Goodell v. Motorists Mut. Ins. Co. , 99 N.E.3d 1158 ( 2017 )

[Cite as Goodell v. Motorists Mut. Ins. Co., 2017-Ohio-8425.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Brian Goodell Court of Appeals No. WD-16-071
Appellee Trial Court No. 14 CV 176
v.
Motorists Mutual Insurance Company DECISION AND JUDGMENT
Appellant Decided: November 3, 2017
*****
Kevin J. Boissoneault and Jonathan M. Ashton, for appellee.
Lisa C. Haase, Thomas J. Mulvey and Trent M. Thacker,
for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Motorists Mutual Insurance Company (hereinafter “Motorists”),
appeals from the September 15 and November 17, 2016 judgments of the Wood County
Court of Common Pleas. Both judgments stem from a 2014 lawsuit filed by appellee,
Brian Goodell, against Shawn Pasquale and Motorists, arising out of injuries Goodell
suffered when he was allegedly struck by a truck he was servicing for his employer,
Wylie & Sons, after the truck was put into gear by Pasquale. Goodell asserted he was
negligently injured by Pasquale and Goodell’s loss was covered under Motorists policies
issued to Wylie & Sons.
{¶ 2} In its September 15, 2016 judgment, the trial court found Goodell’s claims
were excluded from coverage under a commercial general liability policy, but not under a
business automobile policy, and granted in part and denied in part summary judgment to
Motorists. Because Goodell had not moved for summary judgment, the court continued
the case. Goodell immediately moved for summary judgment and on November 17,
2016, the trial court granted summary judgment to Goodell finding he was entitled to
coverage under the auto policy and the company’s umbrella policy. For the reasons
which follow, we affirm.
{¶ 3} On appeal, Motorists asserts the following assignments of error:
FIRST ASSIGNMENT OF ERROR: The Trial Court erred in
denying Appellant’s Motion for Summary Judgment filed October 16,
2014, specifically because the workers’ compensation and employer’s
liability exclusions in the Business Auto Coverage Form bar coverage for
the loss.
SECOND ASSIGNMENT OF ERROR: The Trial Court erred in
granting Appellee’s Motion for Summary Judgment by finding:
(a) Coverage existed under the Business Auto Coverage Form because the
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workers’ compensation, employer liability, and co-employee exclusions did
not apply; and (b) the affidavit of Thomas Wylie was insufficient to create a
genuine issue of material fact.
THIRD ASSIGNMENT OF ERROR: The Trial Court erred by
denying Appellant’s renewed motion for summary judgment based upon
the co-employee exclusion and the Wylie affidavit.
Standard of Review
{¶ 4} The appellate court reviews the grant of summary judgment under a de novo
standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),
citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Summary judgment is a procedural device to end litigation over issues which do not
involve factual disputes and the issues can be decided as a matter of law. Civ.R. 56(C);
Ormet Primary Aluminum Corp. v. Emp. Ins. of Wausau, 88 Ohio St.3d 292, 300, 725
N.E.2d 646 (2000), citing Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64,
66, 375 N.E.2d 46 (1978). Therefore, the court must determine not only that the facts are
undisputed, but that a reasonable trier of fact could come to but one conclusion regarding
the facts, whether directly or by inference, when the facts are construed in a light most
favorable to the nonmoving party. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427,
433, 424 N.E.2d 311 (1981). Summary judgment must be awarded with caution because
it terminates litigation. Murphy v. City of Reynoldsburg, 65 Ohio St.3d 356, 358, 604
N.E.2d 138 (1992).
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{¶ 5} The burden of establishing that summary judgment is an appropriate remedy
always remains on the moving party. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d
1164 (1997). The moving party bears the initial burden of coming forward with a basis
for summary judgment, identifying the evidence in the record which establishes there is
no genuine issue of material fact, and identifying the essential elements of one or more of
the nonmoving party’s claims or defenses that are not supported by the record. Id. at 430;
Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988), quoting Massaro v.
Vernitron Corp., 559 F.Supp. 1068, 1073 (D.Mass.1983). The moving party “must
specifically delineate the basis for which summary judgment is sought in order to allow
the opposing party a meaningful opportunity to respond.” Mitseff at syllabus.
