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Cases

Jeter v. Ramos

Court of Appeals of Ohio,

Fifth District, Richland County.

James JETER, as Executor for the Estate of James A. Jeter, II., Plaintiff-

Appellant.

v.

Carlos RAMOS, et al,

and

United States Fidelity and Guaranty Company, Defendant-Appellee.

Decided Oct. 1, 2003.

GWIN, P.J.

{¶ 1} Plaintiff James Jeter, Executor of the Estate of James Jeter, II., appeals a summary judgment in the Court of Common Pleas of Richland County, Ohio, granted in favor of appellee the United States Fidelity and Guaranty Company, on appellant’s claim for underinsured motorist benefits. Appellant assigns four errors to the trial court:

{¶ 2} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO FIND THAT JAMES A. JETER, II, PLAINTIFF-APPELLANT’S DECEDENT, WAS INSURED FOR UNINSURED MOTORISTS COVERAGE PURSUANT TO ENDORSEMENT NUMBER CA2117-1293 WHICH CONTAINS UNINSURED MOTORISTS COVERAGE WITH THE IDENTICAL LANGUAGE AS THE PROVISIONS SET FORTH IN SCOTT-PONTZER VS. LIBERTY MUTUAL FIRE INS. CO. (1999) 86 OHIO ST. 3D 660.

{¶ 3} “THE TRIAL COURT ERRED IN DECIDING THAT UNINSURED MOTORISTS COVERAGE DID NOT ARISE BY OPERATION OF LAW FOR THE JAMES A. JETER, II ESTATE UNDER THE LIABILITY COVERAGE PROVIDED IN THE BUSINESS AUTO COVERAGE FORM ISSUED TO THE KROGER COMPANY BY DEFENDANT-APPELLEE UNITED STATES FIDELITY AND GUARANTY COMPANY.

{¶ 4} “THE TRIAL COURT ERRED IN FINDING THAT THE $500,000 .00 SELF-FUNDED RETENTION PROVISION IN THE POLICY ISSUED FROM DEFENDANT-APPELLEE UNITED STATES FIDELITY AND GUARANTY COMPANY TO THE KROGER COMPANY RESTRICTED UNINSURED MOTORISTS COVERAGE TO AMOUNTS RECOVERABLE OVER $500,000.00.

{¶ 5} THE TRIAL COURT ERRED IN FINDING PLAINTIFF-APPELLANT’S DAMAGES DID NOT EXCEED $500,000.00 WHEN THAT ISSUE WAS NOT BEFORE THE TRIAL COURT ON DEFENDANT- APPELLEE’S MOTION FOR SUMMARY JUDGMENT.”

{¶ 6} Appellant’s statement pursuant to App. R. 9 states summary judgment was inappropriate as a matter of law, and the facts are not in dispute.

{¶ 7} The record indicates James A. Jeter, II., was killed in an automobile collision on June 28, 2000. Decedent’s father, the Administrator of his estate, brought an action against the tortfeasor, decedent’s personal auto insurance carrier, and the appellee herein, United States Fidelity & Guaranty Company, who provided insurance for decedent’s employer, the Kroger Company.

{¶ 8} Appellant settled the claims against the tortfeasor and decedent’s insurance company with prior approval of appellee USF & G. These parties were dismissed from the action, and are not parties to this appeal. Two other plaintiffs were also injured in the collision which killed decedent, but their claims are settled and an appeal is not being pursued.

{¶ 9} Upon cross motions for summary judgment, the trial court found the Kroger Company is self-insured up to $500,000, and complied with Ohio law by filing a certificate of self-insurance pursuant to R.C. 4509.72. The trial court found as a result, no uninsured motorist coverage arises by operation of law for the self-funded retention, and appellant is not entitled to recover for any uninsured motorist coverage unless and until the unsatisfied damages exceed the $500,000 self-funded retention. The trial court further found appellant has come forward with no evidence regarding whether his damages exceed $500,000, and the court concluded appellant does not qualify as an insured pursuant to the USF & G insurance company contract.

{¶ 10} The trial court also found USF & G furnished an excess commercial insurance policy for claims in excess of $500,000 self-insurance. The contract did not provide uninsured or underinsured motorist coverage for Ohio, but the rejection form executed by the Kroger Company is invalid because it was not signed until after the auto accident which killed decedent.

{¶ 11} The trial court then concluded uninsured motorist coverage was implied by operation of law, and looked to the liability coverage to determine who qualifies for insurance when coverage is implied by operation of law. The court found while decedent was an employee of the Kroger Company, the liability portion required him to be in this course of scope of his employment and/or occupying an automobile owned by the Kroger Company or insured by USF & G. The court concluded appellant was not entitled to UM coverage arising by operation of law.

