[Cite as Chapman v. Am. Family Ins., 2016-Ohio-5906.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

KELLY CHAPMAN, et al. 

 Appellant 

 v. 

AMERICAN FAMILY INSURANCE 

COMPANY, et al. 

 Appellees 

C.A. No. 27862 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2014-04-2178 

DECISION AND JOURNAL ENTRY 

Dated: September 21, 2016 

 

CARR, Presiding Judge. 

{¶1} Appellant, Kelly Chapman, appeals a judgment of the Summit County Court of 

Common Pleas that determined that she is not an insured person for purposes of underinsured 

motorist coverage. This Court affirms. 

I. 

{¶2} On November 6, 2012, Charles Sheibelhood turned into the path of an oncoming 

car driven by Michael Farmer while attempting to make a left turn. The two cars collided, and 

Kelly Chapman, who was a passenger in Mr. Farmer’s vehicle, sustained injuries. Mr. 

Sheibelhood, who was cited in connection with the accident, carried an auto insurance policy 

issued by State Farm Insurance with limits of $50,000 per person and $100,000 per occurrence. 

Ms. Chapman was an insured on an auto insurance policy issued by Progressive Insurance that 

provided underinsured motorist coverage with the same policy limits of $50,000 per person and 

$100,000 per occurrence. Mr. Farmer was insured by Appellee, American Family Insurance, 
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with underinsured motorist coverage with policy limits of $100,000 per person and $300,000 per 

occurrence. 

{¶3} Ms. Chapman settled her claim for the policy limit available under Mr. 

Sheibelhood’s policy with State Farm. She made a claim under the Progressive policy, but that 

claim was denied because Mr. Sheibelhood’s policy limit was the same as Ms. Chapman’s policy 

limit under her own underinsured motorist coverage. Ms. Chapman then filed an action seeking 

a declaratory judgment that she was entitled to underinsured motorist coverage under the terms 

of the American Family policy. The trial court granted summary judgment to American Family, 

concluding that Ms. Chapman is not an “insured person” as defined by the relevant provisions in 

the policy. Ms. Chapman appealed. 

I. 

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE, 

AMERICAN FAMILY INSURANCE COMPANY’S MOTION FOR 

SUMMARY JUDGMENT FINDING THAT PLAINTIFFS WERE NOT 

“INSURED” WITHIN THE POLICY OF INSURANCE APPLICABLE TO THE 

DRIVERS CAR IN WHICH KELLY CHAPMAN WAS A PASSENGER, 

SUFFERED SEVERE INJURIES AND THE TORTFEASOR WAS 

DETERMINED TO BE A[N] “UNDERINSURED MOTORIST.” 

{¶4} Ms. Chapman’s assignment of error argues that the trial court erred by concluding 

that she is not an insured person under the terms of Mr. Farmer’s underinsured motorist policy 

with American Family. Specifically, Ms. Chapman has argued that the definition of “insured 

person” must be read in conjunction with the setoff limitations for “other insurance” that apply 

when an insured person is entitled to recover under the underinsured motorist policy. In other 

words, she maintains that the definition of “insured person” under the American Family policy is 
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ambiguous and must be expanded to include those who are named under another policy of 

underinsured motorist insurance, but unable to recover. We disagree. 

{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105 (1996). According to Civ.R. 56(C), summary judgment is 

appropriate when “there is no genuine issue as to any material fact and that the moving party is 

entitled to judgment as a matter of law.” In this case, the material facts are not disputed, so our 

review is limited to whether American Family is entitled to summary judgment as a matter of 

law. 

{¶6} Language used in an insurance contract must be given its natural, commonly 

accepted meaning so that an interpretation of the contract consistent with the object and 

intentions of the parties can be determined. Sauer v. Crews, 140 Ohio St.3d 314, 2014-Ohio3655. When determining whether a provision of an insurance contract is ambiguous, Courts 

must examine the contract as a whole and pay careful attention to context. Id. at ¶ 13-14. “[A] 

court cannot create ambiguity in a contract where there is none.” Lager v. Miller-Gonzalez, 120 

Ohio St.3d 47, 2008-Ohio-4838, ¶ 16. 

{¶7} The American Family contract at issue in this case provides: 

1. We will pay compensatory damages for bodily injury which an insured 

person is legally entitled to recover from the owner or operator of an 

underinsured motor vehicle. 

2. The bodily injury must: 

a. be sustained by an insured person, 

b. be caused by an accident; and 

c. arise out of the ownership, maintenance, or use of an 

underinsured motor vehicle. 
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(Emphasis in original.) Defined terms are highlighted using boldface type. The insurance 

contract then lists exclusions to coverage, describes the limits of liability for coverage, and 

explains the manner in which other insurance policies affect coverage. The latter section 

provides, with respect to coverage from sources other than American Family: 

If there is other similar insurance on a loss covered by this endorsement, we will 

pay our share according to this policy’s proportion of the available policy limits 

of all similar insurance. But, any insurance we provide for use of your insured car 

by any person other than you will be excess over any other collectible insurance, 

self insurance, or bond. Any insurance provided under this coverage for a vehicle 

you do not own, including any vehicle while used as a temporary substitute for 

your insured car, is excess over any other collectible Underinsured Motorists 

Coverage. Any recovery for damages under all such policies or provisions of 

coverage may equal but not exceed the highest applicable limit for any one 

vehicle under any insurance providing coverage on either a primary or excess 

basis. 

(Emphasis added.) When these provisions are read together and in their context, it is readily 

apparent that the provisions related to other insurance are only relevant when there “a loss 

covered by this endorsement,” which requires “bodily injury * * * sustained by an insured 

person.” If there is no “insured person,” there is no underinsured motorist coverage and, in the 

absence of underinsured motorist coverage, the “other insurance” provisions of the contract 

never come into play. 

{¶8} The definition section of the policy that pertains to underinsured motorist 

coverage provides, in relevant part: 

Insured person or insured persons means: 

(1) you or a relative. 

(2) anyone else occupying your insured car who is not: 

(a) a named insured for underinsured motorists coverage under another policy, a 

self-insurance program, or a liability bond[.] 
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(Emphasis in original.) In this respect, we note that the Ohio Supreme Court has held that the 

parties to an insurance contract are free to define “insured person” in any way they see fit. 

Holliman v. Allstate Ins. Co., 86 Ohio St.3d 414, 416 (1999). The definition of “insured person” 

in the American Family contract is clear and unambiguous. The context is also clear: unless 

there is an “insured person” for whom coverage exists, the contract provisions related to “other 

insurance” never come into play. 

{¶9} The Eighth District Court of Appeals reached the same conclusion in Johns v. 

Hopkins, 8th Dist. Cuyahoga No. 99218, 2013-Ohio-2099. In that case, the tortfeasor’s liability 

policy limits and the injured party’s underinsured motorist policy limits were the same, and were 

considerably lower that the underinsured motorist policy limit that applied to the car that the 

injured party was driving at the time of the accident. Id. at ¶ 8. The injured party sued for 

coverage, arguing that the offset provisions for other insurance should be applied to the 

determination of whether he was “an insured” under the relevant underinsured motorist policy. 

Id. at ¶ 19. Analyzing the contract language at issue, the Court noted: 

There is nothing written into State Farm’s policy that we can interpret to mean 

that an individual must actually be able to recover under his or her own UM/UIM 

policy before State Farm’s definition of “an insured” would apply. State Farm’s 

definition clearly states that a person occupying the State Farm vehicle does not 

qualify as an insured under part four if that individual has his or her own policy of 

insurance that provides for UM/UIM coverage. 

Id. at ¶ 33. Accordingly, the Eighth District rejected the injured party’s argument, concluding 

that doing so would “expand the definition of ‘an insured’ to include an individual who is unable 

to recover from the UM/UIM portion of his or her own insurance policy.” Id. at ¶ 21. See also 

Wohl v. Swinney, 118 Ohio St.3d 277, 2008-Ohio-2334, ¶ 23 (concluding that the definition of 

“insured” for purposes of uninsured motorist coverage was clear and unambiguous and reflected 

the parties’ intention to “narrowly define who is considered an insured under that section.”) 
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{¶10} The definition of “insured person” in the American Family contract at issue in this 

case is clear and unambiguous, and the context demonstrates that the parties did not intend the 

definition of “insured person” to include those who are named on another policy of underinsured 

motorist coverage but unable to recover. Ms. Chapman’s argument is not well-taken, and her 

assignment of error is overruled. 

III. 

{¶11} Ms. Chapman’s assignment of error is overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 
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WHITMORE, J. 

HENSAL, J. 

CONCUR. 

APPEARANCES: 

THOMAS A. SKIDMORE, Attorney at Law, for Appellant. 

JAY S. HANSON, Attorney at Law, for Appellee. 

D. MICHAEL JOHANSON, Attorney at Law, for Appellee.