Court of Appeals of Indiana.

CELADON TRUCKING SERVICES OF INDIANA, INC. and Clemente Carrisalez, Appellants-Defendants,

v.

Julie KIRSH and Caroline Kirsh, Appellees-Plaintiffs.

No. 49A02-0812-CV-1075.

 

Aug. 12, 2009.

 

NAJAM, Judge.

 

STATEMENT OF THE CASE

 

Celadon Trucking Services of Indiana, Inc. (“Celadon”) and Clemente Carrisalez (collectively “the Defendants”) appeal from the verdict in favor of Julie Kirsh (“Kirsh”) in her negligence action against the Defendants arising from a vehicular accident, following a jury trial. The Defendants present three issues for review, which we consolidate and restate as whether the trial court abused its discretion when it did not allow the Defendants to cross-examine Kirsh regarding medical treatment she received between January and August 2003 that was unrelated to the accident.

 

Kirsh’s daughter, Caroline Kirsh, also filed a complaint against the Defendants, and the two actions were later consolidated through a joint motion to consolidate. Because Caroline Kirsh’s claims have been settled, she is not party to this appeal.

 

We affirm.

 

FACTS AND PROCEDURAL HISTORY

 

On August 25, 2002, Kirsh was driving north on Spring Mill Road in Indianapolis with her daughter Caroline in the front passenger seat. When Kirsh reached the four-way stop at the intersection of Spring Mill and 96th Street, she attempted to turn left onto 96th Street. At the same time, Carrisalez, an employee of Celadon Trucking, was traveling a Celadon Trucking semi-tractor eastbound on 96th Street. Carrisalez failed to stop at the Spring Mill intersection and struck Kirsh’s Lincoln Navigator on the left front side. The impact spun Kirsh’s Lincoln Navigator around and forced it into the yard of a home on the southeast corner of the intersection. When Kirsh’s vehicle stopped, it was facing south.

 

At the time of the accident, in her vehicle, Kirsh had possessions that she was moving from her house into storage. When the ambulance arrived, Kirsh declined the service because she did not want to be separated from her daughter and wanted to secure the possessions in her car. A friend of Kirsh lived near the site of the accident. The friend’s husband, a neurologist, told Kirsh she was safe to decline the ambulance service if she sought treatment on her own right away. After Kirsh secured the possessions in her car, her friend drove her to the hospital emergency room.

 

At the emergency room, Kirsh complained of a “huge egg” on the left side of her forehead from hitting the windshield in the accident, a badly sprained ankle, neck and back injuries and pain, as well as pain on the right side of her face and jaw, in her right knee, and in her right thumb. Transcript at 211. Kirsh was treated and released from the emergency room the same day. As advised by emergency room personnel, Kirsh saw a neurologist in September 2002. Her neurologist, Dr. Robert Alonzo, ordered three tests, including a hearing test. Between October and December, Kirsh saw Dr. Trainer at Orthopedics Indianapolis for neck and back pain; Dr. Thomas Fischer  at the Indy Hand Center for her right thumb; and Dr. Ron Sheppard at the Castleton Chiropractic Clinic for neck and back pain.

 

Kirsh had also seen Dr. Fischer in 1988 for tennis elbow.

 

Kirsh did not seek further medical attention for her accident-related injuries from January 3 through August 18, 2003. During that time she was the sole caretaker of her father, who had to be placed in a nursing home, and she handled his estate following his death in March 2003. She was also a single parent to three children, two of whom were in college and one of whom was still living at home. Despite having constant pain, Kirsh hoped that her injuries would get better with time.

 

In August 2003, Kirsh still suffered from pain in her neck, lower back, right hand, right knee, and jaw. On August 18, she saw Dr. Rick Sasso, an orthopedic surgeon and neurosurgeon for her neck and back pain. Dr. Sasso recommended physical therapy. Thereafter, Kirsh saw numerous doctors to obtain treatment for her back, neck, knee, jaw, and thumb injuries.

 

On October 14, 2003, Kirsh filed a complaint against the Defendants seeking damages for the injuries she had sustained in the accident. On October 24, 2006, Kirsh filed a motion for partial summary judgment on the issue of the Defendants’ liability. In 2007, the trial court denied that motion. On May 15, 2008, Kirsh filed Plaintiff’s Supplemental Motion in Limine to preclude reference to, among other things, Kirsh’s cosmetic breast augmentation before the accident and breast deflation and an earlobe procedure after the accident. The trial court granted that motion. On June 5, 2008, the Defendants filed a motion for leave to file an amended answer. The trial court granted that motion, and the Defendants filed their amended answer admitting liability.

 

Although there is no order in the record to show that the trial court ruled on Kirsh’s motion in limine, at trial the parties and the court treated the motion as having been granted.

 

A jury trial was held on the issues of causation and damages on September 16 through 18, 2008. The jury returned a verdict in favor of Kirsh and awarded her $700,000 in damages. On October 17, the Defendants filed a motion to correct error and a motion to use the deposition of Dr. John Lomas. The trial court granted the motion to use Dr. Lomas’ deposition but denied the motion to correct error. The Defendants now appeal.

 

Dr. Lomas’ deposition had not been filed with the court prior to or during trial. In this motion, the Defendants argued that the deposition had become relevant “subsequent to the jury verdict” and asked to use it for purposes of their motion to correct error. Appellants’ App. at 328.

 

DISCUSSION AND DECISION

 

The Defendants contend that the trial court abused its discretion by refusing to allow them to cross-examine Kirsh about certain medical conditions and medical procedures unrelated to the accident in the months following the accident. The Defendants argue that such evidence was admissible because it related to Kirsh’s credibility; that the excluded evidence “[c]ast[ ][d]oubt” on the determination of causation and damages, Appellants’ Brief at 24; that Kirsh opened the door to the admission of that evidence; and that the exclusion of such evidence prevented a fair trial. Kirsh counters that the trial court’s decision was proper under Rondinelli v. Bowden, 155 Ind.App. 582, 293 N.E.2d 812 (1973), and its progeny. We address each of the parties’ contentions in turn.

