Supreme Court of Arkansas.

William KISTNER and William Kistner, Jr., Appellants,

v.

George T. CUPPLES, Tuffer Enterprises, Inc., and Integrated Distribution, Appellees.

No. 09-1349.

 

Nov. 4, 2010.

 

Appeal from the Pulaski County Circuit Court, No. CV-08-10227, James Maxwell Moody, Jr., Judge.

 

PAUL E. DANIELSON, Justice.

 

Appellants William Kistner and William Kistner, Jr., appeal the order of the Pulaski County Circuit Court granting appellee Integrated Distribution, Inc.’s motion for summary judgment. The Kistners argue on appeal that the circuit court erred in granting summary judgment in favor of Integrated Distribution. We disagree and affirm the order of the circuit court.

 

On March 14, 2003, Integrated, an authorized motor carrier, entered into a motor vehicle lease and operating agreement with Lyman Hinson, president of Tuffer Enterprises, Inc., an Arkansas corporation and owner of a commercial truck. The agreement indicated that Lyman Hinson was an independent contractor who would provide equipment and drivers to Integrated to complete a job.

 

On October 19, 2003, the Kistners were traveling east on Interstate 40 in North Little Rock, Arkansas when their vehicle was struck from behind by George Cupples, the driver who had been hired to haul trailers owned by Integrated per the agreement between Integrated and Hinson. As a result of the accident, the Kistners’ vehicle was destroyed, and the Kistners sustained multiple injuries. On September 12, 2008, the Kistners filed a complaint against Cupples, Tuffer, and Integrated, alleging that Cupples’s negligence was the proximate cause of the accident and that both Tuffer and Integrated were also responsible for that negligence as his employers.

 

The original complaint was filed on December 2, 2005; however, it was dismissed without prejudice on October 1, 2007.

 

Integrated answered the complaint and then filed a motion for summary judgment on January 1, 2009. In its motion for summary judgment, Integrated asserted that it was not liable for the actions of Cupples because the agreement between Integrated and Hinson established an independent-contractor relationship and Cupples was not an employee of Integrated. Furthermore, Integrated argued that, at the time of the accident, Cupples was not performing any service for Integrated as he was operating the truck without a trailer attached (also known as “bobtailing”). The Kistners responded and filed their own summary-judgment motion.

 

The circuit court held a hearing on May 4, 2009, on the cross-motions for summary judgment. On May 6, 2009, the circuit court entered its order granting summary judgment in favor of Integrated and denying the Kistners’ motion for summary judgment. The Kistners timely appealed, and we now turn to the merits of their argument.

 

The Kistners contend that the circuit court erred in granting summary judgment in favor of Integrated because federal law preempts state-common-law defenses, that drivers of leased vehicles are “statutory employees” as a matter of law, and that, even under traditional notions of common law, Integrated is vicariously liable for the acts of Cupples. Integrated avers that employment status is to be determined under state law; that drivers of leased vehicles are no longer considered statutory employees; that Cupples, per the agreement and the established independent-contractor relationship, was not an employee of Integrated at time of accident; and that, even were a court to determine Cupples was an employee of Integrated, he was acting outside the scope of the agreement at the time of the accident.

 

Summary judgment may only be granted when there are no genuine issues of material fact to be litigated and that the moving party is entitled to judgment as a matter of law. See K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.

 

The Kistners first argue that federal law, along with the regulatory framework of the Federal Motor Carrier Safety Administration (FMCSA), preempts state-law concepts of respondeat superior in the instant case and controls the determination of the employment status of Cupples. The FMCSA has specific written lease requirements for a lease made between an authorized carrier and the owner of the equipment. See 49 C.F.R. § 376.12. In compliance with the requirements, the lease in the instant case provided, among other things, that “[Integrated] shall have exclusive possession, control, and use of Equipment and shall assume complete responsibility for its operation during this Agreement.” See 49 C.F.R. § 376.12(c)(1). However, as Integrated argues in its brief, the regulations themselves were amended in 1992 to include the following clarification:

 

The FMCSA adopted the rules and regulations that had been promulgated by the former Interstate Commerce Commission.

 

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements.

