Overview of Different Tests in Ohio
Many Ohio courts have found only one accident for the purposes of policy coverage under the “causation” approach in which one continuous, indivisible course of conduct by one individual injured the victim.
In Dutch Maid Logistics, Inc. v. Acuity, 8th Dist. Cuyahoga Nos. 91932 and 92002, 2009-Ohio-1783, ¶ 29, a tractor-trailer driver rear-ended a line of vehicles stopped in traffic, causing two deaths and severe injuries to three other people. The insurance policy provided that the per accident limit applied, regardless of the number of the covered autos, insureds, premiums paid, claims made, or vehicles involved in the accident. The claimants argued for the “effect” test, which would result in multiple accidents. The Cuyahoga County Court of Appeals, however, applied the “cause” test and determined that there was only one accident. The court reasoned as follows:
[A] plain reading of the policy language establishes that the policy defines an “accident” as one encompassing as many vehicles and injuries as caused by the same tortfeasor. The trial court, in rendering its decision, correctly concluded that there was but one continuous accident that caused all of the bodily injury claims that flowed from it.
Id. at 29. The court’s language suggests that it might conclude otherwise if more than one tortfeasor was involved.
In Greater Cincinnati Chamber of Commerce v. Ghanbar, 157 Ohio App.3d 233, 2004-Ohio-2724 (1st Dist.), a drunk driver drove through barricades surrounding a Cincinnati Oktoberfest festival. The vehicle travelled through a crowd of people, injuring many of them. The tortfeasor had a minimum limits policy, which did not define “accident.” The trial court nonetheless rejected the contention that there were multiple accidents. In affirming the decision of the trial court, the court of appeals applied the “cause” test stating as follows:
The question whether there had been a single accident under the policy language was inextricably linked to the question of causation, and the trial court came to the proper conclusion under the undisputed facts of this case. Even in the absence of the “continuous or repeated exposure” language, the court correctly held that there was only one accident in the case at bar.
Id. at 236. The court found no ambiguity as to what constituted an “accident.”
In Progressive Preferred Ins. Co. v. Derby, 6th Dist. No. F-01-002, 2001 Ohio App. LEXIS 2649 (June 15, 2001), a truck driver backed over a traffic control flagger, and then pulled forward and struck her again. The reversal of the truck’s movement took only an “instant” or “seconds.” The trucker’s liability policy had a limit per accident, and defined accident as including “continuous or repeated exposure” to conditions. The court of appeals adopted the “cause” test and reversed the decision of the trial court. The appellate court held as follows:
In applying these principles to the undisputed facts of the case before us, reasonable minds could only conclude that one accident transpired. As in the cases discussed above, Green negligently backed over Rebecca Derby, shifted the dump truck into forward and drover over Rebecca again. All of these events were in a continuous series, closely linked in both time and space. Green was never in control of the truck’s injury inflicting potential or of the situation at any time during this period. Thus, we conclude that it was Green’s initial negligence that was the predominant, active and continuing cause of any and all of Derby’s injuries. Accordingly, contrary to the trial court’s judgment, a single accident occurred within the meaning of the Progressive liability insurance policy and appellant was entitled to summary judgment as a matter of law.
Id. at 13.
In Banner v. Raisin Valley, Inc., 31 F. Supp. 2d 591 (N.D. Ohio 1998), Phillips was driving a tractor-trailer rig westbound on Ohio State Route 2, when he collided with four vehicles. He first hit a Ford Mustang traveling eastbound, then hit an eastbound Dodge Dakota traveling behind the Mustang, and then struck a Chevy Tahoe that was travelling behind the Dakota. The Tahoe and the tractor-trailer then struck a fourth car. Phillips never regained control of the tractor-trailer after colliding with the first car.
