Brisker v. Ibrahim , 29 Ohio App. 3d 16 ( 1985 )

The defendant below, Gamal Ibrahim (a.k.a. Gamal Eissa), had his driving privileges suspended because of his unsafe driving record. In order to regain driving privileges in this state, Ibrahim was required to obtain satisfactory proof of financial responsibility. See R.C. 4509.45, governing proof of financial responsibility.

An "SR-22 — AAMVA Uniform Financial Responsibility Form (Original)" was filed with the Ohio Registrar of Motor Vehicles on behalf of Ibrahim. The SR-22 indicated that a motor vehicle liability policy had been issued to Ibrahim by the Nationwide Mutual Insurance Company ("Nationwide"), an insurance carrier authorized to do business in Ohio. The motor vehicles covered by the policy were designated on the certificate. The certificate was signed by a Nationwide employee. There was no expiration date; the certificate continued in effect until canceled or terminated. In other words, the certificate complied in all respects with the requirements of R.C. 4509.46 governing proof of financial responsibility by a domestic insurer. The state of Ohio, relying on the certification by Nationwide, restored Ibrahim's driving privileges, as of November 15, 1977.

Sometime thereafter, Nationwide canceled Ibrahim's policy of insurance. However, Nationwide failed to notify the Ohio Registrar of Motor Vehicles¹ that it was canceling Ibrahim's insurance coverage. By failing to give the required notification, Nationwide was in violation of R.C. 4509.57 (notice required to terminate insurance certification), which provides:

"When an insurance carrier has certified a motor-vehicle liability policy under section 4509.46 or 4509.47 of the Revised Code, the insurance so certified shall not be canceled orterminated until at least ten days after a notice of cancellationor termination is filed in the office of the registrar of motorvehicles * * *." (Emphasis added.)

As a result of Nationwide's failure to provide notice of cancelation, the Registrar of Motor Vehicles took no action to suspend Ibrahim's driving privileges.² Ibrahim continued to drive.

On September 22, 1978, Ibrahim's vehicle collided with appellee Brisker's automobile. Appellees filed suit against Ibrahim and took a default judgment for $6,500. Subsequently, appellees filed a supplemental petition against Nationwide as Ibrahim's insurer.

Nationwide defended on the ground that it was not the insurer of Ibrahim on September 22, 1978, because it had canceled Ibrahim's coverage prior to that date. Thus, Nationwide argued that it could not be liable on appellees' supplemental petition because Ibrahim was not "insured against loss or damage at the time when the rights of action arose." R.C. 3929.06.

The case was submitted to the trial court on briefs and documentary evidence. The court granted appellees judgment for $6,500 against defendant Nationwide. Nationwide appeals from the decision of the trial court and assigns a single error for review:

"Entry of final judgment by the trial court in favor of plaintiff-appellee was against the weight of the evidence and must be reversed."

As noted supra, R.C. 4509.57 imposes an affirmative duty on insurance carriers to give notice to the Registrar of Motor Vehicles in this state ten days before canceling an insurance policy which has been certified as proof of financial responsibility by the state of Ohio. Appellant Nationwide undeniably failed to fulfill that duty.

Nationwide contends that it did not comply with this notice requirement to the Registrar of Motor Vehicles because it was unaware of the Ohio filing. There is credible evidence in the record which indicates the contrary.

To support its position Nationwide subpoenaed Elizabeth Johnson, office manager of financial security and soundex sections of the Bureau of Motor Vehicles. Financial responsibility filings are kept under her authority and control, with respect to acceptance and cancelation.

Johnson testified that the financial responsibility records of the bureau concerning Gamal Eissa Ibrahim had been destroyed, that records on a point case pertaining to financial responsibility are retained for a period of three years, and since this was a 1976 case the records "would have expired in 1979 and been destroyed."

Consequently, Johnson was questioned by counsel for Nationwide regarding documents from its own files which were allegedly copies of documents from the files of the Registrar of Motor Vehicles pertaining to Ibrahim.

Johnson testified as follows:

That an SR-22 "is a certificate issued from an existing policy filed with the state to indicate that he presently has an effective policy that will cover him for the period of his filing time, as this one is written from 7-10-77 and continues until canceled or terminated by the company."

