[Cite as Watt v. Westfield Nat. Ins. Co., 2021-Ohio-3205.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

WILLIAM R. WATT, : 

 Plaintiff-Appellant, : 

 No. 110263 

 v. : 

 

WESTFIELD NATIONAL INSURANCE : 

COMPANY, ET AL., 

 : 

 Defendant-Appellees. 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 16, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-20-931138 

 

Appearances: 

Kisling, Nestico & Redick, L.L.C., and Christopher J. Van 

Blargan, for appellant. 

Fischer, Evans & Robbins, Ltd., and Cari Fusco Evans, for 

appellees. 

 

LISA B. FORBES, J.: 

William R. Watt (“Watt”) appeals from the trial court’s journal entry 

granting summary judgment to Westfield National Insurance Company 

(“Westfield”) in this case alleging underinsured motorist (“UIM”) coverage, breach 
of contract, and bad faith. After reviewing the facts of the case and pertinent law, 

we affirm the lower court’s judgment. 

I. Factual and Procedural History 

Pertinent to this appeal, Daniel Eidt (“Eidt”) was insured by Westfield 

under a personal auto policy (the “Primary Policy”) and an umbrella policy (the 

“Umbrella Policy”) (collectively the “Policies”). Eidt was engaged to be married to 

Deborah Pinson (“Pinson”). On April 18, 2018, Pinson was killed in a car accident 

while she was a passenger in Eidt’s vehicle. Watt is the administrator of Pinson’s 

estate. 

In March 2020, Watt filed this action against Westfield, claiming that 

Pinson was entitled to benefits because she “was an insured * * * and an intended 

beneficiary” under the Policies, and the tortfeasor who caused the fatal accident was 

underinsured. Westfield filed a counterclaim requesting that the court issue a 

declaration that Pinson was not entitled to UIM coverage under the Policies. The 

court granted summary judgment in favor of Westfield on January 4, 2021, 

declaring that Pinson was excluded from UIM coverage under the Policies. It is from 

this order that Watt appeals. 

II. Summary Judgment Standard of Review 

Appellate review of an order granting summary judgment is de novo. 

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. 

Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that 

(1) there is no genuine issue of material fact; (2) they are entitled to judgment as a 
matter of law; and (3) reasonable minds can come to but one conclusion and that 

conclusion is adverse to the nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 

662 N.E.2d 264 (1996). 

In Nationwide Mut. Fire Ins. Co. v. Pusser, 160 Ohio St.3d 203, 

2020-Ohio-2778, 155 N.E.3d 839, ¶ 8, the Ohio Supreme Court recently reiterated 

the standard of review for summary judgment based on an insurance contract: 

This case requires basic contract interpretation. “Contracts are to be 

interpreted so as to carry out the intent of the parties, as that intent is 

evidenced by the contractual language.” Skivolocki v. E. Ohio Gas Co., 

38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the 

syllabus; see also Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 

86 Ohio St.3d 270, 273, 1999-Ohio-162, 714 N.E.2d 898 (1999). 

Moreover, “ambiguous language in an insurance contract is construed 

against the insurance company.” Dominish v. Nationwide Ins. Co., 129 

Ohio St.3d 466, 2011-Ohio-4102, 953 N.E.2d 820, ¶ 7. “We apply the 

de novo standard of review to a decision granting or denying a motion 

for summary judgment based on an insurance contract.” Westfield Ins. 

Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, 

¶ 12. 

The Ohio Supreme Court has also held, however, that there are 

limitations to the rule that “an ambiguity in an insurance contract is ordinarily 

interpreted against the insurer and in favor of the insured.” Westfield Ins. Co. v. 

Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 13. One such 

limitation is found in Cook v. Kozell, 176 Ohio St. 332, 336, 199 N.E.2d 566 (1964), 

which states that “the plaintiff is not a party to this contract of insurance and, 

therefore, is not in a position to urge, as one of the parties, that the contract be 

construed strictly against the other party.” 
Basic contract interpretation dictates that “common words appearing 

in a written instrument are to be given their plain and ordinary meaning unless 

manifest absurdity results or unless some other meaning is clearly intended from 

the face or overall contents of the instrument.” Alexander v. Buckeye Pipeline Co.,

53 Ohio St.2d 241, 245-246, 374 N.E.2d 146 (1978). On the other hand, when 

contract language is unclear or ambiguous, courts may consider extrinsic evidence 

“in an effort to give effect to the parties’ intentions.” Shifrin v. Forest City Ents., 

Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992). 

