[Cite as Am. Natl. Property & Cas. Co. v. Sterling, 2014-Ohio-5674.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

AMERICAN NATIONAL PROPERTY & ) 

CASUALTY COMPANY, ) 

 ) CASE NO. 13 MA 139 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

PAULA STERLING, INDIVIDUALLY ) 

AND ADMINISTRATRIX OF ) 

THE ESTATE OF BRIAN G. STERLING,) 

et al., ) 

 ) 

 DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 12 CV 2944. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellant: Attorney Edward Ryder 

Attorney Frank H. Scialdone 

Attorney Jeffrey S. Maynard 

Mazanec, Raskin & Ryder Co., L.P.A. 

100 Franklin Row 

34305 Solon Road 

Cleveland, OH 44139 

For Defendants-Appellees: Attorney Brian P. Kopp 

Attorney David J. Betras 

Betras, Kopp & Harshman, LLC 

6630 Seville Drive 

Canfield, OH 44406 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: December 19, 2014 
[Cite as Am. Natl. Property & Cas. Co. v. Sterling, 2014-Ohio-5674.]

DeGenaro, P.J. 

{¶1} Plaintiff-Appellant American National Property & Casualty Company, 

appeals from a Mahoning County Common Pleas Court judgment in favor of DefendantsAppellees, Paula Sterling, individually and as Administratrix of the Estate of Brian 

Sterling, (collectively referred to as Sterling) denying its motion for summary judgment 

seeking a declaration that it had no duty to indemnify or defend the Estate of Shirley 

Sterling, in a declaratory judgment action regarding coverage, arising from the deaths of a 

husband and wife, wherein Brian's estate and beneficiaries are pursuing wrongful death 

claims against Shirley's estate. American National asserts that the trial court erred by 

concluding that wrongful death claims belong to the decedent's survivors, and that neither 

the homeowner nor automobile policies exclude coverage for such claims against the 

Estate of Shirley Sterling. 

{¶2} American National's argument is meritorious. The wrongful death claim 

stems exclusively from Brian's bodily injury. The clear, unambiguous language in both 

policies specifically excludes liability coverage for bodily injury to an insured person or any 

family member living with an insured person. Decedents, Brian and Shirley, were insured 

persons under both policies. Therefore, there is no liability coverage for Shirley for 

negligently causing bodily injury to Brian. Accordingly, the judgment of the trial court is 

reversed, and declaratory judgment is entered in favor of American National; specifically, 

that it has no duty to indemnify or defend the Estate of Shirley Sterling against any claims 

for wrongful death brought by the beneficiaries of Brian Sterling and his estate. 

Facts and Procedural History 

{¶3} On June 4, 2010, spouses Brian and Shirley Sterling and a friend, Diane 

Chips, returned to their home after going out to dinner. Shirley was driving, and she 

stopped the couple's vehicle in their driveway; Brian and Diane got out and went into the 

house, with Diane leaving shortly thereafter. In the meantime, Shirley parked the vehicle 

in the garage, shut the garage door, and entered the house, but failed to turn off the 

vehicle's engine. The next day, the couple's daughter, Paula Sterling, found Brian and 

Shirley dead in their home due to carbon monoxide poisoning. Brian and Shirley's home, 

where they died, and their vehicle, which emitted the carbon monoxide, were covered by, 

respectively, a homeowners' and an automobile policy with American National. 
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{¶4} On June 4, 2012, Paula, individually and on behalf of the Estate of Brain 

Sterling, filed a complaint seeking compensation from the Estate of Shirley Sterling for 

proximately causing Brian's death, asserting a survival claim for damages Brian suffered 

before his death and a wrongful death claim on behalf of Brian's beneficiaries. As a 

result, Shirley's Estate requested a defense and indemnification coverage from American 

National. 