 

We review decisions concerning the admissibility of evidence for an abuse of discretion. Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind.Ct.App.2004). An abuse of discretion occurs if the trial court’s action is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id. (citation omitted). A trial court may also abuse its discretion if its decision is without reason or is based upon impermissible considerations. Id. (citation omitted).

 

Similarly, the trial court has discretion to determine the scope of cross-examination, and only an abuse of that discretion warrants reversal. Id. (citing Lowry v. Lanning, 712 N.E.2d 1000, 1001 (Ind.Ct.App.1999)). ‘ “Cross-examination is permissible as to the subject matter covered on direct examination, including any matter which tends to elucidate, modify, explain, contradict or rebut testimony given during direct examination by the witness.’ “ Id. (quoting Hicks v. State, 510 N.E.2d 676, 679 (Ind.1987)) (emphasis added).

 

In Rondinelli, we held that “[t]he general rule is that cross-examination and other evidence is admissible to lay a basis for impeachment or show that the injury complained of is due to some other cause where the present injury and the prior injury or condition are similar, or where a causal relationship between them can be shown.” Id. at 814-15. If the cross-examiner fails to come forward with evidence showing a logical nexus or causal relationship between the injury sued on and the unrelated injury or condition, the evidence may be excluded. Id. at 815. The test of admissibility is not probability, but the possibility that a plaintiff’s claimed damages resulted from a condition or event unrelated to the defendant’s negligence. See id.; Walker, 808 N .E.2d at 95-96.

 

Credibility

 

The Defendants contend that the trial court abused its discretion when it did not allow them to cross-examine Kirsh regarding her failure to seek treatment for accident-related injuries between January 3 and August 18, 2003. Specifically, the Defendants argue that Kirsh’s testimony about the stressors that she had during that period “doesn’t hold water” because she underwent elective medical procedures during that time. Appellants’ Brief at 22. The Defendants argue that the trial court’s refusal to allow them to question Kirsh about the elective medical procedures she had in that time period restricted their ability to challenge Kirsh’s credibility.

 

Kirsh alleges that she sustained injuries to her neck, back, head, right ankle, right knee, and right thumb in the accident. She sought treatment immediately following the accident at an emergency room and continued to receive treatment until January 3, 2003, a little more than four months after the accident. She next sought treatment for her accident-related injuries in August 18, 2003. At the time of trial, Kirsh was still receiving treatment for injuries sustained in the accident. Although those injuries caused her pain between January and August 2003, Kirsh explained that she did not receive treatment for them during that timeframe because she thought her injuries might get better over time and because she was overwhelmed and under great emotional stress. Specifically, during that period, Kirsh was the sole caretaker of her father, who was in poor health, was placed in a nursing home, and died in March 2003. After his death, Kirsh was in charge of handling his estate. She was also the sole provider for her three teenage children.

 

During cross-examination, the Defendants asked Kirsh about the treatment she had received following the accident. At one point, the Defendants were questioning Kirsh about treatment received for injury to her right knee:

 

Q: When you saw [Dr. Kunkel] on October 24, 2003, three days after you fell on your right knee was it swollen?

 

A: Yes.

 

Q: Was there fluid in there?

 

A: Yes.

 

Q: And you’re telling this court and jury he [the doctor] injected you [Kirsh’s knee] with a steroid?

 

A: I mean, I-you know, I could be incorrect about that. I don’t remember to be very honest but it seemed to me-maybe it was the next visit because I know that we did put off the surgery. I did not want the surgery. I think I even made an appointment for surgery and then backed out of it because I didn’t want to deal with another surgery and …

 

Q: Well how many surgeries had you had up to that point?

 

A: Well I had had several emergency surgeries that were in my-umelated to the accident.

 

Q: What type of surgeries ma‘am did you have that were umelated to the accident?

 

A: I had an emergency hysterectomy. I was diagnosed with ovarian cancer.

 

Q: Well did you-did you also-during this period of time, now that you mention it, did you also see a Dr. Thurston between January …

 

[Plaintiff’s Counsel]: You’re honor, may we approach?

 

Transcript at 257 (emphasis added). At this point, Kirsh’s counsel reminded the court of the order in limine, which barred the Defendants from presenting evidence regarding Kirsh’s plastic surgeries. At least some of those surgeries had been performed by Dr. Thurston and occurred in the period between January and August, 2003. The Defendants argued to the trial court that Kirsh had opened the door regarding her elective surgery when she said she had had other surgeries “umelated to the accident[.]” Id. The trial court enforced its prior order in limine. Defendants made an offer of proof at the close of all of the evidence. Following a jury verdict in Kirsh’s favor, the Defendants raised this and other issues in a motion to correct error, which the trial court denied.

 

Again, the Defendants allege that they should have been permitted to cross-examine Kirsh regarding treatment she received from January 3 to August 18, 2003, including treatment from Dr. Thurston. The Defendants contend that such cross-examination would have shown that Kirsh had undergone elective cosmetic procedures during the period between January and August 2003, when she testified that she was too overwhelmed by other issues in her life to seek treatment for her accident-related injuries.

 

But Kirsh’s testimony was in response to a general question that asked how many surgeries she had had “up to that point[,]” and she mentioned only the emergency care she undisputedly had received. Transcript at 257. That question followed Kirsh’s explanation of why she had not wanted knee surgery, and the last date referenced in that line of questioning was October 24, 2003. Taken in context, the question posed was not limited to the timeframe following the accident, the period of time from January to August 2003, or even the type of surgery she had had. The trial court noted the ambiguity with regard to the timeframe Kirsh meant in her response:

 

[Defense Counsel]: But she’s opened up the door. She said she had other surgeries not related to this accident.

 

Court: My basis for that is she’s talking about her memory. When she talks about [‘]I’ve had other surgeries[‘] she’s talking about her memory.

 

[Defense Counsel]: Her memory?

