[Cite as Sliva v. Muhammad, 2024-Ohio-4462.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Janice Ann Sliva, as Executor :

of the Estate of Randell Lee Shank,

:

Plaintiff-Appellant, No. 23AP-343

: (C.P.C. No. 20CV-2795)

v. 

: (ACCELERATED CALENDAR)

Abdirizack A. Muhammad et al.,

:

Defendants-Appellees.

:

D E C I S I O N

Rendered on September 10, 2024 

On brief: The Fitch Law Firm, LLC, and John K. Fitch, for 

appellant. Argued: John K. Fitch.

On brief: Pelini, Campbell & Ricard, LLC, John E. Vincent,

and Eric M. Hopkins, for appellee Westfield Insurance 

Company. Argued: John E. Vincent.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Janice Ann Sliva, executor of the estate of Randell Lee 

Shank, appeals from a judgment of the Franklin County Court of Common Pleas granting a 

motion for summary judgment filed by defendant-appellee Westfield Insurance Company 

(“Westfield”). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This case arises from an automobile collision that occurred on February 25, 

2020 near the intersection of I-270 and State Route 33 in Franklin County, Ohio. 

Defendant Daisha B. Shackleford was driving on the ramp to merge onto I-270 when she 
No. 23AP-343

2

lost control of her vehicle and spun out, ultimately coming to rest on the interstate facing 

oncoming traffic. Shank was driving on the interstate in the lane where Shackleford’s 

vehicle came to rest and was able to stop his vehicle before striking Shackleford’s vehicle. 

A semi-truck driven by defendant Abdirizack A. Muhammed then collided with Shank’s and 

Shackleford’s vehicles. Tragically, Shank died as a result of injuries suffered in the collision. 

{¶ 3} At the time of the collision, Shank was driving a vehicle owned by his 

employer and covered by an insurance policy issued by Westfield (the “Westfield Policy”). 

The Westfield Policy included $1 million per accident in uninsured or underinsured 

motorist coverage. Shackleford’s vehicle was covered by an insurance policy issued by 

Encompass, with policy limits of $25,000. Muhammed’s vehicle was covered by a policy 

issued by Protective Insurance, with combined policy limits of $5 million.

{¶ 4} Appellant filed a lawsuit against Muhammed and Shackleford. The complaint 

also named as defendants Westfield, Mohamed Dure Abdullahi, who was alleged to have 

been the co-driver of the semi-truck, and CEVA Freight, LLC, CEVA Ground U.S., L.P., and 

Platinum Ground Solution, LLC, who were alleged to have owned or operated the semitruck Muhammed drove. For purposes of this appeal, we will refer to Muhammed, 

Abdullahi, CEVA Freight, CEVA Ground, and Platinum Ground Solutions as “the CEVA 

defendants.” The complaint asserted claims for wrongful death and survivorship against 

Shackleford and the CEVA defendants, and claims for declaratory judgment, breach of 

contract, and bad faith against Westfield.1 As relevant to this appeal, the complaint alleged 

that Shackleford was an underinsured motorist and sought a declaration of the rights of the 

parties and determination of damages due to appellant under the Westfield Policy.

{¶ 5} Westfield moved for summary judgment asserting appellant could not 

recover on an underinsured motorist claim because the total amount of the insurance 

policies covering Shackleford and the CEVA defendants exceeded the $1 million

underinsured motorist coverage limit provided in the Westfield Policy. Westfield further 

asserted it had not acted in bad faith because it had a reasonable justification for denying 

appellant’s underinsured motorist coverage claim. 

1 The complaint also named the Ohio Bureau of Workers’ Compensation as a defendant, asserting it may have 

a subrogated right to conditional reimbursement.
No. 23AP-343

3

{¶ 6} In a Franklin County Probate Court case, appellant entered into a settlement 

with the CEVA defendants for $5 million. The parties filed a stipulation which stated that 

they “stipulate and agree that the Franklin County Probate Court, in Case No. 603569, 

approved the Wrongful Death Settlement of $5,000,000 between the Estate of Randell 

Shank and the CEVA Defendants, and that the CEVA Defendants have paid the amount 

due.” (Nov. 21, 2022 Stip. Regarding Status of Wrongful Death Settlement, at 1.) The 

settlement agreement between appellant and the CEVA defendants is not part of the record 

in this case. In support of its opposition to summary judgment, appellant’s counsel 

submitted an affidavit averring that “[t]here is a $5,000,000.00 settlement agreement 

between [appellant] and CEVA Defendants; however, notwithstanding the settlement 

agreement, the CEVA Defendants denied liability in this case.” (Memo in Opp. to Mot. for 

Summ. Jgmt., Fitch Aff. Ex.1 at ¶ 3.) After entering that settlement, noting that it “[had] 

settled with CEVA Defendants only,” appellant dismissed with prejudice the claims against 

the CEVA defendants in this case. (Feb. 14, 2023 Stip. of Partial Dismissal With Respect to 

the “CEVA Defendants” Only.) 

