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Bits & Pieces

Williamsburg Nat’l Ins. Co. v. New York Marine & Gen. Ins. Co.

United States District Court for the Central District of California

August 12, 2022, Decided; August 12, 2022, Filed

CV 21-04377-RSWL-JDEx

Reporter

2022 U.S. Dist. LEXIS 144658 *; 2022 WL 3348935

WILLIAMSBURG NATIONAL INSURANCE COMPANY, Plaintiff, v. NEW YORK MARINE AND GENERAL INSURANCE COMPANY, Defendant.

Core Terms

notice, insured, indemnity, endorsement, subrogation, equitable, alleges, declaratory relief, carrier, claim for contribution, reconsideration motion, amended complaint, default judgment, judicial notice, leave to amend, requests, tractor

Counsel:  [*1] For Williamsburg National Insurance Company, Plaintiff: Ira D Goldberg, Woolls Peer Dolinger and Scher APC, Los Angeles, CA; John E Peer, Woolls Peer Dollinger and Scher, Los Angeles, CA.

For New York Marine and General Insurance Company, Defendant: Christian D Jinkerson, Nicholas H Rasmussen, LEAD ATTORNEYS, James P Wagoner, McCormick Barstow Sheppard Wayte and Carruth LLP, Fresno, CA; Maria E. Valencia Camberos, LEAD ATTORNEY, McCormick Barstow, Fresno, CA.

Judges: HONORABLE RONALD S.W. LEW, Senior United States District Judge.

Opinion by: RONALD S.W. LEW

Opinion


ORDER re: Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint [41]

Plaintiff Williamsburg National Insurance Company (“Plaintiff”) brings this Action against Defendant New York Marine and General Insurance Company (“Defendant”). In its First Amended Complaint, Plaintiff alleges eleven causes of action involving contribution, indemnity, and other various tort claims. Currently before the Court is Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint [41] (the “Motion”). Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS in part and DENIES in part Defendant’s [*2]  Motion.


I. BACKGROUND


A. Factual Background

Plaintiff, a Michigan-based insurance corporation, issued a motor carrier liability policy to DLR Express, Inc. (“DLR”) that provides a $1,000,000 combined single limit for covered accidents. First Am. Compl. (“FAC”) ¶¶ 3, 5, ECF No. 37. Attached to the policy is the MCS-90 endorsement, which is a standardized form that requires an insurer to pay up to its policy limit to members of the public for liability arising from its insured’s operations even where the policy itself provides no coverage. Id. ¶ 5.

Defendant, a New York-based insurance corporation, issued a motor carrier liability policy (“Defendant Policy”) to Intermodal Contractor’s Association of North America. Id. ¶¶ 4, 6. Arthur Trimble, Jr. (“Trimble”) was later added as a certificate holder under this policy. Id. ¶ 6. Defendant Policy similarly provides a $1,000,000 combined single limit and includes the MCS-90 endorsement. Id. ¶¶ 6, 31.

DLR leased a tractor with an attached trailer to Trimble pursuant to an Equipment Lease Agreement and a sub-haul agreement (collectively, the “Agreement”). Id. ¶ 8. Under the Agreement, Trimble agreed to indemnify and release DLR against all liability [*3]  arising out of Trimble’s use of the tractor. Id. ¶ 9. Pursuant to the Agreement, Trimble also added DLR to Defendant Policy as an additional insured with respect to the tractor. Id. ¶ 11. The Policy obligates Defendant to pay all sums Trimble is liable for related to any accident involving the tractor. Id. ¶ 29.

On March 5, 2015, Trimble was driving the tractor pulling a loaded trailer when he rear-ended a truck being driven by Ronald Foster, Jr. Id. ¶ 7. Foster, along with the truck’s passenger and the truck’s owner (collectively, the “Foster plaintiffs”), filed a complaint against Trimble in Los Angeles Superior Court on March 3, 2017, alleging injuries and damages related to the accident. Id. ¶ 12. DLR was later added to the action as a defendant. Id. ¶ 15. Defendant provided a defense for Trimble in the Foster litigation, and all claims against Trimble were settled for $155,000. Id. ¶ 13. Plaintiff alleges that Defendant “was aware, via its retained defense counsel for Trimble, that its additional insured DLR was named as a defendant in the Foster litigation.” Id. ¶ 16. However, neither Plaintiff nor Defendant provided a defense for DLR in the Foster litigation initially, and consequently [*4]  DLR never appeared in the case. Id. ¶¶ 17, 18.

A default judgment of $6,085,702 was entered against DLR. Id. ¶ 18. DLR moved to set aside the default judgment, and subsequently filed an appeal when that motion was denied. Id. DLR then tendered its defense to Plaintiff, and Plaintiff agreed to defend DLR in the Foster litigation under a reservation of rights.1 Id. ¶ 19. A month later, DLR tendered its defense and request for indemnity to Defendant as an additional insured under Defendant Policy. Id. ¶ 21.

The Foster plaintiffs then agreed to settle all claims against DLR for $1,000,000. Id. ¶ 22. Both DLR and Plaintiff demanded that Defendant contribute its remaining policy limit to settle the claim, but Defendant refused. Id. ¶¶ 23-25. Ultimately, Plaintiff paid the entire settlement amount on behalf of DLR. Id. ¶¶ 22, 26. Plaintiff alleges that Defendant had the primary duty to defend and indemnify DLR in the Foster litigation because DLR is an additional insured under Defendant Policy. Id. ¶ 34.


B. Procedural Background

Plaintiff filed its initial Complaint [1] on May 26, 2021, alleging claims for declaratory relief, equitable contribution, and equitable subrogation. Defendant filed [*5]  a Motion to Dismiss (“Initial Motion”) [12] on July 16, 2021, and this Court subsequently entered an Order [18] granting in part and denying in part Defendant’s Motion. Specifically, the Court dismissed Plaintiff’s subrogation claims with leave to amend but denied Defendant’s Motion as to the declaratory relief and contribution claims. See Order re: Mot. to Dismiss (“Order”) 18:2-8, ECF No. 18.

Plaintiff then filed its First Amended Complaint (“FAC”) [37] on March 30, 2022. The FAC includes the previous claims for contribution and declaratory relief, as well as additional claims for equitable and implied indemnity, negligence, and common law and statutory tort of another. Defendant filed the instant Motion to Dismiss (“Second Motion”) [41] on April 28, 2022. On June 21, 2022, Plaintiff filed its Opposition [42]. Defendant replied [43] on June 28, 2022.


II. DISCUSSION


A. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. A complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quotation omitted). Dismissal is warranted [*6]  for a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).

In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). The question is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence to support its claims. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). While a complaint need not contain detailed factual allegations, a plaintiff must provide more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).


B. Analysis

1. Preliminary Matters

a. Local Rule 7-3

Defendant argues that Plaintiff failed to comply with Local Rule 7-3 because Plaintiff never informed Defendant of its objection to Defendant’s reassertion of certain arguments. Reply 25:18-22, ECF No. 43. However, Local Rule 7-3 sets forth the meet and confer obligations of the moving party only. C.D. Cal. L.R. 7-3 (requiring that “counsel contemplating the filing of any motion shall [*7]  first contact opposing counsel” to discuss the motion’s substance) (emphasis added). Therefore, Plaintiff did not violate Local Rule 7-3 in failing to raise its objection during the meet and confer session. The Court accordingly considers the arguments raised in Plaintiff’s Opposition.

b. Defendant’s Requests for Judicial Notice

Pursuant to Federal Rule of Evidence 201, “[a] court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Thus, while a court may take judicial notice of matters of public record, a court may not take judicial notice of the substance of such records if subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (stating that a court may take judicial notice of the fact that certain court records were filed but not of the truth of any facts stated therein).

Defendant requests the Court judicially notice the following records from the Foster litigation: (1) the proof of service of the amended complaint substituting DLR for a Doe defendant; (2) the order granting default judgment against DLR; (3) DLR’s motion to set aside default and default judgment; (4) the order denying DLR’s motion to set aside [*8]  default and default judgment; and (5) the Superior Court’s entry of a $6,085,702 judgment against DLR. See generally Def.’s Req. for Judicial Notice, ECF No. 41-1. Defendant also requests that the Court judicially notice: (6) an excerpt from the Federal Motor Carrier Administration’s (“FMCA”) Regulatory Guidance; and (7) the “About Us” information from the FMCA’s website. Id.

The Court GRANTS Defendant’s first through fifth requests because they pertain to court documents, the existence of which is not subject to reasonable dispute. See Selane Prods. v. Cont’l Cas. Co., No. 2:20-cv-07834-MCS-AFM, 2020 U.S. Dist. LEXIS 233753, 2020 WL 7253378, at *3 (C.D. Cal. Nov. 24, 2020). However, the Court DENIES Defendant’s sixth and seventh requests. While these documents may qualify as judicially noticeable materials, they are not relevant to the resolution of this Motion and therefore need not be considered by this Court. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006).

