Great Am. Assurance Co. v. Acuity

185 N.E.3d 124

GREAT AMERICAN ASSURANCE COMPANY, Appellee,

v.ACUITY, a Mutual Insurance Company, et al., Appellants.

NO. CA2021-08-097

Court of Appeals of Ohio, Twelfth District, Butler County.

February 22, 2022

Montgomery Johnson, LLP, and George D. Jonson, Cincinnati, for appellee.

Lewis, Brisbois, Bisgaard & Smith LLP, and Judd R. Uhl and Katherine L. Kennedy, for appellant, Acuity, A Mutual Insurance Company.

OPINION

HENDRICKSON, J.

{¶1} Appellant, Acuity, A Mutual Insurance Company ("Acuity"), appeals the decision of the Butler County Court of Common Pleas granting summary judgment to appellee, Great American Assurance Company ("GAAC"). For the reasons outlined below, we affirm the trial court's decision.

Background

{¶2} This case arises from a vehicular accident that occurred on October 4, 2019 between a 2000 Volvo tractor owned by Herb Winsted ("the Truck") and another motor vehicle. At the time of the accident, Winsted was an independent contractor for Wm. Hafer Drayage Co. ("Hafer"), which is an intermodal trucking company that hauls containers via company drivers and independent contractors. Pursuant to his independent contractor agreement with Hafer, Winsted provided transportation related services to Hafer and used the Truck to move containers to and from different warehouses. Winsted began exclusively hauling loads for Hafer in 2019, and at the time of the accident, the Truck displayed Hafer's name and "DOT" number on its door.

Winsted's Insurance Coverage

{¶3} Pursuant to Winsted's independent contractor agreement with Hafer, the Truck was covered by Hafer's "public liability [and] property damage * * * insurance coverage[.]" At the time of the accident, Hafer was insured with Acuity via a Commercial Auto and Commercial Excess Liability Policy ("the Acuity Policy"). Pursuant to the Acuity Policy, Acuity agreed to "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 sic.) The parties do not dispute that the Acuity Policy includes the Truck in its schedule of covered autos.

{¶4} Winsted also obtained a Non-Trucking Liability and Physical Damage Policy from GAAC for the Truck while it was not being operated on behalf of Hafer ("the GAAC Policy"). Obtaining such a policy was a requirement of Winsted's independent contractor agreement with Hafer. Pursuant to the GAAC Policy, GAAC agreed to provide liability coverage for the Truck as described by Part (II)(A) of the policy. Specifically, the policy states that,

[GAAC] 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 .

Part (II)(C) of the GAAC Policy provides certain coverage exclusions, and indicates that,

[t]his insurance does not apply to any of the following:

* * *

13. TRUCKING OR BUSINESS USE

Bodily injury or property damage arising out of any accident which occurs while the covered auto is being used in the business of any lessee or while the covered auto is being used to transport cargo of any type. For purposes of this exclusion, the phrase "in the business of any lessee " means any of the following uses of the covered auto :

* * *

(f) while traveling from * * * (1) any terminal or facility of any lessee ; * * * to any location where the covered auto is regularly garaged .

{¶5} The GAAC Policy defines "lessee" as "any person or organization to whom a covered auto is leased, rented or loaned." The phrase "regularly garaged" is defined as "parked or stored on a regular basis, whether indoors or outdoors."

Winsted's Business for Hafer and the Day of the Accident

{¶6} While working with Hafer, Winsted received his job assignments from Hafer's dispatcher. On a typical workday, dispatch would direct Winsted to his first pickup assignment, which Winsted would drive to in the Truck directly from his home. After completing his initial pickup, Winsted would communicate with dispatch to pick up, drop off, and move containers to various locations using the Truck and a Hafer chassis, i.e., trailer. After completing his final assignment of the day, Winsted would either proceed to the Hafer shipping yard ("the shipping yard"), located at 11320 Mosteller Road, to return the chassis, or go directly to his home at 5360 Alert New London Road. Regardless of whether Winsted returned to the shipping yard after his final assignment or proceeded directly home, Winsted always garaged the Truck at his home. As a result, Winsted typically began and ended his workday with the Truck at his home.

{¶7} On October 4, 2019, the date of the accident, Winsted alerted dispatch at 7:53 a.m. that he had completed his first assignment of the day and planned to take the Truck to Hafer's shop for transmission fluid. After receiving the transmission fluid, Winsted continued to communicate with dispatch and completed several additional deliveries and pickups in Ohio and Kentucky. At 3:06 p.m., Winsted informed dispatch that he had completed a delivery, but still had a chassis. At that point, dispatch instructed Winsted to return to the shipping yard to return the chassis.

{¶8} The location of Winsted's final delivery was approximately two or three miles from the Hafer shipping yard. Upon arriving at the shipping yard, Winsted returned the chassis and submitted his weekly paperwork to the dispatcher. After conversing with a few workers, Winsted left the shipping yard in the Truck and headed home. Winsted could not recall how long he remained at the shipping yard prior to heading home. On his way home, Winsted stopped at Ollie's Bargain Outlet ("Ollie's"), where his wife was working at the time, and purchased blue jeans. Winsted could not recall how long it took to get to Ollie's or how long he spent inside the store. After leaving Ollie's, Winsted continued his customary route home, stopping for fuel at a Marathon gas station on the way. The accident occurred after Winsted left the Marathon gas station, around 5:00 p.m., and on Winsted's typical route home from the shipping yard.

{¶9} From the time Winsted left the shipping yard until the accident, it is undisputed that Winsted took the same route, aside from a one-half mile deviation, that he would have taken had he traveled directly home without any detours. Typically, Winsted would have taken Interstate 275 westbound to State Route 126. At that point, Winsted would have turned onto State Route 27, also known as Colerain Avenue. He would have proceeded west onto Hamilton Cleves Road, followed by right turn onto Cincinnati Brookville Road and a left turn onto his street, Alert New London Road.

{¶10} Winsted's stop at Ollie's to purchase blue jeans only took him approximately one-half mile off Interstate 275. After purchasing the jeans, Winsted returned to Interstate 275 at the same place he exited and continued westbound on his normal route home. Winsted then pulled into the Marathon gas station, located on Hamilton Cleves Road, after exiting State Route 27. After purchasing fuel, Winsted continued on Hamilton Cleves Road, as he would have on a typical drive home. Approximately five to seven minutes from Winsted's home, at the intersection of Cincinnati Brookville Road and Brown Farm Drive, Winsted collided with another vehicle, allegedly causing harm to the vehicle's minor passengers. Thus, despite the brief departures and returns to his normal route, Winsted's drive home from the shipping yard was the same route he would have typically taken at the end of a workday.

The Declaratory Action and Summary Judgment Decision

{¶11} After the accident, GAAC filed a complaint for declaratory judgment in the trial court. Relevant here, GAAC requested the trial court to enter a judgment against Acuity declaring that, based on the language in the Trucking or Business Use Exclusion in Part (II)(C)(13)(f)(1), the GAAC Policy did not provide coverage for injury arising out of the October 2019 accident.

{¶12} Acuity denied that the GAAC Policy did not provide coverage for injuries arising from the accident and sought declaratory judgment in a counterclaim. Specifically, Acuity requested the trial court to enter a judgment declaring that Acuity has no coverage obligation under the Acuity Policy for Winsted because he is not an insured under Acuity's Policy.

{¶13} On March 26, 2021, both parties moved the trial court for summary judgment. After a hearing, the trial court granted GAAC's motion for summary judgment and denied Acuity's motion. In so doing, the trial court held that "based upon the undisputed facts, * * * the GAAC Policy does not provide coverage based upon the application of the GAAC Policy's Trucking or Business Use Exclusion." The trial court entered judgment in favor of GAAC declaring that no insurance coverage was available under the GAAC Policy for any claims that have been made, or may be asserted, as a result of the October 2019 accident.

The Appeal

{¶14} Acuity now appeals, raising the following assignment of error for our review:

{¶15} Assignment of Error No. 1:

{¶16} THE TRIAL COURT ERRED IN DETERMINING THAT GAAC'S NON-TRUCKING POLICY DOES NOT PROVIDE COVERAGE FOR EARL WINSTEAD (sic).

{¶17} This court reviews a trial court's summary judgment decision under a de novo standard. Deutsche Bank Natl. Trust Co. v. Sexton , 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, 2010 WL 3836131, ¶ 7. Summary judgment is appropriate under Civ.R. 56 when (1) there is no genuine issue of material fact remaining to be litigated, (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 nonmoving party, who is entitled to have the evidence construed in his favor.

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