{¶ 6} Once the moving party has met this burden, the non-moving party must
come forward with specific evidence which supports the claims or defenses for which the
non-moving party bears the burden of production at trial and which would establish there
is a genuine issue of fact for trial. Civ.R. 56(E); Dumas v. Estate of Dumas, 68 Ohio
St.3d 405, 408, 627 N.E.2d 978 (1994), quoting Wing v. Anchor Media, Ltd. of Texas, 59
Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the syllabus, limited by
Dresher v. Burt, 75 Ohio St.3d 280, 295, 662 N.E.2d 264 (1996) and Mitseff.
{¶ 7} In the case before us, Goodell has the burden to prove coverage under the
policies and his loss. City of Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186, 2006-
Ohio-2180, 846 N.E.2d 833, ¶ 19, quoting Inland Rivers Serv. Corp. v. Hartford Fire Ins.
Co., 66 Ohio St.2d 32, 34, 418 N.E.2d 1381 (1981). Motorists has the burden of
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establishing that an exclusion to coverage applies. Neal-Pettit v. Lahman, 125 Ohio St.3d
327, 2010-Ohio-1829, 928 N.E.2d 421, ¶ 19.
Assignment of Error No. 2
{¶ 8} We address the assignments of error out of order to first address the issue of
whether Motorists presented a sufficient question of fact as to whether Pasquale was an
employee of Wylie & Sons to defeat the grant of summary judgment to Goodell and
justify the grant of summary judgment to Motorists.
{¶ 9} This case is complicated by the fact that there have been two complaints and
two separate filings for summary judgment. In Goodell’s first complaint, he contended
that he was an “insured” under the uninsured/underinsured motorist and/or medical
payments provisions and that Pasquale was on the premises of Wylie & Sons with the
permission of the owners, managers, and operators of the premises. In its answer,
Motorists denied this allegation “in the manner and form alleged,” and answered only
that Pasquale was performing work on company vehicles, but not the one which caused
harm to Goodell. Both parties sought summary judgment.
{¶ 10} In his motion, Goodell asserted Pasquale was an insured under the general
liability and umbrella policy because he was a “volunteer employee.” Under the terms of
the Motorists policy, “employee” is defined in the general liability and auto policies
simply as follows: “‘Employee’ includes a ‘leased worker.’ ‘Employee’ does not
include a ‘temporary worker.’” Attached to Goodell’s motion was his affidavit wherein
he attested that Pasquale is a friend of Thomas Wylie and he allowed Pasquale to be
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present in the shop on a daily basis and to operate Wylie & Sons’ trucks, including the
one which Pasquale operated while Goodell was performing maintenance on it.
{¶ 11} Motorists argued in its motion only that the policies excluded coverage for
injuries for bodily injury which arose out of and in the course of Goodell’s employment.
Attached to Motorists’ motion was the affidavit of Thomas Wylie who attested that
Goodell was injured in the course and scope of his employment by a vehicle owned by
Wylie & Sons and he had received workers’ compensation for his injuries.
{¶ 12} However, before the summary judgment motions were ruled upon, Goodell
voluntarily dismissed his claims against Motorists without prejudice. The trial court
granted default judgment against Pasquale and awarded Goodell damages.
{¶ 13} Goodell filed a supplemental complaint against Motorists, pursuant to R.C.
3929.06, to recover the judgment rendered against Pasquale. Goodell asserted Pasquale
was insured under both the general liability and auto policies because he was on the
premises with the permission and acting as a “volunteer worker.” Motorists answered
admitting only that Wylie & Sons was the “named insured” and asserted that the claim
was barred by the exclusions. Motorists neither admitted nor denied that Pasquale was a
“volunteer worker” or an “insured.”
{¶ 14} Motorists moved for summary judgment arguing coverage was barred
under the workers’ compensation exclusion and the employer’s liability exclusion.
Motorists also asserted that it was undisputed that both Goodell and Pasquale were
“acting within the course and scope of their respective employment activities with Wylie
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& Sons.” Attached to the motion was the same previously-filed Wylie’s affidavit that did
not address Pasquale.
{¶ 15} Goodell filed a memorandum in opposition arguing Pasquale was a
“voluntary worker” under the general liability policy and an “insured” under the auto
policy because he was permitted to be on the premises and use the company’s trucks.