III. Watt’s Claims 

In his complaint, Watt alleges claims for UIM coverage, breach of 

contract, and bad faith. 

A. UIM Coverage 

Pursuant to R.C. 3937.18(C), 

[i]f underinsured motorist coverage is included in a policy of insurance, 

the underinsured motorist coverage shall provide protection for 

insureds thereunder for bodily injury, sickness, or disease, including 

death, suffered by any insured under the policy, where the limits of 

coverage available for payment to the insured under all bodily injury 

liability bonds and insurance policies covering persons liable to the 

insured are less than the limits for the underinsured motorist coverage. 

B. Breach of Contract 

To establish a breach of contract claim, a plaintiff must prove “the 

existence of a contract, performance by the plaintiff, breach by the defendant, and 

damage or loss to the plaintiff.” Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 

2012-Ohio-1955, ¶ 35. Furthermore, “[i]t is undisputed that one seeking to recover 
on an insurance policy generally has the burden of proving a loss and demonstrating 

coverage under the policy.” Inland Rivers Serv. Corp. v. Hartford Fire Ins. Co., 66 

Ohio St.2d 32, 34, 418 N.E.2d 1381 (1981). 

C. Bad Faith 

In Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690, 695, 590 

N.E.2d 1228 (1992), the Ohio Supreme Court held that 

a cause of action for the tort of bad faith, based upon an alleged failure 

of an insurance company to satisfy a claim by its insured may, under 

certain circumstances, be brought by its insured as a separate action, 

apart from an insured’s action alleging breach of the insurance 

contract. The insurer’s duty of good faith towards its insured is implied 

by law. This duty may be breached only by an intentional failure by the 

insurer to perform under its contract with the insured. 

IV. The Westfield Policies 

A. The Primary Policy 

Under the Primary Policy an “insured” is defined as follows: 

A. You or any family member. 

B. Any other person occupying your covered auto who is not a 

named insured or insured family member for underinsured motorists 

coverage under another policy. * * * 

Under the Primary Policy “UIM” is defined as follows: 

We will pay compensatory damages which an insured is legally 

entitled to recover from the owner or operator of an underinsured 

motor vehicle because of bodily injury: 

A. Sustained by an insured; and 

B. Caused by an accident. 

B. The Umbrella Policy 

The Umbrella Policy states in pertinent part as follows: 
III. EXCLUSIONS 

We do not provide coverage for any person: 

1. Unless the underlying insurance shown in the Declarations 

affords coverage with respect to such uninsured motor vehicles or 

underinsured motor vehicles; and 

2. Unless such underlying insurance is in force at the time of the 

accident; and 

3. For any claim for damages not covered by the underlying 

insurance shown in the Declarations. * * * 

The Umbrella Policy defines “underlying insurance” as 

any policy providing the insured with primary liability insurance 

covering one or more of the types of liability listed in the Declarations 

and at limits no less than the retained policy limits shown for those 

types of liability listed in the Declarations. 

The declarations page of the Umbrella Policy lists the Primary Policy 

as the underlying insurance. 

V. The Travelers Policy 

The undisputed evidence presented by the parties established that, at 

the time of Pinson’s death, she was insured under a policy issued by Travelers, which 

included UIM coverage.1

VI. The Journal Entry 

The trial court’s journal entry granting Westfield’s summary 

judgment motion states in pertinent part as follows: 

1 Per Westfield’s summary judgment motion, Pinson’s Travelers policy defines 

“uninsured motor vehicle” to include “what is understood to be underinsured motorist 

coverage* * *.” (Emphasis added.) Additionally, Pinson’s brief in opposition to summary 

judgment concedes that “Pinson had underinsured motorist coverage through her 

underlying Travelers’ [sic] Policy.” 
This court * * * can find no legal justification to interpret the umbrella 

policy differently than the underlying policy given the circumstances. 