49 C.F.R. § 376.12(c)(4).

 

While the Kistners ask this court to conclude that drivers of leased trucks are “statutory employees” of the authorized motor carriers-lessees, the legal authority they cite all date back prior to the 1992 amendment. Specifically, they cite Simmons v. King, 478 F.2d 857 (5th Cir.1973) as the leading case for this analysis. However, the Simmons court specifically held

 

Since under the lease [the carrier-lessee] assumed exclusive possession, control, and use of the vehicle and responsibility to the public then [the driver] became his statutory employee, and as such [the carrier-lessee] was vicariously liable as a matter of law for the negligence of the [driver].

 

478 F.2d 857, 867 (emphasis added). The Simmons court was clearly relying on the exact language that section 376.12(c)(4) now specifically instructs should not affect whether the driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. In light of the 1992 amendment, it seems clear that the “statutory employee” interpretation of the regulation that was used in the past is no longer a proper interpretation. See Bays v. Summitt Trucking, LLC, 691 F.Supp.2d 725 (W.D.Ky.2010) (quoting Penn v. Va. Int.’l Terminals, Inc., 819 F.Supp. 514, 523 (E.D.Va.1993)) (finding that the 1992 Amendment renders older cases that held lessee-carriers strictly liable for owner-operators’ negligence “a misrepresentation of the regulation”).

 

We now turn to our state law for guidance. Integrated argues, as it did below, that the agreement between it and Tuffer and/or Lyman Hinson established an independent-contractor relationship with Tuffer and/or Lyman Hinson and his drivers, which included Cupples. There is no fixed formula for determining whether a person is an employee or an independent contractor; thus, the determination must be made based on the particular facts of each case. See Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000). The following factors are to be considered in determining whether one is an employee or independent contractor:

 

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

 

(b) whether or not the one employed is engaged in a distinct occupation or business;

 

(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

 

(d) the skill required in the particular occupation;

 

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

 

(f) the length of time for which the person is employed;

 

(g) the method of payment, whether by the time or by the job;

 

(h) whether or not the work is a part of the regular business of the employer;

 

(i) whether or not the parties believe they are creating the relation of master and servant; and

 

(j) whether the principal is or is not in business.

 

Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 517, 868 S .W.2d 476, 477-78 (1994) (citing Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990) (citing Restatement (Second) of Agency § 220)).

 

We have long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work. See Ark. Transit Homes, supra; Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988); Moore v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938); W.H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists. See Ark. Transit Homes, supra (citing Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S.W.2d 959 (1953)). The right to control is the principle factor in determining whether one is an employee or an independent contractor. See id. It is the right to control, not the actual control, that determines the relationship. See id. (citing Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996)).

 

The agreement in the instant case listed Lyman Hinson as an independent contractor. He is referred to as “Contractor” in the agreement, and Integrated is referred to as “IDI.” Aside from the language complying with 49 C.F.R. § 376.12(c)(1), the agreement also contained the following pertinent language:

 

1. EQUIPMENT: Contractor represents that he has title to, or exclusive use of, or lawful possession plus registration and license in his name of the Equipment identified in the attached Statement of Lease and Receipt for Equipment, and Contractor further represents and warrants that the Equipment is in good, safe and efficient operating condition as required by law and by good practices and shall be so maintained at Contractor’s expense. Contractor shall provide Equipment and qualified drivers who have been approved by IDI.

 

….

 

9. COSTS OF OPERATION: Except as otherwise provided herein, Contractor shall pay all costs of operation including but not limited to the items listed in this paragraph….

 

(c) Taxes, assessments, premiums and other payments due by reason of the payment by Contractor of wages or other earnings to his employees

 

….

 

(f) Deadhead and bobtail liability and property damage while the Equipment is not being operated in the service of IDI

 

….

 

17. INSURANCE AND CLAIMS: IDI maintains public liability and property damage insurance coverage while Contractor is operating under IDI dispatch.

 

(a) Contractor shall maintain no fault, uninsured motorist coverage required by individual states. If IDI has not been qualified as being self-insured, then Contractor authorizes IDI to reject no fault, uninsured motorist and underinsured motorist coverage from IDI’s insurance policy.

 

(b) Contractor shall maintain a public liability and property damage insurance policy for operation of the Equipment other than under dispatch with an IDI load. This insurance policy shall have a combined single limit of not less than $1,000,000.00 for injury to persons or for damage to property in any one occurrence. This insurance policy shall apply whenever the Equipment is operating either “bobtail” or “deadhead,” and shall name IDI as an additional insured, and shall provide for waiver of underwriter’s subrogation rights against all insureds, and shall be primary with respect to all insureds. As used in this subparagraph, operating “bobtail” means without a trailer attached…. Contractor acknowledges that Contractor shall be solely responsible for any loss in excess of this insurance policy limit.

