Warren v. Hartford Insurance Co., Unpublished Decision (12-19-2002) ( 2002 )

{¶ 37} Respectfully, I dissent.

{¶ 38} The majority opinion catalogues appellate jurisdictions which have considered the issue we confront on this case: the impact of a "drive other car" endorsement naming additional insureds on the Ohio Supreme Court's decision in Scott-Ponzer v. Liberty Mutual Fire InsuranceCo. (1999), 85 Ohio St.3d 660. The majority announces that "until the Supreme Court reviews the conflict and holds otherwise, we follow the rule as it was recently articulated in Addie v. Linnville (Oct. 3, 2002), Cuyahoga App. Nos. 80547, 80916 * * *."

{¶ 39} In Addie, our court concluded that the drive other car endorsement in the Royal Insurance policy does not substitute for, but, rather explicitly, adds to the definition of who is an insured in the Business Auto Coverage Form and thus does not eliminate the ambiguousScott-Ponzer "you." I disagree with this analysis. After all, if the Ohio Supreme Court in Scott-Ponzer defined the ambiguous "you" to include all employees, then by definition, it included Vice Presidents. How then could an endorsement specifically designating Vice Presidents as insureds add to the definition of who is an insured? Obviously, it could not as those individuals would presumably already be included as insureds. This is the fallacy in the logic proposed by the majority in following Addie.

{¶ 40} Rather, as reasoned by the court in Westfield v. Galatis, Summit App. No. CA20784, 2002-Ohio-1502, listing individuals as insureds removed the ambiguity surrounding the word "you." This analysis persuaded the Second Appellate District in White v. American Mfrs. Mut. Ins. Co., Montgomery App. No. 19206, 2002-Ohio-4125, where Judge Jim Brogan also incorporated into his well-reasoned opinion the maxim, "expressio unius est exclusio alterius," and offered that the specific mention of some insureds under the policy would impliedly exclude others from coverage under the policy. I concur with the reasoning and analysis presented in Westfield and in White, and therefore, I respectfully dissent from the announcement of today's decision.