercial liability policy cannot be extended in these circumstances.
Common sense alone dictates that this was an extension of coverage that the parties
did not contemplate, bargain for, rate, or purchase. Is the extension of liability
coverage next?
       {¶ 35} Because contract law should control the interpretation of insurance
policies, and because the intent of the parties remains the foundation of a contract,
I cannot agree with the majority’s conclusion. Superior Dairy and Liberty Mutual
did not intend for the commercial policy at issue to provide uninsured/underinsured
motorist coverage for the private activities of Superior’s employees who were
injured while outside the scope of their employment. Therefore, I respectfully
dissent.
                               __________________




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