 

Court: Yeah, she’s trying to remember-under your question, trying to remember what’s happened at different times. [She] said, “I’ve had other surgeries.[”] That’s what I see her answer as, not that [”]I’m having problems related to this accident[”] but [”]I’m trying to remember to answer you [sic] question.[”]

 

Transcript at 259. We agree with the trial court that the record does not clearly show that Kirsh’s answer, that she had had several emergency surgeries “up to that point[,]” referred only to the period between January and August 2003.

 

Again, “cross-examination and other evidence is admissible to lay a basis for impeachment or show that the injury complained of is due to some other cause where the present injury and the prior injury or condition are similar, or where a causal relationship between them can be shown.” Rondinelli., 293 N.E.2d at 814-15. Kirsh argues that the Defendants have not shown the nexus necessary to meet the Rondinelli test. But the test can also be met if the evidence could be used for impeachment. Here, the Defendants argue that their proposed cross-examination questions, regarding elective cosmetic procedures that Kirsh had received, would have contradicted her statement that she had received only emergency surgeries between January and August 2003. While they contend that Kirsh’s testimony “opened the door,” the Defendants have not shown in the record where Kirsh testified that she had had only emergency surgeries. And Kirsh’s answer regarding emergency surgeries, when read in context with the entire line of cross-examination, does not refer either to the period between January and August 2003 or to her elective surgeries. As a result, the Defendants have not shown that Kirsh opened the door, nor have they shown that further questions would have necessarily impeached her credibility. The Defendants’ contention in this regard must fail.

 

The Defendants also contend that the cited response by Kirsh on cross-examination opened the door to further inquiry about medical procedures she received between January and August 2003. For the reasons stated above, the Defendants also have not shown that Kirsh opened the door to further inquiry regarding medical treatment she received during the period in question.

 

The Defendants also argue that the trial court should have allowed them “to fully cross-examine Kirsh to support the testimony of Dr. Lomas that Kirsh’s knee and thumb injuries were not caused by the accident.” Appellants’ Brief at 30. They maintain that,

 

 

[h]ad the jury been apprised of Kirsh’s actual medical history, they would likely have concluded that her right knee and thumb injuries were insignificant, or not related to the accident, and that those medical expenses, and her associated pain and suffering, if any, did not warrant compensation. The jury should have been apprised of Kirsh’s actual medical treatments during the entire time period she delayed treatment (eight months for the thumb and fourteen months for the knee).

 

Id. at 31. In support, the Defendants cite to their colloquy with the trial court, outside the hearing of the jury, in which the Defendants argued that they should be allowed to cross-examine Kirsh on treatment she received between January and August 2003. But they have not shown in the record that they made an offer of proof on cross-examination that concerning causation and damages regarding Kirsh’s right knee and right thumb. The failure to make an offer of proof results in waiver of an evidentiary issue. Dennerline v. Atterholt, 886 N.E.2d 582, 593 (Ind.Ct.App.2008). The Defendants have waived their argument regarding the admissibility of cross-examination evidence on causation and damages as to Kirsh’s right knee and right thumb.

 

The Defendants also contend that Kirsh’s failure to seek medical attention for alleged accident-related injuries when she had time to obtain medical treatment for elective, cosmetic issues “[c]asts [d]oubt” on the material issues of causation and damages. Appellants’ Brief at 24. They further maintain that the evidence that they “sought to introduce [went] straight to the heart of causation and damages-it ha[d] a direct bearing on whether the alleged injuries truly were caused by the accident and whether they were as severe as Kirsh claimed at trial.” Id.

 

The issues of causation and damages were determined by the jury after hearing evidence from the Defendants’ and Kirsh’s respective expert witnesses, Kirsh, and the doctors who treated Kirsh’s injuries. Both of the expert witnesses agreed that Kirsh’s injuries were permanent. The experts disagreed on the severity of Kirsh’s neck injury and whether the right thumb and right knee injuries were related to the accident. But, again, that was a matter for the jury to determine. Although the Defendants were not permitted to cross-examine Kirsh concerning certain medical procedures that were unrelated to her accident, they were allowed to cross-examine her and her doctors and expert regarding all of her alleged accident-related injuries. In sum, the Defendants have not shown that the trial court’s refusal to let them cross-examine Kirsh about her unrelated elective medical procedures was without reason or based upon impermissible considerations. Walker, 808 N.E.2d at 92. Therefore, the Defendants have not shown that the trial court abused its discretion. See id.

 

Fair Trial

 

The Defendants contend that the trial court’s refusal to let them cross-examine Kirsh regarding elective cosmetic procedures prevented them from presenting their theory of the case, thereby depriving them of a fair trial. In support, they cite in part Armstrong v. Gordon, 871 N.E.2d 287 (Ind.Ct.App.2007), trans. denied, as holding that a defendant in a personal injury suit is entitled to ‘ “vigorously defend himself through … cross-examination and argument[.]” ‘ Appellants’ Brief at 26 (quoting Armstrong, 871 N.E .2d at 293-94). They further maintain that ‘ “cross-examination is permissible as to the subject matter covered on direct examination, including any matter which tends to elucidate, modify, explain, contradict or rebut testimony given during direct examination by the witness.’ “ Id. (quoting Armstrong, 871 N.E.2d at 293-94) (emphasis original).

 

But, in this context, the Defendants do not contend that the evidence they sought to elicit on cross-examination related to the direct examination of Kirsh. Instead, they argue that the desired cross-examination helped to develop the Defendants’ theory of the case. Specifically, they contend that

 

[t]he excluded evidence, which demonstrated that Kirsh delayed in seeking medical attention for injuries allegedly related to the accident while she was simultaneously undergoing numerous elective, cosmetic surgeries, demonstrated that either Kirsh did not suffer these injuries until well after the accident or her purported injuries were not as severe as she claimed.

 

Appellants’ Brief at 26-27. In support they again cite Kirsh’s testimony, elicited on cross-examination, that she had “several emergency surgeries.” Transcript at 257. But Kirsh gave that answer on cross-examination, not direct examination. Thus, Armstrong is inapposite.

 

Still, the Defendants contend that they were deprived of a fair trial because they were prevented from showing the jury, through the cross-examination of Kirsh described above, that Kirsh was “entirely capable of seeking treatment for medical issues, and thus, the accident-related injuries were nonexistent, insignificant, or caused by later events.” Appellants’ Brief at 28. Again, the Defendants challenge Kirsh’s assertion that she was too overwhelmed by other matters to seek treatment for her accident injuries. In that regard, we note that three of Kirsh’s doctors testified that it is not unusual for a patient to delay seeking treatment in order to take care of other issues or because the injury does not immediately present as urgent. In any event, just as we have concluded that the exclusion of testimony about surgeries that were “unrelated to the accident” was not an abuse of discretion, it follows and we conclude that the exclusion of such evidence did not deprive Defendants of a fair trial.

 

The Defendants assert in one heading of the argument section of their brief that the trial court abused its discretion under Indiana Evidence Rule 403. But the Defendants did not support that argument with cogent reasoning and citation to relevant authorities and the record on appeal. See Ind. Appellate Rule 46(A)(8)(a). Indeed, this is the only reference to Rule 403 in their brief. As such, the Defendants have waived that argument.

 

Conclusion

 

The Defendants have not shown that the trial court abused its discretion when it did not allow them to cross-examine Kirsh regarding “surgeries … unrelated to the accident” between January 3 and August 18, 2003. First, the Defendants have not shown that such cross-examination would have affected her credibility in that they have not demonstrated that Kirsh testified she had had only emergency surgeries or that her testimony referred only to that time period or even the period following the accident. Nor did the Defendants show any nexus between the treatments and conditions about which they wished to cross-examine Kirsh and her accident-related injuries. And the Defendants waived any argument that the same cross-examination would have impacted the case regarding Kirsh’s right knee and right thumb. Specifically, the Defendants made no offer of proof to show that the cross-examination would have had any effect on causation and damages as to Kirsh’s right knee and right thumb. The Defendants also have not shown that the limitation on their cross-examination was without reason or was based upon impermissible considerations. Nor have the Defendants shown that Kirsh opened the door to the testimony that they sought to have admitted on cross-examination. And the Defendants have not shown that the trial court’s refusal to allow the same cross-examination denied them a fair trial. In sum, because the Defendants have not shown that the court’s evidentiary determination was clearly erroneous or that the trial court lacked a rational basis for its decision limiting their cross-examination of Kirsh, the Defendants have not shown that the trial court abused its discretion.

 

Affirmed.

 

VAIDIK, J., and MATHIAS, J., concur.

 

Ind.App.,2009.

Celadon Trucking Services of Indiana, Inc. v. Kirsh

Slip Copy, 2009 WL 2461123 (Ind.App.)

 

END OF DOCUMENT

United States District Court,

N.D. Ohio,

Eastern Division.

CAROLINA CASUALTY INSURANCE COMPANY, Plaintiff,

v.

PANTHER II TRANSPORTATION, INC., et al., Defendants.

No. 1:08 CV 1380.

 

Aug. 6, 2009.

 

MEMORANDUM AND ORDER

 

KENNETH S. McHARGH, United States Magistrate Judge.

 

I. FACTS AND BACKGROUND

 

This declaratory judgment action arises out of a motor vehicle accident. Most of the facts of this case are not in dispute. On December 2, 2007 at approximately 6:00 p.m., a Volvo straight truck driven by Michael Eades collided with a car operated by Ronald Runtas, causing bodily injury to Runtas. (Doc. 2, at ¶ 13; doc. 9, at ¶ 13; doc. 11, at ¶ 13).

 

Defendant Panther II Transportation, Inc. (“Panther”) is a motor carrier engaged in the business of transporting property in interstate commerce. (Doc. 25, at ¶ 1). Defendant Zurich American Insurance Co. (“Zurich”) issued to Panther an automobile liability policy, which was in effect from September 1, 2007 to September 1, 2008. (Doc. 2, at ¶ 9; doc. 25, at ¶ 2). Carolina Casualty issued to “PLO of Specified Independent Contractors of Panther II Transportation, Inc.” a non-trucking liability policy, which was in effect from July 7, 2007 to July 7, 2008. (Doc. 2, at ¶ 8; doc. 25, at ¶ 3). Both policies were in effect at the time of the accident.

 

Panther does not own any of the vehicles used in its business but instead enters into agreements with independent contractor vehicle owners who lease their vehicles to Panther. (Doc. 25, at ¶ 15; doc. 25, Exhibit A, Reymann Dep., at 33; doc. 25, Exhibit B, St. Pierre Aff., at. ¶ 7). Work Horse Express, Inc. (“WHE”) owns the Volvo straight truck Eades was driving at the time of the accident. (Doc. 23, at ¶ 3; doc. 2, at ¶ 11; doc. 25, at ¶¶ 6, 9). WHE is a Panther fleet operator and had leased the Volvo truck exclusively to Panther under a Contractor Operating Agreement for Straight Trucks and Cargo Vans. (Doc. 23, at ¶¶ 4-5; doc. 25, ¶¶ 3-4). The lease agreement, which was entered into on December 14, 2005 and in effect at the time of the accident, lists the Volvo straight truck on its Schedule of Equipment and Receipt as equipment leased to Panther by WHE. (Doc. 2, at ¶¶ 11-12; doc. 25, at ¶¶ 7, 11). The Volvo truck also appears on the scheduled vehicle list on the Carolina Casualty policy. (Doc. 2, at ¶ 8; doc. 25, at ¶ 8).

 

Panther often recruits drivers to be placed with vehicle owners. (Doc. 25, at ¶ 17). All drivers seeking placement must be “qualified” by Panther in order to operate vehicles that have been leased to Panther, a process which begins with a driver becoming “pre-qualified.” Id. at ¶ 15. In order to become “pre-qualified,” a prospective driver must meet applicable D.O.T. regulations. Id. at ¶ 22. A pre-qualified driver’s placement with a fleet operator is then contingent upon the driver’s successful completion of a three-day orientation at Panther’s headquarters. Id. at ¶ 24.

