First United Methodist Church of Stillwater, Inc. v. Phila. Indem. Ins. Co., 423 P.3d 29 (2016)

Aug. 26, 2016 · Court of Civil Appeals of Oklahoma, Division No. 2 · Case No. 114,396
423 P.3d 29

FIRST UNITED METHODIST CHURCH OF STILLWATER, INC., Plaintiff/Appellee,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation d/b/a Philadelphia Insurance Companies, Defendant/Appellant.

Case No. 114,396

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED AUGUST 26, 2016
Mandate Issued: September 27, 2016

Kieran D. Maye, Jr., Andrea R. Rust, MILLER DOLLARHIDE, Oklahoma City, Oklahoma, For Plaintiff/Appellee.

D. Lynn Babb, PIERCE COUCH HENDRICKSON, BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Defendant/Appellant.

OPINION BY DEBORAH B. BARNES, JUDGE:

¶ 1 In this breach of contract action, Defendant/Appellant Philadelphia Indemnity Insurance Company, a foreign corporation d/b/a Philadelphia Insurance Companies (Philadelphia) appeals from a trial court Judgment granting summary judgment to Plaintiff/Appellee First United Methodist Church of Stillwater, Inc. (First United) in *30the amount of $100,000, interest, and attorney fees and denying Philadelphia's motion for summary judgment. We affirm.

BACKGROUND

¶ 2 The facts are undisputed. During the years 2009 through 2012, First United's then finance manager embezzled nearly $200,000. The theft was discovered by First United in an end-of-the-year review of finances in December 2012. An audit of First United's financial records revealed that at least $50,000 had been embezzled by the employee in calendar year 2011 and in calendar year 2012.1

¶ 3 Four policies that included coverage for employee dishonesty were issued to First United by Philadelphia as follows:

• Policy Number: PHPK514238
Policy Period From: 1/01/2010 To: 01/01/2011
• Policy Number: PHPK669064
Policy Period From: 1/01/2011 To: 01/01/2012 [2011 Policy]
• Policy Number: PHPK812484
Policy Period From: 1/01/2012 To: 01/01/2013 [2012 Policy]
• Policy Number: PHPK961370
Policy Period From: 1/01/2013 To: 01/01/2014 [2013 Policy]2

¶ 4 In addition to stating the policy number and policy period, each of the "Common Policy Declarations" for the individual policies states: "In return for the payment of the premium, and subject to all the terms of this policy, we [Philadelphia] agree with you [First United] to provide the insurance as stated in this policy." It further states: "This policy consists of the following coverage parts for which a premium is indicated. This premium may be subject to adjustment." The premiums for the various types of coverage are set forth in each policy and a total premium for each policy is stated.

¶ 5 First United's policies with Philadelphia provide "Optional Coverages" for employee dishonesty "for which a limit of insurance is shown in the Coverage Summary...." The Crime Coverage Form sets out the limit of insurance and deductible for "Coverage Summary" and "Optional Coverage Summary" preceded by the proviso that "Various provisions in the policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered." In the section titled "Coverage," the policies provide a definition for "Occurrence" as meaning: "(1) Act or series of related acts involving one or more persons; or (2) Act or event, or a series of related acts or events not involving any person."3

*31¶ 6 Section C, "Limits of Insurance," provides:

The most we will pay for loss in any one "occurrence" is the applicable Limit of Insurance shown in the Coverage Summary
1. For Money ..., the applicable Limit of Insurance is:
a. The Basic Limit of Insurance shown in the Coverage Summary if no Superseding Limit of Insurance is shown;
or
b. The Superseding Limit of Insurance if a Superseding Limit is shown in the Coverage Summary.
2. For all other coverages, the applicable Limit of Insurance is the Limit shown in the Coverage Summary.

¶ 7 Under section "F. General Conditions" the following conditions, among others, are stated:

Unless stated otherwise in any Coverage or Optional Coverage in this Crime Coverage Form, the Policy Declarations or an endorsement, the following General Conditions apply to all Coverages and Optional Coverages provided by this Coverage Form:
....
3. Discovery Period for Loss
We will pay only for covered loss discovered no later than one year from the end of the policy period.
4. Duties in the Event of Loss
After you discover a loss or a situation that may result in loss of, or loss from damage to, Covered Property you must:
a. Notify us as soon as possible.
b. Submit to examination under oath at our request and give us a signed statement of your answers.
c. Give us a detailed, sworn proof of loss within 120 days.
d. Cooperate with us in the investigation and settlement of any claim[.]