 

….

 

18. INDEMNITY: Contractor shall defend, indemnify and hold harmless IDI from claims, losses, damages, expenses, attorney’s fees, actions and claims for injury to or death of persons and damage to property arising out of or in connection with operations hereunder….

 

19. WORKER’S COMPENSATION: This Agreement is intended by the parties to create an independent-contractor relationship and not an employer-employee relationship. Neither Contractor nor Contractor’s employees or agents or any individual providing any service to Contractor is entitled to worker’s Compensation coverage or benefits from IDI. Contractor will provide, prior to commencing operations, a Certificate of Insurance acceptable to IDI for self-employment, including evidence of occupational accident coverage for Contractor and evidence of workers compensation insurance coverage for Contractor’s employees, and further providing that 30 day advance written notice of cancellation or modification of the policy shall be given to IDI. Upon receipt of notice of cancellation or modification, IDI may, at its sole discretion, make premium payments to continue the coverage and deduct such payments from settlements or reserve fund or terminate this Agreement.

 

….

 

24. UNAUTHORIZED USE OF EQUIPMENT: If Contractor operates Equipment in any manner varying from regulations, or beyond the scope of the operating authority of IDI, or for any other purpose not permitted by this Agreement, then this Agreement, except those provisions relating to indemnification of IDI by contractor, will, at IDI’s option, be deemed terminated as of the time that such unauthorized use occurred.

 

….

 

26. CONTRACTOR RELATIONSHIPS: In recognition of the independent-contractor relationship which exists between the parties, the parties acknowledge that Contractor has the right to determine the manner and means of performing all haulage hereunder, provided, however, that when a load is accepted by Contractor, the haulage will be performed in compliance with laws and regulations and in accordance with the requirements of the shipper and consignee. The parties acknowledge that their respective acts and omissions in their performances under this Agreement are only to be construed, received and acted upon by the other in the context of the independent-contractor relationship provided for herein.

 

Additionally, “Addendum A” to the agreement again specified that “Contractor provides: BobTail/Unlading Insurance and O/A or Workers Compensation Insurance.”

 

It is clear from the agreement that the intent of both parties was to create an independent-contractor relationship. Tuffer was to provide Integrated with qualified drivers, pay for the majority of operating costs, and specifically recognized its independent-contractor relationship. In addition to the agreement, Integrated also submitted with its summary-judgment motion an affidavit of Mike Moon, Vice President of Human Resources at Wagner Industries, for which Integrated was a wholly owned subsidiary at the time of the accident at issue here. Moon indicated that Integrated did not authorize Tuffer or its drivers to accept money on its behalf; Integrated paid Tuffer directly for the work performed and not its drivers; Integrated did not control the routing of trucks, but paid by miles; Integrated owned the trailers to be hauled by Tuffer and did not pay for the maintenance or repair of the equipment owned by Tuffer; Tuffer was to provide workers’ compensation benefits for its drivers; and, Integrated provided a removable sign that included its Department of Transportation identification number for use while its loads were being hauled rather than requiring Tuffer to paint or maintain any other identification on its trucks. Moon’s affidavit supports Integrated’s contentions that Tuffer, along with its driver, was an independent contractor and that Integrated did not have the “right to control” the substantive performance of the contract.

 

This holding is consistent with a holding of the federal district court in Brown v. Truck Connections Int’l, Inc., 526 F.Supp.2d 920 (E.D.Ark.2007). In Brown, Penske Truck Leasing Company contracted with Truck Connections International (TCI) to transport the Penske-owned vehicles. See id. After a fatal collision, suit was brought against Penske, TCI, and the two drivers. See id . The court found that Penske had no right to control the specific conduct of TCI; that although the contract required TCI carry insurance and to deliver the Penske trucks in accordance with Penske’s delivery schedule, such terms are standard in that type of contract; that Penske does not designate how TCI is to transport the trucks specifically, the route to take, or the drivers to employ. See id. Accordingly, the court held that Penske did not have the “right to control” how TCI transported Penske’s trucks and there was no genuine issue as to whether TCI was an independent contractor or an employee. See id. Therefore, Penske was not held liable for the allegedly negligent acts of the drivers hired by TCI. See id.