{¶ 12} From this decision appellant brings his appeal.

I

{¶ 13} In his first assignment of error, appellant argues the trial court was incorrect in finding decedent was not insured for uninsured motorist coverage pursuant to the contract. Appellant takes issue with the trial court’s reference to the liability portion of the coverage as a guide for who was an insured under the policy.

{¶ 14} The definition of who is an insured in the liability portion of the insurance contract states “you for any covered auto; anyone else while using it with your permission; a covered auto you own, hire, or borrow, except * * * your employee if the covered auto is owned by that employee or a member of his or her household.

{¶ 15} This court has found the language herein is sufficiently definite to defeat the ambiguity found by the Supreme Court in Scott-Pontzer v. Liberty Mut. Fire Ins., 85 Ohio St.3d 660, 1999-Ohio-292, 710 N.E.2d 1116. See e.g., Egelton v. U.S. Fire Ins. Co. (November 12, 2002), Stark Appellate No.2002- CA-00157.

{¶ 16} Appellant apparently does not disagree with the above. Instead, appellant argues we should not look to the liability portion of the insurance policy in this particular case. Appellant has offered samples of other policies appellee uses, in which appellee has a standard uninsured motorist endorsement. The endorsement language is identical to that set forth in Scott-Pontzer, supra, and appellant urges we should simply utilize the endorsement appellee would have furnished if there was an uninsured motorist endorsement in Kroger’s policy.

{¶ 17} While appellant’s argument has a certain attraction, nevertheless, this court has previously looked to language of the auto liability policy to determine who is an insured when UM/UIM coverage arises by operation of law, see Szekeres v. State Farm Fire & Cas.Co., Licking Appellate No. 02-CA-0004, 2002-Ohio-5989 .

{¶ 18} The first assignment of error is overruled.

II

{¶ 19} In his second assignment of error, appellant argues the trial court was incorrect in finding uninsured motorist coverage did not arise by operation of law under the business auto coverage form liability section.

{¶ 20} Appellant argues even if we do not look to appellee’s standard uninsured motorist endorsement, but rather, look to the business auto policy liability section, appellant is still an insured under the policy.

{¶ 21} In Egelton v. U.S. Fire Insurance Company (November 12, 2002), Stark Appellate No.2002-CA-00157, this court reviewed language identical to the language in the liability portion of appellee’s policy, and found the phrasing therein was sufficiently definite to defeat the ambiguity found by the Supreme Court in Scott-Pontzer.

{¶ 22} The second assignment of error is overruled.

III

{¶ 23} In his third assignment of error, appellant urges the trial court was incorrect in finding the $500,000 self-funded retention provision in the policy restricted uninsured motorist coverage to any amount recoverable over $500,000.

{¶ 24} The record contains a certificate of self-insurance filed pursuant to R.C. 4509.72, which certifies the Kroger Company has been approved by a self-insurer by the financial responsibility section of the Bureau of Motor Vehicles. The certificate states the State approval begins March 28, 2001, and expires March 28, 2006.

{¶ 25} The accident in question occurred January 28, 2000.

{¶ 26} We find we cannot consider the certificate of self-insurance because it was not in effect at the time of the accident.

{¶ 27} Instead, we look to endorsement MCS-90. In the recent case of Lynch v. Rob, 95 Ohio St.3d 441, 2002-Ohio-2485, 768 N.E.2d 1158, the Ohio Supreme Court explained the effect of an MCS-90 endorsement. Under the Motor Carrier Act of 1980, certain commercial motor carriers engaged in interstate commerce must register with the United States Secretary of Transportation and must comply with minimum financial responsibility requirements established by the Secretary of Transportation. The regulations require a specific endorsement form must be included in every insurance policy to satisfy the registration of the financial responsibility requirements. This form is the MCS-90 endorsement. The MCS-90 endorsement requires the insurer to indemnify the insured for any damages, subject to the underlying insurance.

{¶ 28} The language of the MCS-90 endorsement reviewed by the Ohio Supreme Court in Lynch is substantially the same as the one at bar. The Lynch court found the MCS-90 endorsement should be read to eliminate any limiting clauses in the underlying policy restricting the scope of coverage, Lynch, at 446-447, 768 N.E.2d 1158, citations deleted.

{¶ 29} We decline to extend the holding in Lynch to encompass Scott- Pontzer claims. The Lynch case is a liability action wherein the driver of the tractor-trailer was the tortfeasor. The insurer had denied coverage, stating the driver was not covered under the policy, and the Supreme Court found the insurer could not exclude the driver. The Lynch court found the purpose of the MCS-90 clause was to protect the public by assuring the availability of insurance. The court found the U.S. Congress has mandated the trucking industry to take ultimate responsibility for persons injured by a carrier’s trucking operations.