¶ 8 Section F also provides: "11. Non-Cumulation of Limit of Insurance[.] (non-cumulation provision) Regardless of the number of years this insurance remains in force or the number of premiums paid, no Limit of Insurance accumulates from year to year or period to period." It also provides in subsection 14:

Policy Period[.] a. The Policy Period is shown in the Common Policy Declarations. b. Subject to the Loss Sustained During Prior Insurance condition,4 we will pay only for loss that you sustain through acts committed or events occurring during the Policy Period.

The policies also contain a provision in Section F(10) concerning loss covered under "This Insurance and Prior Insurance" issued by Philadelphia.5

¶ 9 First United gave notice to Philadelphia of the thefts in January 2013 that it discovered in December 2012. Philadelphia conducted an investigation and ultimately paid First United the limit of liability under the 2013 Policy in the amount of $50,000. First United brought this action for breach of contract because it claims it has coverage under the separate insurance policies in 2011 and 2012, each with a limit of liability of $50,000 for the thefts that occurred during those policy years and discovered within the timeframe specified in the 2011 Policy and 2012 Policy. Philadelphia denies it is in breach and contends it has fulfilled its contractual obligation under the policy presently in effect, the 2013 Policy.

¶ 10 In its motion for summary judgment, Philadelphia argues the 2013 Policy, having an effective policy period of January 1, 2013, to January 1, 2014, succeeded the 2012 Policy, having an effective policy period of January *321, 2012, to January 1, 2013. It argues "[i]n order to obtain coverage each year, a renewal contract was created." Philadelphia asserts it anticipates First United "will argue the policies were merely renewed each year with no break in the coverage and as such, [First United] should be able to recover for every year in which a loss occurred. This argument, in addition to being contrary to the clear language of the policy, is also contravened by Oklahoma law," and cites Oklahoma cases in which it is stated that "the renewal of an insurance policy is a new contract,"6 and that "[t]he term 'expiration' as used in an insurance policy, refers to the termination of the policy by lapse of time covering the policy period...."7

¶ 11 Philadelphia argues the thefts occurred during a several year period from 2009 through 2012 and were not "discovered" until December 2012. The policies, it argues, provide a discovery period of one year, and because "the embezzlement was discovered in calendar year 2012 and the acts giving rise to the claim occurred in 2008-2012 but not reported until 2013, only those claims occurring during 2012 would be recoverable, because they were not discovered within one year from the end of the policy period."

¶ 12 Philadelphia asserts the "ultimate issue" is whether First United has coverage under more than one policy of insurance. It argues First United's attempt to apply the policy limits not only for the 2012 Policy but also the 2011 Policy "is clearly and unambiguously prohibited by the policy of insurance," referencing Section F(11), the non-cumulation provision. It argues that although no Oklahoma decision has interpreted the "non-cumulation" provision, the decisional law from "other jurisdictions agree policy limits do not accumulate from one year to the next."8 Relying on Business Interiors Inc. v. Aetna Casualty and Surety Company , 751 F.2d 361 (10th Cir. 1984), Philadelphia argues the definition of "occurrence" limits First United to "one occurrence irrespective of the number of thefts which may have occurred during any one policy year and the number of years the thefts may have taken place." Philadelphia contends that because occurrence is defined as "all loss ... whether the result of a single act or series of acts," under the tenets of Cranfill v. Aetna Life Insurance Co. , 2002 OK 26, 49 P.3d 703, and Max True Plastering Co. v. U.S. Fidelity & Guaranty Co. , 1996 OK 28, 912 P.2d 861, "and the clear language of the policy, First United may receive only one policy limit for Employee Dishonesty irrespective of the number of loss events which took place during any one policy year or the number of policy years in which a theft occurred." Because it has paid the applicable limit of $50,000, Philadelphia argues it has satisfied its obligations under the 2013 Policy to First United and is entitled to judgment as a matter of law.