2. The Motion

Defendant argues that all of Plaintiff’s claims should be dismissed because Defendant had no duty to indemnify and defend DLR. See Mot. to Dismiss FAC (“Second Mot.”) 3:7-14, ECF No. 37. For the following reasons, the Court DENIES Defendant’s Motion as to Plaintiff’s claims for contribution, indemnity, and declaratory relief. The Court [*9]  GRANTS Defendant’s Motion as to Plaintiff’s claims for negligence and both common law and statutory tort of another.

a. Contribution and Indemnity

i. Notice

Defendant’s Motion repeats a central argument that the Court previously rejected — namely, that Defendant cannot be liable for contribution because Defendant lacked sufficient notice of DLR’s potential claims. See generally Second Mot. In its prior Order, the Court rejected Defendant’s argument that Plaintiff failed to state a claim for contribution due to lack of notice. Order 13:19-15:16. The Court found that Plaintiff adequately alleged that Defendant had sufficient inquiry notice of the potential for a contribution claim. Id. Nevertheless, Defendant’s current Motion restates the same notice argument, contending that Defendant did not have constructive notice and thus that Plaintiff cannot state “any claim” against Defendant. See Second Mot. 3:15-4:11.

Although Defendant does not expressly ask the Court to reconsider the conclusions it reached in the prior Order, Defendant’s Motion functions as a motion for reconsideration and should be analyzed as such. See Laub v. Horbaczewski, No. CV 17-6210-JAK (KSX), 2020 U.S. Dist. LEXIS 247102, 2020 WL 7978227 at *4 (C.D. Cal. Nov. 17, 2020) (analyzing a motion to compel and for sanctions as a motion for reconsideration [*10]  where it “essentially request[ed] that the [c]ourt revisit its [prior] ruling”).2

Local Rule 7-18 allows reconsideration “of the decision on any motion,” which includes interlocutory orders such as an order denying a motion to dismiss or granting a motion to dismiss without prejudice. C.D. Cal. L.R. 7-18; see also United States v. Curiel, No. 2:05-cr-00889-RSWL, 2015 U.S. Dist. LEXIS 3346, 2015 WL 143897, at *1 (C.D. Cal. Jan. 12, 2015).

A motion for reconsideration pursuant to Local Rule 7-18 may be made only on the following grounds:

(a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or

(b) the emergence of new material facts or a change of law occurring after the time of such decision, or

(c) a manifest showing of a failure to consider material facts presented to the Court before such decision.

C.D. Cal. L.R. 7-18; see In re Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 966 F. Supp. 2d 1031, 1036 (C.D. Cal. 2013). Additionally, a motion for reconsideration must not “repeat any oral or written argument made in support of or in opposition to the original motion.” C.D. Cal. L.R. 7-18.

Defendant has not demonstrated that the Court’s prior decision was erroneous, nor that any of the limited circumstances for reconsideration apply here. Defendant appears to confuse [*11]  two distinct notice requirements. As the Court explained in its prior Order, the notice required for a contribution claim is distinct from the notice that an insured must give its insurer to trigger the insurer’s duty to indemnify and defend. This is because a coinsurer’s right to contribution is not governed by the terms of either insurance policy. Therefore, “an insured’s lack of tender or compliance with a policy provision is not fatal to a coinsurer’s right of equitable contribution; rather, adequate notice of the potential for contribution and the opportunity for investigation and participation in the defense in the underlying litigation will suffice.” OneBeacon Am. Ins. Co. v. Fireman’s Fund Ins. Co., 175 Cal. App. 4th 183, 95 Cal. Rptr. 3d 808, 822 (Cal. Ct. App. 2009). The Court carefully considered Plaintiff’s allegations regarding Defendant’s notice of DLR’s involvement in the Foster litigation, and it determined that Plaintiff had pled notice sufficient to state a claim for contribution against Defendant. The Court declines to revisit that conclusion here.3

As such, Defendant may not repeat its prior arguments about its lack of notice simply because it is dissatisfied with the Court’s prior conclusions. See Rhodes v. Pfeiffer, No. CV 14-7687, 2017 U.S. Dist. LEXIS 223588, 2017 WL 10519635, at *1 (C.D. Cal. June 30, 2017) (noting that litigants may not use motions for reconsideration to get a “proverbial [*12]  second bite at the apple”) (internal quotation marks and citation omitted); Laub v. Horbaczewski, No. CV 17-6210-JAK (KSX), 2020 U.S. Dist. LEXIS 247102, 2020 WL 7978227 at *4 (C.D. Cal. Nov. 17, 2020) (denying reconsideration where movant failed to show court error or material difference in fact or law).

ii. MCS-90 Endorsement

Because the Court finds that Plaintiff’s contribution and indemnity claims survive Defendant’s Motion based on adequate notice, the Court need not address whether the MCS-90 endorsement attached to Defendant Policy provides an alternative basis for these claims. Nevertheless, the Court briefly notes its previous finding that the public protection purpose of the MCS-90 endorsement has been fulfilled in this case “[b]ecause Trimble, the injured member of the public, has already been compensated for his injuries.” Order 11:8-12. Thus, as with Plaintiff’s prior claims for subrogation, the MCS-90 is irrelevant to Plaintiff’s claims for contribution and indemnity.4

This is not to say that declining to apply the MCS-90 endorsement here in any way precludes Plaintiff’s claims for contribution and indemnity. As the Court has explained, claims for equitable contribution and indemnity do not arise out of a contract between two insurers and thus are not controlled by the language of either [*13]  policy. See Fireman’s Fund Ins. Co. v. Md. Cas. Co., 65 Cal. App. 4th 1279, 77 Cal. Rptr. 2d 296, 313 (Cal. Ct. App. 1998); Travelers, 285 Cal. Rptr. 3d at 308. Plaintiff has pled facts sufficient to plausibly allege that Defendant had notice of DLR’s addition to the Foster litigation. Plaintiff can therefore state claims for contribution and indemnity regardless of the protections afforded by the MCS-90 endorsement.

In sum, the FAC alleges notice sufficient to state claims for contribution and indemnity. The Court therefore DENIES Defendant’s Motion as to Plaintiff’s first through eighth claims for contribution, indemnity, and declaratory relief.

b. Negligence and Tort of Another

Plaintiff’s FAC fails to state claims for negligence and common law and statutory tort of another. To state a claim for either negligence or tort of another, Plaintiff must establish that Defendant owed it a duty of due care. Artiglio v. Corning, Inc., 18 Cal. 4th 604, 614, 76 Cal. Rptr. 2d 479, 957 P.2d 1313 (1998); Zahnleuter v. Lenhart, No. 2:20-CV-02492-KJM-KJN, 2021 U.S. Dist. LEXIS 83529, 2021 WL 1721812, at *4 (E.D. Cal. Apr. 30, 2021) (internal citations omitted). In a dispute between insurers like the one here, a primary insurer owes an excess insurer a duty of good faith identical to that owed to the insured. Diamond Heights Homeowners’ Ass’n v. Nat’l Am. Ins. Co., 227 Cal. App. 3d 563, 579, 277 Cal. Rptr. 906 (1991). As such, the excess carrier may recover in tort against the primary insurer only through equitable subrogation, by subrogating to the rights of the insured.5 Id.; see also Signal Cos., Inc. v. Harbor Ins. Co., 27 Cal. 3d. 359, 365, 165 Cal. Rptr. 799, 612 P.2d 889 (1980) (“[T]he primary carrier, in settling [*14]  an action, owes a duty of good faith to the excess carrier based on the theory of equitable subrogation.”).

As the Court has previously held, Plaintiff cannot state a claim for subrogation because Plaintiff has not alleged facts establishing that DLR itself has an existing, assignable cause of action against Defendant. Indeed, any duty Defendant owed to DLR was extinguished because DLR failed to timely tender its defense to Defendant. See Order 10:5-14. Because Defendant owed no duty to DLR, Defendant likewise owed no duty to Plaintiff. Plaintiff’s claims for negligence and tort of another therefore fail.

The MCS-90 endorsement is no help to Plaintiff’s claims for negligence and tort of another. As explained above, the MCS-90 does not apply in this dispute between insurers. While the MCS-90 endorsement creates a suretyship relationship, the insurer becomes a surety to protect the public only. See Harco Nat. Ins. Co. v. Bobac Trucking Inc., 107 F.3d 733, 736 (9th Cir. 1997). Because the injured members of the public — the Foster plaintiffs — have been compensated in this case, the MCS-90 endorsement does not give rise to a duty on the part of Defendant, and therefore it does not create any rights which Plaintiff may be subrogated to.

Because Defendant owed no duty [*15]  to Plaintiff based either on subrogation or on its suretyship obligations under the MCS-90 endorsement, Plaintiff cannot state claims for negligence or for common law or statutory tort of another. As such, the Court GRANTS Defendant’s Motion as to Plaintiff’s ninth through eleventh claims for negligence and tort of another.

c. Leave to Amend

“The Court should give leave [to amend] freely when justice so requires.” Fed. R. Civ. P. 15(a)(2). While the Ninth Circuit has “stressed Rule 15‘s policy of favoring amendments,” leave need not be granted where amendment would be “an exercise in futility.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

Here, allowing Plaintiff to amend the FAC would be futile because Plaintiff has not indicated the existence of any additional facts that would establish the duty required for negligence or tort of another. The Court previously afforded Plaintiff an opportunity to amend its subrogation claims to allege that Defendant owed a duty to DLR, and Plaintiff declined to do so. Plaintiff has not indicated that it could allege any additional facts to establish such a duty. The Court therefore finds that amendment of these claims would be futile and dismisses Plaintiff’s negligence and tort of another claims without leave to amend. See [*16]  Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (holding that district court did not abuse discretion in denying leave to amend where amendment would be futile).