{¶ 30} We find this rationale should not extend to the analysis done in a Scott-Pontzer case. In these cases, the injured party does not make a claim under the liability portion of the policy. Here, decedent was not injured because of his employer’s trucking operations. The necessity of having insurance to protect the public injured by interstate trucking concerns is not present. There is no justification to extend Lynch to these cases.

{¶ 31} The third assignment of error is overruled.

IV

{¶ 32} In his fourth assignment of error, appellant argues the trial court was incorrect when it found appellant’s damages did not exceed $500,000.

{¶ 33} The trial court’s judgment of January 28, 2003, states it is a declaratory judgment, and outlines the rights and duties of the parties. Appellant is correct in asserting it is a function of the jury to determine the amount of damages.

{¶ 34} The trial court found there was no insurance coverage. We agree, and the issue of damages is moot.

{¶ 35} The fourth assignment of error is overruled.

{¶ 36} For the foregoing reasons, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

GWIN, P.J., and FARMER, J., concur.

EDWARDS, J., concurs separately.

EDWARDS, J., Concurring Opinion.

{¶ 37} I concur with the majority as to its disposition of all four assignments of error.

{¶ 38} I disagree with the reliance of the majority on the case of Egelton v. U.S. Fire Insurance Co. (Nov. 12, 2002), Stark App. No.2002-CA-00157 in determining that appellant is not an insured for purposes of UM/UIM coverage which arises by operation of law. The language relied upon by the majority from the Egelton case is dicta. The Egelton case was decided by interpreting the “who is an insured” language from express UM/UIM coverage. The Court in Egelton also does set forth its interpretation of the “who is an insured” language in the liability portion of the insurance policy, but that discussion is unnecessary to the decision.

{¶ 39} Notwithstanding the comments I have made regarding the Egelton case, I would also find that appellant is not an insured under the liability portion of the policy in the case sub judice and, therefore, not an insured under UM/UIM coverage which arises by operation of law. The definition of “who is an insured” under the liability portion of the policy includes “you for any covered auto.” “You” generally applies to the named insured or insureds. The named insureds in the case sub judice are the Kroger Company and any subsidiaries, etc. No individual human beings are included. I would find that it is not ambiguous in the liability portion of the policy to refer to “you” as a corporate entity. Corporate entities can be liable for injuries. In Scott- Pontzer, “you” was found to be ambiguous in the context of express UM/UIM coverage. This was because UM/UIM coverage only covers bodily injury and a corporation cannot sustain bodily injury. Therefore, “you” in the context of the liability portion of this policy is not inherently ambiguous. The “you” refers to corporate-type entities. Since “you” in the liability portion of the policy does not include the appellant, the appellant is not an insured under UM/UIM coverage which arises by operation of law.

{¶ 40} In addition, even if one argues that the “you” from the liability portion of the policy should be brought through to any UM/UIM coverage which arises by operation of law, that argument would fail. Ohio Revised Code Sec. 3937.18 in its previous form only required UM/UIM coverage for bodily injury of persons covered in the liability portion of the policy. The “you”, in the liability portion of the policy in the case sub judice, refers to a corporation not any individual persons. Therefore, the “you” would not be brought through to any UM/UIM coverage arising by operation of law. [FN1]

FN1. This is a different analysis than I have used in the past to determine who would be an insured under UM/UIM coverage which arises by operation of law.

Selvage v. Gainey Transportation Service

Court of Appeal of Louisiana,

Fourth Circuit.

Tirrell L. SELVAGE,

v.

GAINEY TRANSPORTATION SERVICE, INC., Aero Bulk Carrier, Inc., Glenn Anderson,

Individually and United States Fidelity & Guaranty Insurance Company.

Oct. 8, 2003.

EDWIN A. LOMBARD, Judge.

This appeal is from a summary judgment in favor of defendants [FN1], Aero Bulk Carrier, Inc., Glen Anderson, individually, and United States Fidelity & Guaranty Insurance Company, and against plaintiff, Tirrell L. Selvage. We affirm the judgment of the trial court.

Relevant Facts and Procedural History

On March 29, 1999, at approximately 4 p.m., plaintiff/appellant Tyrell Selvage (Selvage) rear-ended a truck leased by defendant/appellee Aero Bulk Carrier, Inc. (Aero Bulk), and driven by defendant/appellee Glenn Anderson (Anderson) as the truck negotiated a turn on U.S. Hwy 90. Selvage filed this lawsuit on May 24, 1999, against defendants Anderson, his employer, Aero Bulk, and Aero Bulk’s insurer, United States Fidelity & Guaranty Insurance Company (U.S.F. & G.), alleging that his injuries were a result of Anderson’s negligence.

After two mistrials were declared, the case was transferred to a different division of Civil District Court on May 24, 2002, and the defendants moved for summary judgment. After the motion hearing on December 13, 2002, the trial court found that the plaintiff raised no issue of material fact as to whether the defendant was contributorily negligent in causing the accident at issue and, accordingly, granted summary judgment in favor of the defendants. The plaintiff challenges this judgment on appeal.

Discussion

On appeal, motions for summary judgment are reviewed de novo. Spicer v. Louisiana Power & Light Co., 97-2406 (La.App. 4th Cir.4/8/98); 712 So.2d 226, 227. Because summary judgment is now favored in Louisiana, the rules regarding such judgments should be liberally applied. Id. Summary judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966C(1). An issue is genuine if reasonable person could disagree. Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 739 So.2d 730, 751. When, as in this case, the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the burden shifts to the nonmoving party to produce factual support sufficient to satisfy his evidentiary burden at trial. La.Code Civ. Proc. art. 966(c)(2). The failure of the non-moving party to meet this shifting burden and produce evidence of a factual dispute mandates the granting of the motion. Davis v. Bd of Sup’rs of La. State. Univ., 97-0382 (La. 4th Cir.3/18/98), 709 So.2d 1030, 1034.

The defendants contend that they are entitled to summary judgment because based upon the undisputed facts of this case [FN2] the plaintiff is unable to produce any evidence to support his claim for negligence. Negligence is determined in Louisiana under the duty-risk analysis. The determination of liability in a negligence case usually requires proof of five different elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to a specific standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. La. Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, reh’g denied, (4/24/98);.

In opposition to summary judgment, the plaintiff argued that all motions for summary judgment were waived because prior to the case being transferred to a different division of civil district court, an order had been issued with a discovery/motion cut-off date of May 31, 2001, that there were substantial material issues involving the comparative fault of the parties, that defendant Aero Bulk was responsible for its negligent hiring of Anderson, and that defendant Aero Bulk was negligent for failing to have a policy for predesignating an alternative route for the transportation of hazardous cargo. On appeal, the plaintiff-appellant contends that summary judgment is inappropriate in this case because there are multiple issues of genuine material fact, the trial judge erroneously made credibility determinations, and the trial judge failed to resolve all reasonable inferences in favor of the non-movant plaintiff.

After de novo review of the record, we find that the following facts are undisputed. On the day of the accident, Anderson was traveling on Highway 90, a four lane highway divided by a median, to the Texaco plant to deliver a cargo of liquefied petroleum gas. After passing through the junction of Louisiana Highway 635 and Highway 90, Anderson saw the plant on his left and realized that he had missed the turn to the plant. Accordingly, Anderson activated his left turn signal and began to slow his vehicle down. He proceeded in this manner in the left lane until he reached a median crossing in the road to make a legal u-turn back to the Texaco plant. Although the weather was clear and the road unobstructed, the plaintiff rear-ended defendants’ vehicle as Anderson was negotiating the turn through the median.

We find that the plaintiff has failed to come forward with any evidence that creates a genuine dispute as to a material fact. First, the plaintiff argues that the credibility of Selvage is at issue because he had been untruthful about a suspension of his driving privileges in his employment application with Aero Bulk. There is, however, no dispute that Anderson was making a legal turn when the plaintiff rear-ended him and therefore Anderson’s credibility is not at issue and there is no basis for a negligent hiring claim.

Next, the plaintiff contends that there is a genuine dispute as to whether defendant’s u-turn at a median on heavily trafficked Highway 90 was an unsafe, dangerous act because in accordance with the Federal Motor Carriers Safety Act, 49 C.F.R. 397.67, defendant Aero Bulk had a duty to pre- designate an alternative route of travel. Plaintiff’s reliance on the federal statute as a basis for this argument is misplaced. Pursuant to subsection (d) of 49 C.F.R. 397.67, the predesignation of an alternative route is required only when the motor carrier is transporting class 1 explosives as defined in 49 C.F.R. 173.50. Liquefied petroleum gas is not an explosive for purposes of the statute and, accordingly, the statute is inapplicable.

Conclusion

After de novo review, we find that the defendants met their burden on motion for summary judgment of showing an absence of factual support for plaintiff’s claim. Because the plaintiff failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, summary judgment is appropriate in this case. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

FN1. Plaintiff initially named Gainey Transportation Service, Inc. (Gainey), the owner of the truck, as defendant, but based upon the plaintiff’s motion, Gainey was dismissed as a defendant by order signed February 23, 2001.

FN2. In support of their motion, the defendants submit the affidavits of two eyewitnesses and deposition testimony of the plaintiff, defendant Anderson, and

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