 

Integrated, much like the relationship between Penske and TCI in Brown, supra, did not control how Tuffer was to haul its trailers or the routes they were to take, as that was the substantive performance for which Integrated contracted. In addition, the agreement certainly establishes that Integrated was most definitely not in control when Tuffers drivers were “bobtailing.” As noted in the agreement, bobtailing means operating without a trailer attached. Per the agreement, under costs of the operation, Tuffer was “to provide bobtail liability and property damage while the Equipment [was] not being operated in the service of IDI.” At the time of the accident, Cupples was no longer hauling a load for Integrated. He was operating the truck without a trailer attached; he was “bobtailing.” Therefore, per the agreement, Cupples was no longer operating in the service of Integrated.

 

For these reasons, we conclude that summary judgment in favor of Integrated was proper, and we affirm the order of the circuit court.

 

Affirmed.

United States Court of Appeals,

Sixth Circuit.

CAROLINA CASUALTY INSURANCE COMPANY, Plaintiff-Appellant,

v.

PANTHER II TRANSPORTATION, INC., and Zurich American Insurance Company, Defendants-Appellees.

and

Zurich American Insurance Company, Defendants-Appellees.

No. 09-4166.

 

Nov. 4, 2010.

 

On Appeal from the United States District Court for the Northern District of Ohio.

 

Before MARTIN, COLE, and CLAY, Circuit Judges.

 

CLAY, Circuit Judge.

 

Plaintiff Carolina Casualty Insurance Company appeals from a judgment entered on August 6, 2009 by the United States District Court for the Northern District of Ohio. The court below granted Defendants Panther II Transportation, Inc.’s and Zurich American Insurance Company’s summary judgment motion, and denied Plaintiffs’ summary judgment motion, holding Plaintiff responsible for damages sustained in the underlying truck accident. Subsequently, Plaintiff appealed the district court’s decision and moved this Court to certify a question of law to the Ohio Supreme Court regarding whether Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 569 N.E.2d 1049 (Ohio 1991), controls the outcome in this case. For the reasons stated below we AFFIRM the district court’s order, and DENY Plaintiff’s certification motion.

 

I. BACKGROUND

 

A. Factual Background

 

On December 2, 2007 a Volvo straight truck (“the truck”) driven by Michael Eades, and a car driven by Ronald Runtas collided (“the accident”). Runtas sustained bodily injury. At the time of the crash Eades was operating a truck owned by Work Horse Express, Inc. (“WHE”) on long-term lease to Defendant Panther II Transportation, Inc. (“Panther”).

 

Defendant Panther is a motor carrier that transports property in interstate commerce. Panther does not own any of the vehicles it utilizes in its business. Rather, Panther leases vehicles from independent owners. WHE is a fleet operator that leases its trucks to Panther. WHE owned the truck Eades was driving at the time of the accident, and leased it to Panther. The exclusive lease was in effect at the time of the accident, and under its terms WHE could not move the truck without Panther’s permission.

 

Defendant Zurich American Insurance Company (“Zurich”) issued Panther an automobile liability policy effective from September 1, 2007 to September 1, 2008 for the vehicles Panther used in its commercial transportation business. Plaintiff Carolina Casualty Insurance Company (“Carolina Casualty”) also issued Panther a non-trucking liability insurance policy effective July 7, 2007 to July 7, 2008. This insurance policy covered “Specified Independent Contractors of Panther II Transportation, Inc.” Both policies were in effect at the time of the accident.

 

Panther recruits drivers to operate the trucks it leases. Panther requires that all drivers who seek to operate one of Panther’s leased vehicles must be “qualified” by Panther. Panther’s “qualifying” procedure is as follows. First, the driver must be “pre-qualified,” meeting the applicable Federal Department of Transportation (“D.O.T.”) regulations. See 49 C .F.R. 391.1. Next, the pre-qualified driver must successfully complete Panther’s three day orientation at its headquarters. Only after completing these steps is a driver “qualified.”

 

Eades was a prospective driver for Panther. Approximately one week before the accident a Panther representative determined that Eades was “pre-qualified” to drive for Panther. At this meeting WHE and Eades agreed that, subject to Eades’ successful completion of Panther’s three day qualifying course, Eades would be placed to drive for Panther. Eades was scheduled to begin orientation at Panther headquarters on December 3, 2007, the day after the accident.

