Trolio v. McLendon , 4 Ohio App. 2d 30 ( 1965 )

Motion for summary judgment was filed pursuant to the Summary Judgment Act. A trial judge of the Mahoning County Court of Common Pleas sustained plaintiff's motion. It is from that final order that the appeal now pends before our court. The case was well argued upon an excellent record and briefs.

Originally, the plaintiff herein filed a petition in the Common Pleas Court of Mahoning County naming Joe McLendon and Henry Higgins as defendants. Henry Higgins was the named insured under a liability policy on his automobile issued by Allstate Insurance Company.

Joe McLendon operated a garage for the repairing of cars and was "road-testing" Higgins' auto after having made repairs on it when he was involved in an auto accident with the plaintiff, Doris Trolio. Doris Trolio filed suit for her injuries and damages resulting from such accident, in which she named Joe McLendon, the garageman, and Henry Higgins, the auto owner, as joint defendants. At the time of the accident, McLendon was alone, and Higgins apparently knew nothing about the accident until being advised of it later.

Allstate Insurance Company agreed to defend its named insured, Henry Higgins, the auto owner, but refused to defend Joe McLendon, the garageman, because of an exclusion in its policy that is set out hereafter.

Doris Trolio then dismissed the petition as against Henry Higgins and filed a second amended petition against Joe McLendon, as sole defendant. Allstate refused to defend Joe McLendon on this second amended petition under the exclusion in its policy. A trial was held without the intervention of a jury. The trial court rendered judgment in favor of plaintiff, Doris Trolio, against the defendant, Joe McLendon, in the total sum of $7,900.00.

Thereafter, the plaintiff, Doris Trolio, filed a supplemental petition pursuant to law based upon the judgment naming as defendants, Joe McLendon and Allstate Insurance Company. No answer was filed by Joe McLendon to the supplemental petition. However, Allstate Insurance Company filed its separate answer. Among other averments, the answer states that Joe McLendon was among a group of persons excluded from the coverage of Henry Higgins' policy because he was operating an automobile repair garage at the time of the accident.

The issues raised by the supplemental petition of Doris Trolio and separate answer of Allstate Insurance Company were heard by the court without a jury. The facts were not in dispute and were stipulated by counsel, as were the exhibits and entire record.

The stipulation of facts indicates that Henry Higgins, Allstate's named insured and the auto owner, took his auto to Joe McLendon's garage for repairs. His auto remained there and, while Joe McLendon was "road-testing" Higgins' car prior to redelivering the car to Higgins, McLendon and Doris Trolio had a collision.

The record also discloses that the policy of insurance in question issued by Allstate in favor of Higgins had the following exclusion:

"Exclusion — what this Part of the policy does not cover.

"This Part 1 does not apply to:

"* * *

"2. An owned automobile while used in an automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which such named insured or resident is a partner, or any partner, agent or employee of such resident or partnership; * * *."

"Definitions of words under this Part.

"2. Automobile Covered.

"(a) `owned automobile' means the vehicle described on the Supplement Page, and, as defined herein, any replacement automobile, any additional automobile, any temporary substitute automobile, and any trailer owned by the named insured; * * *."

"3. Miscellaneous.

"(c) `automobile business' means the business of selling, repairing, servicing, storing or parking of automobiles; * * *."

It is therefore clear and undisputed from the facts that McLendon, while engaged in the repair and/or servicing of Higgins' car, had the accident for which judgment was subsequently rendered against defendant Allstate Insurance Company on the supplemental petition of plaintiff, Doris Trolio, herein.

The trial court, in rendering its decision in favor of plaintiff and against Allstate Insurance Company on the supplemental petition, relied on Section 4509.51, Revised Code, and Firestone Tire Rubber Co. v. State Farm Mutual AutomobileIns. Co., 119 Ohio App. 116. Section 4509.51, Revised Code, provides:

"Every owner's policy of liability insurance:

"* * *

"(B) Shall insure the person named therein and any otherperson, as insured, using any such motor vehicles with theexpress or implied permission of the insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such vehicles * * *." (Emphasis ours.)