The liability policy for the tractor-trailer in Banner defined “accident” as including “continuous” or “repeated” exposure to the same conditions. The court found that this policy language “contemplates multiple injuries resulting from a single cause.” The policy also provided that the “each limit” of $1 million applied regardless of the number of vehicles involved in the accident. The court observed that the “common thread” in such cases is “whether the driver ever regained control of his vehicle,” and concluded that there was a single accident:
The collisions in this case resulted from the “continuous or repeated exposure to the same condition,” namely, a tractor-trailer that struck four cars before coming to rest. Thus, under the unambiguous terms of defendant’s policy, there was a single accident and liability is limited to $1,000,000.
Id. at 594.
The court in Banner observed that in determining the number of accidents or occurrences under liability policies, courts have generally applied one of three general approaches: (1) the policy limits clause refers to the cause or causes of the accident or occurrence (the “causation view”); (2) the policy limits clause refers to the effect or result of the accident or occurrence (the “effect view”); and (3) the policy limits clause refers to the liability triggering event (the “liability triggering event view”). Id at 593, citing Dow Chemical Co. v. Associated Indemnity Corp., 727 F. Supp. 1524, 1526 (E.D. Mich. 1989). The “vast majority of jurisdictions apply the ‘cause view’ in determining the number of accidents or occurrences under liability policies.” Id. at 1528.
The Godwin Case
In Nationwide Mut. Ins. Co. v. Godwin, 2006-Ohio-4167 (11th Dist. 2006) Mr. and Mrs. Godwin were driving their motorcycles northbound on State Route 528, when William Chepla pulled his minivan from a stopped position heading east along State Route 166. Mr. Chepla struck the Godwins sequentially, causing each of them serious bodily injury. Mr. Chepla was insured by Nationwide with bodily injury liability limits of $100,000 per person, and $100,000 per occurrence. The Nationwide policy did not define “accident” or “occurrence.” The court of appeals affirmed the decision of the trial court that Nationwide’s failure to define these terms created an ambiguity, entitling each of the Godwins to a recovery up to the per occurrence policy limits.
Nationwide argued that “the courts of Ohio clearly adhere to the ‘causation view,’ which holds that policy limits clauses refer to the cause of the insured event, when construing the terms ‘accident’ or ‘occurrence.’” Godwin at *P31, citing Banner v. Raisin alley, Inc. 31 F. Supp. 2d 591, 593 (N.D. Ohio 1998); Progressive Preferred Ins. Co. v. Derby, 6th Dist. N. F-01-002, 2001 Ohio App. Lexis 2649, *8–9 (June 15, 2001); and Greater Cincinnati Chamber of Commerce v Ghanbar, 157 Ohio App. 3d 233, 2004-Ohio-2724, 810 N.E.2d 455.
The court in Godwin rejected this argument holding as follows:
Nationwide's entire argument hinges on the assertion that the courts of Ohio have adopted the causation view when construing the terms "accident" and "occurrence" in liability policies, and thus, that it is not required to define the terms in its policies. Nationwide is simply wrong that the "causation view" is standard Ohio common law. We respectfully acknowledge the opinions of the Northern District of Ohio, and those of our brethren in the First and Sixth Appellate Districts. However, it seems to us that the decisions of these courts relied on by Nationwide are too thin to support the considerable weight of defining such vital liability policy terms as "accident" and "occurrence."
Godwin, supra, 2006-Ohio-4167 at *P50. The court in Godwin observed that the policy in Banner defined “accident” as a “’continuous’ or ‘repeated’ exposure to the same conditions.” Thus, “’accident,’ as defined in the policy, encompasses accidents that involve multiple injuries and multiple vehicles.” Id. at *P 37. The Progressive policy at issue in Derby defined an “accident” as “a sudden, unexpected and unintended event, or a continuous or repeated exposure to that event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of your insured auto.” Id. at *P42.
