Court of Appeals of Ohio,

Fifth District, Richland County.

William S. REMY, Plaintiff-Appellant,

v.

PACIFIC EMPLOYERS INSURANCE COMPANY, et al., Defendants-Appellees.

Decided July 15, 2004.

WISE, J.

{¶ 1} Appellant William Remy appeals the decision of the Richland County Court of Common Pleas that granted summary judgment on behalf of Appellee Pacific Employers Insurance Company (“Pacific”). The following facts are pertinent to this appeal.

{¶ 2} The accident giving rise to this case occurred on June 8, 1999, when a tractor, operated by Raymond Lehman, turned into appellant’s motorcycle as appellant was attempting to pass the tractor. Appellant received serious injuries as a result of the accident. At the time of the accident, appellant was an employee of the Thompson Corporation, which owned and operated the Mansfield News Journal. Pacific was the insurance provider for the Thompson Corporation.

{¶ 3} Subsequently, on October 5, 2001, appellant filed suit against Pacific pursuant to the Ohio Supreme Court’s decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 1999-Ohio-292. On September 12, 2002, Pacific filed a motion for summary judgment. Appellant filed a brief in opposition on October 15, 2002. The trial court, in an amended final judgment entry filed on May 28, 2003, granted Pacific’s motion for summary judgment.

{¶ 4} Appellant timely filed a notice of appeal and sets forth the following assignment of error for our consideration:

{¶ 5} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S MOTION FOR SUMMARY JUDGMENT WHEN EVIDENCE ESTABLISHED A GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER APPELLEE WAS ENTITLED TO UNINSURED/UNDERINSURED MOTORIST COVERAGE PURSUANT TO THE TERMS OF THE BUSINESS AUTO POLICY OF DEFENDANT-APPELLEE.

{¶ 6} “A. THE EVIDENCE PRESENTED TO THE TRIAL COURT BELOW DEMONSTRATES THAT A FARM TRACTOR OPERATED ON THE ROADWAY FALLS WITHIN THE DEFINITION OF MOTOR VEHICLE AND AS SUCH REVISED CODE 3937 .18 IS APPLICABLE.

{¶ 7} “B. DEFENDANT-APPELLEE’S BUSINESS AUTO POLICY PROVIDED UM/UIM COVERAGE TO PLAINTIFF/APPELLANT.”

“Summary Judgment Standard”

{¶ 8} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must refer to Civ.R. 56 which provides, in pertinent part:

{¶ 9} ” * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law .* * *

{¶ 10} A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. * * * “

{¶ 11} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, (1996), 75 Ohio St.3d 280.

{¶ 12} It is based upon this standard that we review appellant’s assignment of error.

I

{¶ 13} Appellant contends, in his First Assignment of Error, the trial court erred when it granted Pacific’s motion for summary judgment because a genuine issue of material fact remains as to whether he is entitled to UM/UIM coverage under Pacific’s business auto policy. We disagree.

{¶ 14} In support of this assignment of error, appellant sets forth two arguments. First, appellant maintains the farm tractor operated by Mr. Lehman and involved in the accident was a motor vehicle and therefore, R.C. 3937.18 applies. Second, appellant argues Pacific’s business auto policy provides UM/UIM coverage.

{¶ 15} Prior to addressing the merits of appellant’s appeal, we must determine whether appellant, at the time of the accident, was an insured under Pacific’s business auto policy issued to the Thompson Corporation. In Blankenship v. Travelers Ins. Co., Pike App. No. 02CA693, 2003-Ohio-2592, the Fourth District Court of Appeals explained:

{¶ 16} “It is axiomatic in insurance law that coverage under an insurance contract extends only to ‘insureds’ under the policy. In any dispute concerning coverage under an insurance contract, whether the party claiming coverage under the policy is an ‘insured’ is of primary import. If the party is found not to be an ‘insured’ under the policy, that party cannot claim coverage extends to them. However, where the party is found to be an ‘insured’ under the policy, coverage will extend to them barring any other applicable condition or exclusion. * * * A fortiori, qualifying as an insured is a precondition to coverage under a policy of insurance .” Id. at ¶ 13.

{¶ 17} The Ohio Supreme Court recently addressed the Scott-Pontzer decision in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849. In Galatis, the Court stated:

{¶ 18} “Providing uninsured motorist coverage to employees who are not at work or, for that matter, to every employee’s family members is detrimental to the policyholder’s interests. * * * King held that the use of a vehicle ‘by and for’ the corporate policyholder precipitated coverage. This holding is reasonable because it arguably benefits the policyholder to insure against losses sustained by those operating vehicles on its behalf.” Id. at ¶ 37-38.

{¶ 19} Accordingly, the Galatis Court held, in part:

{¶ 20} “Absent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment.” [Citations omitted.] Id. at paragraph two of the syllabus.

{¶ 21} In the case sub judice, appellant was not in the course and scope of his employment when the accident occurred. Further, appellant was driving his own personal vehicle, not a company vehicle. Thus, pursuant to Galatis, appellant cannot assert that he is an insured under the business auto policy Pacific issued to the Thompson Corporation.