{¶5} American National filed a declaratory judgment action against Sterling and 

Shirley's Estate requesting a determination that it had no duty to defend or indemnify 

Shirley's Estate as to either the survival claim or the wrongful death claim. American 

National argued in a motion for summary judgment that these claims were excluded from 

coverage by both policies because Brian and Shirley were named insureds and family 

members. In response, Sterling argued that the wrongful death claim was brought for the 

exclusive benefit of Brian's statutory beneficiaries and therefore not excluded by either 

insurance policy. However, Sterling did not make any argument regarding the survival 

claim. 

{¶6} The trial court denied American National's summary judgment motion. It 

found that both policy exclusions American National relied upon did not clearly 

encompass all of the statutory wrongful death damages, reasoning that such claims 

belong to the decedent's children and the policies do not exclude American National from 

the potential liability associated with damages incurred under those claims. 

{¶7} Turning to a preliminary matter, American National contends that at the trial 

level, the parties did not seriously dispute that Brian's survivor claim was barred by the 

exclusion language in both policies. Nonetheless, the trial court denied American 

National's summary judgment in its entirety. On appeal, American National reasserts this 

argument, and Sterling has conceded that there is no coverage for the survivorship claim. 

Thus, we will limit our consideration to the wrongful death claim. 

Declaratory Judgment and Standard of Review 

{¶8} A declaratory judgment action is appropriate for establishing the obligations 

of an insurer in a controversy between the insurer and its insured as to the fact or extent 
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of liability under an insurance policy. Boatwright v. Penn-Ohio Logistics, 7th Dist. No. 10 

MA 80, 2011-Ohio-1006, ¶15, quoting Lessak v. Metro. Cas. Ins. Co. of N.Y., 168 Ohio 

St. 153, 155, 151 N.E.2d 730 (1958). 

{¶9} When a trial court disposes of declaratory judgment action on summary 

judgment, this court reviews the trial court's resolution of the legal issues de novo. Id. 

Thus, we apply the same test as the trial court in determining whether summary judgment 

was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no 

genuine issue of material fact exists and when construing the evidence most strongly in 

favor of the nonmoving party, reasonable minds can only conclude that the moving party 

is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 

509, 511, 628 N.E.2d 1377 (1994). A material fact depends on the substantive law of the 

claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 

N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 

Duty to Defend – Homeowner Policy 

{¶10} American National asserts in its sole assignment of error: 

{¶11} "The trial court legally erred when it failed to grant summary judgment in 

favor of Plaintiff/Appellant American National Property & Casualty Co. when it failed to 

hold that no coverage existed." 

{¶12} A liability insurer is only obligated to its insured if the insured's claim falls 

within the scope of coverage. Cincinnati Indemn. Co. v. Martin, 85 Ohio St.3d 604, 605, 

710 N.E.2d 677 (1999). If the insurer establishes that the insured's claim falls within an 

exclusion to coverage, the insurer is under no obligation to defend the insured. Gearing 

v. Nationwide Ins. Co., 76 Ohio St.3d 34, 36, 665 N.E.2d 1115 (1996). 

{¶13} Two insurance policies are at issue in this case, the Homeowner's Policy 

and the Automobile Policy. The Sterlings' Homeowner's Policy states in relevant part: 

DEFINITIONS 

Throughout this policy, "you" and "your" refer to the "named insured" shown 

in the Declarations and the spouse if a resident of the same household, 
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and "we," "us," and "our" refer to the Company providing this coverage. 

* * * 

SECTION II – LIABILITY COVERAGES 

COVERAGE E – PERSONAL LIABLITY 

If a claim is made or a suit is brought against any insured for damages 

because of bodily injury or property damage to which this coverage 

applies, we will: 

a. pay up to our limit of liability for the damages for which the insured is 

legally liable; and 

b. provide a defense at our expense by counsel of our choice. We may make 

any investigation and settle any claim or suit that we decide is appropriate. 

Our obligation to defend any claim or suit ends when the amount we pay for 

damages resulting from the occurrence equals our limit of liability. 

* * * 

SECTION II – EXCLUSIONS 

1. Coverage E – Personal Liability and Coverage F – Medical Payments 

to Others do not apply to bodily injury or property damage: 

* * * 

h. arising out of the ownership, maintenance, use, loading, or unloading of 

motor vehicles or all other motorized land conveyances, including any 

attached trailers, owned or operated by or rented or loaned to any insured. 