{¶ 7} The trial court granted Westfield’s motion for summary judgment, 

concluding that underinsured motorist coverage under the Westfield Policy was not

triggered because the total liability coverage for Shackleford and the CEVA defendants 

exceeded the limit of the underinsured motorist coverage provided in the Westfield Policy. 

The trial court reasoned that Westfield would be entitled to set off the $5 million settlement 

appellant received from the CEVA defendants; because this exceeded the $1 million limit 

of underinsured motorist coverage under the Westfield Policy, appellant would not be

entitled to excess recovery from Westfield. The trial court also concluded that Westfield 

had a reasonable justification for refusing to pay the underinsured motorist claim and had 

not acted in bad faith. Following the summary judgment decision, appellant, the Ohio 

Bureau of Workers’ Compensation, and Shackleford stipulated to dismissal of the 

remaining claims without prejudice. 

II. Assignment of Error

{¶ 8} Appellant appeals and assigns the following sole assignment of error for our 

review:
No. 23AP-343

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The trial court erred to the prejudice of Appellant Janet Sliva 

in granting Appellee Westfield Insurance Company’s Motion 

for Summary Judgment.

III. Discussion

A. Standard of review

{¶ 9} Summary judgment is appropriate when the moving party demonstrates 

that: (1) there is no genuine issue of material fact, (2) the moving party is 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 non-moving party. Hudson v. Petrosurance,Inc., 127 Ohio 

St.3d 54, 2010-Ohio-4505, ¶ 29. We review a decision granting summary judgment de 

novo, conducting an independent review of the record and affording no deference to the 

trial court’s decision. Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 

18AP-736, 2019-Ohio-4015, ¶ 6.

B. The parties’ arguments and the trial court’s decision

{¶ 10} In its motion for summary judgment, Westfield argued that pursuant to the 

Westfield Policy, it was “entitled to a set off from all tortfeasors,

2 collectively,” and therefore 

entitled to a declaration that underinsured motorist coverage was not triggered if appellant 

recovered more than $1 million from all tortfeasors. (Emphasis sic.) (Westfield’s Mot. for 

Summ. Jgmt. at 4.) In support of this argument, Westfield pointed in particular to text 

contained within the Ohio Uninsured and Underinsured Motorists Coverage – Bodily 

Injury Endorsement (“UIM Endorsement”) which provides and limits the underinsured 

motorist coverage as follows:

A. Coverage

1. We will pay all sums the “insured” is legally entitled to 

recover as compensatory damages from the owner or operator 

of an “uninsured motor vehicle” or “underinsured motor 

vehicle” because of “bodily injury” sustained by the “insured” 

and caused by an “accident.”

* * *

2 Westfield uses the term “tortfeasors” throughout its brief, and for this reason we refer to the term when 

summarizing Westfield’s argument. The trial court also used the term. However, the Westfield Policy does not 

use the term “tortfeasor.” Therefore, we will not endeavor to interpret this term or accord it any significance. 

Rather, we focus our analysis on the terms used in the policy. 
No. 23AP-343

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D. Limit Of Insurance3

* * *

4. With respect to coverage provided for damages resulting 

from an “accident” with an “underinsured motor vehicle,” the 

limit of insurance shall be reduced by all sums paid for “bodily 

injury” by or on behalf of anyone who is legally responsible. 

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1.) Westfield cited Heaton v. 

Carter, 5th Dist. No. 05-CA-76, 2006-Ohio-633; Blackburn v. Hamoudi, 10th Dist. No. 

89AP-1102 (Sept. 18, 1990);Vawter v. Select Transp.,Inc., 10th Dist. No. 99AP-191 (Dec. 2, 

1999); and Roberts v. Allstate Ins. Co., 12th Dist. No. CA2001-06-133 (Dec. 17, 2001), and 

other decisions for the proposition that, as a matter of law, similar insurance policies have 

been interpreted in such a way that underinsured motorist coverage is not triggered when 

settlement funds paid to a plaintiff by joint tortfeasors exceed the maximum underinsured 

motorist coverage amount set forth in a policy. Westfield also argued that such an 

interpretation was consistent with R.C. 3937.18(C). Arguing in opposition to summary 

judgment, appellant pointed the court to English v. Progressive Specialty Ins. Co., 6th Dist. 

No. L-14-1239, 2016-Ohio-847; Ruiz v. GEICO, 10th Dist. No. 08AP-955, 2009-Ohio-2759;

and Kirby v. Barletto, 10th Dist. No. 09AP-158, 2009-Ohio-5090. 

{¶ 11} The trial court noted appellant alleged that two tortfeasors, defendant 

Muhammad and defendant Shackleford, each negligently operated their vehicles by driving 

at excessive speed, failing to control their vehicles, and failing to maintain an assured clear 

distance. After analyzing the cases suggested by the parties, the trial court ultimately relied 

on Heaton, Blackburn, and Vawter, as well as several cases from other districts and 

concluded that “[r]egardless of the outcome of a trial, based on the set-off and limits of 

coverage language in Westfield’s underinsured motorist policy and the language of O.R.C. 

3937.18(C), Westfield would be entitled to set off the $5,000,000 that [appellant] already 

received.” (Emphasis added.) (Decision & Entry at 14.) 

3 The UIM Endorsement also limits the underinsured motorist coverage as follows: “We will not make a 

duplicate payment under this Coverage Form for any element of ‘loss’ for which payment has been made by 

or for anyone who is legally responsible.” (Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1, Section 

D3.)
No. 23AP-343

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C. Analysis

{¶ 12} Appellant argues the trial court erred in disregarding the outcome of a trial. 

Appellant posits that “[l]egal responsibility is not established just because a defendant 

agreed to a settlement. * * * Furthermore, a finding of negligence does not mean that such 

negligence was the proximate cause of an accident. * * * Legal responsibility is a question 

of fact to be determined by a jury. A jury must determine legal responsibility before the setoff can be calculated.” (Appellant’s Brief at 14.) 

{¶ 13} At the heart of this case is the interpretation of the term “legally responsible” 

as used in the UIM Endorsement in the context of the Westfield Policy. Westfield argues 

that, by law, the CEVA defendants are “legally responsible” and therefore Westfield’s $1

million underinsured motorist coverage is reduced by the $5 million sum the CEVA 

defendants paid in settlement funds to appellant. Thus, according to Westfield, appellant 

is not entitled to any underinsured motorist coverage and summary judgment in its favor 

should be affirmed. Appellant argues a jury must make a factual determination as to 

whether the CEVA defendants are “legally responsible.” Therefore, according to appellant, 

because no such determination has been made the case must be remanded to the trial court 

for a jury trial to determine if the CEVA defendants are “legally responsible” before the 

court can decide whether Westfield’s underinsured motorist coverage should be reduced by 

the $5 million sum CEVA defendants paid in settlement funds to appellant. 

1. Plain and ordinary meaning of “legally responsible”

{¶ 14} “An insurance policy is a contract whose interpretation is a matter of law.” 

Acuity v. Masters Pharmaceuticals, Inc., 169 Ohio St.3d 387, 2022-Ohio-3092, ¶ 11. 

“Courts must examine an insurance contract as a whole and presume that the language 

used in the policy reflects the intent of the parties.” Id. The terms of an insurance policy 

are to be given their plain and ordinary meaning and “courts must not read insurance 

policies in an overly circumscribed fashion.” Id.

{¶ 15} The term “legally responsible” is not defined within the UIM Endorsement 

and not defined within the Business Auto Coverage Form which the UIM Endorsement 

modifies.4 Nevertheless, “[i]n determining the plain and ordinary meaning of a word, 

4 The UIM Endorsement provides that it modifies the Westfield Policy as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
No. 23AP-343

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courts may look to dictionary definitions of the word.” State v. Bertram, 173 Ohio St.3d 

186, 2023-Ohio-1456, ¶ 13.

5 

{¶ 16} Black’s Law Dictionary defines the word “legally” as “[i]n a lawful way; in a 

manner that accords with the law” or “[a]ccording to the law.” Black’s Law Dictionary

1032 (10th Ed.2014). As applicable here, Black’s defines “responsibility” as “[t]he quality, 

state, or condition of being answerable or accountable” or an “[a]bility to meet monetary or 

contractual obligations; esp., the ability to pay what is owed.” (Emphasis added.) Black’s 

at 1506. 

{¶ 17} Contrary to the suggestion of appellant, noticeably absent from the dictionary 

definition of “legally” is a requirement that in order to be considered “in accordance with 

the law” an action must be exclusively pursuant to a judgment of a court. Also noticeably 

absent from the dictionary definition of “responsibility” is a requirement that a quality, 

state, or condition of being answerable or accountable must be exclusively pursuant to a 

judgment of a court. The definition of “responsibility” even expressly considers 

responsibility pursuant to contractual obligations.

{¶ 18} Pursuant to the Black’s Law Dictionary definitions of “legally” and 

“responsibility,” we conclude that the plain and ordinary meaning of “legally responsible” 

OHIO UNINSURED AND UNDERINSURED MOTORISTS COVERAGE – BODILY INJURY

For a covered “auto” licensed or principally garaged in, or “auto dealer operations” conducted in, 

Ohio, this endorsement modifies insurance provided under the following:

* * *

BUSINESS AUTO COVERAGE FORM 

* * *

With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply 

unless modified by the endorsement.

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1A at Sec. D.3)

5 In Bertram, the Supreme Court was interpreting a term used in a statute. However, the Supreme Court, our 

own court and many appellate courts also look to dictionary definitions when interpreting the plain and 

ordinary meaning of terms used in contracts. See, e.g., Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 

73 Ohio St.3d 107, 109 (1995) (applying dictionary definition of term “employee” because it was not defined 

in an insurance policy); DN Reynoldsburg, L.L.C. v. Maurices, Inc., 10th Dist. No. 20AP-57, 2022-Ohio-949, 

¶ 25, fn. 8 (“It is a well-established practice for courts to utilize dictionary definitions to discern the ordinary, 

everyday meaning of terms employed in contracts.”).
No. 23AP-343

8

as used in the Limitations section of the UIM Endorsement contemplates legal 

responsibility pursuant to settlement as well as judgment by a court. The CEVA defendants 

paid $5 million to appellant pursuant to their contractual obligation under the Wrongful 

Death Settlement and such payment was in accordance with the law. The Wrongful Death 

Settlement involved the same parties, the Estate of Randell Shank and the CEVA 

defendants, and the same claim, wrongful death, as the parties and claim in the case before 

us. Therefore, we conclude the CEVA defendants meet the plain and ordinary meaning of 

being “legally responsible” as used in the Limitations section of the UIM Endorsement. 

2. Intention of the parties as reflected in the language of the contract as 

a whole

{¶ 19} In addition, considering the language of the policy as a whole, we construe 

the intention of the parties to the Westfield Policy, Westfield and Shank’s employer, to be 

consistent with the plain and ordinary meaning of “legally responsible” as defined by 

Black’s Law Dictionary. We conclude the parties intended that the term “legally 

responsible” as used in the Limitations section of the UIM Endorsement contemplated legal 

responsibility pursuant to settlement as well as judgment by a court.

{¶ 20} Interpretation of a written contract is a matter of law. Buckeye Wellness 

Consultants, L.L.C. v. Hall, 10th Dist. No. 20AP-380, 2022-Ohio-1602, ¶ 13. “ ‘In 

construing the terms of any contract, the principal objective is to determine the intention 

of the parties.’ ” Id., quoting Hamilton Ins. Servs. v. Nationwide Ins. Cos., 86 Ohio St.3d 

270, 273 (1999). “ ‘The intent of the parties to a contract is presumed to reside in the 

language they chose to employ in the agreement.’ ” Id., quoting Kelly v. Med Life Ins. Co., 

31 Ohio St.3d 130, 132 (1987). When determining the parties’ intent in the language of the 

contract, a reviewing court must read the contract as a whole and give effect, when possible, 

to every provision in the agreement. Clark v. Humes, 10th Dist. No. 06AP-1202, 2008-

Ohio-640, ¶ 12.

{¶ 21} Therefore, we must construe the term “legally responsible” consistent with 

the intention of the parties as reflected in the language of the contract as a whole. The 

parties in this case have pointed us narrowly to the language used in specific clauses of the 

Limitations section of the UIM Endorsement. However, because these clauses and the UIM 

Endorsement do not expressly define the term “legally responsible,” we must look to the 
No. 23AP-343

9

language of the UIM Endorsement and the Business Auto Coverage Form which the UIM 

Endorsement modifies.

{¶ 22} The Business Auto Coverage Form addresses liability coverage Westfield 

provides to its insured. It states in relevant part:

SECTION II – COVERED AUTOS LIABILITY 

COVERAGE

A. Coverage

We will pay all sums an “insured” legally must pay as 

damages because of “bodily injury” or “property damage” to 

which this insurance applies, caused by an “accident” and 

resulting from the ownership, maintenance or use of a covered 

“auto.”

(Emphasis added.) The Form continues to explain Westfield’s rights and duties in the event 

of a “suit.” It states:

We have the right and duty to defend any “insured” against a 

“suit” asking for such damages. * * * However, we have no duty 

to defend any “insured” against a “suit” seeking damages for 

“bodily injury” or “property damage” * * * to which this 

insurance does not apply. We may investigate and settle any 

claim or “suit” as we consider appropriate. Our duty to defend 

or settle ends when the Covered Autos Liability Coverage 

Limit of Insurance has been exhausted by payment of 

judgments or settlements.

(Emphasis added.) “Suit” is expressly defined as follows:

SECTION V – DEFINITIONS

N. “Suit” means a civil proceeding in which:

1. Damages because of “bodily injury” or “property damage”;

* * *

[T]o which this insurance applies, are alleged.

“Suit” includes:

a. An arbitration proceeding in which such damages * * * are 

claimed and to which the “insured” must submit or does 

submit with our consent; or
No. 23AP-343

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b. Any other alternative dispute resolution proceeding in 

which such damages * * * are claimed and to which the 

insured submits with our consent.

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex.1.) Alternative dispute 

resolution is commonly defined by Black’s Law Dictionary as “[a]ny procedure for settling

a dispute by means other than litigation, as by arbitration or mediation.” (Emphasis 

added.) Black’s Law Dictionary at 95. 

{¶ 23} The word “suit” is also used in the UIM Endorsement and because it is not 

otherwise defined in the UIM Endorsement, the express definition in the Business Auto 

Coverage Form applies. In the Changes in Conditions section of the UIM Endorsement, the 

policy adds duties to the insured as follows:

E. Changes in Conditions

The Conditions of the policy for Ohio Uninsured and 

Underinsured Motorists Insurance are changed as follows:

* * *

2. Duties in the Event of Accident, Claim, Suit or Loss

in the Business Auto * * * Coverage Form * * * are changed by 

adding the following:

* * *

b. Promptly send us copies of the legal papers if a “suit” is 

brought; and 

c. A person seeking Underinsured Motorists Coverage must 

also promptly notify us in writing of a tentative settlement

between the “insured” and the insurer6 of an “underinsured 

motor vehicle * * *.”

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1A.)

{¶ 24} Furthermore, there are numerous express references to settlements in the 

UIM Endorsement. In the Coverage section of the UIM Endorsement, the policy limits 

coverage of underinsured motorist insurance as follows:

6 We recognize that this reference to “the insurer” is to the insurer of the underinsured motorist, in this case 

Shackleford. However, we also recognize the reference to settlement as a possible resolution of a suit. 
No. 23AP-343

11

A. Coverage

* * *

With respect to damages resulting from an “accident” with an 

“underinsured motor vehicle,” we will pay under the coverage 

selected under this endorsement only if Paragraph a. or b.

below applies: 

a. The limits of any applicable liability bonds or policies have 

been exhausted by payment of judgments or settlements; or 

b. A tentative settlement has been made between an “insured” 

and the insurer of the “underinsured motor vehicle” and we:

(1.) Have been given prompt written notice of such 

settlement; and 

(2.) Advance payment to the “insured” in an amount equal to 

the tentative settlement within 30 days after receipt of 

notification.

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1A.)

 

{¶ 25} In the Exclusions section of the UIM Endorsement, the policy excludes 

coverage as follows:

C. Exclusions

This insurance does not apply to:

1. Any claim settled without our consent, if the settlement

prejudices our right to recover payments. However, this 

exclusion does not apply to a settlement made with the 

insurer7 of an “underinsured motor vehicle” in accordance 

with the procedure described in Paragraph A.2.b.

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1A.)

{¶ 26} Taking into consideration the definition of “suit” and the numerous express 

references to “settlement” the parties used in both the UIM Endorsement and the Business 

7 Again, we recognize that this reference to “the insurer” is to the insurer of the underinsured motorist, in this 

case Shackleford. However, we also recognize the reference to settlement as possible resolution of a suit. 
No. 23AP-343

12

Auto Coverage Form,

8 we conclude the language of the Westfield Policy as a whole reflects 

the parties intended that the term “legally responsible” as used in the Limitations section 

of the UIM Endorsement contemplated legal responsibility pursuant to settlement as well 

as judgment by a court.

3. Construction in favor of the insured is a secondary rule of 

interpretation

{¶ 27} Appellant also argues that because the phrase “legally responsible” is open to 

more than one interpretation, it must be construed strictly against the insurer and in favor 

of the insured. (Appellant’s Brief at 11.) The Supreme Court of Ohio, however, instructs 

8 In addition to express references to settlement in the UIM Endorsement, the Business Auto Coverage Form 

also contains many express references to settlement. Section IV regarding Business Auto Conditions states:

SECTION IV – BUSINESS AUTO CONDITIONS

The following conditions apply in addition to the Common Policy Conditions:

A. Loss Conditions

* * *

2. Duties in The Event Of Accident, Claim, Suit or Loss

We have no duty to provide coverage under this policy unless there has been full compliance with the 

following duties:

* * *

b. Additionally, you and any other involved “insured” must:

* * * 

(3) Cooperate with us in the investigation or settlement of the claim or defense against the “suit.”

* * *

3. Legal Action Against Us

No one may bring a legal action against us under this Coverage Form until:

a. There has been full compliance with all the terms of this Coverage Form; and

b. Under Covered Autos Liability Coverage, [1] we agree in writing that the “insured” has an 

obligation to pay[;] or [2] until the amount of that obligation has finally been determined by 

judgment after trial. No one has the right under this policy to bring us into an action to determine 

the “insured’s” liability.

 

(Emphasis added.) (Westfield’s Mot. for Summ. Jgmt., Ex. 1.) 
No. 23AP-343

13

that “[t]he rule that a contract provision should be strictly construed against one party and 

liberally construed in favor of the other—either due to the type of contract or contract 

provision at issue, inequality in bargaining power, or the fact that one party is the drafter 

and the other is not—is a secondary rule.” Sutton Bank v. Progressive Polymers, L.L.C., 

161 Ohio St.3d 387, 2020-Ohio-5101, ¶ 15. The Supreme Court further instructs that the 

rule “does not come into play unless the intent of the parties cannot be deciphered because 

the contract language is reasonably susceptible of two different interpretations.” Id.

{¶ 28} We have already determined that the plain and ordinary meaning of “legally 

responsible” as used in the Limitations section of the UIM Endorsement contemplates legal 

responsibility pursuant to settlement as well as judgment by a court and that the language 

of the Westfield Policy as a whole reflects the parties same intention. Therefore, it is not 

necessary for us to construe the term strictly against Westfield and in favor of appellant. 

4. Interpretation of “legally responsible” is consistent with R.C. 

3937.18(C)

{¶ 29} The underlying public policy for uninsured and underinsured motorist 

coverage is to guarantee a minimum level of compensation for an injured person, regardless 

of whether the other party was insured or uninsured. Blue Cross & Blue Shield Mut. v. 

Hrenko, 72 Ohio St.3d 120, 123 (1995). This court has explained the principles and 

purposes underlying uninsured and underinsured motorist coverage and the function of 

set-off provisions:

The [uninsured and underinsured motorist coverage] carrier 

does not provide insurance for any specific tortfeasor. The 

policy only insures that at least a given amount of 

compensation will be available to the policyholder regardless of 

whether an insured, underinsured, or uninsured motorist is at 

fault. The policy is, however, only applicable when an 

uninsured or underinsured motorist is involved in the accident.

The coverage provides basic protection to the insured in the 

event of an accident involving an uninsured or underinsured 

motorist. If this basic protection is available from some other 

source, the [uninsured and underinsured motorist] coverage 

does not come into effect. The set-off and subrogation 

provisions are intended to achieve this objective. When the 

insured has received an amount in total compensation equal 

to the policy’s limit of liability, the [uninsured and 
No. 23AP-343

14

underinsured motorist coverage] carrier has no further 

obligation to the insured. * * *

Uninsured motorist policies are concerned only with their 

insured. The policies do not insure other drivers. They only 

insure that the policyholder will receive a minimum amount of 

total compensation regardless of the insurance coverage 

carried by the other driver.

(Emphasis added.) Blackburn v. Hamoudi, 10th Dist. No. 89AP-1102 (Sept. 18, 1990).

{¶ 30} Ohio law expressly provides that uninsured motorist coverage is not excess 

coverage:

If 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. 

Underinsured motorist coverage in this state is not and shall 

not be excess coverage to other applicable liability coverages, 

and shall only provide the insured an amount of protection 

not greater than that which would be available under the 

insured’s uninsured motorist coverage if the person or 

persons liable to the insured were uninsured at the time of the 

accident. The policy limits of the underinsured motorist 

coverage shall be reduced by those amounts available for 

payment under all applicable bodily injury liability bonds and 

insurance policies covering persons liable to the insured.

(Emphasis added.) R.C. 3937.18(C).

{¶ 31} We are cognizant that in this particular case, the language of the Westfield 

Policy, rather than the default language of R.C. 3937.18 controls. See Snyder v. Am. Family 

Ins. Co., 114 Ohio St.3d 239, 2007-Ohio-4004, ¶ 13-23 (summarizing history of 

amendments to R.C. 3937.18). Nevertheless, we find that our interpretation of the term 

“legally responsible” as used in the UIM Endorsement and Business Auto Coverage Form 

of the Westfield policy is consistent with R.C. 3937.18(C).
No. 23AP-343

15

5. Case law cited by the parties and relied upon by the trial court not 

dispositive

{¶ 32} Finally, we note that our interpretation of the term “legally responsible” is 

limited to and determined pursuant to the Westfield Policy before us. Although helpful to 

provide an understanding of R.C. 3937.18(C) and a framework for analysis, we do not find 

any of the cases presented by the parties or relied upon by the trial court to be dispositive. 

{¶ 33} Rather, pursuant to the contractual policy terms presented in this case, we 

find the trial court did not err in concluding the set-off clause contained in the UIM 

Endorsement of the Westfield Policy applied, and that Westfield was entitled to judgment 

as a matter of law.

{¶ 34} Accordingly, we overrule appellant’s sole assignment of error.

IV. Conclusion

{¶ 35} For the foregoing reasons, we overrule appellant’s sole assignment of error 

and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

LUPER SCHUSTER. J., concurs.

EDELSTEIN, J., dissents.

EDELSTEIN, J., dissenting.

{¶ 36} I agree with the majority that resolution of a lawsuit by settlement is generally 

encompassed within the term “legal responsibility” as used in the Westfield Policy. And so, 

I agree a jury need not resolve all questions of “legal responsibility.” However, I read the 

provision we are charged with interpreting in this case as linking “legal responsibility” to 

“bodily injury.” And so, as I see it, the ultimate question in this case is not whether there is 

a genuine dispute of material fact regarding the CEVA defendants’ legal responsibility 

generally. That question can be answered easily by the evidence proving the CEVA 

defendants settled with appellant for $5,000,000. Rather, we must determine whether 

there is a genuine dispute of material fact regarding their legal responsibility for the 

accident that caused Mr. Shank’s bodily injuries and ultimately his death. Because I do not 

believe the fact of the CEVA defendants’ settlement for $5,000,000, alone, answers that 

question, I would vacate the trial court’s judgment so that a jury can make that 

determination. 
No. 23AP-343

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{¶ 37} The UIM Endorsement states, in relevant part, “With respect to coverage 

provided for damages resulting from an ‘accident’ with an ‘underinsured motor vehicle,’ the 

limit of insurance shall be reduced by all sums paid for ‘bodily injury’ by or on behalf of 

anyone who is legally responsible.” (Emphasis added.) (Feb. 11, 2022 Westfield Ins. Co. 

Mot. for Summ. Jgmt. at 3.) Again, I agree that a party could generally become legally 

responsible through a settlement agreement. But, as even the provisions cited by the 

majority seem to reveal, “legal responsibility” is linked throughout the Westfield Policy to 

specific, identified injury. For example, SECTION II – COVERED AUTOS LIABILITY 

COVERAGE and SECTION V – DEFINITIONS refer to payment of “damages because of 

‘bodily injury’ or ‘property damage.’ ” The UIM Endorsement, on the other hand, 

specifically contemplates payment of sums for “bodily injury” only. 

{¶ 38} The language of the UIM Endorsement seems to require a set-off only when 

a party legally responsible for bodily injury arising from an accident pays a sum of money 

to the insured—not when a party elects to pay some amount, whether responsible for bodily 

injury or not. By agreeing to settle in exchange for dismissal from the case, the CEVA 

defendants accepted legal responsibility for fulfilling the terms of a contract (e.g., paying 

the amount agreed to), not necessarily for causing the accident and the resulting bodily 

injury. 

{¶ 39} Under an interpretation of “legal responsibility” linked to bodily injury, the 

trial court would have had to consider whether the CEVA defendants were legally 

responsible for the bodily injury in this case. Therefore, the reason for the settlement 

becomes the relevant question. Certainly, a settlement agreement could include an 

admission of liability for bodily injury. But in the absence of such an admission, the trial 

court in this case granted summary judgment in reliance on the allegations in the 

complaint, the fact of the settlement, the amount of the settlement, and the court’s own 

speculation about the CEVA defendants’ interests in settlement. This is what I believe was 

improper at this stage in the proceedings. 
No. 23AP-343

17

{¶ 40} Defendants settle cases—even expensive ones—for many compelling reasons. 

They settle to eliminate risk. Juries are unpredictable.9 Jurors might get confused. They 

might prefer the plaintiff’s lawyer over the defendant’s lawyer. Perhaps a key witness is 

unavailable for trial and the court refuses to continue the trial date. Perhaps, although a 

party is not legally responsible, their primary witness is not expected to perform well at 

trial. Perhaps the defendant realizes their lawyer is good at defending cases up until trial 

but is not a great trial lawyer. Maybe trial will take three weeks and the defendant does not 

want to spend that time in a windowless courtroom racking up attorney fees. Perhaps the 

defendant trucking company sees that high-dollar jury verdicts in trucking accident cases 

have skyrocketed in recent years.10 

{¶ 41} A defendant trucking company might settle to avoid a public determination 

of liability. Or such a defendant might settle for the policy limit to avoid a judgment in an 

amount greater than their insurance coverage. Mr. Shank died from the injuries he 

sustained in this accident. The damages he and his estate suffered could very well have 

exceeded the CEVA defendants’ $5,000,000 policy limit, leaving them on the hook for 

payments above and beyond that amount. Perhaps the CEVA defendants entered a 

settlement to avoid that risk, even knowing they were not legally responsible for Mr. 

Shank’s death.

{¶ 42} Of course, this is only speculation about why the CEVA defendants chose to 

settle the case in exchange for the dismissal of the action with prejudice. But that is exactly 

the point—parties enter settlement agreements for any number of reasons. Without a 

formal admission of liability, we are left to speculate about their reasons for settling, 

including whether it is because they are, in fact, legally responsible for the accident that 

caused Mr. Shank’s bodily injuries and his ultimate death. Because the fact of the 

9 See, e.g., Robert J. Rhee, A Price Theory of Legal Bargaining: An Inquiry Into the Selection of Settlement 

and Litigation Under Uncertainty, 56 Emory L.J. 619, 649-50 (2006); Jordan Rothman, Why Many Cases 

Settle Right Before Trial, Above the Law, Oct. 20, 2023, https://abovethelaw.com/2023/10/why-manycases-settle-right-before-trial/ (accessed Sept. 9, 2024). 

10 See, e.g., Contessa Brewer and Katie Young, Rise in “nuclear verdicts” in lawsuits threatens trucking 

industry, CNBC, Mar. 4, 2021, https://www.cnbc.com/2021/03/24/rise-in-nuclear-verdicts-in-lawsuitsthreatens-trucking-industry.html (accessed Sept. 9, 2024); Nuclear Verdicts: Trends, Causes, and Solutions, 

U.S. Chamber of Commerce Institute for Legal Reform, Sept. 2022, available at 

https://instituteforlegalreform.com/wp-content/uploads/2022/09/NuclearVerdicts_RGB_FINAL.pdf

(accessed Sept. 9, 2024).
No. 23AP-343

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$5,000,000 settlement does not resolve the legal responsibility question without 

speculation, I believe it must be answered by a finder of fact at trial.

{¶ 43} For these reasons, I believe a genuine dispute of material fact remains 

regarding whether the CEVA defendants are legally responsible as that term is used in the 

Westfield Policy. Because I would sustain appellant’s assignment of error and reverse the 

trial court’s judgment granting summary judgment, I respectfully dissent.

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