That after some correspondence between the Ohio Bureau of Motor Vehicles and Nationwide,³ the bureau accepted "a filing made by Nationwide Mutual Insurance Company" on behalf of Ibrahim. The form filed was "an SR-22 issued by the Nationwide Insurance Company on behalf of Mr. Eissa [Ibrahim] on their policy 51968522." It was signed by a Nationwide employee.

Based on the foregoing evidence, the trial court correctly concluded that the SR-22 form in question was filed by Nationwide. There is no evidence in the record to indicate that the SR-22 was filed by anyone other than a Nationwide employee. The fact that Nationwide apparently lost track of the filing does not excuse Nationwide from its duty to give the notice required by R.C. 4509.57.

Nationwide further argues that the Bureau of Motor Vehicles should not have accepted the SR-22 for filing because it was signed by a Nationwide agent in Connecticut, not in Ohio.

The "Uniform Financial Responsibility Form" filed by Nationwidecomplied fully with the requirements of R.C. 4509.46, and wasaccepted for filing by the Registrar of Motor Vehicles. This court rejects Nationwide's argument that it should not be bound by the certificate because of non-statutory formal defects attributable only to Nationwide itself.

Finally, Nationwide cites this court's opinion in White v.Ogle (1979), 67 Ohio App.2d 35 [21 O.O.3d 347], for the proposition "that R.C. 4509.46 may not be used to extend the period of coverage provided in the policy of insurance." White,supra, at 37. In White, we held that the driver whose license had been suspended had the duty to obtain insurance coverage of sufficient duration to meet the requirements of R.C. 4509.46. Where a driver was derelict in that responsibility, we held, the duration of the policy would not be extended by operation of R.C.4509.46.

The case at bar is distinguishable from White. Defendant herein, Ibrahim, obtained a policy of insurance with no expiration date. It continued in force until canceled or terminated. Thus, Ibrahim was in compliance with R.C. 4509.46, and White is therefore inapposite. The controlling statutory section in the instant case is R.C. 4509.57, which imposes a mandatory duty on the insurer to provide notice ten days before cancelation of a certified policy. Nationwide failed to provide the required notice. As a result, Ibrahim continued to operate motor vehicles in Ohio. Under these circumstances, this court agrees with the determination of the trial court that Nationwide should not be allowed to deny coverage. We reiterate our view that "the underlying purpose for requiring `proof of financial responsibility' is to protect the motoring public." White,supra, at 37. The evidence indicates that appellant Nationwide neglected its obligations under the financial responsibility laws, and appellee Brisker was damaged.

After a thorough review of all the evidence, this court is convinced that the judgment of the trial court is not against the manifest weight of the evidence.

Accordingly, the judgment is affirmed.

Judgment affirmed.

NAHRA and PATTON, JJ., concur.

¹ Nationwide apparently notified the Connecticut Bureau of Motor Vehicles.

² See R.C. 4509.66, which states:

"Whenever any proof of financial responsibility filed under sections 4509.01 to 4509.78, inclusive, of the Revised Code, no longer fulfills the purposes for which required, the registrar of motor vehicles shall require other proof and shall suspend the license and registration or the nonresident's operating privilege pending the filing of such other proof."

³ On this issue Johnson testified as follows:

"A. It indicates that we accepted on behalf, his behalf,November the 15th, 1977, a filing made by Nationwide MutualInsurance Company under their policy, 51968522, effective fromJuly 10th of '77 to continue.

"Q. Okay.

"A. I really wish we had the case.

"Q. Those records are destroyed though, right?

"A. Yes, because it would indicate this had been returned toNationwide one time, because by being November, and we not accepting the policy, inception date being July the 10th, and the actual acceptance date by the Bureau being July the 19th — November 19th, excuse me, it's more than 30 days difference between the date of the policy and the acceptance of the insurance. So there has been some correspondence one way or the other on that. Ordinarily our rule for acceptance is no more than 30 days upon receipt by the registrar can a policy be dated." (Emphasis added.)