 * * * 

 2. Coverage E - Personal Liability does not apply to: 

* * * 

f. bodily injury to you and any insured within the meaning of part a. or b. of 

Definition 6. "insured" 

{¶14} The parties agree that both Brian and Shirley were insureds under the 

Homeowner's Policy. 

{¶15} American National argues the language of the Homeowner's Policy 
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expressly bars coverage under the exclusions for bodily injury to an insured and for bodily 

injury arising out of the use of a motor vehicle. As to the exclusion for bodily injury to an 

insured, under the definitions for bodily injury and insured, there is no personal liability for 

death of an insured, because both Brian and Shirley were named insureds under the 

Homeowner's Policy. Regarding bodily injury from the use of a motor vehicle, because 

there is no coverage for bodily injury arising out of the use of a motor vehicle owned by 

any insureds, there is no coverage because Brian's death was caused by Brian and 

Shirley's use of their vehicle; specifically, Shirley left the engine of the vehicle running 

inside the garage with the doors and windows closed. 

{¶16} Conversely, Sterling argues the exclusions do not clearly and 

unambiguously exclude all of the non-bodily injury damages of Brian's wrongful death 

beneficiaries. 

{¶17} The Ohio Supreme Court's decision in Martin, 85 Ohio St.3d 604, supra, is 

dispositive here. In Martin, six-year-old Michael Martin died when his eight-year-old 

brother shot him while playing at the home they lived in with their mother, Stephanie. At 

the time, Stephanie had a homeowner's insurance policy with Cincinnati Indemnity 

Company. Stephanie was divorced from the boys' father, David, who did not live in the 

home. David, as administrator of Michael's estate, filed a wrongful death action against 

Stephanie alleging her negligence in supervising the children and in storing the gun 

caused Michael's death. CIC then filed a declaratory judgment action seeking a 

determination as to whether it was required to defend and indemnify Stephanie against 

the wrongful death claim. The parties stipulated that Michael and his brother were 

insureds under the homeowner's policy since they were relatives residing with Stephanie, 

the named insured, but that David was not an insured. 

{¶18} The trial court granted summary judgment for CIC finding that David's claim 

was excluded from coverage because the plain language of the policy excluded liability 

coverage for bodily injury to an insured, including the wrongful death claim. The Twelfth 

District Court of Appeals affirmed but certified the case to the Ohio Supreme Court after 

finding a conflict with the decision from another district. David argued the exclusion 

applied only to injuries suffered by an insured, not to injuries suffered by him, a 
- 6 - 

noninsured, and thus, the exclusion was inapplicable, because he suffered his own injury 

as a wrongful death beneficiary. Id. at 606. 

{¶19} The Ohio Supreme Court rejected this argument, finding that the policy 

language was clear and unambiguous, that the definition of bodily injury meant "bodily 

harm, sickness or disease," noting the policy provided coverage for "required care, loss of 

services and death resulting from bodily injury." Id. at 607. The Court held that under the 

terms of the policy, David did not suffer his own bodily injury; instead, any injury to David 

arose solely from the bodily injury his insured son sustained. Id.

{¶20} The Court concluded by noting that David could still pursue a wrongful 

death claim, he just could not create insurance coverage where none existed. Id. at 608-

609. In sum, the Court held: "An insurer has no duty to defend or indemnify its insured in 

a wrongful death lawsuit brought by a noninsured based on the death of an insured where 

the policy excludes liability coverage for claims based on bodily injury to an insured." Id. 

at the syllabus. 

{¶21} We are faced with the same set of facts here as were present in Martin. An 

insured under the Homeowner's Policy, Brian, suffered bodily injury resulting in death for 

which nonresident, noninsured family members, Brian's adult children, filed a wrongful 

death action against the insured policy holder, Shirley, via her estate. Like the father in 

Martin, the wrongful death beneficiaries in this case did not suffer their own bodily injury. 