¶ 13 First United responded and filed its own motion for summary judgment in which it agrees each policy was given a new and different policy number; that each is its own contract. However, contrary to Philadelphia's characterization of its argument, First United does not argue it is entitled to the limits of coverage in both 2011 and 2012 under the 2013 Policy; rather, it argues, it is entitled to recovery for the 2011 theft under the provisions of the 2011 Policy because the 2011 theft was discovered by it within the one-year limitation under the 2011 Policy. It also argues it is entitled to recovery under the 2012 Policy for the thefts that occurred in 2012 because that loss was discovered within 2012, and, therefore, within the one-year limitation under the 2012 Policy. It does not seek recovery for each act of theft-as a *33separate "occurrence"-committed by its employee during either of those policy periods.

¶ 14 First United also asserts it has found no Oklahoma decisional law interpreting the language of the policy provisions at issue in the present case, but argues other jurisdictions have interpreted that language. It cites several cases from other jurisdictions in which the courts have found similar policy language to be ambiguous and have construed those policies to include, not exclude, coverage. First United also places great reliance on E.J. Zeller, Inc. v. Auto Owners Insurance Company , No. 4-14-04, 2014 WL 5803028 (Ohio Ct. App. Nov. 10, 2014) (unpublished), wherein the Ohio appellate court examined multiple provisions of insurance policies similar to the policies at issue in the present case, determined the policy provisions were unambiguous, and determined the insured had coverage under each of two separate policies.

¶ 15 After a hearing on the motions, the court subsequently filed its Judgment granting First United's motion, denying Philadelphia's motion, and awarding First United $100,000, prejudgment and post judgment interest, and attorney fees and costs. Philadelphia appeals.

STANDARD OF REVIEW

¶ 16 The review standard for the grant of summary judgment is de novo . Wood v. Mercedes-Benz of Okla. City , 2014 OK 68, ¶ 4, 336 P.3d 457. "Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions." Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051 (citation omitted).

ANALYSIS

¶ 17 Philadelphia asserts the key policy provisions are the definition of "occurrence" as it applies to employee dishonesty, and the non-cumulation provision. It asserts these provisions are unambiguous and must be interpreted according to their terms. Philadelphia contends the language of those provisions required it to pay $50,000 to First United for its employee's embezzlement, the amount it paid to First United. First United, on the other hand, argues the employee's embezzlement took place in three different years, under three separate policies and in three separate policy periods; thus, it argues, it is entitled to coverage for employee dishonesty during the period of each policy subject to the "discovery" and one-year recovery limitation stated in each policy. First United also contends the policy provisions do not clearly and unambiguously state that coverage under prior polices is excluded; thus, to the extent provisions of the policies are susceptible to more than one meaning, those provisions are ambiguous and must be construed against Philadelphia and in favor of First United.

¶ 18 The Oklahoma Supreme Court recently explained that

Oklahoma law involving the interpretation of insurance contracts is well settled. Parties are at liberty to contract for insurance to cover such risks as they see fit and they are bound by terms of the contract, and courts are not at liberty to rewrite the terms of an insurance contract. In Oklahoma, the cardinal rule in contract interpretation is to determine and give effect to the intent of the parties. When policy provisions are clear, consistent, and unambiguous, we look to the plain and ordinary meaning of the policy language to determine and give effect to the parties' intent.

Porter v. Okla. Farm Bureau Mut. Ins. Co. , 2014 OK 50, ¶ 12, 330 P.3d 511 (citations omitted) (internal quotation marks omitted). However, the Supreme Court further stated:

When the language is susceptible to two constructions before applying the rules of construction, the policy is ambiguous. However, neither forced nor strained construction will be indulged, nor will any provision be taken out of context and narrowly focused upon to create and then construe an ambiguity so as to import a [more] favorable consideration to either party than that expressed in the contract. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping *34to interpret the others. Insurance contracts are contracts of adhesion, which are interpreted most strongly against the party that prepared the contract. We will not impose coverage if it is clear from the policy language that loss from a particular risk is not covered.

Id. ¶ 13 (citations omitted) (internal quotation marks omitted).