 

Eades was a prospective Panther driver. Approximately one week prior to the accident, Eades spoke with a Panther representative, Anna Reymann, about driving for Panther. (Doc. 22, Eades Dep., at 10-11; doc. 25, Exhibit A, Reymann Dep, at 6). Reymann then obtained some background information from Eades; and determined that Eades was “pre-qualified” to drive for Panther. (Doc. 25, Exhibit A, Reymann Dep, at 9-18). Reymann then forwarded Eades’ information to Lyn Brumfield, the owner of WHE. (Doc. 22, Eades Dep., at 10-12). Brumfield arranged a meeting with Eades to discuss a possible working relationship. Id. at 11-12. At the meeting, Eades and Brumfield agreed that Eades would drive the Volvo straight truck that was leased to Panther, subject to Eades’ completion of a three-day orientation at Panther’s headquarters in Seville, Ohio. Id. at 12, 24. Brumfield thereafter faxed Reymann with information about their agreement, and Reymann contacted Eades with information regarding Panther’s orientation. (Doc. 26, Exhibit E, Transcript, at 2). Eades was scheduled to begin orientation the day following the accident.

 

Brumfield agreed that Eades could drive the Volvo truck to orientation. Eades testified that he wanted to use the truck because it had a sleeping berth, which would allow him and his girlfriend to save money on lodging expenses. (Doc. 22, Eades Dep., at 39). Both Reymann and Brumfield instructed Eades to cover Panther’s logo and D.O.T. numbers before driving the truck. (Doc. 24, brief in support, at 3; doc. 25, at ¶¶ 47-48; doc. 22, Eades Dep., at 9-10). Eades testified that he spent twenty to thirty minutes attempting to cover Panther’s placards with cardboard and tape, but rainy weather conditions prevented the tape from sticking. (Doc. 22, Eades Dep., at 27-29). Eades evidently decided to drive the truck anyway, and the Volvo truck indisputably displayed Panther’s placards and D.O.T. numbers at the time of the accident. (Doc. 22, Eades Dep., at 28-29; doc. 22, Burger Dep., at 9).

 

Runtas made a claim to Panther for his injuries following the accident. Subsequently, Panther and Zurich made a demand to Carolina Casualty for coverage. (Doc. 2, at ¶¶ 16, 18; doc., 9 at ¶¶ 16, 18; doc. 11, at ¶¶ 16, 18). Carolina Casualty denied coverage, see doc. 25, Exhibit E, Letter, and subsequently filed this declaratory judgment action seeking a determination as to which party is responsible for coverage for the accident. The parties cross-moved for summary judgment. For the reasons stated below, the Court GRANTS Defendants’ motion for summary judgment and DENIES Plaintiff’s motion for summary judgment.

 

II. SUMMARY JUDGMENT STANDARD

 

Summary judgment is appropriate where the entire record “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing the absence of any such genuine issues of material facts; specifically

 

a party seeking summary judgment always bears the initial responsibility of informing the district 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 demonstrates the absence of a genuine issue of material fact.

 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” only if its resolution might affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has satisfied its burden of proof, the burden then shifts to the non-moving party pursuant to Federal Rule of Civil Procedure 56(e), which states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 

In ruling on a motion for summary judgment, the court must construe the evidence, as well as any inferences to be drawn from it, in the light most favorable to the party opposing the motion. See Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir.1990). The court also must determine “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other.” Anderson, 447 U.S. at 249. In reaching such a determination, however, the court is not to decide disputed questions of fact, but only to determine whether genuine issues of fact exist. Id. at 248-49. Moreover, the “trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Circuit 1988).

 

The Supreme Court has held “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322

 

III. ANALYSIS

 

A. Whether Wyckoff Establishes that Panther and Zurich Have Primary Responsibility to Pay for Runtas’ Injuries.

 

Plaintiff argues that the Ohio Supreme Court’s decision in Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 58 Ohio St.3d 261, 569 N.E.2d 1049, 1054 (1991) dictates the outcome of this case. In Wyckoff, the Ohio Supreme Court held that the ICC regulations created an “irrebuttable presumption of an employment relationship between the carrier-lessee and the driver of a vehicle that displays the I.C.C. identification numbers of the carrier-lessee.” The court further held that “[i]n order for liability to attach to an interstate carrier-lessee under I.C.C. regulations, 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 placard listing its I.C.C. numbers.” Id. According to the court, this bright-line rule assigning primary liability to the carrier-lessee in an action between it and the accident victim “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 multiple-party litigation … and forcing the trucking companies to allocate the various indemnification agreements among themselves.” Id.

 

In this case, it is undisputed that a valid lease between WHE and Panther was in effect and that the Volvo truck displayed Panther’s D .O.T. numbers at the time of the accident. (Doc. 2, at ¶¶ 12-13, 15; doc. 9, at ¶¶ 12-13; doc. 11, at ¶¶ 12-13; doc. 26, brief in support, at 2; doc. 22, Eades Dep., at 8-9, 27-29). According to Plaintiff, these facts satisfy the two-pronged Wyckoff test, thereby creating an irrebuttable presumption that Eades was the statutory employee of Panther, operating the straight truck in the business of Panther at the time of the accident. (Doc. 24, brief in support, at 5; doc. 31, at 2-3). Plaintiff further argues that the irrebuttable presumption created under Wyckoff triggers the exclusion in the Carolina Casualty policy, which entitles Plaintiff to judgment in its favor. (Doc. 24, brief in support, at 4-5; doc. 31, at 3).

 

The Court agrees that in an action between Runtas-a member of the motoring public and the victim of this accident-and Panther-the carrier-lessee whose placards were displayed at the time of the accident-Wyckoff likely would operate to impose primary responsibility for coverage upon Panther. However, Runtas is not a party to this suit. Rather, the parties in this case are Panther and two insurers-Zurich, which issued an automobile policy to Panther, the company to which the truck was exclusively leased, and Carolina Casualty, which issued a “non-trucking” policy to WHE, the owner of the vehicle. The relevant questions, therefore, are what are the relative rights and responsibilities of the parties to this suit, and whether the court must use Wyckoff to determine those rights and responsibilities.

