Digested from case reports published in the North Eastern Reporter 2d,
West Publishing Co., St. Paul, MN

Fracas outside car does not constitute an "accident"

Charles Stenger had stopped his vehicle at an Ohio stop light behind a car driven by Chuck Lawson and owned by Melanie Ball. The traffic light turned green, but the car driven by Lawson did not move, and Stenger honked his horn. Lawson got out of his car and approached Stenger's car. When Stenger exited his car, Lawson tripped him. Stenger fell against his car and was injured. Ball's car was uninsured, and Stenger and his wife filed a claim under their policy issued by State Farm. Their policy covered damages caused by an uninsured motorist for "bodily injury caused by an accident arising out of the operation, maintenance, or use of an uninsured motor vehicle." State Farm denied the claim and said the assault on Stenger was not covered.

Agreeing that the facts indicated that Lawson physically assaulted Stenger outside the vehicle, the trial court entered judgment in favor of State Farm. The insureds appealed.

Stenger contended he was entitled to UM benefits because he was a victim of "road rage." He argued that Lawson became enraged when Stenger honked his horn. The higher court disagreed, saying that Lawson's act in exiting his car and then tripping Stenger was the cause of Stenger's injuries, and not the uninsured vehicle. Although the chain of events started while both drivers were inside their cars, the injuries resulted from Lawson's assault on Stenger. The injuries were not the result of an accident arising out of the operation, maintenance or use of an uninsured automobile.

The judgment entered in the trial court in favor of State Farm was affirmed.

Stenger et al., Appellants, v. Lawson et al.-No. 01AP-485-Court of Appeals of Ohio, Tenth District, Franklin County-December 4, 2001-767 North Eastern Reporter 2d 304.

No UIM coverage under HO policy

Shelby Insurance had issued a homeowners policy to Katherine Rosala, who was killed on July 31, 1996, when the vehicle in which she was a passenger crossed the center line and struck an oncoming truck. The driver of the car had automobile insurance with a limit of $25,000. That amount was tendered to the administrator of Rosala's estate. The trucking company's liability insurance policy had a limit of $1 million, and that company tendered $90,000 to Rosala's estate. The administrator filed a claim for UIM benefits under the HO policy issued to Rosala, and Shelby denied liability. The administrator then filed this complaint for declaratory judgment that the HO provided UIM coverage. The trial court entered judgment in favor of Shelby, and the estate appealed.

The HO policy had a $100,000 limit, and the administrator contended that the Ohio statute required Shelby to offer UM/UIM coverage. The administrator argued that the HO policy provided limited coverage for some motor vehicles and was governed by the UM/UIM statute. The higher court pointed out the policy in this instance provided coverage to some motorized vehicles "not subject to motor vehicle registration and designed for off-road use or are used around the insured's property."

Inasmuch as the decedent's death arose out of an auto accident away from her residence, there could be no recovery under her HO policy.

The judgment entered in the lower court in favor of Shelby Insurance was affirmed.

(Discretionary appeal to the Supreme Court of Ohio was not allowed.)

Davis, Admr., Appellant, v. Shelby Insurance Company-No. 78610-Court of Appeals of Ohio, Eighth District, Cuyahoga County-June 25, 2001-760 NorthEastern Reporter 2d 855.

Adult daughter's UM/UIM benefits not payable for parents' accidental death

Nationwide Mutual Insurance Company had issued its automobile policy to Joan Rollin who resided in Wellington, Ohio. It provided for UM/UIM coverage with a limit of $300,000. Her father, James Clement, was killed in an automobile accident on June 13, 1994. At that time Clement lived in Inverness, Florida, and the accident occurred in that state. Rollin filed a claim for damages for his death under her policy provision covering "relatives" and defining a relative as "one who regularly lives in your household related to you by blood, marriage, or adoption."

Nationwide denied liability inasmuch as Clement did not live with Rollin.

The trial court entered summary judgment for Nationwide, and Rollin appealed.

On appeal, the court decided that the Florida law governed the issue of Rollin's right to recover damages for her father's death. That law provides for recovery of damages by adult children "for lost support and services." That statute further states that adult children of a decedent "may only recover damages for mental pain and suffering and lost companionship if there is no surviving spouse." In this case, Clement was survived by his widow. Rollin did not claim "lost support or services."

In affirming the judgment entered in favor of Nationwide, the court concluded that Nationwide was not obligated to Rollin for damages under the UM/UIM provision of her policy.

Rollin, Appellant, v. Nationwide Mutual Insurance Company-Discretionary appeal to the Supreme Court of Ohio was dismissed-No. 99CA007313-Court of Appeals of Ohio, North District, Lorain County-September 20, 2000-761 North Eastern Reporter 2d 1057.

Liquor liability policy doesn't cover assault

United National Insurance Company had issued a liquor liability policy to CCP Company, Inc. (CCP), excluding coverage for injuries resulting from assault and battery "caused by or at the instigation of, or at the direction of, or omission by, the Insured and/or his employees." Rhonda Peters and her husband, Brian, alleged they were injured as a result of an attack that occurred outside the Sports Bar and Grill, owned by CCP. The complaint asserted that CCP had negligently failed to provide security for the patrons and had negligently distributed, served, or sold alcoholic beverages to intoxicated patrons and minors.

United National denied liability. A default judgment was entered in favor of Brian Peters for $34,000, and for his wife for $8,034. CCP assigned all of its rights under the United policy to Brian and Rhonda Peters, and they filed this action against United for a declaratory judgment that the policy covered the damages in the assault. The trial court granted summary judgment in favor of United, and this appeal followed.

The higher court agreed that United's policy did not cover the claims asserted by the complaint filed by Mr. and Mrs. Peters. The policy plainly stated it would cover injuries sustained "by reason of the selling, serving or giving of any alcoholic beverage at or from the insured premises ..." It clearly excluded assault and battery.

The court, on appeal, ruled that the exclusion barred any recovery, and the exclusion was enforceable. The summary judgment entered in favor of United was affirmed.

Rhonda A. Peters et al. v. United National Insurance Company-No. 99-P-1168-Appeals Court of Massachusetts, Suffolk-February 15, 2002-762 North Eastern Reporter 2d 881. *