Jason Hewitt was driving a 1986 Chevrolet Cavalier owned by his mother, Sally J. Mills, when he lost control of the car on a rural road and crashed. He and three passengers in his car were injured--one of whom died. Mrs. Mills had permitted her son to drive the car, although he owned a 1976 Mustang on which he had secured a liability policy from Progressive. His mother had a policy issued by Wayne Mutual. She had requested a lower premium on that policy when her son secured his own car. Her policy excluded Jason as a driver, and an endorsement to that effect had been issued.

The evidence showed that the Mustang had some mechanical problems at the time, but there was no evidence that it was "permanently inoperable" within the meaning of his policy. Hewitt had driven it a couple of miles down the road a couple of months after the accident for storage in the neighbor's barn.

Mrs. Mills' insurance carrier, Wayne Mutual, denied liability for injuries caused by the accident, in view of the endorsement which excluded Jason from coverage.

The trial court concluded that the term "permanently inoperable" was ambiguous and found Jason's insurance company responsible since his policy provided coverage for a "replacement automobile." Progressive appealed.

Jason's policy, issued by Progressive, provided coverage for any "replacement car" which was defined as a "car that you own and which has taken the place of the (Mustang) due to . . . mechanical breakdown or deterioration . . . rendering it permanently inoperable."

On appeal, the judgment entered in the trial court was reversed. The evidence showed that neither Jason nor his mother believed the Mustang was permanently disabled and had spent considerable amounts to repair it.

Jason owned the Mustang and owned no other car. His mother was at all times the sole owner of the Cavalier. It was clear that the Cavalier was not owned by Jason and was not taking the place of the Mustang and, therefore, it could not be a "replacement car." In addition, Jason had never applied for coverage of the Cavalier under his policy as a "replacement car." Jason's use of his mother's car did not satisfy his policy's definition of "non-owned" car, and no coverage was available under the UM/UIM provisions.

The judgment entered in the lower court was reversed and remanded for further proceedings.

Wayne Mutual Insurance Company v. Mills et al., Appellees; Progressive Preferred Insurance Company, Appellant--No. 95CA0091--Court of Appeals of Ohio, Ninth District, Wayne County--July 31, 1996--692 North Eastern Reporter 2d 213.