Pierson v. White Pine Ins. Co. ( 2022 )

[Cite as Pierson v. White Pine Ins. Co., 2022-Ohio-2702.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
RICHARD E. PIERSON, et al., :
Plaintiffs-Appellees, : Case No. 21CA3
v. :
WHITE PINE INSURANCE COMPANY, : DECISION & JUDGMENT ENTRY
et al.,
:
Defendants-Appellants.
________________________________________________________________
APPEARANCES:
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.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-28-22
ABELE, J.
{¶1} 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
For ease of discussion, this opinion refers to Pierson and
1
Hillsboro Scrap & Metal, Inc. (HSM), collectively as
“appellees,” and refers to United Financial Casualty Company as
HIGHLAND, 21CA3 2
defendant below and appellee herein.
{¶2} 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.”
{¶3} 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. 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.
{¶4} 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.”
{¶5} 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
“UFCC.”
HIGHLAND, 21CA3 3
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.
{¶6} Appellant filed an answer, along with a combined
cross-claim, a counterclaim, and a third-party complaint 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.”
{¶7} Subsequently, appellant requested summary judgment
regarding its declaratory judgment request. Appellees and UFCC
also filed motions for summary judgment.
{¶8} 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
HIGHLAND, 21CA3 4
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 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.
{¶9} 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
HIGHLAND, 21CA3 5
only one vehicle,” a “1999 International Rollback,” and the
named vehicle is not the vehicle Pierson was driving at the time
of the accident.
{¶10} 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.
{¶11} 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.”
{¶12} Appellees also disputed appellant’s argument that the
trailer attached to the semi-truck establishes that the semi-
HIGHLAND, 21CA3 6
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 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
HIGHLAND, 21CA3 7
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.”
{¶13} 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.”
{¶14} 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 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.”
{¶15} 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
HIGHLAND, 21CA3 8
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.
{¶16} 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.
{¶17} After consideration, 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.
{¶18} 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
HIGHLAND, 21CA3 9
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), 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 the policy’s definition of “autos.” The court thus
HIGHLAND, 21CA3 10
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.
{¶19} 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 accident 2 because the towing and transporting of
2 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
HIGHLAND, 21CA3 11
autos exclusion unambiguously precludes coverage for the
accident.
{¶20} Initially, we emphasize that appellate courts 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.
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, 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.
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
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”).
HIGHLAND, 21CA3 12
party’s favor.
{¶21} Therefore, 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. 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).
{¶22} 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. Sharonville v. Am. Emp. 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
HIGHLAND, 21CA3 13
216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11.
{¶23} 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 omitted). “[A]
contract is unambiguous if it can be given a definite legal
meaning.” Id. (citation omitted).
{¶24} 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.
HIGHLAND, 21CA3 14
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.
{¶25} 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
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, 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.{¶26} “[T]he initial determination of whether an ambiguity
HIGHLAND, 21CA3 15
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 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.
{¶27} 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
{¶28} 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.”
{¶29} Section I.D. contains the “Covered Autos Liability
Coverage” 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’.
HIGHLAND, 21CA3 16
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.”
{¶30} 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’ or semitrailer.” Section
V.X. states that “[t]railer includes semitrailer.”
{¶31} 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
HIGHLAND, 21CA3 17
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
{¶32} 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 is used to tow, move, haul,
or carry other autos.
{¶33} 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
HIGHLAND, 21CA3 18
not identified in Item Seven used to tow, move, haul, or carry
other autos.
{¶34} 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 not haul “autos” at
the time of the collision, the towing and transporting of autos
exclusion does not apply.
{¶35} 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.
HIGHLAND, 21CA3 19
{¶36} 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, 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
{¶37} 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.”
{¶38} The endorsement states that “[t]his insurance does not
HIGHLAND, 21CA3 20
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 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.”
{¶39} 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
HIGHLAND, 21CA3 21
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. It is important to recognize 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.”).
{¶40} 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 the “Schedule of Covered
HIGHLAND, 21CA3 22
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.
{¶41} 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 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.
{¶42} After having clarified the scope of the towing and
transporting of autos exclusion, we now review whether the
HIGHLAND, 21CA3 23
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
{¶43} 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.
{¶44} 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.
{¶45} 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
HIGHLAND, 21CA3 24
vehicle such as 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.’”).
{¶46} 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 Autos Liability Coverage. The question thus
is not which of two separate policies should apply to the
HIGHLAND, 21CA3 25
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.
{¶47} 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 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
HIGHLAND, 21CA3 26
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 of
the towing-trailer exclusion.
8A Couch on Ins. Section 121:59 (footnotes omitted).
{¶48} 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.
{¶49} 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
HIGHLAND, 21CA3 27
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.
{¶50} 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, 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. 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, quoting Grange Life Ins. Co. v. Bics, 9th Dist. Lorain
No. 01CA007807, 2001 WL 1044081, *3 (Sept. 12, 2001), quoting
Ohio Development Co. v. Ellis, 2d Dist. Montgomery No. CA 10340,
1987 WL 18831, *5 (Oct. 22, 1987); accord R.C. 1.43 (“[t]he
singular includes the plural, and the plural includes the
singular”).
HIGHLAND, 21CA3 28
{¶51} 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. 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.
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.”
{¶52} 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
HIGHLAND, 21CA3 29
the word, “auto.” Consequently, we disagree with appellees that
the towing exclusion applies only when the towing vehicle is
towing more than one auto.
{¶53} 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 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). “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
HIGHLAND, 21CA3 30
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. ”).
{¶54} Thus, even if 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
{¶55} 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.
{¶56} 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
HIGHLAND, 21CA3 31
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, however.
{¶57} 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.
{¶58} 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,
HIGHLAND, 21CA3 32
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
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.”).
{¶59} 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
HIGHLAND, 21CA3 33
{¶60} 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
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
HIGHLAND, 21CA3 34
provide coverage if the insureds were ‘bobtailing’ (i.e.,
driving a tractor without a trailer).” UFCC thus claims 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.
{¶61} 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
HIGHLAND, 21CA3 35
insurance coverage does not render the coverage illusory. The
truck 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
{¶62} 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
3 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., D.N.M. No. 1:19-cv-
00349-JCH-LF, 2021 WL 4478023, *2 (Sept. 30, 2021).
HIGHLAND, 21CA3 36
does not mean the insurance policy is illusory.
{¶63} 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.
4 The two vehicles involved in the subject accident are
listed on the declarations page of UFCC’s policy.
HIGHLAND, 21CA3 37
JUDGMENT REVERSED AND CAUSE
REMANDED CONSISTENT WITH THIS
OPINION.
HIGHLAND, 21CA3 38
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.