 

Ohio appellate courts following Wyckoff have split on the question of whether, in cases involving multiple insurers, the presumption of statutory employment established in Wyckoff also should dictate which insurer has primary responsibility for coverage. Some courts have held that Wyckoff’s holding applies to such situations. In these cases, the courts have found that primary responsibility for coverage rests with the insurer of the entity whose placards were displayed on the vehicle at the time of the accident. See e.g., Canal Ins. Co. v. Brogan, 93 Ohio App.3d 765, 771, 639 N.E.2d 1219 (Ohio App. 10 Dist.1994) (“Initially, we note that, although Wyckoff emphasizes the benefit to the public from the scheme for determining liability espoused therein, Wyckoff is clearly also meant to settle issues of liability as to the carrier-lessee, the lessor, and their respective insurers.”); Ohio Cas. Ins. Co. v. United Southern Assur. Co., 85 Ohio App.3d 529, 533, 620 N.E.2d 163 (Ohio App. 2 Dist.1993) (“Notwithstanding that Wyckoff did not consider the issue of insurance coverage, the trial court concluded that the presumption would likewise apply to disputes between insurance companies. The court explained that ‘logically the ICC Endorsement should create the same result when the dispute is between the insurer of the carrier-lessee and the insurer of the owner of the leased vehicle, namely that the insurer of the carrier-lessee provides coverage and a defense.’ ”).

 

Other courts, by contrast, have “limited Wyckoff to its literal application as between the innocent victim and an interstate carrier-lessee whose I.C.C. number appears on the vehicle.” These courts have reasoned that a narrow reading of Wyckoff-i.e., that Wyckoff’s holding only applies as between the victim and the carrier-lessee-is appropriate “because Wyckoff itself indicates that the statutory employer may seek contribution and/or indemnification from other potentially responsible parties,” and because Wyckoff does not “nullify contracts between parties who are not members of the protected class and who are in a position to determine the relationships among the parties.” See Diamond State Ins. Co. v. Ranger Ins. Co., 47 F.Supp.2d. 579, 590 (E.D.Pa.1999) (citing Gilstorff v. Top Line Express, Inc., 106 F .3d 400, 1997 WL 14378, at(6th Cir. Jan. 14, 1997;) Tolliver v. Braden, 112 Ohio App.3d 86, 677 N.E.2d 1249, 1250 (Ohio App. 1 Dist.1996;) Harco Nat’l Ins. Co. v. America Inter-Fidelity, Inc., 1994 WL 530834, at(Ohio App. 6 Dist. Sept. 30, 1994;) Balez-Pierce v. Price and Boyce, Inc., 86 Ohio App.3d 119, 619 N .E.2d 1194, 1196 (Ohio App. 5 Dist.1993;) Roseberry v. Balboa Ins. Co., 90 Ohio App.3d 33, 627 N.E.2d 1062, 1064-65 (Ohio App. 12 Dist.1993;) Lime City Mut. Ins. Ass’n v. Mullins, 83 Ohio App.3d 517, 615 N.E.2d 305, 308-09 (Ohio App. 6 Dist.1992)).

 

In the absence of an affirmative statement from the Ohio Supreme Court resolving this issue, the Court must predict whether the Ohio Supreme Court would apply Wyckoff in this case to establish that Panther and its insurer, Zurich, have primary responsibility to pay for Runtas’ injuries. See Stanek v. Greco, 323 F.3d 476, 478 (6th Cir.2003) (“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.”). The Court predicts that were the Ohio Supreme Court faced with this issue today, it would not extend the holding of Wyckoff to settle coverage disputes such as the one at bar. First, as Defendants note, the Wyckoff court explicitly left this issue for another day. Insurers were among the parties in Wyckoff, and had the court in that case wanted to apply its holding to allocate responsibility among them, it could have done so. Instead, the court remanded the case for a determination as to the parties’ relative rights to contribution and indemnification. Wyckoff, 58 Ohio St.3d 261, 569 N.E.2d at 1054, n.2. Moreover, as stated in Roseberry, 90 Ohio App.3d 33, 627 N.E.2d at 1064-65, “the presumption of employment was intended to relieve the burden of ‘the innocent victim in identifying the properly responsible party.” It was not meant to relieve wholesale from responsibility the owner of the vehicle or his insurer “who [are] in a better position to determine the relationships among the various parties to the lease and to determine who is potentially liable.” Id. Nor was the purpose of Wyckoff to “broadly sweep aside principles of common law and the parties’ own contracts in resolving questions of coverage concerning multiple insurers.” Diamond State, 47 F.Supp.2d at 590. Carolina Casualty simply is not a member of the protected class with which Wyckoff was concerned. Thus, the Court finds that Wyckoff does not dictate which party in this case is responsible for this accident.

 

B. Which Policy Provides Coverage for the Accident.

 

Having determined that Wyckoff does not dictate the relative responsibilities between the parties in this case, the Court now turns to the question of which insurance policy provides coverage for this accident. As an initial matter, the Court finds that the Carolina Casualty policy is primary. The “Other Insurance” section of the Carolina Casualty policy provides in relevant part: “[f]or any covered ‘auto’ you own, this Coverage Form provides primary insurance.” (Doc. 24, Exhibit G, Policy, at 25). WHE is the insured under the Carolina Casualty policy and owns the Volvo truck that was involved in this accident. (Doc. 23, at ¶ 3; doc. 2, at ¶¶ 8, 11; doc. 25, at ¶¶ 3, 6, 9). Carolina Casualty does not specifically argue that its policy is not primary; rather, Carolina Casualty argues, as explained more thoroughly below, that an exclusion contained within its policy bars coverage. (Doc. 24, brief in support, at 4; doc. 31, at 3). Implicit in Carolina Casualty’s argument is an acknowledgment that the Court must look to its policy first. Thus, the Court finds that the Carolina Casualty policy provides primary insurance coverage for the Volvo truck and will apply to cover the accident in question unless an exclusion to that policy bars coverage.

 

Carolina Casualty argues that the language found in its policy’s Non-Trucking Use Endorsement excludes coverage. The Non-Trucking Use Endorsement provision states in relevant part:

 

This insurance does not apply:

 

(a) While the covered ‘auto’ is used to carry property in any business; or

 

(b) While the covered ‘auto’ is used under the direction, control, dispatch of any person or organization, other than the Named Insured shown in the Declarations, engaged in any business; or

 

(c) While the covered ‘auto’ is used in the business of any person or organization to whom the covered ‘auto’ is rented, leased, or loaned; or

 

(d) While the covered ‘auto’ is under dispatch for any service, repair, or maintenance required to be performed by any business of any person or organization other than the Named Insured shown in the Declarations; or

 

(e) While the covered ‘auto’ is returning from a delivery made in the business of any person or organization; or

 

(f) While the covered ‘auto’ is en route to be used in the business of any person or organization.

 

(Doc. 24, Exhibit G, Policy, at 38). Plaintiff argues that subsections (c) and (f) apply because Eades was using the Volvo truck “in the business of” Panther and/or was en route to use the truck “in the business of” Panther at the time of the accident. (Doc. 24, brief in support, at 4).

 

As both parties note, the Carolina Casualty policy does not define the phrase “in the business of.” Where terms used in insurance contracts are undefined, a court must give the terms “their plain and ordinary meaning.” Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 652 N.E.2d 684, 686 (Ohio 1995) (citing Miller v. Marrocco, 504 N.E.2d 67 (Ohio 1986). Neither party argues that the phrase is ambiguous, and this court has found no authority so suggesting. Several courts have interpreted the phrase “in the business of” to mean “used to further the commercial interests of the lessee.” See e.g., Lime City Mut. Ins. Assn. v. Mullins, 83 Ohio App.3d 517, 615 N.E.2d 305, 308 (Ohio App. 6 Dist.1992). Thus, in order for either subsection (c) or (f) to apply in this case, Eades must have been using the truck “to further the commercial interests of” Panther at the time of the accident.

 

Plaintiff argues that Eades was using the Volvo truck to “further the commercial interests of” Panther at the time of the accident for two reasons. First, Plaintiff claims that by transporting the truck to Panther’s facility in Seville, Ohio, Eades “relocated the truck for Panther.” (Doc. 24, brief in support, at 10). Specifically, Plaintiff claims that Eades “delivered the truck to a location designated by Panther” and “ma[de] the truck available for dispatch, which in turn would allow Panther to fulfill its contractual obligations with its customers by transporting goods.” Id. at 10-11. Plaintiff also appears to claim that Panther asked him to drive the truck. Id. at 10.

 

Second, Plaintiff points to the purported fact that “Eades was en route to a Panther orientation” while driving the Volvo truck. Id. Plaintiff argues that Eades’ journey to the orientation benefitted Panther because “[h]is orientation was a prerequisite to serve Panther” and would have “allowed him to provide services to Panther as a driver.” Id. According to Plaintiff, since Panther “needs trained drivers available to carry out its work … Eades [‘] attendance at orientation does commercially benefit Panther because it adds another driver or potential driver to its fleet to carry out Panther’s business.” (Doc. 31, at 4).

 

As Defendant notes in response to Plaintiff’s first argument, Plaintiff presents no evidence that Panther affirmatively asked Eades to drive the truck or that Panther wanted the truck relocated to the Seville, Ohio location. See doc. 29, at 5. Plaintiff’s claim that Eades was furthering the commercial interests of Panther because Panther specifically wanted Eades to move the truck or to make the truck available for dispatch, therefore, is based on mere speculation. Such speculation does not constitute evidence sufficient to support a motion for summary judgment. See Creiglow v. U.S., 113 F.3d 1234 (Table), 1997 WL 225498 at(6th Cir. May 1, 1997) (stating that a plaintiff must offer “concrete evidence, and not mere assertions, from which a reasonable jury could find in [his] favor” in support of his motion for summary judgment) (internal citations and quotation marks omitted). Thus, the Court finds no merit to Plaintiff’s first argument.

 

As to Plaintiff’s second argument, Defendants make two points in response. First, Defendants take issue with Plaintiff’s assertion that Eades was “en route to orientation” at the time of the accident. Defendants argue that, in fact, Eades was not scheduled to attend orientation until the following morning and that at the time of the accident Eades was on his way to a truck stop where he could park and sleep for the night. (Doc. 29, at 6). Thus, according to Defendants, Eades was not “en route to orientation” at the time of the accident.

 

Second, Defendants appear to argue that whether or not Eades was “en route to orientation” at the time of the accident is of no consequence because Eades’ attendance at orientation does not commercially benefit Panther. See doc. 26, brief in support, at 7-8. Defendants claim that “Panther is indifferent as to whether certain drivers ultimately go on to work for its fleet operators [ ] like WHE” and only requires its drivers to complete a three-day orientation in order “to ensure compliance with federal and state regulations, not to gain any benefit from the prospective drivers. Id. at 7. “For this reason, [argue Defendants], Panther does not pay or reimburse prospective drivers for travel to or accommodations during orientation, including Eades.” Id. Defendants further note that Eades was neither under dispatch for Panther, nor en route to pick up a load for Panther, nor returning home from delivering a load at the time of the accident. In fact, Eades had not even been hired by Panther at the time of the accident. Thus, Eades’ journey to orientation was not “in the business of” Panther.