{¶ 22} Appellant’s First Assignment of Error is overruled.

{¶ 23} Accordingly, for the foregoing reasons, the judgment of the Court of Common Pleas, Richland County, Ohio, is hereby affirmed.

WISE, J., GWIN, P.J., and EDWARDS, J., concur.

United States District Court,

W.D. Texas,

San Antonio Division.

Eugene FRANYUTTI, Plaintiff,

v.

HIDDEN VALLEY MOVING AND STORAGE, INC., Defendant.

July 2, 2004.

ORDER

RODRIGUEZ, District Judge.

On this day, the Court considered Plaintiff’s Motion to Remand, Defendant’s Response, and Defendant’s Motion to Dismiss or, alternatively, for a more definite statement. The Court DENIES Plaintiff’s Motion to Remand (docket no. 3) and GRANTS, in part, and DENIES, in part, Defendant’s Motion (docket no. 8).

Plaintiff contracted with May Flower Transit, Inc., an authorized agent of Defendant Hidden Valley Moving and Storage, Inc., to move his household goods from California to San Antonio, Texas. Upon arrival in Texas, Defendant allegedly charged Plaintiff a higher amount than orally agreed to and delivered the goods at least three days late. Plaintiff brought an action in state court alleging common law fraud and violations of the Texas Deceptive Trade Practices Act.

Defendant removed this action asserting that Plaintiff’s claims are preempted under federal law. 28 U.S.C. § 1441(b). Defendant argues that this action involves tariff charges for the interstate shipment of goods and that the Interstate Commerce Act, including the Carmack Amendment, preclude Plaintiff’s state law claims. The Carmack Amendment actually consists of three provisions that provide for liability against rail carriers, carriers under receipts and bills of lading, and pipeline carriers. 49 U.S.C. § § 11706, 14706 and 15906. Plaintiff argues that the preemption doctrine does not apply.

“[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws….” Carpenter v. Wichita Falls Ind. Sch. Dist., 44 F.3d 362, 366 (5th Cir.1995). This is generally known as the well-pleaded complaint rule. See Louisville & Nashville R Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under this rule, federal question jurisdiction exists only if a federal question appears on the face of plaintiff’s complaint. Id. An assertion of a federal defense, even when anticipated in light of plaintiff’s complaint, will not create jurisdiction under federal law. Carpenter, 44 F.3d at 366. When an area of state law however, is completely preempted, the plaintiff’s suit may be removed. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

Here, the Fifth Circuit has recently concluded that the Carmack Amendment provides “the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir.2003) (emphasis in original). While the Fifth Circuit seemed to emphasis that the complete preemption doctrine should be limited to actual loss or damage of goods, it relied, in part, on a previous decision holding that “the Carmack Amendment, as judicially interpreted, provides an exclusive remedy for a breach of contract of carriage provided by a bill lading.” Air Products & Chemicals, Inc. v. Ill. Central Gulf R.R. Co., 721 F.2d 483, 484-85 (5th Cir.1983) (emphasis in original). In light of this prior ruling, the term “loss” must be construed broadly and encompass the complete regulatory scheme envisioned by the Interstate Commerce Act. See also N.Y., Philadelphia, & Norfolk R.R. Co. v. Peninsula Produce Exch. of Md., 240 U.S. 34, 38, 36 S.Ct. 230, 60 L.Ed. 511 (1916) (interpreting the term “loss” under the Carmack Amendment providing for liability against railroad carriers). For example, Plaintiff alleges that Defendant delivered his household goods three days late. Under 49 U.S.C. § 13704, a carrier must provide a separate rate for delivery that is not guaranteed as opposed to a rate for guaranteed delivery. The carrier may not present false or misleading information about these rates under 49 U.S.C. § 13708. Thus, these provisions allow Plaintiff to bring a cause of action under the Carmack Amendment for any alleged loss due to false or misleading information provided about guaranteed delivery.

The legislation encompassing the Carmack Amendment “embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.” Adams Express, Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913). “Although federal preemption is ordinarily a defense, once an area of state law has been completely preempted, any claim purportedly based on that preempted state law claim is considered from its inception a federal claim, and therefore arises under federal law.” Rivet v. Regions Bank of La., 522 U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (citation omitted). [FN1] Thus, the Carmack Amendment provides the exclusive cause of action for any claim arising out of the interstate transportation of household goods. As such, Plaintiff’s state law claims arise under federal law and are removable under 28 U.S.C. § 1441(b).

Therefore, this Court DENIES Plaintiff’s Motion to Remand. In addition, the Court GRANTS Defendant’s request for a more definite statement in light of this Order (docket no. 8-1). The Motion to Dismiss is DENIED without prejudice pending Plaintiff’s Amended Complaint (docket no. 8-2). Plaintiff is ORDERED to amend his pleading by July 19, 2004.

FN1. The Texas Supreme Court has concluded that the Carmack preemption does not apply to causes of action under the Texas Deceptive Trade Practices Act. Brown v. Am. Transfer & Storage, 601 S.W.2d 931, 938 (1980). Because that holding occurred prior to many of the Supreme Court and Fifth Circuit opinions relied upon, it’s holding has limited value.