 

Eades requested to drive the truck to Panther headquarters for orientation because it had a sleeping berth in which he and his girlfriend could sleep, saving them lodging expenses. WHE agreed. Both Panther and WHE instructed Eades to cover Panther’s logo and D .O.T. numbers prior to driving the truck. Eades testified that he spent between a twenty and thirty minutes attempting to cover Panther’s placards with cardboard and tape, but could not get the tape to stick due to rain. Eades nevertheless decided to drive the truck to Panther’s headquarters with Panther’s placards displayed. Panther’s placards were thus displayed at the time of the accident.

 

En route to Panther’s headquarters to complete his “qualifying” orientation, Eades, in the truck, collided with Runtas causing Runtas bodily injury. Runtas made a claim to Panther for his injuries. Subsequently, Panther and Zurich demanded that Carolina Casualty cover Runtas’ demand under its non-trucking liability policy. Carolina Casualty denied coverage.

 

B. Procedural History

 

After denying Panther’s and Zurich’s request for coverage of the accident, Plaintiff Carolina Casualty filed a declaratory judgment action in federal court based on parties’ diversity of citizenship to determine which of Panther’s two insurance policies is responsible for covering damages caused by the accident. The parties cross-moved for summary judgment. The district court denied Plaintiff’s motion for summary judgment, and granted Defendants’ motion, holding Carolina Casualty responsible for providing insurance coverage for the accident. Plaintiff appealed the district court’s decision.

 

II. DISCUSSION

 

A. Standard of Review

 

The Court reviews the district court’s award of summary judgment de novo. Sullivan v. Or. Ford, Inc., 559 F.3d 594, 594 (6th Cir .2009). The moving party is entitled to summary judgment “if the pleadings, the discovery and the disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a material issue of fact. “[A] party seeking summary judgment always bears the initial responsibility of informing the [court] of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

 

B. Analysis

 

This Court has jurisdiction over the case based on the parties’ diversity of citizenship, and an amount in controversy greater than $75,000.00. 28 U.S.C. § 1332.

 

This dispute to determine whether Plaintiff Carolina Casualty or Defendant Zurich is responsible for Runtas’ damages is governed by Ohio law. Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 623 (6th Cir.2008). Plaintiff urges that this dispute is governed by the Ohio Supreme Court’s decision in Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc.

 

In Wyckoff the Ohio Supreme Court enunciated the bright line rule that “in tort causes of action involving leased vehicles of interstate motor carriers … in order for liability to attach on an interstate carrier-lessee … it must be established that at the time the cause of action arose, (1) a lease of the vehicle was in effect and (2) the vehicle displayed the carrier-lessee’s placards listing its I.C.C. numbers.” Wyckoff, 569 N.E.2d at 1054. Moreover, the Ohio Supreme Court stated that in tort cases there is “an irrebuttable presumption of an employment relationship between carrier-lessee and the driver of the vehicle that displays the I.C.C. identification numbers of the carrier-lessee.” Id. Wyckoff placed liability squarely with the carrier-lessee in a tort action between carrier-lessee and a third-party accident victim. This “removes the factual confusion attendant to determining which party is responsible for damages, thus relieving the innocent victim from the sometimes interminable delays that accompany multi-party litigation.” Id. at 1053.

 

The Wyckoff irrebuttable presumption governed “tort causes of action involving leased vehicles of interstate motor carriers.” Id. The holding did not explicitly extend to actions between insurance companies disputing liability for an accident. Since Wyckoff, intermediate Ohio appellate courts have split on whether the Wyckoff holding extends to such disputes. Compare Lime City Mut. Ins. Ass’n v. Mullins, 615 N.E.2d 305, 309 (Ohio Ct . App.1992) (“Wyckoff Trucking … does not govern the relationship between insurers.”), and Lakes v. Minor, 620 N.E.2d 1015, 1018 (Ohio Ct.App.1993), with Cincinnati Ins. Co. v. Haack, 708 N.E.2d 214, 226 (Ohio Ct.App.1997) ( “[T]he [Ohio] Supreme Court’s decision in Wyckoff … could be extended to settle the dispute between the owner’s and lessee’s insurer.”), and Ohio Cas. Ins. Co. v. United S. Assurance Co., 620 N.E.2d 163, 165-66 (Ohio Ct.App.1993) (“If the doctrine of statutory employment irrefutably establishes the liability of the carrier-lessee, then the doctrine should also establish that the carrier-lessee’s insurance company is responsible for the coverage.”).