On page 3 of Allstate's policy of insurance the following language is used:

"Compliance with financial responsibility laws.

"When this policy is certified as proof of financial responsibility for the future under the provisions of any Motor Vehicle Financial Responsibility Law, such insurance as is afforded by this Part 1 shall comply with the provisions of such law to the extent of the coverage and limits of liability required by such law, but not in excess of the policy limits of liability * * *." (Part 1 is the liability coverage.)

The record does not disclose that the policy issued by Allstate Insurance Company in this case was ever "certified" as provided in Section 4509.46, Revised Code.

The Ohio Supreme Court, in Moyer, Admx., v. Aron, 175 Ohio St. 490, held, in the second paragraph of the syllabus:

"A person is not an insured under an automobile insurance policy unless such person is defined as an insured by the terms of the policy, except where such policy has been `certified' under the provisions of Section 4509.46, Revised Code, and thereby the definition of who is an `insured' under the policy has been modified to conform to the provisions of the statute. (Section 4509.51, Revised Code.)"

The Firestone Tire Rubber Company case dealt with a situation almost identical to the instant case. However, the Court of Appeals in deciding the Firestone case used and applied the law of California and found that under Colifornia law the exclusion was void as against public policy, and, as such, the contract of insurance was interpreted as though the exclusion was not in the policy.

The California Vehicle Code (1935), Section 402 (now California Vehicle Code [1959], Section 17150), created vicarious liability on the owner of a car being driven by anyone with the owner's permission, and for this reason the exclusion was held to be against public policy. Section 402 (1937 amendment) of the Vehicle Code of California provided:

"(a) Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages."

Ohio does not have a statute comparable to Section 402 of the California Vehicle Code, and there is no vicarious liability on the owner of a car, while such car is being operated by anyone else, merely because one is the title owner of the car. This is so in the absence of an agency. The plaintiff does not claim that McLendon was acting as agent for Higgins at the time of the accident, and there is no indication of agency in the record.

Since vicarious liability does not attach to the owner under Ohio law, the parties may contract with respect to excluding garage repairmen and others, if they so desire. To do so would not be against public policy in Ohio.

The policy of insurance was a contract between Higgins and Allstate, and the intention of the parties is to be determined from the contract.

Applying the exclusions herein quoted from the contract or policy of insurance to the facts in this case, we find that it was not intended to extend coverage to McLendon. McLendon was not an insured under Allstate's policy, and the plaintiff was not entitled to recover on her supplemental petition against defendant Allstate Insurance Company.

Plaintiff in her brief, and her counsel in argument, questioned the meaning of the word "used" as contained in the Exclusion.

"This Part 1, does not apply to:

"2. an automobile while used in an automobile business * * *." (Emphasis added.)

It is common knowledge that the usual use to which an automobile will be put is its being driven; by the term "used" the parties to the contract of insurance intended to exclude coverage while the automobile was being used or driven by anyone in the excluded class of persons; "used" means used in any way, in the absence of limiting words or other definitions.

In 7 Appleman, Insurance Law and Practice, 342, 343, the following appears:

"* * * Such clauses are held reasonable and valid, and have been repeatedly enforced by the courts, which have considered that the hazard in such a business is undoubtedly greater and have permitted the insurer to limit the risk which it desires to assume. * * *"

The Supreme Court of Ohio in the Moyer case at p. 493, said:

"Although the provisions in this endorsement are complicated and involved, they are not, when analyzed, ambiguous. * * *"

We find that the trial court's decision was in error and contrary to law in finding that Section 4509.51, Revised Code, modified the policy, and that the case of Firestone Tire RubberCo. v. State Farm Mutual Automobile Ins. Co., 119 Ohio App. 116, is the authority for the public policy of Ohio; the judgment was also contrary to law in holding that the policy was ambiguous and therefore extended coverage of the policy to McLendon.

The judgment of the trial court is reversed, and final judgment is hereby ordered for defendant Allstate Insurance Company.

Judgment reversed

JOHNSON, P. J., concurs.