III. CONCLUSION

Based on the foregoing, the Court GRANTS in part and DENIES in part Defendant’s Motion. The Court DENIES the Motion as to Plaintiff’s first through eighth claims for contribution, indemnity, and declaratory relief. The Court GRANTS the Motion as to Plaintiff’s ninth through eleventh claims for negligence and tort of another without leave to amend.

IT IS SO ORDERED.

DATED: August 12, 2022

/s/ Ronald S.W. Lew

HONORABLE RONALD S.W. LEW

Senior U.S. District Judge


End of Document


The MCS-90 endorsement included in the policy that Plaintiff issued to DLR required Plaintiff to cover DLR’s claim despite DLR’s failure to provide Plaintiff with timely notice of the Foster litigation. Pl.’s Opp’n to Mot. to Dismiss (“Opp’n”) 16:27-17:3, ECF No. 15.

Defendant contends that it may repeat its constructive notice argument because the filing of an amended complaint allows the Court to alter its prior judgment. Reply 22:19-24:4. However, Defendant provides no authority for the proposition that the filing of an amended complaint authorizes a court to revisit previously rejected arguments attacking claims that remain identical in the amended complaint. Cf. Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1043 (9th Cir. 2018) (discussing the standard for evaluating an amended complaint itself rather than the standard for reconsideration of previously rejected arguments in a motion to dismiss). Even if the standard for reconsideration were somehow lower in this procedural context, the Court declines to alter its previous rulings for the reasons stated below.

Defendant provides no authority holding that the notice standard for indemnity is different from that for contribution, and the Court could find none. A claim for indemnity lies where “one party pays a debt for which another is primarily liable and which in equity and good conscience should have been paid by the latter party.” Travelers Indem. Co. of Conn. v. Navigators Specialty Ins. Co., 70 Cal. App. 5th 341, 285 Cal. Rptr. 3d 289, 308 (Cal. Ct. App. 2021). Like contribution, equitable and implied indemnity are “premised on a joint legal obligation to another” and are not governed by the language of the insurers’ respective policies. Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 90 Cal. Rptr. 3d 732, 202 P.3d 1115, 1120 (2009). Thus, Plaintiff’s indemnity claims similarly survive Defendant’s arguments concerning lack of notice.

This holding is consistent with the majority view that the MCS-90 endorsement applies only “when necessary to protect injured members of the public” and does not control the allocation of loss among insurers. Canal Ins. Co. v. Distrib. Servs., Inc., 320 F.3d 488, 492-93 (9th Cir. 2003) (collecting cases); see also John Deere Ins. Co. v. Nueva, 229 F.3d 853, 858 (9th Cir. 2000).

Plaintiff argues that duty is established because California Civil Code section 1714 imposes liability on any person for “an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” However, this general provision cannot be relied upon to establish the legal duty of a defendant in a particular case. Lundy v. California Realty, 170 Cal. App. 3d 813, 216 Cal. Rptr. 575, 577-78 (Cal. Ct. App. 1985). Rather, the duty owed by Defendant in this particular insurance context has been defined through the case law cited above.

Pierson v. White Pine Ins. Co.

Court of Appeals of Ohio, Fourth Appellate District, Highland County

July 28, 2022, Date of Journalization

Case No. 21CA3

Reporter

2022-Ohio-2702 *; 2022 Ohio App. LEXIS 2564 **; 2022 WL 3132564

RICHARD E. PIERSON, et al., Plaintiffs-Appellees, v. WHITE PINE INSURANCE COMPANY, et al., Defendants-Appellants.

Prior History:  [**1] CIVIL CASE FROM COMMON PLEAS COURT.

Disposition: JUDGMENT REVERSED AND CAUSE REMANDED CONSISTENT WITH THIS OPINION.

Core Terms

towing, trailer, coverage, haul, semi-truck, ambiguous, endorsement, insurance policy, transporting, insured, truck, symbol, summary judgment, courts, trial court, Declarations, indemnify, illusory, provide coverage, liability coverage, asserts, plural, time of an accident, sub judice, passengers, precludes, combined, inception, includes, punitive damages

Case Summary

Overview

HOLDINGS: [1]-The trial court incorrectly entered summary judgment in appellees’ favor regarding appellant’s duty to defend and indemnify appellees for any claims and damages, except punitive damages, arising out of the accident, because the entirety of the policy, and the context of the towing and transporting of autos exclusion, showed that this exclusion was plain and unambiguous. Even if one could argue that the 2006 trailer caused or contributed to the accident, the towing exclusion meant that appellant was exempt from liability.

Outcome

Judgment reversed and cause remanded.

LexisNexis® Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule

Insurance Law > Liability & Performance Standards > Good Faith & Fair Dealing > Duty to Defend

Insurance Law > … > Business Insurance > Commercial General Liability Insurance > Duty to Defend

HN1  Appellate Jurisdiction, Final Judgment Rule

A trial court decision that declares that an insurer has a duty to defend constitutes a final, appealable order.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De Novo Review

HN2  Entitlement as Matter of Law, Appropriateness

Appellate courts conduct a de novo review of trial court summary judgment decisions. Accordingly, an appellate court need not defer to the trial court’s decision, but instead must independently review the record to determine if summary judgment is appropriate.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts

HN3  Entitlement as Matter of Law, Appropriateness

Pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party.

Civil Procedure > Appeals > Standards of Review > De Novo Review

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Judicial Review

Contracts Law > Contract Interpretation > Intent

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Question of Law

HN4  Standards of Review, De Novo Review

The interpretation of an insurance contract is also a question of law that appellate courts must independently review without deference to a trial court’s decision. The fundamental goal when interpreting an insurance policy is to ascertain the intent of the parties from a reading of the policy in its entirety. Courts must presume that the language used in the contract reflects the parties’ intent.

Contracts Law > Contract Interpretation > Intent

HN5  Contract Interpretation, Intent

Courts must first review the plain and ordinary meaning of the language used in a contract unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument. If the language is clear and unambiguous, a court may look no further than the writing itself to find the intent of the parties. A contract is unambiguous if it can be given a definite legal meaning.

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Entire Contract

HN6  Policy Interpretation, Entire Contract

Generally, a contract is ambiguous if it is reasonably susceptible of more than one interpretation. To determine whether a contract is ambiguous, courts must consider the contract as a whole, and not simply detached or isolated parts thereof. Thus, in order to determine whether an insurance policy provision is ambiguous, a court must consider the context in which the provision is used. In other words, courts must look at the provision in the overall context of the policy in determining whether the provision is ambiguous. Only when a definitive meaning proves elusive should rules for construing ambiguous language be employed.

Civil Procedure > Appeals > Standards of Review > De Novo Review

Insurance Law > … > Policy Interpretation > Ambiguous Terms > Construction Against Insurers

Insurance Law > … > Policy Interpretation > Ambiguous Terms > Coverage Favored

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Judicial Review

HN7  Standards of Review, De Novo Review

When provisions of an insurance policy are deemed to be ambiguous, they will be construed strictly against the insurer and liberally in favor of the insured. Courts will not, however, apply this rule so as to provide an unreasonable interpretation of the words of the policy. Only where a contract of insurance is ambiguous and therefore susceptible to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks coverage. Courts may not invoke the general rule of liberal construction to create an ambiguity where there is none. The initial determination of whether an ambiguity exists presents an abstract legal question, which the appellate court reviews on a de novo basis. If the appellate court determines that an ambiguity exists, it affords the trial court discretion to clarify the ambiguity.

Insurance Law > Claim, Contract & Practice Issues > Claims Made Policies > Exclusions

HN8  Claims Made Policies, Exclusions

An insurance exclusion does not become ambiguous simply because it cross-references other forms or endorsements that comprise the policy.

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Exclusions

Transportation Law > Private Vehicles > Towing

HN9  Policy Interpretation, Exclusions

A towing-trailer exclusion is valid, and the insurer is, therefore, not liable where the policy contains an exclusion from coverage for liability while the automobile is used for towing or propelling trailers or other vehicles used as trailers, and such a trailer was attached to the insured’s car at the time of the accident. So, a provision in a policy insuring a truck that it should not be used for towing a trailer and expressly stipulating that the policy did not cover the truck while being so used precludes recovery for injuries caused by being struck by the insured truck while towing a trailer. There is general recognition that the exclusion’s validity stems from the fact that there is an increased risk created by the use of the vehicle in towing operation.

Governments > Legislation > Interpretation

HN10  Legislation, Interpretation

As in cases of statutory construction, courts that construe contracts should read the singular and plural forms of words interchangeably so long as such a construction is consistent with the evident purposes of the contract.

Contracts Law > Contract Interpretation > Intent

HN11  Contract Interpretation, Intent

The rule of construction is that singular number includes plural number in the interpretation of contracts, and a contrary construction is only necessary when the plain intent of the contract shows the contrary construction necessary to give effect to the intention of the contracting parties.

Insurance Law > Claim, Contract & Practice Issues > Policy Interpretation > Exclusions

HN12  Policy Interpretation, Exclusions

Under a trailer exclusion in an automobile policy, the insurer is exempt from liability whether or not the attached trailer actually caused or contributed to the accident.

Contracts Law > Contract Interpretation

HN13  Contracts Law, Contract Interpretation

In the insurance policy context, if any inconsistency appears between the terms of the original insurance policy and an endorsement to that policy, the endorsement terms control. Indeed, courts have recognized that endorsements by their very nature are designed to trump general policy provisions. Consequently, when a conflict exists between provisions in the main policy and the endorsement, the endorsement prevails.

Business & Corporate Compliance > … > Contracts Law > Standards of Performance > Illusory Promises

HN14  Standards of Performance, Illusory Promises

In general, an insurance contract is not illusory unless it fails to confer some benefit to the insured.

Counsel: Brian T. Winchester and Chad A. Schmitt, Cleveland, Ohio, for Appellant.

Daniel J. Hurley and Mark Brookes, Columbus, Ohio, for Appellees.

Michael R. Henry, Columbus, Ohio, for Third-Party Defendant-Appellee.

Judges: Peter B. Abele, Judge. Hess, J. & Wilkin, J.: Concur in Judgment & Opinion.

Opinion by: Peter B. Abele

Opinion

ABELE, J.

 [*P1]  This is an appeal from a Highland County Common Pleas Court summary judgment in favor of (1) Richard E. Pierson and Hillsboro Scrap & Metal, Inc., plaintiffs below and appellees herein,1 and (2) United Financial Casualty Company, third-party defendant below and appellee herein.

 [*P2]  White Pine Insurance Company, defendant below and appellant herein, assigns the following error for review:

“THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS-APPELLEES.”

 [*P3]  This case arises out of a fatal March 2019 automobile accident. At the time of the accident, Pierson, while in the course and scope of employment with Hillsboro Scrap & Metal, Inc. (HSM), was driving a 1999 Freightliner semi-truck with an attached 2006 Transcraft trailer. The trailer carried a load of inoperable vehicles. [**2]  Pierson’s truck collided with a vehicle driven by Allen K. Ursell, along with passengers Shaun Rooker and Alesha Bennett. Sadly, the accident resulted in Ursell’s death and injuries to the passengers.

 [*P4]  Appellant issued a commercial automobile insurance policy to HSM. After HSM notified appellant of the accident, appellant would not provide coverage for any claim that arose out of the accident, and further informed HSM that appellant “will likely not have a duty to defend or indemnify.”

 [*P5]  Appellees, HSM and Pierson, filed a complaint and asked the trial court to declare that appellant’s policy (1) provides primary liability coverage for the accident, and (2) appellant has a duty to defend and indemnify appellees for any claims arising out of the accident. The passengers, Rooker and Bennett, also filed counterclaims for negligence, negligence per se, vicarious liability, negligent hiring and supervising, and punitive damages. Ursell’s estate filed counterclaims against appellees for negligence, wrongful death, vicarious liability, negligent hiring and retaining, and punitive damages.

 [*P6]  Appellant filed an answer, along with a combined cross-claim, a counterclaim, and a third-party complaint [**3]  for declaratory judgment. Appellant alleged that UFCC issued an insurance policy to appellees that provides coverage for any loss arising out of the accident and requested the trial court to enter a declaratory judgment that (1) appellant’s policy explicitly excludes coverage for any losses arising out of the subject accident, (2) appellant does not have a duty to defend or indemnify appellees, and (3) to the extent that appellant’s policy provides coverage, UFCC’s policy “is primary and the policies do not stack limits.”

 [*P7]  Subsequently, appellant requested summary judgment regarding its declaratory judgment request. Appellees and UFCC also filed motions for summary judgment.

 [*P8]  In its summary judgment motion, appellant asked the court for judgment in its favor regarding all claims set forth in appellees’ complaint and in appellant’s cross-claim, counterclaim, and third-party complaint. Appellant argued that its insurance policy explicitly excludes coverage for appellees’ claims and, to support its argument, appellant referred to the policy’s exclusion for the towing and transporting of autos. That language provides that coverage is excluded for “bodily injury” or “property damage” arising [**4]  out of the use of any “auto that is not identified in ITEM SEVEN in the Auto Dealer Declarations used to move, tow, haul or carry ‘autos.'” Appellant asserted that the policy defines “auto” as “a land motor vehicle, ‘trailer’ or semitrailer” and that a “‘[t]railer’ includes [a] semitrailer.” Appellant claimed that, at the time of the accident, Pierson was driving a semi-truck, an “auto,” and that Pierson used the semi-truck to move, tow, haul, or carry the attached trailer, also an “auto.” Appellant further asserted that the trailer attached to the semi-truck was moving, towing, hauling, or carrying “autos” because the crushed pile of vehicles fell within the policy’s definition of “auto,” i.e., land motor vehicle.

 [*P9]  Appellant further argued that neither the semi-truck, nor the attached trailer, is listed in Item Seven in the Auto Dealer Declarations. Item Seven states:

Schedule of Covered Autos Which Are Furnished To Someone Other Than A Class I or Class II Operator or Which Are Insured On A Specified Car Basis

See Schedule of Covered Autos

Appellant points out that the schedule of covered autos “names only one vehicle,” a “1999 International Rollback,” and the named vehicle is not the [**5]  vehicle Pierson was driving at the time of the accident.

 [*P10]  Thus, appellant claimed that the towing and transporting of autos exclusion precludes coverage for the accident and, consequently, it has no duty to defend or indemnify appellees for losses arising out of the accident. Appellant further argued that its policy contains a blanket exclusion for punitive damages. Thus, appellant requested summary judgment regarding all claims and a declaration that it has no duty to provide coverage for the accident or to defend and indemnify appellees.

 [*P11]  Appellees filed a combined summary judgment motion in opposition to appellant’s motion and argued that the exclusion for the towing and transportation of autos “is irrelevant and inapplicable” because Pierson did not haul “autos” at the time of the accident. Instead, appellees claimed that Pierson carried “scrap metal and crushed vehicles.” Appellees also contended that (1) appellant incorrectly interpreted the towing exclusion because appellant’s interpretation would render coverage illusory, and (2) the policy is internally inconsistent and this inconsistency creates “some ambiguity.”

 [*P12]  Appellees also disputed appellant’s argument that the trailer [**6]  attached to the semi-truck establishes that the semi-truck was moving, towing, or hauling an “auto.” Appellees contended that a semi-truck with an attached trailer constitutes a single unit and, hence, a single “auto.” Appellees claimed that because courts have uniformly held that a tractor-trailer combination is viewed as one vehicle for insurance purposes, they disagreed with appellant’s interpretation of the towing exclusion to mean that the semi-truck, an “auto,” was towing the 2006 trailer, also an “auto.” Appellees further argued:

[I]t is common sense that a semi-tractor does not move, haul, tow or carry anything (i.e. cargo), unless it has an attached trailer. Rather, the combination tractor/trailer is what does the moving, hauling, towing. * * * * Simply put, what is being moved, towed, hauled and/or carried is the load, goods, or cargo that is on or in the trailer attached to the semi.

Appellees also noted that, because the towing and transporting of autos exclusion uses the plural word “autos,” the use of the plural word shows appellant’s intent to exclude coverage for vehicles used to tow more than one “auto.” Appellees thus alleged that the towing exclusion should not preclude [**7]  coverage when one “auto,” such as a semi-truck, is used to tow a single “auto,” such as a trailer. Appellees further opined that appellant’s interpretation of the towing and transporting of autos exclusion would render coverage under the policy illusory. If the trailer “constitutes an ‘auto’ being moved, towed, hauled or carried, then, appellee reasons, there would never be any coverage whenever any semi-truck (other than the 1999 International Rollback semi) owned by Hillsboro * * *is used with an attached trailer to haul any kind of cargo.” Appellees thus claimed that “[appellant’s] interpretation would eliminate all commercial auto liability coverage except when the 1999 International Rollback semi-truck is used.”

 [*P13]  Consequently, appellees requested the trial court determine that appellant is obligated to defend and indemnify appellees for any claims, and to declare that “[appellant’s] policy provides primary liability coverage in the amount of one million dollars for the subject accident.”

 [*P14]  In its summary judgment motion, UFCC also asserted that appellant’s policy provides coverage to appellees for the accident and disputed appellant’s argument that the towing and transporting of [**8]  autos exclusion precludes coverage. UFCC claimed the 2006 trailer does not constitute an “auto” because courts across the country have indicated “that a truck-tractor and a trailer become one vehicle when they are connected.”

 [*P15]  UFCC further contended that appellant’s interpretation of the towing exclusion contradicted the owned autos coverage for symbol 22 autos. Symbol 22 covers owned autos, as well as “any ‘trailers’ you don’t own while attached to power units you own.'” UFCC thus asserted that the symbol 22 definition treats an owned semi-truck with a non-owned trailer attached to it as a combined unit for covered auto purposes. UFCC alleged that to read the towing exclusion to mean that coverage is excluded when an owned auto, such as a semi-trailer, is used to tow another owned auto, such as a trailer, would contradict the symbol 22 definition and renders the policy ambiguous.

 [*P16]  UFCC also argued that the 2006 Transcraft trailer was not hauling “autos,” or that the objects the semi-truck-trailer combination carried are not “autos.” UFCC maintained that those objects are not “land motor vehicles” because they are no longer capable of operation on land as motor vehicles.

 [*P17]  After consideration, [**9]  the trial court granted appellant summary judgment regarding the punitive damages claims, but denied appellant’s request for summary judgment regarding its duty to defend and indemnify appellees for all other claims and damages arising out of the accident. The court thus entered summary judgment in appellees’ and UFCC’s favor regarding appellant’s duty to defend and indemnify appellees for all claims and damages, except punitive damages.

 [*P18]  In reaching its decision, the trial court found that appellant’s policy “is very convoluted, confusing and written in a way that is not easily understood without rigorous reading and rereading of the policy.” The court also determined that the Schedule of Covered Autos form creates an ambiguity as to which autos are covered. The court noted that the first sentence on the schedule states that “[t]his endorsement changes the policy effective on the date of inception unless another date is indicated below.” The next sentence reads: “(The following needs to be completed only when this endorsement is issued subsequent to inception of the policy.)”. The court observed that because both the policy and the endorsement contain the same date(April 5, 2018), [**10]  the two introductory sentences “contradict each other.” The court explained:

[T]he intent of the first sentence appears to list autos added at the inception date, yet sentence two advises the person inserting the information that it is only to be completed if the endorsement is issued subsequent to the inception of the policy. If as [appellant] argues, this endorsement was intended to limit the coverage to the 1999 Freightliner Rollback, the Court finds it to be contradictory and confusing which creates an ambiguity in the policy that must be construed against [appellant].

Consequently, the trial court determined that appellant’s policy provides liability coverage and the towing exclusion did not apply so as to preclude coverage. The court agreed that the trailer is an “auto,” and that the declarations page indicated that symbol 22 autos, owned autos, are covered under the policy. The court stated that “the policy does cover any autos owned by [appellees] at the time of the collision including the 2006 Tradecraft [sic] trailer and therefore the Item Seven exclusion does not apply.” The trial court also did not agree with appellant that the scrap metal loaded onto the trailer fell within [**11]  the policy’s definition of “autos.” The court thus concluded that:

the 1999 Freightliner and the 2006 Autocraft [sic] trailer that were owned by [appellees] at the time of the collision were both covered autos under Symbol 22 on the Auto Dealers Coverage Form (CA 00 25 10 13) of the insurance policy, and the metal on the trailer did not consist of autos that would exclude coverage under “Item Seven” of the “Auto Dealer-Liability, Garagekeepers and Physical Damage Coverage Changes.”

Accordingly, the trial court declared that appellant “is obligated * * * to defend and to indemnify [appellees] for all claims and damages excluding punitive damages that may be awarded to [the injured parties].” This appeal followed.

1.

 [*P19]  In its sole assignment of error, appellant asserts that the trial court incorrectly entered summary judgment in appellees’ and UFCC’s favor. Appellant contends the court wrongly construed its policy to require appellant to defend and indemnify appellees for any damages they are obligated to pay as a result of the accident2 because the towing and transporting of autos exclusion unambiguously precludes coverage for the accident.

 [*P20]  HN2 Initially, we emphasize that appellate courts [**12]  conduct a de novo review of trial court summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d 425, 2019-Ohio- 1329, 128 N.E.3d 209, ¶ 8; Pelletier v. City of Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996- Ohio 336, 671 N.E.2d 241 (1996). Accordingly, an appellate court need not defer to the trial court’s decision, but instead must independently review the record to determine if summary judgment is appropriate. Grafton, 77 Ohio St.3d at 105, 671 N.E.2d 241, 1996-Ohio-336.

Civ.R. 56(C) provides in relevant part:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.

 [*P21]  HN3 Therefore, pursuant to Civ.R. 56, a trial court may not award summary judgment unless [**13]  the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty. Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172 N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

 [*P22]  HN4 Similarly, the interpretation of an insurance contract is also a question of law that appellate courts must independently review without deference to a trial court’s decision. City of Sharonville v. Am. Emplrs. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6. “The fundamental goal when interpreting an insurance policy is to ascertain the intent of the parties from a reading of the policy in its entirety.” Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8. Courts must presume that the language used in the contract reflects the parties’ intent. Smith v. Erie Ins. Co., 148 Ohio St.3d 192, 2016-Ohio-7742, 69 N.E.3d 711, ¶ 18; Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11.

 [*P23]  HN5 Thus, courts must first review the plain and ordinary meaning of the language used in a contract “unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument.” Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph two of the syllabus; accord Galatis at ¶ 11. If the language is clear and unambiguous, “a court may look no further than the writing itself to find the intent of the parties.” Galatis at ¶ 11 (citation [**14]  omitted). “[A] contract is unambiguous if it can be given a definite legal meaning.” Id. (citation omitted).

 [*P24]  HN6 Generally, a contract is ambiguous if it is reasonably susceptible of more than one interpretation. Laboy at ¶ 9. To determine whether a contract is ambiguous, courts must consider the contract “‘as a whole,'” and not simply “‘detached or isolated parts thereof.'” Sauer v. Crews, 140 Ohio St.3d 314, 2014-Ohio-3655, 18 N.E.3d 410, ¶ 13, quoting Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 172, 436 N.E.2d 1347 (1982). Thus, in order to determine whether an insurance policy provision is ambiguous, a court “must consider the context in which the provision is used.” Id. at ¶ 14. In other words, courts “must look at the provision in the overall context of the policy in determining whether the provision is ambiguous.” Id. at ¶ 25. “Only when a definitive meaning proves elusive should rules for construing ambiguous language be employed.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 11, citing Galatis at ¶ 11.

 [*P25]  HN7 When provisions of an insurance policy are deemed to be ambiguous, “they will be construed strictly against the insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus; see also Sauer at ¶ 11. Courts will not, however, apply this rule “‘so as to provide an unreasonable interpretation of the words of the policy.'” Galatis at ¶ 14, 797 N.E.2d 1256, quoting Morfoot v. Stake, 174 Ohio St. 506, 190 N.E.2d 573 (1963), paragraph one of the syllabus. “[O]nly where a contract of insurance is ambiguous and therefore susceptible [**15]  to more than one meaning must the policy language be liberally construed in favor of the claimant who seeks coverage.” Burris v. Grange Mut. Cos., 46 Ohio St. 3d 84, 89, 545 N.E.2d 83, 88, 1989 WL 122497 (1989), overruled on other grounds by Savoie v. Grange Mut. Ins. Co., 67 Ohio St.3d 500, 1993- Ohio 134, 620 N.E.2d 809 (1993) (citations omitted). Courts may not invoke “the general rule of liberal construction * * * to create an ambiguity where there is none.” Id.

 [*P26]  “[T]he initial determination of whether an ambiguity exists presents an abstract legal question, which we [the appellate court] review on a de novo basis.” Pierron v. Pierron, 4th Dist. Scioto No. 07CA3153, 2008-Ohio-1286, ¶ 8, citing Stewart v. Stewart, 4th Dist. Ross No. 92CA1885, 1992 Ohio App. LEXIS 6529, 1992 WL 388546, *2 (Dec. 22, 1992). “If we determine that an ambiguity exists, we afford the trial court discretion to clarify the ambiguity.” Cisco v. Cisco, 4th Dist. Gallia No. 08CA8, 2009-Ohio-884,¶ 13, citing Pierron at ¶ 8.

 [*P27]  In the case sub judice, as we explain below, we do not agree with the trial court’s determination that appellant’s insurance policy is ambiguous. Instead, we believe a plain reading of the entire policy shows that appellant’s policy does not provide coverage to the appellees for the subject accident.

APPELLANT’S INSURANCE POLICY

 [*P28]  The Auto Dealers Coverage Form (CA 00 25 10 13) states that “[v]arious provisions in this policy restrict coverage” and advises the insured to “[r]ead the entire policy carefully to determine rights, duties and what is and is not covered.”

 [*P29]  Section I.D. contains the “Covered Autos Liability Coverage” [**16]  provision and states:

We will pay all sums an ‘insured” legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of the covered ‘autos’.

Section I.A indicates that “Item Two of the Declarations shows the ‘autos’ that are covered ‘autos’ for each of [the insured’s] coverages.” Item Two of the Declarations states that “covered autos liability” coverage extends to autos bearing the numerical designations “22, 27, 29, 32.”

 [*P30]  As relevant in the case at bar, the policy defines autos denominated with symbol 22 as “[o]nly those ‘autos you own (and for Covered Autos Liability Coverage any ‘trailers’ you don’t own while attached to power units you own). This includes those ‘autos’ you acquire ownership of after the policy begins.” The policy defines autos denominated as symbol 27 as “[o]nly those ‘autos’ described in Item Seven of the Declarations for which a premium charge is shown (and for Covered Autos Liability Coverage any ‘trailer’ you don’t own while attached to a power unit described in Item Seven).” Section V.D. defines “auto” to mean “a land motor vehicle, ‘trailer’ [**17]  or semitrailer.” Section V.X. states that “[t]railer includes semitrailer.”

 [*P31]  A plain reading of the above coverage provisions shows that the semi-trailer and the attached trailer are “covered autos” for purposes of “covered autos liability coverage.” The next question, however, is whether an exclusion applies. Although appellant asserts that the policy’s towing and transporting of autos exclusion precludes coverage for the accident, appellees and UFCC claim that (1) the towing and transporting of autos exclusion does not apply, (2) appellant’s policy is inconsistent and ambiguous, and (3) to accept appellant’s interpretation of the policy would create absurdity and render coverage illusory.

TOWING AND TRANSPORTING OF AUTOS EXCLUSION

 [*P32]  Appellant asserts that the policy’s exclusion unambiguously precludes coverage when an auto, not specifically identified in Item Seven of the Declarations, is used to tow, move, haul, or carry autos. Appellant suggests that Item Seven refers to the Schedule of Covered Autos and lists one vehicle, a 1999 Freightliner Rollback truck. Appellant thus asserts that the towing exclusion precludes coverage when any vehicle other than the 1999 Freightliner Rollback [**18]  is used to tow, move, haul, or carry other autos.

 [*P33]  Appellant points out that, at the time of the accident, Pierson used an auto not identified in Item Seven (i.e., not listed on the Schedule of Covered Autos) to tow, move, haul, or carry autos. Appellant thus contends that, because the semi-truck (an “auto”) was towing, moving, hauling, or carrying another “auto” (the 2006 Transcraft trailer), the towing exclusion unambiguously precludes coverage for the accident because the accident arose out of the use of an auto not identified in Item Seven used to tow, move, haul, or carry other autos.

 [*P34]  Appellees, on the other hand, contend that “for [the] exclusion to apply, the insured must be using (1) an ‘auto’ not identified in Item 7 in the Auto Dealer Declarations (i.e. the 1999 International Rollback), (2) to move, tow, haul or carry ‘autos.'” Although appellees agree that Pierson did not use the 1999 International Rollback on the date of the accident, they do not agree that Pierson was moving, towing, hauling, or carrying “autos.” Instead, appellees submit that Pierson “was hauling scrap metal and crushed vehicles at the time of the collision.” Thus, appellees reason, because Pierson did [**19]  not haul “autos” at the time of the collision, the towing and transporting of autos exclusion does not apply.

 [*P35]  Appellees also disagree with appellant that the semi-truck towed an “auto,” the 2006 Transcraft trailer. Appellees instead contend that “courts throughout the country have recognized that a connected tractor-trailer are regarded as the equivalent of an inseparable unit,” and the towing exclusion uses the plural word “autos” to indicate that the towing vehicle must be towing more than one “auto” and appellees thus contend that, even if the semi-truck had been towing the trailer, it was only towing one “auto” and the towing exclusion should not apply when only one “auto” (such as a trailer) is being towed.

 [*P36]  UFCC likewise asserts that the towing exclusion should not apply. Although neither the semi-truck nor the trailer involved in the accident is listed in Item Seven, UFCC argues that neither vehicle “was being used to move, tow, haul, or carry ‘autos'” at the time of the accident. Like appellees, UFCC claims that courts have determined that “a truck-tractor and a trailer become one vehicle when they are connected.” UFCC thus contends that the semi-truck did not tow the trailer, [**20]  but rather, the semi-truck-trailer combinations is one inseparable unit. UFCC further disputes appellant’s argument that the trailer hauled “autos” at the time of the accident because crushed vehicles are not “autos.”

SCOPE OF EXCLUSION

 [*P37]  The “towing and transporting of autos” exclusion appears in an endorsement to the insurance policy. The top of the endorsement reads, “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” The endorsement then indicates it “modifies insurance provided under the * * * AUTO DEALERS COVERAGE FORM.” Section H. states that “[t]he following exclusions are added to” Section I.D.4. of the covered autos coverages and to Section II of the exclusions listed under the “General Liability Coverages.”

 [*P38]  The endorsement states that “[t]his insurance does not apply to any of the following:”

Towing and Transporting of Autos

“Bodily injury” or “property damage” arising out of the ownership, operations, maintenance or use of any “auto” that is not identified in ITEM SEVEN in the Auto Dealer Declarations used to move, tow, haul or carry “autos.”

ITEM SEVEN provides:

Schedule Of Covered Autos Which Are Furnished To Someone Other Than A Class I or Class II Operator Or [**21]  Which Are Insured On A Specified Car Basis

See Schedule of Covered Autos

The “Schedule of Covered Autos” begins with an explanation that reads:

This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below:

(The following needs to be completed only when this endorsement is issued subsequent to inception of the policy.)

The Schedule indicates that it is effective April 5, 2018 and lists one vehicle, a “1999 International Rollback.”

 [*P39]  After our review, we believe that the plain language of the policy, and the context of the towing and transporting of autos exclusion, shows that the exclusion precludes coverage if an auto, other than an auto listed in Item Seven (which, in turn, references the Schedule of Covered Autos), is used to tow, move, haul, or carry other autos. While we generally agree with the trial court’s view of the complexity and difficulty in deciphering insurance contract language, in the case sub judice we find no ambiguity concerning this exclusion. Instead, this provision plainly references other parts of the policy (Item Seven and the Schedule of Covered Autos) to further define the exclusion. HN8[] It is important to recognize [**22]  that an insurance exclusion does not become ambiguous simply because it cross-references other forms or endorsements that comprise the policy. See generally 2 Couch on Ins. Section 18:19 (3d Ed. 2021 Update) (“When properly incorporated into the policy, the policy and the rider or endorsement together constitute the contract of insurance and are to be read together to determine the contract actually intended by the parties.”).

 [*P40]  In the case sub judice, we further believe that the Schedule of Covered Autos form language, that the trial court reviewed in isolation and concluded creates a contradiction, does not require a conclusion that the towing and transporting of autos exclusion is ambiguous. That language is introductory and, even if it appears to be contradictory, it does not negate the obvious identification of one specific auto on the Schedule of Covered Autos. Moreover, the second page of the entire set of documents that consists of the policy, forms, and endorsements lists the “forms and endorsements [that] are made part of the policy at time of issue [sic] and are effective on the inception date of the policy.” Included in the list is the “Schedule of Covered Autos.” Including [**23]  the “Schedule of Covered Autos” in the listing of forms and endorsements evidences a clear intent to make the Schedule of Covered Autos part of the policy on the inception date of the policy. We further note that neither appellees nor UFCC seriously dispute that the towing exclusion’s reference to Item Seven, and Item Seven’s reference to the Schedule of Covered Autos, renders the policy ambiguous.

 [*P41]  Therefore, after our review of the policy language, we believe that the entirety of the policy, and the context of the towing and transporting of autos exclusion, show that this exclusion is plain and unambiguous. See generally Liberty Mut. Ins. Co. v. Sims, Tx.Ct.App. No. 12-14-00123-CV, 2015 Tex. App. LEXIS 12283, 2015 WL 7770166, *4 (Dec. 3, 2015) (reviewing insurance policy in entirety, including endorsements and listing of forms, to conclude policy not ambiguous). This exclusion applies if an auto, not identified in Item Seven, is used to tow, move, haul, or carry autos. Item Seven references the Schedule of Covered Autos. The Schedule of Covered Autos lists one vehicle–a 1999 Freightliner Rollback. Thus, the exclusion applies if an auto, other than the 1999 Freightliner Rollback, is used to tow, move, haul, or carry autos.

 [*P42]  After having clarified the scope of the towing and transporting of autos exclusion, [**24]  we now review whether the undisputed facts in the case at bar show that the exclusion should apply so as to preclude coverage under appellant’s policy for the subject accident.

APPLICABILITY OF EXCLUSION

 [*P43]  Appellant asserts that, at the time of the accident, Pierson used an auto not identified in Item Seven (the semi-truck) to tow, move, haul, or carry another auto (the trailer). Appellant thus asserts that the towing exclusion should apply to preclude coverage.

 [*P44]  However, appellees and UFCC argue that this exclusion should not apply because the semi-truck cannot be considered to have been towing another “auto,” i.e., the trailer. They assert that case law has recognized that a semi-truck and attached trailer are functionally one vehicle for purposes of determining insurance coverage.

 [*P45]  We first observe that the case authority that appellees and UFCC cite do not involve towing-transporting-autos exclusions, but instead include situations when separate insurance policies cover a semi-truck and an attached trailer and a court must determine which insurance policy provides coverage for an accident. E.g., Contrans, Inc. v. Ryder Truck Rental, Inc., 836 F.2d 163, 165-66 (3d Cir.1987) (emphasis added) (when “an accident arises out of the use of a combined vehicle such as [**25]  a tractor-trailer and where separate policies cover the tractor and the trailer, all insurance applicable to the combined vehicle comes into play, regardless of which part of the rig was physically involved in the accident”); Blue Bird Body Co. v. Ryder Truck Rental, Inc., 583 F.2d 717, 726-27 (5th Cir.1978) (emphasis added) (“The question of which policy provides primary coverage for the liability thus boils down to whether the accident arose out of the use of the tractor, the trailer, or both.”). When separate insurance policies cover a semi-truck and an attached trailer, the law regards the two units as a combined unit so as to require both insurance policies to provide coverage for an accident that arises out of the use of the combined semi-truck and attached trailer. Blue Bird at 727, quoting Risjord & Austin, 7 Automobile Liability Insurance Cases 9540 (“‘Where a truck and towed trailer are involved in an accident, the courts are well-advised to avoid the metaphysics and hold that the accident arose out of the use of each.'”).

 [*P46]  The case at bar, however, does not involve a situation in which separate insurance policies cover the semi-truck and the trailer. Instead, no serious dispute exists that appellant’s policy defines both vehicles as covered autos for purposes of Covered [**26]  Autos Liability Coverage. The question thus is not which of two separate policies should apply to the subject accident, but instead whether appellant’s towing and transporting of autos exclusion applies to preclude coverage. The case authority that appellees and UFCC cite state nothing about a towing-transporting-autos exclusion like the language in the case at bar. Thus, we believe those cases are not applicable to the towing-transporting-autos exclusion involved in the case sub judice.

 [*P47]  HN9 Furthermore, we point out that a well-regarded insurance treatise explicitly recognizes the validity of towing-transporting-autos exclusions:

A towing-trailer exclusion is valid, and the insurer is, therefore, not liable where the policy contains an exclusion from coverage for liability while the automobile is “used for towing or propelling trailers or other vehicles used as trailers,” and such a trailer was attached to the insured’s car at the time of the accident. So, a provision in a policy insuring a truck that it should not be used for towing a trailer and expressly stipulating that the policy did not cover the truck while being so used precludes recovery for injuries caused by being struck by [**27]  the insured truck while towing a trailer. There is general recognition that the exclusion’s validity stems from the fact that there is an increased risk created by the use of the vehicle in towing operation.

8A Couch on Ins. Section 121:51 (footnotes omitted); accord Waddey v. Maryland Cas. Co., 171 Tenn. 112, 100 S.W.2d 984, 986, 7 Beeler 112, 109 A.L.R. 654 (1937) (“Where a policy of automobile liability insurance expressly excepts accidents occurring while the machine is used for towing a trailer, it has been held that the insurer is not liable for an accident occurring when the insured has a trailer attached to his car, without reference to whether the towing of the trailer was causally connected with the accident.”) The treatise also explains the effect of attaching a trailer to another auto in the context of a towing exclusion:

The manner of attaching the trailer to the automobile cannot alter the fact that the attached trailer is only a trailer, and conversely, it will not be regarded as part of the automobile, rather than a trailer, regardless of the manner in which it is connected to the automobile. To illustrate, the fact that a semitrailer is attached to an insured automobile by an iron bar does not make the trailer part of the insured automobile so as to preclude the operation [**28]  of the towing-trailer exclusion.

8A Couch on Ins. Section 121:59 (footnotes omitted).

 [*P48]  Consequently, in the case at bar we disagree with the appellees’ and UFCC’s assertions that the truck could not have been moving, towing, hauling, or carrying an “auto,” i.e., the trailer. Instead, we believe that the case authority they cite is inapplicable to the facts here. As Couch on Insurance indicates, an insurance policy may exclude coverage for autos that are used to move, tow, haul, or carry other autos, including trailers.

 [*P49]  Although none of the parties provided a definition of the word “tow,” the following definition appears in a 1939 case: “The word ‘towing’ signifies movement. As defined in Webster’s New International Dictionary: ‘to tow’ means ‘to pull’, ‘to drag’, ‘to draw’, ‘to pull about’, ‘to drag or take along with one’.” Maryland Cas. Co. v. Aguayo, 29 F.Supp. 561, 564 (S.D.Cal.1939). A modern dictionary likewise defines the word “tow” to mean “to draw or pull along behind.” https://www.merriam-webster.com/dictionary/tow .

 [*P50]  In the case sub judice, the operator used a truck to draw or pull along behind the 2006 Transcraft trailer. We agree with appellant that, under the plain language of the policy, the truck (an auto) was used to tow, move, haul, [**29]  or carry another auto, the 2006 Transcraft trailer. Moreover, we do not agree with appellees that use of the plural word “autos” in the towing exclusion shows that the exclusion does not apply unless the towing vehicle is towing more than one vehicle. HN10 Instead, as in cases of statutory construction, courts that construe contracts should read the singular and plural forms of words “‘”interchangeably so long as such a construction is consistent with the evident purposes of the contract.”‘” Garlock v. Silver Dollar Camp, 3rd Dist. No. 5-20-35, 2021-Ohio-1690, 173 N.E.3d 88, ¶ 14, 173 N.E.3d 88, quoting Grange Life Ins. Co. v. Bics, 9th Dist. Lorain No. 01CA007807, 2001 Ohio App. LEXIS 4018, 2001 WL 1044081, *3 (Sept. 12, 2001), quoting Ohio Development Co. v. Ellis, 2d Dist. Montgomery No. CA 10340, 1987 Ohio App. LEXIS 9276, 1987 WL 18831, *5 (Oct. 22, 1987); accord R.C. 1.43 (“[t]he singular includes the plural, and the plural includes the singular”).

 [*P51]  For example, in Bertelstein v. Marks, 25 Ohio Law Abs. 117, 120 (2nd Dist.1937), the court determined that an automobile liability insurance policy that excluded liability when the automobile was used to carry “passengers for a consideration” applied even though the subject accident involved only a single passenger. In reaching its decision, the court quoted another case that construed the same language, Lumbermen’s Mutual Casualty Co. v. Wilcox, 16 Fed. Supp. 799 (1936). In Lumbermen’s, the court explained:

The contention is made that the word “passengers” is used and that in the instant case there was but a single passenger. HN11 The rule of construction is that singular number includes plural number in the interpretation of contracts, [**30]  and a contrary construction is only necessary when the plain intent of the contract shows the contrary construction necessary to give effect to the intention of the contracting parties.

Id. at 800 (citations omitted). Thus, based largely upon the Lumbermen’s court’s statement, the Bertelstein court likewise determined that the plural word “passengers” also included the singular form of the word, “passenger.”

 [*P52]  Similarly, in the case sub judice we apply the general rule of contract construction that the plural word “autos” includes the singular word “auto,” unless the insurance policy plainly indicates that only the plural form applies. Here, we do not find anything in the contract’s plain language to suggest that the term “autos” does not also include the singular form of the word, “auto.” Consequently, we disagree with appellees that the towing exclusion applies only when the towing vehicle is towing more than one auto.

 [*P53]  Appellees and UFCC next contend that the towing exclusion should not apply because the crushed vehicles loaded onto the trailer are not “autos.” They therefore assert that, even if the truck (an auto) was towing an auto (the trailer), the towed auto was not towing “autos.” We, however, believe that [**31]  this particular issue is moot. The exclusion applies when an auto, not identified in Item Seven, is used to tow, move, haul, or carry autos. As we have previously determined, the truck (an auto) is not identified in Item Seven, and that truck was used to tow, move, haul, or carry autos (the 2006 Transcraft trailer). HN12 “Under a trailer exclusion in an automobile policy, the insurer is exempt from liability whether or not the attached trailer actually caused or contributed to the accident.” 11 Couch on Insurance, Section 156:88; see Waddey v. Maryland Cas. Co., 171 Tenn. 112, 100 S.W.2d 984 (1937), quoting Berry on Automobiles, vol. 6, p. 776 (“‘Where a policy of automobile liability insurance expressly excepts accidents occurring while the machine is used for towing a trailer, it has been held that the insurer is not liable for an accident occurring when the insured has a trailer attached to his car, without reference to whether the towing of the trailer was causally connected with the accident.'”); Coolidge v. Std. Acc. Ins. Co., 114 Cal.App. 716, 722, 300 P. 885 (Cal.App.1931) (towing exclusion applied when automobile towing trailer loaded with sheep and noted that “[t]he express terms of the policy exempted the insurance company from liability when the insured automobile was used to propel or tow a trailer. “).

 [*P54]  Thus, even if [**32]  one could argue that the 2006 Transcraft trailer caused or contributed to the accident, the towing exclusion means that appellant is exempt from liability. Accordingly, in the case sub judice the question of whether the 2006 Transcraft trailer carried “autos” does not affect the outcome of our decision.

INCONSISTENCY AND AMBIGUITY

 [*P55]  Appellees and UFCC also contend that the insurance policy is inconsistent and contradictory and, as a result, the policy must be deemed to be ambiguous and should be construed to require appellant to defend and indemnify appellees.

 [*P56]  Appellees’ inconsistency argument begins with their agreement that the truck Pierson drove, the 1999 Freightliner truck, is not identified in Item Seven. They assert, however, that the “policy expressly provides auto liability coverage for all vehicles” that the insured owns. Appellees point out that because the commercial auto liability coverage extends to symbol 22 “(owned autos)” and symbol 27 “(specifically described autos),” providing coverage for symbol 22 and symbol 27 autos “makes the Policy coverages internally inconsistent and unnecessarily creates some ambiguity.” Appellees do not further elaborate upon this argument, [**33]  however.

 [*P57]  UFCC also argues that the policy is inconsistent and contradictory. In particular, UFCC asserts that appellant’s interpretation of the towing exclusion means that the truck towing the trailer contradicts the policy’s symbol 22 definition of covered autos because the policy defines symbol 22 covered autos to mean owned autos and “any ‘trailers’ you don’t own while attached to power units you own.” UFCC contends that this definition shows that the policy treats a combined tractor-trailer as one auto for symbol 22 coverage, but does not similarly treat them as one unit for purposes of the towing exclusion. UFCC thus claims that the inconsistency means that the towing exclusion is ambiguous and must be strictly construed against appellant.

 [*P58]  HN13 Initially, we observe that in the insurance policy context, if any inconsistency appears between the terms of the original insurance policy and an endorsement to that policy, “the endorsement terms control.” Baker v. Aetna Cas. & Sur. Co., 107 Ohio App.3d 835, 843, 669 N.E.2d 553 (10th Dist.1995), citing Workman v. Republic Mut. Ins. Co., 144 Ohio St. 37, 46, 56 N.E.2d 190 (1944), overruled in part by Brewer v. De Cant, 167 Ohio St. 411, 149 N.E.2d 166 (1958) (“the endorsement must be regarded as a modification of the terms of the original contract of insurance if a clear inconsistency appears”). Indeed, courts have recognized that “endorsements by their very [**34]  nature are designed to trump general policy provisions.” Nationwide Mut. Ins. Co. v. Schmidt, 307 F.Supp.2d 674, 677 (W.D.Pa.2004). Consequently, when “a conflict exists between provisions in the main policy and the endorsement, the endorsement prevails.” Id.; accord Besic v. Citizens Ins. Co. of the Midwest, 290 Mich.App. 19, 26, 800 N.W.2d 93, quoting 4 Holmes, Appleman on Insurance (2d ed), Section 20.1, p 156 (“[E]ndorsements often are issued to specifically grant certain coverage or remove the effect of particular exclusions.”).

 [*P59]  In the case sub judice, to the extent the towing exclusion, which is included in an endorsement, may be inconsistent with, or contradicts, the provisions in the main policy’s “Covered Autos Liability Coverage,” the endorsement prevails. We therefore reject appellees’ and UFCC’s claim that an ambiguity exists because the towing exclusion contained in an endorsement to the policy conflicts with the general policy provisions.

ILLUSORY COVERAGE

 [*P60]  Appellees and UFCC argue that to interpret the towing and transporting of autos exclusion as appellant suggests would render insurance coverage under the policy illusory and lead to absurd results. Appellees assert that appellant’s interpretation of the towing exclusion “would eliminate all commercial auto liability coverage except when the 1999 International Rollback [**35]  semi-truck is used.” Appellees further assert that appellant’s policy interpretation will lead to absurd results, but do not further expound upon this argument. UFCC similarly contends that appellant’s interpretation of the policy “would render certain provisions illusory and lead to absurd results.” UFCC asserts that appellant’s interpretation of the policy means that “the 1999 Freightliner semi-truck and the 2006 Transcraft trailer would have been covered if they hadn’t been carrying ‘autos’ at the time of the accident.” UFCC claims that appellant’s “reasoning is flawed,” and to apply appellant’s interpretation means that owned auto coverage under symbol 22 “would become indistinguishable from the coverage offered under symbol 27,” i.e., “[o]nly those ‘autos’ described in Item Seven of the Declarations.” UFCC argues that to construe the policy as appellant suggests means that “symbol 22 would appear to grant a benefit to the insured while actually granting none, rendering it illusory.” UFCC further asserts that to interpret the policy as appellant suggests “would only provide coverage if the insureds were ‘bobtailing’ (i.e., driving a tractor without a trailer).” UFCC thus claims [**36]  that, because appellant’s interpretation would “only allow coverage in the narrowest of circumstances, while potentially leading to numerous uninsured semi-truck on the road,” appellant’s interpretation would be absurd.

 [*P61]  HN14 In general, an insurance contract is not illusory unless it fails to confer “some benefit to the insured.” Ward v. United Foundries, Inc., 129 Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 24; accord H.P. Mfg. Co., Inc. v. Westfield Ins. Co., 2018-Ohio-2849, 117 N.E.3d 146, ¶ 33 (8th Dist.). In the case sub judice, we do not agree that to interpret the towing exclusion to preclude coverage renders the policy illusory. Instead, the policy confers some benefit to the insured because the policy provides coverage to covered autos, which includes all autos that appellees own. The record does not contain evidence regarding all of the autos that appellees own that could be considered covered autos under the policy. Instead, the record only indicates that appellees own the truck and trailer involved in the accident, along with another truck not involved in the accident. All three vehicles are covered autos under appellant’s policy. However, simply because the towing and transporting of autos exclusion may limit the circumstances under which these covered autos may be entitled to insurance coverage does not render the coverage illusory. The truck [**37]  would not be subject to the towing and transporting of autos exclusion if it were not, in fact, towing, moving, hauling, or carrying autos. Alternatively, it would not be subject to the exclusion if it were identified in Item Seven. Moreover, even if the truck’s coverage would be limited to “bobtailing,” as UFCC indicates, UFCC has not cited any case authority to indicate that insurance policies limited to bobtail coverage are illusory.3

 [*P62]  The trailer likewise is a covered auto under the policy. The trailer would not be subject to the towing and transporting of autos exclusion if an auto identified in Item Seven of the policy were towing, moving, hauling, or carrying the trailer. Again, simply because the policy limits coverage does not mean the insurance [**38]  policy is illusory.

 [*P63]  For similar reasons, we do not believe that to interpret the towing and transporting of autos exclusion will lead to absurd results. Appellees maintain covered autos liability for covered autos that are not identified in Items Seven when those covered autos are not used to tow, move, haul, or carry other autos. Simply because appellees may not have realized at the time the policy was issued that it precluded coverage when any auto other than the 1999 Rollback truck was used to move, tow, haul, or carry other autos does not (1) make the insurance policy is ambiguous, (2) make coverage illusory, or (3) lead to absurd results.4

CONCLUSION

Therefore, based upon the foregoing reasons, we believe that the trial court incorrectly entered summary judgment in appellees’ and UFCC’s favor regarding appellant’s duty to defend and indemnify appellees for any claims and damages, except punitive damages, arising out of the accident. Accordingly, we sustain appellant’s sole assignment of error and reverse the trial court’s judgment that declared appellant has a duty to defend and indemnify appellees for any claims and damages, excluding punitive damages, arising out of the accident. [**39] 

JUDGMENT REVERSED AND CAUSE REMANDED CONSISTENT WITH THIS OPINION.

JUDGMENT ENTRY

It is ordered that the judgment entry be reversed and this cause be remanded for further any proceedings deemed necessary to carry this judgment into execution. Appellant shall recover of appellees the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:   

Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.


End of Document


For ease of discussion, this opinion refers to Pierson and Hillsboro Scrap & Metal, Inc. (HSM), collectively as “appellees,” and refers to United Financial Casualty Company as “UFCC.”

HN1[] A trial court decision that declares that an insurer has a duty to defend constitutes a final, appealable order. Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, ¶¶ 24-25, citing Gen. Acc. Ins. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). Even though in the case sub judice the trial court’s decision does not expressly declare that appellant’s policy provides primary liability coverage, the trial court granted appellees’ summary judgment motion except as to the punitive damages claim. The appellees’ summary judgment motion requested the court to declare that appellant’s “policy provides primary liability coverage in the amount of one million dollars for the subject accident.” By granting appellees’ summary judgment motion, the trial court necessarily determined that appellant’s policy provides primary liability coverage. See Lexington Ins. Co. v. DunnWell, LLC, 2016-Ohio-5311, 69 N.E.3d 1066, ¶ 10 (9th Dist.) (when a decision leads to “the reasonable and logical inference that one party has in fact prevailed, the requirements of finality are satisfied”).

One court has explained “bobtail insurance” as follows:

“Bob-tail” in trucking parlance is the operation of a tractor without an attached trailer,” and “bobtail insurance” typically refers to insurance for when a tractor is not being used in the business of an authorized carrier. Prestige Casualty Co. v. Michigan Mutual Insurance Co., 99 F.3d 1340 (6th Cir. 1996); Clarendon Nat. Ins. Co. v. Medina, 645 F.3d 928, 932 (7th Cir. 2011) (defining “bobtail insurance” as coverage for “truck drivers while they are … driving their cabs without trailers outside the service of the federally licensed carriers under whose authority they operate.”).

Lopez v. W. Surplus Lines Agency, Inc., 564 F. Supp. 3d 1082, 2021 WL 4478023, *2 (2021).

The two vehicles involved in the subject accident are listed on the declarations page of UFCC’s policy.

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