 

In the absence of clear legal directives from the Ohio Supreme Court, a federal court applying Ohio law must predict what the Ohio Supreme Court would hold. “If the forum state’s highest court has not addressed the issue, the federal court must ascertain from all available data, including the decisional law of the state’s lower courts, what the state’s highest court would decide if faced with the issue.” Stanek v. Greco, 323 F.3d 476, 478 (6th Cir.2003). The Sixth Circuit previously addressed the extension of Wyckoff to disputes between insurance carriers in Gilstorff v. Top Line Express, Inc., No. 96-3081, 1997 U.S.App. LEXIS 780 (6th Cir.1997). Although the unpublished opinion is not binding precedent, Gilstorff may be considered for persuasive value.   Longaberger Co. v. Kolt, 586 F.3d 459, 468 (6th Cir.2009). After reviewing the competing interpretations of Wyckoff in the intermediate Ohio appellate courts, the court in Gilstorff stated that “because Wyckoff itself indicates that the statutory employee may seek contribution and/or indemnification from the other potentially responsible parties,” limiting “Wyckoff to its literal application as between the innocent victim and an interstate carrier-lessee whose ICC number appears on the vehicle … is more consistent with the holding in Wyckoff.” Gilstorff, 1997 U.S.App. LEXIS 780, at *10-11.

 

As pointed out by the Gilstorff court, the policy rationales and language of Wyckoff itself suggest that the Ohio Supreme Court would decline to extend Wyckoff to disputes between insurers. See also Diamond State Ins. Co. v. Ranger Ins. Co., 47 F.Supp.2d 579 (E.D.Pa.1999) (applying Ohio law to an insurance dispute subsequent to a truck accident). Wyckoff states that the purpose of the presumption is to “relieve[ ] the innocent victim from the sometimes interminable delays that accompany multiple-party litigation … [and] fix liability for the accident instead of essentially forcing the innocent victim to sue everyone in order to redress his injuries and damages.”   Wyckoff, 569 N.E.2d at 1053. The rule was based on the premise that insurance companies would disagree over which policy covered the accident, and the Ohio Supreme Court simply wanted to save the victim from delay. This rationale does not justify extending Wyckoff. Although Wyckoff recognized the inevitability of disputes between insurers, the decision was not directed at solving insurers’ disagreements.

 

Wyckoff’s language also strongly suggests that the Ohio Supreme Court never intended to extend the irrebuttable presumption to anyone other than the victims of truck accidents. The Ohio Supreme Court stated that the presumption’s purpose was “focusing liability … and forcing the trucking companies to allocate the various indemnification agreements among themselves. Once liability is fixed on the statutory employer, it is the statutory employer who must seek contribution or indemnifcation from other potentially responsible parties, not the innocent victim.” Id. Based on the policy rationales and the language contained in Wyckoff, we think the Ohio Supreme Court would decline to extend Wyckoff to disputes between insurers.

 

Once we determine that Wyckoff does not control in this case, we must turn to the language of the insurance policies to determine whether Carolina Casualty or Zurich has primary responsibility for the accident.

 

Plaintiff Carolina Casualty provided Panther with non-trucking insurance that covered the truck when it was not being used in Panther’s business. Carolina Casualty’s policy stated under the “Other Insurance” section of its “Business Auto Coverage Form:” “[f]or any covered ‘auto’ you own, this Coverage Form provides primary insurance.” Plaintiff’s Statement of Uncontested Facts, Exhibit 7 at 24, Carolina Cas. Ins. Co. v. Panther II Transp., Inc ., 08-0138, (N.D.Ohio Aug. 6, 2009). Therefore, one of the exceptions clauses in the insurance contract must apply for Carolina Casualty not to be responsible for damages due to an accident involving a covered auto. In an endorsement modifying the “Business Auto Coverage Form” entitled “Insurance for Non-Trucking Use,” Carolina Casualty stated, in relevant part, that the endorsement added “[t]he following exclusions” to its insurance policies: “This insurance does not apply: (a) While the covered “auto” is used to carry property in any business.” Id. at 37.

 

Whether responsibility for damages due to the accident is excepted from Carolina Casualty’s policy turns on whether Eades’ driving the truck to Panther’s mandatory orientation qualifies as engaging in Panther’s “business” as intended by the exceptions to Carolina Casualty’s policy.