Their only injury arose from the bodily injury sustained by Brian, who was an insured 

under the Homeowner's Policy. And like the policy at issue in Martin, the Homeowner's 

Policy here specifically excludes coverage for bodily injury to an insured. This is not to 

say that Sterling cannot maintain a wrongful death action against Shirley's Estate. 

Pursuant to Martin, American National has no duty under the Homeowner's Policy to 

defend and indemnify Shirley's Estate on the wrongful death claim. 

Duty to Defend – Automobile Policy 

{¶22} We turn next to the Sterlings' Automobile Insurance Policy, which provides 

in relevant part: 

DEFINITIONS USED THROUGHOUT THIS POLICY 
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* * * 

(4) "Bodily injury" means bodily injury to a human being, and sickness, 

disease, or death which results from it. 

(5) "Insured" or "Insured person" means the person, persons, or 

organization defined as an insured person in or with reference to a specific 

coverage. 

* * * 

(7) "Occupying" means in, on, getting into, or out of. 

* * * 

(11) "Relative" means a person living with you and related to you by blood, 

marriage, or adoption, including your ward or foster child, provided neither 

the relative nor the relative's spouse owns, in whole or in part, a car. 

* * * 

PART I – LIABILITY 

COVERAGE A – BODILY INJURY AND COVERAGE B – PROPERTY 

DAMAGE 

We will pay damages for which an insured person becomes legally liable 

because of bodily injury or property damage resulting from the 

ownership, maintenance, or use of your insured car or a non-owned car. 

* * * 

EXCLUSIONS 

There is no coverage under PART I – LIABILITY: 

* * * 

(10) for bodily injury to any insured person or any member of your

family living with you; 

PART II – EXPENSES FOR MEDICAL SERVICES 

COVERAGE C – MEDICAL PAYMENTS COVERAGE 

We will pay reasonable medical expenses actually incurred by an insured 

person because of bodily injury caused by accident. * * * 
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* * * 

ADDITIONAL DEFINITION USED IN PART II ONLY 

As used in this Part, "insured person" means: 

(1) You or a relative for bodily injury sustained: 

(a) While occupying your insured car; 

{¶23} The parties agree that Brian and Shirley were both named insureds and 

relatives under the Automobile Policy, and that the vehicle Shirley drove, parked in the 

garage and failed to turn off, was an insured car. 

{¶24} American National argues that because the policy expressly provides there 

is no coverage for bodily injury to an insured person or any member of the insured's 

family, both Brian and Shirley are specifically excluded from coverage for Shirley's 

negligence. Additionally, American National argues there is no coverage under the 

Automobile Policy for medical expenses incurred by Brian because he was not occupying 

his insured car when he sustained bodily injury, Brian was inside his home when he died. 

{¶25} Conversely, Sterling argues the liability section of the Automobile Policy 

provides coverage for damages that Shirley may be liable for as a result of her ownership, 

maintenance, and/or use of her vehicle unless an exclusion applies. Sterling asserts the 

policy only excludes coverage for bodily injury to an insured or a family member who lives 

with the insured, that the wrongful death claimants did not live with Shirley and Brian, and 

that the policy does not unambiguously exclude coverage for the non-bodily injury claims 

by Brian's wrongful death beneficiaries. 

{¶26} Sterling additionally argues that Martin is inapplicable in consideration of the 

Automobile Policy because that case involved a homeowner's policy, which additionally 

excluded claims for loss of services resulting from bodily injury to an insured, unlike the 

Automobile Policy at hand. Sterling finally contends that while the exclusion applies only 

to actual bodily injury up to a person's death, coverage for personal liability extends to 

damages because of bodily injury as opposed to damages of actual bodily injury, noting 

any ambiguity must be construed against the insurer. 

{¶27} Although we are reviewing language from an automobile policy, Martin's
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analysis of the same issues regarding a homeowner's policy is equally applicable here. 