Goodell argued the employer liability exclusion is not applicable as the exclusion applies
only to the insured’s employees and Goodell is not Pasquale’s employee. Goodell also
disputed that Pasquale was not a co-employee. Goodell argued the only evidence in the
case was that Pasquale was a frequent, permissive user of the company trucks. Goodell
attached a second affidavit to his reply memorandum attesting Pasquale was not an
employee of Wylie & Sons, but worked on the company’s property mainly on his own
customers’ vehicles and sporadically did repair work on company vehicles as an
independent contractor charging Wylie for each job. Goodell further attested that when
customers complained to Wylie about Pasquale, he would tell those customers that
Pasquale was not his employee; Wylie argued with Pasquale about the complaints; and
Wylie had nothing to do with Pasquale’s work.
{¶ 16} In its reply brief, Motorists argued there is no evidence that Pasquale was a
“volunteer worker.” Alternatively, Motorists argued, that even if Pasquale was a
“volunteer worker,” he is not an “insured” under the general liability policy because even
a voluntary worker is specifically excluded as an insured if he causes a work-related
bodily injury to a co-employee while in the course of his employment.
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{¶ 17} On September 15, 2016, the trial court granted summary judgment to
Motorists in part. The trial court concluded Pasquale was not an insured under the
general liability policy because there was no evidence presented that he was a “volunteer
worker” for Wylie & Sons. The only evidence before the court were Goodell’s two
affidavits. Therefore, the only evidence before the court was that Pasquale was a friend
of Tom Wylie, he had permission to be on the premises and operate company vehicles,
and Pasquale was not an employee of Wylie & Sons. While Motorists asserted in its
motion that Pasquale was “acting within the course and scope of [his] employment
activities,” there was no evidence to support this assertion and the assertion itself does
not clearly establish Pasquale was an actual employee of Wylie & Sons.
{¶ 18} Irrespective of whether Pasquale was a “volunteer worker” or not, the trial
court further concluded that the general liability policy specifically excluded Pasquale as
an insured because he caused bodily injury to an employee in the course and scope of the
employee’s employment. Therefore, the trial court granted summary judgment to
Motorists regarding the general liability policy. Goodell did not challenge this finding on
appeal and coverage under the general liability policy is not an issue in this appeal.
{¶ 19} Regarding the auto policy, however, the court found that the “insured”
under that policy could be either the “name insured” on the declarations page or anyone
who uses a covered vehicle of the insured with permission, irrespective of the person’s
employment status. The trial court further determined the policy unambiguously
provides that Pasquale is a separate “insured” and that none of the exclusions applied to
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Pasquale because he was not Goodell’s employer. The court noted the second appellate
district came to the same conclusion in Motorists Ins. Cos. v. BFI Waste Management,
133 Ohio App.3d 368, 728 N.E.2d 31 (2d Dist.1999). The court also found that because
Pasquale was an insured under the auto policy, he was also covered by the umbrella
policy as a separate insured. The trial court denied summary judgment to Motorists as to
the auto policy. Motorists appealed from this judgment.
{¶ 20} Goodell was granted leave to move for summary judgment asserting
coverage under the auto and umbrella policies. Motorists’ motion for leave to renew its
prior motion for summary judgment was eventually denied as moot.
{¶ 21} Motorists opposed Goodell’s motion summary judgment arguing the fellow
employee exclusion also excluded coverage under the auto policy. This exclusion bars
coverage for bodily injury to a fellow employee arising out of and in the course of the
fellow employee’s employment. Motorists attached to its memorandum, a new Wylie
affidavit wherein he attested Pasquale was “acting as an employee” at the time of the
accident, “was paid hourly,” and was working 40-50 hours per week at that time.
{¶ 22} Goodell filed a reply opposing consideration of new arguments and moved
to strike the new Wylie affidavit arguing the issue of Pasquale’s employment status could
not be reconsidered and, alternatively, that the new affidavit was conclusory and
unsupported by factual evidence presented in Goodell’s second affidavit.
{¶ 23} On November 17, 2016, the trial court granted summary judgment to
Goodell. The trial court found that while Wylie attested that Pasquale was an employee
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working 40-50 hours per week at the time of the accident, he did not provide any
supporting documents. In light of Goodell’s second affidavit that Pasquale was not an
employee and only used the shop to repair vehicles for his customers, the trial court
found Wylie’s bald contradictory affidavit, which did not include supporting
documentation, did not give rise to a genuine question of material fact when such
documentation was readily available. The trial court concluded Motorists had not met its
burden of demonstrating the exclusion applied to the facts of this case. The trial court
found both Motorists’ motion for leave to renew its motion for summary judgment and
Goodell’s motion to strike Wylie’s second affidavit as moot. The trial court granted
summary judgment to Goodell and found Motorists was liable to pay the judgment
rendered against Pasquale. Motorists appealed from this judgment also.
{¶ 24} On appeal from the second judgment, Motorists argues it had presented a
sufficient question of fact as to whether Pasquale was an employee of Wylie & Sons. We
agree with the trial court’s conclusion that the second Wylie affidavit was insufficient to
defeat the grant of summary judgment to Goodell.
{¶ 25} Motorists’ arguments relating to Pasquale’s status changed over the course
of this case. It first admitted only that Pasquale was permitted to work on company
vehicles at the company shop while Goodell sought to classify Pasquale as a “volunteer”
employee based on facts attested to in Goodell’s first affidavit. While Motorists later
asserted in its first motion for summary judgment that Pasquale was a “co-employee,”
and two exclusions barred recovery, Motorists did not submit any evidence of Pasquale’s
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employment status. Goodell, however, presented evidence (through Goodell’s second
affidavit) that Pasquale was at the shop on a daily basis, used company trucks with
Wylie’s permission, and was not a co-employee. Motorists continued to argue there was
no evidence that Pasquale was a “volunteer employee.” It was not until after Goodell
filed his second motion for summary judgment (based on the trial court’s denial of
summary judgment to Motorists and its finding of coverage under the auto and umbrella
policies) that Motorists presented evidence that Pasquale was acting as an hourly-paid
employee at the time of the accident by means of Wylie’s second affidavit.
{¶ 26} Motorists argues this case is distinguishable from prior cases where a
baldly-contradictory affidavit was not considered sufficient evidence to overcome
summary judgment. Kott Ents., Ltd. v. McClain, 6th Dist. Lucas No. L-15-1086, 2016-
Ohio-325, ¶ 25; Huntington Natl. Bank v. Belcher, 6th Dist. Wood No. WD-11-055,
2012-Ohio-3731, ¶ 13. Motorists asserts that because Goodell has argued Pasquale was a
“volunteer worker” and attested that Pasquale was on the premises daily and performed
some work for Wylie & Sons, the second Wylie affidavit was not contradictory and only
further supported the fact that Pasquale was an employee. We disagree. We find the
second Wylie affidavit was contradictory to the prior evidence in the record, which
consisted only of the admissions, Goodell’s two affidavits, and Wylie’s first affidavit.
An assertion that Pasquale was a volunteer employee or an independent contractor is not
the equivalent of the assertion he was a co-employee.
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{¶ 27} Motorists also argues Wylie’s second affidavit was at least sufficient to
demonstrate there was a genuine issue of a material fact to warrant a trial. We disagree.
Even in his second affidavit, we note that Wylie attested only that Pasquale “acted as an
employee” at the time of the accident and was being paid on an hourly basis. The
affidavit did not include readily-available documentary evidence to support the assertion
that Pasquale was an actual employee. We conclude that the second Wylie affidavit, in
light of the other evidence, did not conclusively state Pasquale was an employee.
Therefore, we conclude that the second Wylie affidavit, even if were admissible, does not
raise a genuine issue of material fact regarding as to whether Pasquale was a co-
employee.
{¶ 28} Therefore, we find Motorists’ second assignment of error not well-taken.
Assignment of Error No. 3
{¶ 29} In its third assignment of error, Motorists argues the trial court erred by
denying Motorists’ renewed motion for summary judgment based upon the fellow
employee exclusion and the Wylie affidavit.
{¶ 30} The substance of this argument is that the trial court should have
considered Wylie’s second affidavit, an issue already addressed under Motorists’ second
assignment of error and rejected. The trial court denied Motorists’ motion to renew its
motion for summary judgment as moot on the basis that the court was granting summary
judgment to Goodell based on the evidence submitted in connection with Motorists’ prior
motion for summary judgment. Motorists has failed to demonstrate that the trial court
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erred in finding the motion moot. Therefore, we find Motorists’ third assignment of error
not well-taken.