 

Under Ohio law, in an insurance dispute “[t]he starting point for determining coverage is the language of the insurance policies.” Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 769 N.E.2d 835, 840 (Ohio 2002). Ohio law dictates that “insurance policies should be enforced in accordance with their terms as are other written contracts. Where the provisions of the policy are clear and unambiguous, courts cannot enlarge the contract by implication so as to embrace an object distinct from that originally contemplated by parties.”   Id. at 840-41. Moreover, “Ohio law requires … interpret[ing] exclusions as applying only to that which is clearly intended to be excluded.” Id.

 

Both Ohio Courts and this Court have interpreted the term “business” in insurance contracts’ exclusionary clauses under Ohio law. At least one Ohio appellate court has stated that “the phrase ‘used in the business of’ … [is] commonly used in insurance contracts. Numerous courts within and without [Ohio] have considered the language. These courts have found no ambiguity in the phrase and have defined the phrase by its common meaning: that being, ‘used to further the commercial interests of the lessee.’ “ Lime City Mut. Ins. Ass’n, 615 N.E.2d at 307-08.

 

Courts construing Ohio law have interpreted the parameters of the lessee’s “commercial interests” relatively expansively. See Auto-Owners Ins. Co. v. Redland Ins. Co., 549 F.3d 1043 (6th Cir.2008) (determining that a truck driver who had completed a delivery for lessee at night, but scheduled to pick up another load for lessee in the morning was furthering lessee’s commercial interests when he was en route to a motel to sleep for the night); Lime City Mut. Ins. Ass’n., 615 N.E.2d at 309 (stating that “because a master remains liable so long as his servant has an intent, even though it be a subordinate one, to serve the master’s purpose” the lessee and its insurance company were liable for damages from an accident that occurred when the driver was heading towards the dispatch area so as to be close to an as-of-yet unassigned load). But see Roseberry v. Balboa Ins. Co., 627 N.E .2d 1062, 1065 (Ohio Ct.App.1993) (refusing to extend the exclusionary phrase “further commercial interest” to a situation in which the driver had delivered his empty trailer subsequent to making a delivery and was en route home when an accident occurred as the driver “was not under [lessee’s] control at the time of the accident because he was not en route, under dispatch, or in the service of [lessee].”). However, none of these cases provides a close analogy to this case. The drivers in these cases were employed by the lessees, and generally on active duty for the lessees, although not necessarily actively engaged in the lessees’ business at the moment of the accident. Eades, in contrast, had not been hired or even qualified to drive for Panther at the time of the accident. Moreover, like the driver in Roseberry who was effectively using the truck as a private means of transportation home after dropping off his trailer, Eades was using the truck as his private transportation to the orientation at Panther’s headquarters. Although Plaintiff makes the unsupported assertion that Panther wanted the truck driven to headquarters, it is undisputed that Eades requested to drive the truck to orientation, and his motive for so doing was to save on motel expenses for himself. Unlike the driver in Lime City Mut. Ins. Ass’n, lessee’s business interests were not relevant but subordinate to Eades’ personal interests; they were simply not relevant. Any benefit that Panther may potentially have gotten from Eades’ driving of the truck was so remote as to be legally irrelevant. Based on courts’ interpretation of “in the business of” under Ohio law, Eades was not driving the truck “in the business” of Panther at the time of the accident.

 

Finally, Plaintiff requests that this Court certify the question of Wyckoff’s applicability to disputes between insurance companies to the Ohio Supreme Court.

 

The decision whether or not to certify a question to state court “rests in the sound discretion of the federal court.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). See also Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir.2009); Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir.1995). The federal court hearing the case has the discretion to decide whether to certify. Even “where there is doubt as to local law and where the certification procedure is available, resort to it is [not] obligatory.” Lehman Bros., 416 U.S. at 390-91.

 

The timing of Plaintiff’s certification motion weighs heavily against certification. Plaintiff in this case filed its motion for certification after the district court’s decision, and after submitting its appellate briefs to the Court. Although this delay does not prevent the Court from granting the certification motion, as the decision lies within the court’s discretion, Transamerica, 50 F.3d at 372, “[l]ate requests for certification are disfavored.” Shaheen, at *22-23 (citing Pennington, 553 F.3d at 450). Untimeliness is itself a reason to deny the motion. In this case, Plaintiff’s certification motion will be denied.

 

III. CONCLUSION

 

For the reasons stated above, we AFFIRM the district court’s order, and DENY Plaintiff’s certification motion.