The court concluded as follows:
In sum, both the decisions in Banner and in Derby, while citing to the causation view in determining that one accident or occurrence had resulted in multiple injuries, were fundamentally based on construction of the term "accident" in the subject liability policies. And, the definition of accident in each policy demanded those courts find that one accident or occurrence had resulted in multiple injuries. Only the decision of the First Appellate District in Ghanbar actually supports Nationwide's position herein: i.e., that an accident or occurrence must be viewed solely in terms of the tortious conduct giving rise to the injuries, rather than the effects upon the injured parties. And, even the Ghanbar court refused to endorse the causation view entirely. Rather, it held that the trial court's construction of the subject policy was correct even in the absence of causation theory.
Id. at P12.
The Miller Case
The same issue was presented to the Eleventh District Court of Appeals five years later in Miller v. Motorist Mutual Insurance Co., 196 Ohio App.3d 753 (11th Dist. 2011). The Miller case involved a multi-vehicle accident with several impacts. In Miller, Daniel Masterson was heading westbound on State Route 5, when he took his eyes off the road in order to reach to the floorboard to retrieve his lighter, and he veered into the eastbound lane of traffic. The SUV Mr. Masterson was driving collided with a group of motorcycles headed eastbound. Mr. Masterson first collided with a motorcycle driven by David Perrine. In an attempt to avoid hitting Mr. Perrine's motorcycle, Michael Reese, who was driving behind Mr. Perrine, took evasive action, but was unable to avoid hitting Mr. Perrine's motorcycle sliding into his path. Mr. Perrine and his passenger, Julia Hill, and Mr. Reese and his passenger, Kim Mook, sustained injuries. Within .3 seconds of striking Mr. Perrine, Mr. Masterson struck a motorcycle driven by Geoffrey Davis, and then traveled back across the westbound lane before crashing into a guardrail. Mr. Davis and his passenger, Theresa Miller, were also injured.
Mr. Masterson was insured by Motorists Mutual, and his policy contained liability coverage for bodily injury with split limits of $100,000 for "each person" and $300,000 for "each accident." No dispute existed as to Mr. Masterson's liability, nor was there a dispute that the collective value of the injuries sustained by Mr. Perrine, Ms. Hill, Mr. Reese, Ms. Mook, Mr. Davis, and Ms. Miller exceeded $300,000. A dispute did exist, however, as to whether the incidents constitute one accident, limiting Motorists’ liability to a single $300,000 per accident payment, or whether they constitute two accidents, increasing MMIC's exposure in this case to, at most, $500,000 under the terms of a settlement and Covenant Not to Execute. Ms. Miller and Mr. Davis contended that Mr. Masterson's collision with their motorcycle constituted a separate accident from the initial collision with Mr. Perrine's motorcycle, and that they were entitled to a separate $300,000 per accident payment.
The trial court granted summary judgment in favor of Motorists, finding "[t]he whole incident was one brief continuous course of conduct." The trial court relied on language in the "Limitation of Liability" portion of the policy to determine that "the term 'accident' or 'any one auto accident' includes all the vehicles involved in the collision." Applying the policy language to its finding that there was one continuous course of conduct, the trial court held that there was only one accident, and that the parties were "therefore limited to a single recovery under the 'Each Accident' portion of [MMIC's] policy, regardless of the number of motorcycles involved in the incident."
The court of appeals reversed the decision of the trial court and held that there was more than one accident. The controlling portion of Motorists’ policy provided as follows:
A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of:
2. Claims made;
3. Vehicles or premiums show in the Declarations; or
4. Vehicles involved in the auto accident.
The policy, however, failed to define "accident." Thus, the court reasoned as follows:
The question before the trial court and this court is whether the policy term "accident" is ambiguous. MMIC invites us, despite having failed to provide a definition for "accident," to construe the term as the courts did in Banner v. Raisin Valley, Inc. (N.D. Ohio 1998), 31 F.Supp.2d 591 and Progressive Preferred Ins. Co. v. Derby (June 15, 2001), 6th Dist. No. F-01-002, 2001 Ohio App. LEXIS 2649, and adhere to a "causation approach."