Assignment of Error No. 1
{¶ 31} Motorists makes several arguments in its first assignment of error that the
trial court erred by denying summary judgment to Motorists and granting summary
judgment to Goodell based on its finding that the workers’ compensation and employer’s
liability exclusions were not applicable and that Goodell was entitled to coverage under
the auto and umbrella policies.
{¶ 32} Insurance policies are contracts and the general rules of contract
interpretation apply to them. World Harvest Church v. Grange Mut. Cas. Co., 148 Ohio
St.3d 11, 2016-Ohio-2913, 68 N.E.3d 738, ¶ 28; Ward v. United Foundries, Inc., 129
Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 18. The contract is read as a whole,
with the endorsement as part of the contract policy. Id., citing Penn Traffic Co. v. AIU
Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199, ¶ 9. As with any
contract, the intent of the parties is presumed to lie in the language used by the parties in
the policy unless the language is ambiguous. Id. Where the language is clear and
unambiguous, the court must merely apply the plain and ordinary meaning of the
language to give effect to the clear intent of the parties and does not apply the rules of
interpretation or construction. Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186,
2006-Ohio-2180, 846 N.E.2d 833, ¶ 6; Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11; Penn Traffic at ¶ 9. Exclusions are to be
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construed to bar coverage only as “to that which is clearly intended to be excluded.”
World Harvest, quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio
St.3d 657, 665, 597 N.E.2d 1096 (1992).
{¶ 33} The following are the relevant portions of the auto policy at issue (the
umbrella policy contains similar language). The introduction to the auto policy defines
“you” and “your” as the “Named Insured.” Under the liability coverage provisions, the
policy defines an “insured” as “[y]ou * * *” or “[a]nyone else while using with your
permission a covered ‘auto’ you own * * *.” The policy also includes a severability
clause, which provides that “* * * with respect to the Limit of insurance, the coverage
afforded applies separately to each insured who is seeking coverage or against whom a
claim or ‘suit’ is brought.” Also at issue are the following three exclusions in the policy
which preclude coverage under certain circumstances: The workers’ compensation
exclusion bars coverage for:
Any obligation for which the ‘“insured” or the “insured’s” insurer
may be held liable under any workers’ compensation, disability benefits or
unemployment compensation law or any similar law.
The employee indemnification and employer’s liability exclusion excludes
coverage for:
“Bodily injury” to:
a. An “employee” of the “insured” arising out of and in the course
of:
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(1) Employment by the “insured”; or
(2) Performing the duties related to the conduct of the “insured’s”
business; or
***
This exclusion applies:
(1) Whether the “insured” may be liable as an employer or in any
other capacity; and
(2) To any obligation to share damages with or repay someone else
who must pay damages because of the injury.
{¶ 34} It is undisputed that Goodell received workers’ compensation benefits for
his injuries and that Pasquale was an insured under the policies. Goodell argues the
workers’ compensation and employer liability exclusions do not apply to Goodell’s
claims because Pasquale is not Goodell’s employer and Pasquale did not incur any
liability for the workers’ compensation benefits Goodell received.
{¶ 35} Motorists first argues these two exclusions create a blanket exclusion for all
injuries to employees arising out of and in the course of employment because such
injuries are already covered by workers’ compensation and the purpose of a general
liability policy is to insure losses to third parties. Motorists cites United States Liab. Ins.
Co. v. Benchmark Constr. Servs., 797 F.3d 116, 122 (1st Cir.2015) (citation omitted).
We find this case distinguishable, however, because the case before us involves coverage
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under only the auto policy, not a commercial general liability policy. The language of the
general liability and auto policies are different in the case before us.
{¶ 36} Second, Motorists argues the “insured” language in the workers’
compensation exclusion refers to the “named insured,” Wylie & Sons, not Pasquale.
Therefore, Motorists argues, the workers’ compensation exclusion is unambiguous and
bars Goodell’s recovery under the auto policy. Motorists relies upon Crum & Forster
Indemn. Co. v. Ameritemps, Inc., 2012-Ohio-4160, 976 N.E.2d 957 (8th Dist.), which
relied upon the holding in Sharp v. Thompson, 5th Dist. Knox No. 07CA00016, 2008-
Ohio-4990, ¶ 19, 23.
{¶ 37} In the Crum case, an employee sued the employer for coverage under a
commercial general liability policy for injury caused by a co-employee. Id. at ¶ 2. The
appellate court held the workers’ compensation and scope of employment exclusions
barred coverage. Id. at ¶ 20. Likewise, the Sharp case involved an employee suing his
employer for injuries sustained while on the job. Id. at ¶ 3-4. Both of these cases are
distinguishable on their facts. In the case before us, the employee of the named insured
sued only the tortfeasor who is separately insured under the employer’s auto policy.
{¶ 38} A court’s role on summary judgment is merely to apply the unambiguous
insurance provisions as written, irrespective of the purpose behind including workers’
compensation and employer liability exclusions. Motorists’ arguments are premised on a
reading of the policy that presumes that the named insured, Wylie & Sons, was the only
possible insured under the policy. The auto policy before us clearly names Pasquale as
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an insured. We also agree with the trial court that the plain language of the entire auto
policy, including the severability clause and exclusions, provides that coverage is barred
under the policy only when an injured employee sues his employer. Pasquale, the
“insured,” is not Goodell’s employer and, therefore is not subject to the workers’
compensation statutes and Goodell’s injuries did not arise out of the insured’s
(Pasquale’s) business. Therefore, we agree with the trial court that the plain language of
the auto policy provides that neither exclusion applies to Pasquale’s liability. Our
holding that we must apply the contract language as written is consistent with the
holdings in Mendoza v. Bishop, 12th Dist. Butler No. CA2004-04-080; 2005-Ohio-238,
¶ 66-68; Motorists Ins. Cos. v. BFI Waste Mgt., 133 Ohio App.3d 368, 376-377, 728
N.E.2d 31 (2d Dist.1999); Travelers Ins. Co. v. Auto-Owners (Mut.) Ins. Co., 1 Ohio
App.2d 65, 71-72, 203 N.E.2d 846 (10th Dist.1964).
{¶ 39} Alternatively, Motorists argues that even if Pasquale is the insured, the
workers’ compensation exclusion still applies because either Pasquale, as the insured, or
Motorists, as the “insured’s insurer,” would have an obligation to reimburse the Bureau
of Workers’ Compensation Bureau as a statutory subrogee pursuant to R.C. 4123.931(A).
Motorists does not cite any case in support of its argument and we reject it. The workers’
compensation exclusion applies to an insured who could be held “liable” under the
workers’ compensation law to participate in the workers’ compensation system. That
exclusion does not apply to Pasquale. R.C. 4123.931 gives the statutory subrogee (the
administrator of the bureau or certain employers) the right to recover settlements or
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judgments an employee received from a third-party tortfeasor. That right is derived from
the right of the injured employee to recover damages from the tortfeasor and his insurer,
not from any liability of the tortfeasor.
{¶ 40} Third, Motorists argues the employer liability exclusion applies even if
Pasquale is the insured because it excludes coverage for employees injured in the course
and scope of their employment. We disagree with this argument because the language of
the exclusion requires the injured party to be in the course and scope of his employment
of the insured. In this case the insured is Pasquale, not Wylie & Sons. While it is
undisputed that Goodell was injured while he was working for Wylie & Sons, the
exclusion only bars recovery by employees of the insured, Pasquale. Therefore, the
exclusion is not triggered in this case. The cases cited by Motorists on this issue are
distinguishable on their facts because they involve employees suing their employer.
Crum, 2012-Ohio-4160, 976 N.E.2d 957; GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio
App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345 (2d Dist.), ¶ 3-4 Skula v. Nationwide Ins.
Co., 8th Dist. Cuyahoga No. 65486, 1994 Ohio App. LEXIS 1929 (May 5, 1994), *2-3.
{¶ 41} Fourth, Motorists argues that the trial court erred in relying upon BFI, 133
Ohio App.3d 368, 728 N.E.2d 31, because the BFI court did not address the application
of Cook v. Kozell, 176 Ohio St. 332, 336, 199 N.E.2d 566 (1964) (a non-party to the
insurance contract cannot assert an interpretation detrimental to the contracting parties).
We find this argument meritless because we found the language of the contract was
unambiguous and, therefore, we are not interpreting the contract. Rather, we are
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applying the language of the contract as written under the general rule that the parties to
the contract intended the language they employed. Lutz v. Chesapeake Appalachia,
L.L.C., 148 Ohio St.3d 524, 2016-Ohio-7549, 71 N.E.3d 1010, ¶ 9.
{¶ 42} Finally, Motorists argues the trial court did not consider the effect of the
severability clause upon the exclusions. Severability clauses are added to policies to
ensure that each individual insured under the policy has a separate insurable interest.
Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718, 913 N.E.2d 426,
¶ 68, O’Donnell, Jr., concurring in part and dissenting in part (citations omitted); Liberty
Univ., Inc. v. Citizens Ins. Co. of Am., 792 F.3d 520, 526 (4th Cir.2015).
{¶ 43} Motorists asserts that the trial court’s holding created a “backdoor”
recovery for an employee’s workplace bodily injury and circumvents the purpose of the
exclusions and requires the employer to pay a premium for coverage that was not
intended. Therefore, Motorists argues the exclusions should prevail over the severability
clause and exclude coverage for employment injuries. Motorists argues this case is
similar to cases where a policy exclusion is written in terms of the actions of “an insured”
and/or “any insured,” and the severability clauses is found to be ambiguous and the
exclusion applies as intended by the parties or the exclusion overrides the severability
clause. See Safeco at ¶ 42, 69-71; Reconciling the Irreconcilable Conflict in Insurance
Severability of Interests Clause Interpretation, 20 Conn.Ins.L.J. 61, 68 (2013).
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{¶ 44} We find the case before us is distinguishable because the exclusions in this
case use the phrase “the insured” and “the insurer,” which refers to one individual and
thus are consistent with the severability clause. Safeco Ins. at ¶ 61. Accord Shelby Mut.
Ins. Co. v. Schuitema, 183 So.2d 571, 574 (Fla.App.1966), aff’d on appeal, 193 So.2d
435 (Fla.1967) (an employee exclusion, which denied coverage to “employees of the
insured” injured on the job and covered by workers’ compensation law was not
applicable to a potential buyer who caused injury to a car salesperson while the potential
buyer was in an automobile for sale because the dealership policy defined “insured” as
also including anyone using a covered automobile with permission of the named insured
(a/k/a the omnibus insured) and the exclusion language limited the exclusion to the
named insured (the dealership)). See also Travelers Home & Marine Ins. Co. v. Stahley,
239 F.Supp.3d 866, 874-875, fn. 58 (E.D.Pa.2017) (“any insured” creates a joint liability
unlike “the insured” which is consistent with the severability clause) and Michael
Carbone, Inc. v. Gen. Acc. Ins. Co., 937 F.Supp. 413, 420 (E.D.Pa.1996) (in dicta the
court stated that “where a policy exclusion refers to ‘the insured,’ the existence of a
severability clause further supports the interpretation of each insured as separate”).
{¶ 45} Application of the severability clause is altered, however, where the
exclusion covers both the named insured and the fellow employee/omnibus insured.
Oppenheim v. Reliance Ins. Co., 804 F.Supp. 305, 310 (M.D.Fla.1992) (employee’s
claim against a supervisor, rather than their employer for a work-related injury was
barred by the workers’ compensation and fellow-employee exclusions because the policy
20.
prohibited recovery when the employee was covered under the workers’ compensation
system).
{¶ 46} In the case before us, the exclusions apply only to “the insured.” Pursuant
to the severability clause, “the insured” is either the named insured or Pasquale as the
omnibus insured. Each insured is considered individually as to whether the exclusion
applies and the language clearly applies the exclusions to Wylie & Sons but not Pasquale
because he is not Goodell’s employer.
{¶ 47} Motorists argues the result of this application is that greater coverage is
provided for an omnibus insured than the named insured who purchased the policy. We
disagree. Ohio has a compulsory contribution system to compensate injured workers
which requires employers must maintain workers’ compensation insurance, R.C. Chapter
4123, and, therefore, the named insured need not separately insure against injury to
employees under a commercial general liability policy. However, Wylie & Sons also
obtained an automobile policy to cover potential liability arising out of the use of a
company vehicle by any person permitted to use the vehicle. Motorists drafted the policy
language of the policy so that it permitted Goodell to recover perhaps more than if had he
been injured by a fellow employee. We cannot alter the clear language of the policy.
{¶ 48} Therefore, we conclude that Motorists’ first assignment of error is not well-
taken.
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{¶ 49} Having found that the trial court did not commit error prejudicial to
Motorists and that substantial justice has been done, the judgment of the Wood County
Court of Common Pleas is affirmed. Motorists is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
22.