* * * While the “other insurance” provision contemplates that other 

[UIM] coverage may be available to Eidt and his insureds, it refers to 

other such coverage available to Eidt and his family members, not to a 

passenger insured under another policy. * * * Given this reading of the 

Westfield policy, the “other insurance” provision does not presume that 

a passenger who is an insured under another policy will also be entitled 

to uninsured/underinsured motorists coverage. * * * The court 

declares that Eidt’s insurance policies do not extend coverage to 

Pinson’s estate under the facts of this case. 

VII. Analysis 

We first note that the facts in this case are undisputed, and our review 

is limited to whether Westfield is entitled to judgment as a matter of law. 

Taking the Primary Policy’s definitions into consideration, Pinson 

must be an “insured” to be entitled to UIM coverage. An insured under the Primary 

Policy must fall into one of three categories: the named insured; a family member; 

or “[a]ny other person occupying [the named insured’s] covered auto who is not a 

named insured or insured family member for [UIM] coverage under another policy.” 

Applying this to the facts of the case at hand, Pinson is not an insured 

under the first two categories — she is not the named insured on Eidt’s Primary 

Policy, nor is she a family member of Eidt. It is the third category of this definition 

that lies at the crux of whether Pinson is an insured under the Primary Policy, which 

would entitle her to benefits under the Umbrella Policy. 

Westfield argues that this “provision is not ambiguous and provides 

that if an individual is a named insured on their own policy of insurance that 

includes [UIM] coverage, * * * they do not qualify under the [Primary Policy] as an 
insured. * * * Pinson does not qualify as an insured under [the Primary Policy] since 

she was a named insured on her own Travelers policy.” 

We find that the case at hand is analogous to Mitchell v. Motorists 

Mut. Ins. Co., 10th Dist. Franklin No. 04AP-589, 2005-Ohio-3988, ¶ 22, in which 

the court held the following: 

Here, Motorists utilized its ability to define who is an insured under the 

policy to exclude from that definition passengers who are insureds 

under other polices. Although Mitchell is unhappy with the result, i.e., 

that he is limited to collecting benefits only under his cousin’s policy, 

no public policy or statute prohibits it or even militates against it. 

Mitchell was a passenger in a car and was injured when a negligent 

driver collided with the vehicle in which he was riding. Id. at ¶ 2. Mitchell sued 

Motorists, who insured the car he was riding in, for UIM coverage because his 

damages exceeded the amount of money he received in a settlement from the 

tortfeasor’s insurance company. Id. at ¶ 5. The trial court granted summary 

judgment to Motorists, agreeing with its argument that “Mitchell was not an insured 

for the purposes of the underinsured motorists coverage provided for under [the 

insured’s] policy.” Id. at ¶ 7. Motorists’ argument “relied upon the provision of its 

policy that defined an ‘insured’ as a passenger ‘who is not a named insured or an 

insured family member for uninsured motorists coverage under another policy.” Id. 

The provision in the Motorists policy in Mitchell and the provision in 

the Primary Policy in the case at hand are virtually identical. Under the plain 

language of the Primary Policy in the case at hand, Pinson is not an insured because, 

as established by the undisputed evidence, she was a named insured with UIM 
coverage under her Travelers policy. Furthermore, because she is not an insured 

under the Primary Policy, she is not entitled to UIM coverage. 

Turning to the Umbrella Policy, we find that coverage is not provided 

unless the underlying insurance provides coverage. The underlying insurance in 

this case is the Primary Policy, and as established in this opinion, Pinson is not 

entitled to coverage under the Primary Policy. Therefore, she is not entitled to 

coverage under the Umbrella Policy. 

Westfield, on the other hand, is entitled to judgment as a matter of 

law, and the court did not err in granting summary judgment in the case at hand. 

Watt’s sole assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry out this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

LISA B. FORBES, JUDGE 

MARY EILEEN KILBANE, P.J., and 

EMANUELLA D. GROVES, J., CONCUR