The "causation approach" to policy interpretation focuses on the cause of the insured event, not the effects. See Banner at 593. However, "both the decisions in Banner and in Derby, while citing to the causation view in determining that one accident or occurrence had resulted in multiple injuries, were fundamentally based on construction of the term 'accident' in the subject liability policies. And the definition of accident in each policy demanded those courts find that one accident or occurrence had resulted in multiple injuries." Nationwide Mut. Ins. Co. v. Godwin, 11th Dist. No. 2005-L183, 2006 Ohio 4167, ¶48.
In both Banner and Derby, the limitation of liability clause contained the same "regardless of the number of vehicles involved in the auto accident" language found in MMIC's policy. This is the limiting language relied upon by the trial court below. In an attempt to distinguish this case from Godwin, the trial court surmises that the Godwin court "apparently had insufficient policy language to help define the terms 'accident' or 'occurrence,' because the Godwin decision does not refer to such limiting language in its opinion.
But the real distinction lies in an omission in the MMIC policy, and it is this distinctive omission that controls the outcome of the case before us.
While the Godwin decision only alludes to the policy language that controlled the outcome in Banner and Derby, we definitively find that the interpretation reached in Banner and Derby was dictated by the inclusion of a standard policy definition of the term "accident" as "a sudden, unexpected and unintended event, or a continuous or repeated exposure to substantially the same conditions." Unlike Banner and Derby, the MMIC policy contains no such standard policy language. MMIC chose the less descriptive and thus less limiting definitional language, and thus we have no alternative but to construe the ambiguity against the insurance company.
In arriving at its decision, the court in Miller felt that the same conclusion would be reached from a causation analysis as well. In considering the cause of Mr. Perrine, Ms. Hill, Mr. Reese, and Ms. Mook's injuries as compared to the cause of Ms. Miller and Mr. Davis's injuries, they appear decidedly different. The injuries to the former group are as a direct result of Mr. Masterson's collision with Mr. Perrine's motorcycle. Ms. Miller and Mr. Davis's injuries, however, do not stem from that collision; instead, they are a direct result of an independent collision between Mr. Masterson's vehicle and their own motorcycle.
In conclusion, the court in Miller observed that:
The plain and ordinary meaning of "accident" is "an unexpected and undesirable event." Webster's II New College Dictionary (1999) 6. "A person unversed in the technicalities of insurance law might, therefore, easily conclude that [the insured's striking of each of the vehicles], sequentially, constituted separate accidents or occurrences, rather than the single accident or occurrence of losing control of the [car] ***." Godwin at ¶49.
Id. at 758.
The cases above provide guidance in reconciling these different arguments so as to determine whether there has been one accident or more than one accident for purposes of the “Limits of Liability.” Carriers wrestling with this issue should consider at least two critical issues.
First, a crucial consideration is whether there was only one tortfeasor. There is usually only one “accident” in the case of a single tortfeasor whose continuous tortious conduct resulted in multiple injuries to one or more victims. A second crucial factor is whether the policy defines the term “accident.” It is more likely that more than one accident will be found for the purposes of policy coverage if the word “accident” is undefined because courts may find ambiguity in the undefined term.
Jay Rice’s practice generally concerns the defense of insurance companies and their insureds in a wide variety of civil litigation matters. His practice is primarily devoted to litigation involving insurance coverage disputes. Mr. Rice is an OSBA Certified Specialist in Insurance Coverage Law. He is the current Chair of the Insurance Law Section of the Cleveland Metropolitan Bar Association. Mr. Rice enjoys an AV Preeminent rating with Martindale-Hubbell. He is “of counsel” with Bonezzi Switzer Polito & Hupp Co. L.P.A. and can be reached at (216) 875-2063 or email@example.com.
This article first appeared in OACTA Quarterly Spring 2021 Issue.