 

The Court agrees with Defendants that Eades’ journey to orientation in the truck was of too remote a benefit to Panther to be in furtherance of Panther’s commercial interests. As Plaintiff itself notes, Eades “did not need the truck for orientation” and “had other means to travel to the orientation.” (Doc. 24, brief in support, at 10). Eades wanted to use the truck because it allowed him and his girlfriend to avoid incurring lodging expenses. (Doc. 22, Eades Dep., at 39). Moreover, Eades’ attendance at orientation would have benefitted Panther in only a tenuous way. There was no guarantee that Eades even would have completed orientation, and his failure to do so would have prevented him-and in this case did prevent him-from driving trucks leased to Panther in the regular course of Panther’s business. Plaintiff argues that if Eades had in fact completed orientation, it would have commercially benefitted Panther by adding “another driver or potential driver to its fleet to carry out Panther’s business,” see doc. 31, at 4, but Plaintiff has failed to present any evidence that Panther had any particular interest in whether or not Eades completed orientation or that Panther even wanted or needed more drivers on the road. In short, Plaintiff has failed to show how Eades’ use of the truck in this case was sufficiently in furtherance of Panther’s business to place that use within the scope of the Carolina Casualty policy exclusion.

 

The Court also finds it highly significant that both Brumfield, the truck’s owner, and Reymann, a Panther recruiter, told Eades to cover Panther’s placards and D.O.T. numbers prior to operating the truck. The fact that this instruction came from both the truck’s owner and its lessee reflects both WHE’s and Panther’s desire that the Volvo truck not be-or appear to be-a “Panther truck” during Eades’ drive to Seville, Ohio.

 

Thus, whether or not Eades technically was “en route to orientation” at the time of the accident is of no moment; even assuming Eades was “en route to orientation,” his use of the truck still was not in “in the business of” Panther. Accordingly, the Court finds that Plaintiff has failed to establish that Eades’ use of the truck satisfies either subsection (c) or (f) of the Non-Trucking Use Endorsement contained within its policy. Because Plaintiff has not shown that any of the relevant provisions of its policy exclusions apply in this case, the Court finds that Plaintiff is primarily responsible for coverage of the Runtas accident.

 

C. Whether Defendants May Seek Contribution from Plaintiff Under O.R.C. § 2307.34(B).

 

Defendants also argue that even if the Court finds them primarily responsible for coverage for the Runtas accident under Wyckoff, Ohio Revised Code § 2307.34(B) allows them to seek contribution from Plaintiff. (Doc 26, brief in the support, at 13-15; doc. 29, at 10-13).

 

Ohio Revised Code § 2307.34(B) allows the insurer of a carrier-lessee to seek contribution from the insurer of a vehicle owner when the operator of the vehicle was engaged in “nontrucking” activity at the time of the accident. “Nontrucking activity” is defined as any of the following:

 

(a) Any operation of the leased motor vehicle that is not for the benefit of the lessee;

 

(b) Any operation of the leased motor vehicle by anyone other than an operator who previously has been qualified and authorized by the lessee or authorized agents of the lessee to operate the vehicle;

 

(c) Any operation of the leased motor vehicle for the purpose of conducting any personal or business affairs of the vehicle owner or his agents or employees, if the operation results in a diversion of the vehicle, while transporting property for the lessee, from its normal or reasonable route between its point of origin and point of destination and all scheduled pick-up or delivery stops en route thereto;

 

(d) Any operation of the leased vehicle by any person to transport property without the prior knowledge and consent of the lessee.

 

Id. at § 2307.34(A)(2). Thus, contribution is available under the statute if any of the above definitions of nontrucking activity are met.

 

Plaintiff argues that contribution is unavailable to Defendants in this case because Eades’ operation of the truck does not meet any of the definitions of non-trucking activity. (Doc. 24, brief in support, at 8; doc. 27, at 7). First, Plaintiff claims that Eades’ operation of the truck does not meet definition (a) because Eades was driving “for the benefit of” Panther. (Doc. 24, brief in support, at 9-11; doc. 27, at 7-8). Plaintiff’s arguments in support of this claim are nearly identical to those it makes in support of its claim that Eades was using the truck to “further the commercial interests of” Panther within the meaning of its policy exclusion. See doc. 24, brief in support, at 5, 8, 9-11; doc. 27, at 3-4. Second, Plaintiff argues that Eades’ operation of the truck does not meet the definition (b) because Eades was a qualified driver under federal regulations and because Panther had “authorized” and “pre-approved” Eades to drive the truck. (Doc. 24, brief in support, at 11-14; doc. 27, at 8-9). It is undisputed that Eades’ operation of the truck does not meet definitions (c) and (d). See doc. 24, brief in support, at 14; doc. 26, brief in support, at 14.

 

Because the Court does not find that Defendants are responsible for coverage either under Wyckoff or by way of the relevant insurance policies, the question of whether Defendants may seek contribution under O.R.C. § 2307.34(B) is moot. Accordingly, O.R.C. § 2307.34(B) does not alter in any way the relative responsibilities between the parties, and the Court finds that Plaintiff is solely responsible for coverage for the Runtas accident .

 

However, the Court notes that contribution would be available to Defendants in any case because Eades’ operation of the truck in this case meets at least one of the definitions of “non-trucking activity” outlined above. For example, Eades’ operation of the truck meets definition (a) because he was not driving the truck “for the benefit of the lessee.” This is so for similar reasons that Eades was not “furthering the commercial interests” of Panther by driving the truck. The Court sees no reason to read one of these phrases more or less narrowly than the other, and Plaintiff does not appear to dispute that the phrases are more or less congruent to one another. See doc. 24, at 10 (citing Auto-Owners Ins. Co. v. Redland Ins. Co., 549 F.3d 1043, 1047 (6th Cir.2008) for the proposition that the phrase “for the benefit” of should not be read more narrowly than the phrase “in the business of”). Thus, even if O.R.C. § 2307.34 were at issue, Plaintiff’s argument that contribution is unavailable to Defendants would fail.

 

IV. CONCLUSION

 

For the reasons set forth above, the Court DENIES Plaintiff’s motion for summary judgment (doc.24 ), and GRANTS Defendants’ motion for summary judgment (doc.26).

 

IT IS SO ORDERED.