The language in the Automobile Policy is clear and unambiguous. It specifically excludes 

liability coverage for bodily injury to an insured person or any family member living with an 

insured person. Thus, there is no liability coverage for Shirley negligently causing bodily 

injury to Brian. Regarding Sterling's wrongful death claim, it stems exclusively from 

Brian's bodily injury, and Brian is an insured under the Automobile Policy. "[A]n insurer 

has no duty to defend or indemnify its insured in a wrongful death lawsuit brought by a 

noninsured based on the death of an insured where the policy excludes liability coverage 

for claims based on bodily injury to an insured." Martin at 609. Thus, Sterling's wrongful 

death claim is excluded from coverage and American National has no duty to defend or 

indemnify the Estate of Shirley Sterling. 

{¶28} In conclusion, American National's assignment of error is meritorious. The 

wrongful death claim stems exclusively from Brian's bodily injury. The clear, 

unambiguous language in both policies specifically excludes liability coverage for bodily 

injury to an insured person or any family member living with an insured person. 

Decedents, Brian and Shirley, were insured persons under both policies. Therefore, there 

is no liability coverage for Shirley for negligently causing bodily injury to Brian. 

Accordingly, the judgment of the trial court is reversed, and declaratory judgment is 

entered in favor of American National; specifically, that it has no duty to indemnify or 

defend the Estate of Shirley Sterling against any claims for wrongful death brought by the 

beneficiaries of Brian Sterling and his estate. 

Donofrio, J., dissents with dissenting opinion. 

Vukovich, J., concurs. 
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DONOFRIO, J. dissenting. 

{¶29} For the following reasons, I respectfully dissent in part from the majority’s 

opinion. 

{¶30} I agree with the majority’s resolution regarding the Homeowner’s Policy. I 

too would find that American National has no duty under the Homeowner’s Policy to 

defend and indemnify the Estate of Shirley Sterling on the wrongful death claim. 

{¶31} I write separately because I disagree with the majority’s resolution regarding 

the Automobile Policy. I would find that Cincinnati Indemn. Co. v. Martin, 85 Ohio St.3d 

604,605, 707 N.E.2d 677 (1999), is distinguishable as applied to the Automobile Policy. 

Therefore, I would affirm the trial court’s finding that American National had a duty to 

defend and indemnify the Estate of Shirley Sterling under the Automobile Policy. 

{¶32} The Automobile Policy differs from the Homeowners’ Policy in a significant 

respect. Under the Homeowner’s Policy the definition of “bodily injury” is “bodily harm, 

sickness, or disease, including required care, loss of services, and death resulting 

therefrom.” (Emphasis added.) This definition is substantially similar to the definition of 

“bodily injury” in Martin, 85 Ohio St.3d at 606, which also included “loss of services” 

resulting from bodily injury. Under the Automobile Policy, however, “bodily injury” means 

“bodily injury to a human being, and sickness, disease, or death which results from it.” It 

does not include “loss of services” resulting from bodily injury as do the Homeowner’s 

Policy in this case and the homeowner’s policy at issue in Martin, supra. 

{¶33} Due to this difference in the policies, Martin is distinguishable from this case 

with respect to the Automobile Policy. Under the Homeowner’s Policy, loss of services, 

which would encompass a wrongful death claim, was specifically included in the definition 

of “bodily injury.” Therefore, under the exclusions, which excluded coverage for bodily 

injury to an insured, coverage was necessarily excluded for loss of services resulting from 

bodily injury to an insured, i.e., a wrongful death claim. The policy language was clear 

and unambiguous. 

{¶34} Under the Automobile Policy, however, loss of services is not included in the 

definition of “bodily injury.” Therefore, loss of services resulting from bodily injury to an 
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insured, i.e., a wrongful death claim, is not specifically excluded under the exclusions for 

bodily injury to any insured person. Because it is not specifically excluded, an ambiguity 

exists as to whether the policy provides coverage for the loss of services resulting from 

bodily injury to an insured. “Where provisions of a contract of insurance are reasonably 

susceptible of more than one interpretation, they will be construed strictly against the 

insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co., 35 Ohio St.3d 

208, 519 N.E.2d 1380 (1988), syllabus. Therefore, I would construe the ambiguity in this 

case in favor of Sterling and in favor of finding coverage under the Automobile Policy.