¶ 19 As most recently stated by the Supreme Court in Serra v. Personal Representative of Estate of Broughton , 2015 OK 82, 364 P.3d 637 :

When an insurance provision is ambiguous, words of inclusion will be construed liberally in the insured's favor, and words of exclusion will be construed strictly against the insurer. When an insurer desires to limit its liability under a policy, it must use language which clearly and distinctively reveals its stated purpose. It should be construed in nontechnical, common terms. [If there is an] ambiguity, [the language] should be given the definition which favors coverage.

Id. ¶ 10 (citations omitted).

¶ 20 Philadelphia cites several cases from other jurisdictions in support of its assertion that "policy limits do not accumulate from one year to the next," and that First United is "limited to but one occurrence under the policy."9 However, it only discusses Business Interiors . It argues,

A similar set of facts was presented to the 10th Circuit Court of Appeals in the case of [ Business Interiors ]. Business Interiors had submitted a loss for employee dishonesty to Aetna resulting from embezzlement by an employee over a seven-month time span involving 31 forged checks and nine with material alterations. Aetna asserted that the policy of insurance limited Business Interiors' recovery to a single occurrence. Both the District Court and the appellate court agreed with Aetna finding, "the employee's fraudulent acts constituted a single loss for Business Interiors."

However, the Business Interiors Court was concerned only with a series of thefts that occurred over seven months and within the policy year for which the insured sought coverage.10 The court did not have before it the issue presented here and did not consider *35the effect of "occurrence" in conjunction with the policy provisions involved in this case. Moreover, unlike the insured in Business Interiors , First United does not contest that all loss caused by the employee's acts of theft during a particular policy period was but one occurrence for that policy period.

¶ 21 Three other cases upon which Philadelphia relies, however, squarely treat the issues presented here; that is, was policy language, similar to the polices at issue here, ambiguous. All three courts held no ambiguity was present in the policy provisions examined by them. As to "occurrence," relying on Business Interiors and without further explanation, the court in Reliance Insurance Company v. Treasure Coast Travel Agency, Inc. , 660 So.2d 1136 (Fla. Dist. Ct. App. 1995), determined that although the "employee's embezzlements occurred over a four year period, they constitute a single occurrence." Id. at 1137. The court also considered the prior loss and non-cumulation provisions of the policies and stated these two provisions "purport to limit coverage to one of the 1990 and 1991 policies, whichever has the higher limits." Id. Each of those polices had "$25,000 for this occurrence." Id. The court distinguished cases from other jurisdictions and Florida courts by asserting that in those cases only the non-cumulation provision and not the prior loss provision was in the policy and determined that

If these policies only contained [the non-cumulation provisions], and not [the prior loss provision], we might well be inclined to follow the courts which have held it insufficient to restrict coverage to one of the policies. In light of [the prior loss provision], however, we think that this insurer has accomplished what insurers with non-cumulative provisions alone apparently intended, but failed to state with sufficient clarity to be given effect by the majority of courts which have construed it.

Id. at 1137-38 (footnote omitted). The court specifically relied on Graphic Arts in support of its holding.11

¶ 22 Similarly, in Wausau Business Insurance Company v. U.S. Motels Management, Inc. , 341 F.Supp.2d 1180 (D. Colo. 2004), applying Colorado law, the court, like the court in Reliance , relied on Business Interiors and found nothing ambiguous in the policy definition of occurrence and held an employee's embezzlement scheme constituted a single occurrence though that scheme included multiple and varied acts of theft. Id. at 1183-84. The court also rejected the insured's argument that even if the employee's "scheme constituted a single occurrence, because that occurrence spanned more than one policy period, coverage was triggered under each policy." Id. at 1184. Referencing the prior loss and non-cumulation provisions of the policies-policies similar to the non-cumulation and prior loss provisions at issue in the present case-the court concluded "[t]he intent of [these provisions] could not be clearer." Id. As had the Reliance Court-and, in fact, citing Reliance -the Wausau Court found determinative the presence of both these provisions in the policies and distinguished the policies from those in cases where the courts only had for review the non-cumulation provision.

¶ 23 In 2008, the Fifth Circuit Court of Appeals also found no ambiguity in the definition of "occurrence" and rejected the insured's interpretation "as unreasonable." Madison Materials Co., Inc. v. St. Paul Fire & Marine Ins. Co. , 523 F.3d 541, 543 (5th Cir. 2008). As had the courts in Reliance and Wausau , the Madison Court determined *36there had been but one cause of the insured's resulting injury-the employee's theft-though that theft occurred over the course of a decade:

[The employee] repeatedly committed related acts of embezzlement throughout the decade of [the insurer's] coverage, but there was only one cause of the injury sustained by [the employee's] dishonesty. As there was but a single cause of [the insured's] injury, and as the policy states that multiple related acts are to be treated as a single occurrence, there was only one occurrence of employee dishonesty over the ten year period.

Id. at 543-44. The court rejected the insured's argument that while multiple acts of theft during a policy period may be one occurrence, there was a single occurrence in each policy year, and rejected the insured's claim that "because [the policy] fails to state expressly that an occurrence may span multiple policy periods" the policy wording is ambiguous. Id. at 544. The court disagreed stating,

Policy language is ambiguous only if it can be reasonably interpreted in more than one way. As [the employee's] embezzlement scheme consisted of a "series of related acts involving one or more 'employees,' " it undisputably meets the policy definition of occurrence. Nowhere does policy language state or even imply that acts committed outside of the policy period in question cannot be part of a "related acts" occurrence within that policy period. We recognize that other circuits have found similar definitions of "occurrence" to be ambiguous, but we are not persuaded that under Mississippi law, the definition of occurrence in this policy is ambiguous.

Id. at 544-45 (footnotes omitted). The Madison Court also rejected the insured's contention that even if the definition of occurrence is not facially ambiguous, it becomes so when read in context with other provisions of the policy that provide for recovery of loss occurring during the policy period. The court, however, determined that the prior loss provisions of the policy made the insurer "liable for one policy's limit if a single occurrence spans multiple policy periods or is covered by a prior insurance policy." Id. at 545 (citing, among others, Wausau ). The court thus concluded the insured was entitled to no more than the limit of liability under the policy in effect when the theft was discovered.

¶ 24 Although the Madison Court did not consider (or have presented for its consideration) a non-cumulation provision in reaching its decision, all three cases give great weight to the prior loss provisions of the policies and all three cases turn on a definition of occurrence that looks to the cause of the loss for the resulting injury as the occurrence; that is, the dishonesty of the employee. While we appreciate the perspective of these courts, we disagree with their conclusions that the policy provisions in the present case-similar to the policies in those cases-have but one reasonable interpretation, the interpretation Philadelphia urges. We find the comprehensive analysis undertaken by the Zeller Court is the better-reasoned, and, therefore, more persuasive analysis.

¶ 25 First United places great weight on the reasoning used by the Zeller Court and urges this Court to adopt its interpretation of the insurance provisions at issue in this case.12 That court concluded the insurance contract provisions were clear and unambiguous and did not preclude recovery for employee dishonesty under prior year policies covering employee dishonesty.13 First United argues, however, that the Zeller Court's reasoning demonstrates the operative policy provisions are susceptible to two different, reasonable interpretations and are therefore ambiguous,14 and, pursuant to the reasonable *37expectations doctrine of contract interpretation, must be interpreted in favor of itself, the insured. We agree.

¶ 26 Central to the Zeller Court's reasoning was whether the provisions of the insurance contract "operate[d] to exclude coverage under prior policies," 2014 WL 5803028, ¶ 22, although it recognized those provisions were not "specifically titled exclusions in the policy," id. ¶ 17. Under Ohio law, "an exclusion in an insurance policy will be interpreted as applying only to that which is clearly intended to be excluded." Id. (citation omitted).

¶ 27 The court reasoned that while "occurrence" as defined in the insurance contract did not in itself create an exclusion from coverage,15 "what losses are attributable to an 'occurrence' has an impact on how other exclusions operate." Id. ¶ 24. The court recognized that "each act of employee dishonesty creates an individual loss. The term 'occurrence' is used to aggregate these individual losses together." Id. "When determining which individual losses are aggregated together, ... [h]owever," the appellate court reasoned

whether the term "occurrence" has any effect on prohibiting recovery under multiple policies is dependent upon how the term is used. Indeed, were the term not used at all in the rest of the policy, any analysis of the term would be irrelevant to determining coverage. How much loss is included in an "occurrence" will depend upon how it is used in a specific provision . Therefore, we will analyze what losses are encompassed by the term by discussing its presence, or absence, in the other provisions.

Id. ¶ 25 (emphasis added). The Zeller Court examined several key provisions of the insurance contract-the policy period,16 discovery of loss,17 prior loss,18 non-cumulation,19 and limit of insurance20 provisions-specifically with regard to whether the provisions referenced the term "occurrence" within the particular provision and what the effect was of its absence or inclusion within that provision.

¶ 28 As to the policy period, the Zeller Court determined,

This provision excludes any loss caused by acts of employee dishonesty outside the policy period from coverage. Thus, losses attributable to acts that occurred during prior policy periods would not be covered under the current policy. However, this provision does not clearly state that coverage under prior policies for those losses is excluded by the current policy. It is merely a limit of coverage under the current policy.

Id. ¶ 26. Further, as to discovery of loss, the court stated the provision creates a "temporal *38limit as to when a limit must be discovered"; the provision, however, "does not cause the current policy to exclude coverage under prior policies." Id. ¶¶ 27, 28. "[O]nce a year has passed," however,

the policy coverage expires and can no longer provide any coverage for any losses. Thus, while this provision in the current policy does nothing to limit recovery under prior policies, coverage can be defeated under a prior policy, so long as it contains this provision and losses were not discovered within one year after the end of the respective policy periods.

Id. ¶ 28.

¶ 29 The Zeller Court's reasoning regarding the next two provisions-prior loss and non-cumulation-are, in our view, the crux of the issue presented in the present case. As to "prior loss," the Zeller Court stated:

This provision specifically limits coverage for an individual loss that is covered under two policy periods. However, as discussed, each policy only covers losses caused by acts that occur inside of the policy period. Any loss attributable to acts that occur solely outside the policy period are automatically excluded under each policy. Thus, this provision cannot apply to an individual loss attributable only to acts inside the policy period of a single policy, as that loss will only be covered by one policy. Instead, this provision applies when acts occurring in two separate policy periods contribute to an individual loss. Under those circumstances, this exclusion would allow the insured to have the benefit of whichever policy provided greater coverage for that individual loss, but not be allowed to claim that loss under two different policies periods.

Id. ¶ 29. The Zeller Court, unlike the courts who considered the meaning of comparable prior loss provisions in Reliance , Wausau and Madison , specifically emphasized the "any loss" language of the provision as applying to an individual loss instead of the "all loss" language defining occurrence. The court further stated:

Notably, this provision does not utilize the term "occurrence." It applies to individual losses, not to an aggregation of losses. Indeed, were this provision to apply when an "occurrence" was partly covered by two policies, then an occurrence would necessarily include losses covered under prior policies. However, as this provision is written, it only applies when a loss spans multiple policy periods. Thus, while this provision limits recovery for an individual loss that spans multiple policy periods, it does not otherwise exclude coverage under prior policies that are attributable to acts that occurred solely during that policy period.

Id. ¶ 30 (emphasis added).

¶ 30 As to the non-cumulation provision, the Zeller Court observed that unlike other provisions of the insurance policy, "this provision specifically applies to multiple policies. However, it does not operate to exclude coverage under prior policies." Id. (emphasis added). The court stated:

This provision is specifically limited to "this insurance." While "this insurance" is not defined in the policy, when it is used elsewhere it is only in reference to the current policy, not to all policies issued by the insurers. Indeed, the Prior Loss exclusion operates when a loss was covered under "this insurance" and any prior insurance issued by the insurers. Thus, the definition of the term "this insurance" cannot include any prior insurance. As a result, the NonCumulation provision only operates in the event that "this insurance," i.e. the current policy, is extended or otherwise covers multiple years. When each policy period is covered by a different contract for insurance, this exclusion does nothing to limit recovery to a single policy.

Id. (emphasis omitted).

¶ 31 The Zeller Court also stated that even if it "were to find that this provision affects prior insurance policies, the result would not change. This provision does not allow the limits of insurance to cumulate from year to year or period to period to enlarge the recovery under the current policy." Id. ¶ 32. Relying on the dictionary definition of "cumulate,"

*3921 the court stated, the

provision prohibits the adding together of the limit of insurance in a different policy to the limit of insurance in the current policy to increase recovery under the current policy . Where separate recoveries are sought from separate policies, the limits of insurance are not added together. Instead, there are multiple recoveries up to the limits of insurance under each policy. This is a cumulation of recoveries , not the cumulation of the limit of insurance . As a result, this exclusion does not limit recovery to a single policy.

Id.

¶ 32 Finally, as to the limit of insurance, the court noted this provision does use the word "occurrence." Under this provision, the court reasoned, "[w]hile an occurrence covers 'all loss,' it only includes losses to which the provision otherwise applies." Id. ¶ 33. The court stated, "The limit of insurance is the only way to limit liability for losses that are otherwise covered . Only when the final amount of covered loss has been determined will the limits of insurance apply to determine the extent of the insurance company's liability under the policy." Id.

¶ 33 The Zeller Court concluded "[t]he policies are clear and unambiguous. Each policy issued by [the insurance company] was a new, separate policy of insurance. While there is no recovery under a policy that ended more than one year before a loss was discovered, no exclusion otherwise limits recovery to a single policy." Id. ¶ 35. The court stressed that "under Ohio law, an exclusion must be clear and unambiguous to defeat coverage. That [the insurance company] had to point to multiple policy provisions in its attempt to prove the exclusion existed, instead of pointing to a provision that clearly states that the current policy excludes coverage under any prior policy, is further evidence that the exclusion is not a part of the policy." Id. ¶ 35 n.7.22

*40¶ 34 Oklahoma decisional law, like that of Ohio, strictly construes exclusions exempting specified risks against the insurer, and "if an insurer desires to limit its liability under a policy, it must employ language that clearly and distinctly reveals its stated purpose." Broom v. Wilson Paving & Excavating, Inc. , 2015 OK 19, ¶¶ 25 & 47, 356 P.3d 617 (citations omitted). "In an insurance policy an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed." Dodson v. St. Paul Ins. Co. , 1991 OK 24, ¶ 13 n.11, 812 P.2d 372 (citation omitted).

[C]onditions and provisions of every contract of insurance will be construed against the insurer who proposes and prepares the policy. If the policy of insurance and provisions in connection therewith are capable of being construed in two ways, that interpretation should be placed upon them which is most favorable to the insured.

Continental Cas. Co. v. Beaty , 1969 OK 89, ¶ 20, 455 P.2d 684 (citation omitted) (to determine whether insured could receive disability benefits under a health and accident policy, the policy condition of notice to the insurer was at issue-i.e., "notice" within a certain number of days after an injury or "notice" within a certain period after establishment of the fact that indemnity payments were due as a result of a prior disabling occurrence).

¶ 35 At the beginning of the Crime Coverage Form, the policy states: "Various provisions in the policy restrict coverage . Read the entire policy carefully to determine rights, duties and what is and is not covered ." (Emphasis added.) The non-cumulation provision and the prior loss provisions are set forth in Section F, titled "General Conditions," which states: "Unless stated otherwise in any Coverage or Optional Coverage in this Crime Coverage Form, the Policy Declarations or an endorsement, the following General Conditions apply to all Coverages and Optional Coverages provided by this Coverage Form[.]" (Emphasis added.) This prefatory language clearly and unambiguously encompasses, among other provisions, coverage for employee dishonesty and "occurrence" as set forth in "this" Crime Coverage Form. Consequently, applying the Zeller Court's reasoning to the policies under review, the prior loss and non-cumulation provisions, among others, do not clearly exclude coverage for an occurrence that occurred in a prior year's policy.

¶ 36 However, we conclude, unlike the Zeller Court, that an ambiguity is present because the operative provisions of the policies are open to more than one reasonable interpretation. The Oklahoma Supreme Court, in adopting the reasonable expectations doctrine, stated:

Under the doctrine, if the insurer or its agent creates a reasonable expectation of coverage in the insured which is not supported by policy language, the expectation will prevail over the language of the policy. The doctrine does not negate the importance of policy language. Rather, it is justified by the underlying principle that generally the language of the policy will provide the best indication of the parties' reasonable expectations. The standard under the doctrine is a "reasonable expectation"; and courts must examine the policy language objectively to determine whether an insured could reasonably have expected coverage.

Max True , 1996 OK 28, ¶ 8, 912 P.2d 861 (footnotes omitted). The Supreme Court recognized the doctrine was "a double-edged sword" because both the insured and the insurer may rely upon their reasonable expectations, id. ¶ 12, and reiterated: that

Generally, absent an ambiguity, insurance contracts are subject to the same *41rules of construction as other contracts. However, because of their adhesive nature, these contracts are liberally construed to give reasonable effect to all their provisions. Our case law and the interpretive rules applied to insurance contracts demonstrate that Oklahoma law is consistent with the spirit and the policy of the reasonable expectations doctrine.

Id. ¶ 16 (emphasis added) (footnotes omitted). The Court, however, adopted a restricted version of the doctrine and held "the doctrine of reasonable expectations may be applicable to the interpretation of insurance contracts in Oklahoma, and that the doctrine may apply to ambiguous contract language or to exclusions which are masked by technical or obscure language or which are hidden in a policy's provisions." Id. ¶ 24. No argument is made, nor do we conclude, that the operative provisions of the insurance contracts are technical, obscure, or hidden. However, we do conclude there is ambiguity in the language of the insurance contracts.

¶ 37 While we do not agree with the conclusion reached by those courts who have found no ambiguity in similar contract provisions, we do not find Philadelphia's arguments concerning the non-cumulation provision unreasonable. Philadelphia argues the non-cumulation provision23 restricts coverage for employee dishonesty to the definition of "occurrence" ("all loss caused by, or involving" an employee "whether the result of a single act or series of acts"); that is, to one occurrence (though the acts occurred over many years) regardless of the number of successive, separate policies the insured has purchased. According to Philadelphia's reasoning, the non-cumulation provision acts to restrict coverage to only the current year's policy and Limits of Liability (e.g., $50,000) and to exclude coverage under prior policies for an occurrence that took place within a prior year's policy period.

¶ 38 The Zeller Court's comprehensive analysis of multiple provisions of insurance contracts similar to those present here, however, is instructive and persuasive that another interpretation of the policy language-one that does not restrict recovery for an occurrence that occurs in separate policy periods to only one policy period-is also reasonable. Even if Philadelphia meant to limit recovery for occurrence spanning many years and multiple policies, as written the policy language can be reasonably interpreted to limit recovery to the aggregate of losses incurred within one policy period regardless of the number of thefts or dishonest acts by an employee, but does not preclude recovery for an occurrence within a particular policy period, and, thus, does not preclude recovery for an occurrence that also occurs in another policy period, even if the theft or dishonest acts are committed by the same employee. Consequently, because the provisions herein discussed are susceptible to more than one reasonable interpretation, the terms are ambiguous, and are to be construed against Philadelphia, who crafted the contract language, and in favor of First United as a matter of law.

CONCLUSION

¶ 39 We conclude the trial court did not err as a matter of law in interpreting the polices at issue and granting summary judgment to First United for the limits of liability under the 2011 Policy and 2012 Policy for the series of thefts committed by its employee during each policy period. Accordingly, we affirm.

¶ 40 AFFIRMED .

THORNBRUGH, P.J., and RAPP, J., concur specially.

RAPP, J., concurring specially, with whom THORNBRUGH, P.J., joins:

The insurance policies here for each year are discrete policies of insurance. Each policy has a specific beginning and termination date; there is not a policy "renewal" or "extension." Each policy has a separate premium *42from the prior policies and provides that the insurer may change the premium, regardless of whether it actually did so. Each policy contains a different policy identification number. Regardless of whether the relevant policy provisions remained unchanged, that fact does not alter the fact that the 2011 and 2012 insurance policies are discrete, independent policies of insurance.

Therefore, First United had employee dishonesty coverage, subject to policy limits and discovery provisions, separately for each year involved here. First United is entitled to recover for its loss under the 2011 policy, and separately under the 2012 policy.