Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc. , 2011 Ohio 6465 ( 2011 )

[Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
GRANGE MUTUAL CASUALTY : Hon. W. Scott Gwin, P.J.
COMPANY : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellant :
:
-vs- : Case No. 2011-CA-00027
:
BUCKEYE LAKE MARINA, INC. :
: OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Case No. 2010-CV-585
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEVEN J. ZEEHANDELAR LES CHAMBERS
Zeehandelar Sabatino & Associates, LLC 825 N. Houlk Road, Ste. 304
471 E. Broad St., Ste. 1200 Delaware, OH 43015
Columbus, OH 43215
ALESSANDRO SABATINO, JR.
Zeehandelar Sabatino & Associates, LLC
471 E. Broad St., Ste. 1200
Columbus, OH 43215
[Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]
Gwin, P.J.
{¶ 1} Plaintiff-appellant Grange Mutual Casualty Company appeals a summary
judgment of the Court of Common Pleas of Fairfield County, Ohio, entered in favor of
defendant-appellee Buckeye Lake Marina, Inc. Appellant assigns a single error to the
trial court:
{¶ 2} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE, BUCKEYE LAKE MARINA, INC., BASED
SOLELY ON THE EXCULPATORY CLAUSE CONTAINED IN THE WORK ORDER
PROVIDED BY APPELLEE TO APPELLANT’S INSURED, STANLEY AUGSBURGER.”
{¶ 3} The trial court found the following facts were undisputed. Grange’s insured,
Stanley Augsburger, took his boat and towing trailer to the Marina’s premises in August
2009 for repair work. Augsburger signed a service order which provided:
{¶ 4} “I hereby authorize the above repair work to be done along with the
necessary materials. You and your employees may operate the unit herein described
on any waterways or elsewhere for purposes of testing, inspection, or delivery at my
risk. An express mechanic’s lien is acknowledged on above the unit to secure the
amount of repairs thereto. It is also understood that you will not be held responsible for
loss or damage to the unit (or articles left in or with the unit) in case of fire, theft,
accident, inclement weather conditions or any other cause beyond your control.”
{¶ 5} At sometime during the period when the boat and trailer were on the
Marina’s premises, they were stolen and have not been recovered. The court found the
Marina’s premises are lighted, but has no security personnel. However, the owner and
his family irregularly patrol the grounds.
Fairfield County, Case No. 2011-CA-00027 3
{¶ 6} The service order is a contract between the Marina and Augsburger, and
the trial court must construe the language as a matter of law. Leber v. Smith, 70 Ohio
St.3d 548, 553, 1994-Ohio-361, 639 N.E.2d 1159. We review the trial court’s legal
determinations de novo. Saunders v. Mortensen, 101 Ohio St. 3d 86, 2004–Ohio–24,
801 N.E.2d 452.
{¶ 7} First, Grange argues the language in the exculpatory clause was vague or
ambiguous regarding the Marina and its agents’ liability for negligence. Secondly,
Grange argues the trial court erred in finding the exculpatory clause relieved the Marina
of all liability for the loss of Augsburger’s boat and trailer.
{¶ 8} The trial court correctly found this action involves a bailment, and so, when
the Marina accepted Augsburger’s boat and trailer, it undertook two duties: (1) to
safeguard the property through the exercise of ordinary care, and (2) to return the
property undamaged. Judgment Entry at Pg. 3, citing Collins v. Click Camera & Video,
Inc. (1993), 86 Ohio App. 3d 826, 621 N.E.2d 1294. The trial court recited the elements
of a claim against the bailee: (1) the existence of a bailment contract; (2) the delivery of
the bailed property to the bailee; and (3) failure of the bailee to redeliver the bailed
property undamaged at the termination of the bailment. Id.
{¶ 9} The court found Grange had established all three elements of its cause of
action, and there would be genuine issues of material fact as to whether the Marina
exercised ordinary care in protecting the property. However, the trial court found the
contract provision excused the Marina of liability for certain kinds of losses, including
theft.
Fairfield County, Case No. 2011-CA-00027 4
{¶ 10} Valid exculpatory clauses or releases constitute express
assumptions of risk. Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110, 114, 451 N.E.2d
780. These clauses are to be strictly construed against the drafter unless the language
is clear and unambiguous.
{¶ 11} Grange argues the exculpatory clause does not set forth clearly
that the Marina would not be liable for its negligence and/or the negligence of its
employees and agents. Grange maintains the exculpatory clause refers only to causes
beyond the Marina’s control, but the loss that occurred because of theft was not beyond
the Marina’s control. Grange argues the boat was not stored in a secured area of the
facility, but rather in an open lot on its trailer where a thief could easily drive up, hitch
the property to a vehicle and drive away.
{¶ 12} The trial court found the exculpatory provision specifically sets out
various potential causes of loss or damage, including fire, theft, accident, and inclement
weather, or any other cause beyond the Marina’s control. The trial court noted that
while these were beyond the Marina’s control, it could take precautions to prevent or
diminish damages caused by any of the stated factors. The court concluded the
exculpatory clause excused the Marina from liability for any negligence in failing to take
precautions to prevent damage or loss to the property.
{¶ 13} We find the contract language is sufficiently clear and unambiguous
that the Marina would not be responsible if the boat and trailer were stolen.
{¶ 14} The assignment of error is overruled.
Fairfield County, Case No. 2011-CA-00027 5
{¶ 15} For the foregoing reasons, the judgment of the Court of Common
Pleas of Fairfield County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 1107
[Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GRANGE MUTUAL CASUALTY
COMPANY :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
BUCKEYE LAKE MARINA, INC. :
:
:
Defendant-Appellee : CASE NO. 2011-CA-00027
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY