Schmucker v. Kurzenberger ( 2011 )

[Cite as Schmucker v. Kurzenberger, 2011-Ohio-3741.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
DONNY SCHMUCKER, et al. C.A. No. 10CA0045
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWARD KURZENBERGER, et al. COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellees CASE No. 09-CV-0052
DECISION AND JOURNAL ENTRY
Dated: August 1, 2011
WHITMORE, Judge.
{¶1} Plaintiff-Appellants, Donny Schmucker and Cheryl Schmucker, co-administrators
of the estate of Jessica Schmucker (collectively “the Schmuckers”) appeal from the decision of
the Wayne County Court of Common Pleas, granting summary judgment in favor of Defendant-
Appellees, Edward Kurzenberger, Carolyn Clarke (formerly Carolyn Kurzenberger), Nina
Kurzenberger (collectively “the Kurzenbergers”), and Wayne Mutual Insurance Company
(“Wayne Mutual”). This Court reverses.
I
{¶2} Shortly after 5:00 p.m. on June 22, 2008, Edward, his daughter, Nina, and her
friend, Jessica, were riding in Edward’s Jeep Wrangler on their way to get something to eat when
Nina cautioned her father that he was driving left of center. As he drifted further toward the
center line on the road, Nina, who was sitting in the front passenger’s seat, grabbed the steering
wheel and jerked it to the right. When Edward attempted to compensate for Nina’s actions, he
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lost control of the vehicle and it veered to the left, across the oncoming lane of traffic and into
the ditch beside the road. Before landing, the Jeep rolled several times, causing the hard top and
back seat to detach from the vehicle. Jessica, who was sitting in the back seat at the time, was
ejected from the vehicle and died as a result of the accident.
{¶3} The Schmuckers filed a wrongful death and personal injury action against the
Kurzenbergers. The Kurzenbergers filed various cross-claims, all of which were ultimately
resolved by way of an agreed entry. The Schmuckers later amended their complaint to add
Wayne Mutual as a party and sought a declaratory judgment regarding insurance coverage for
Nina’s alleged negligence. Wayne Mutual insures Gerard Clarke, Nina’s stepfather and the
husband of Nina’s mother, Carolyn. Wayne Mutual filed a counterclaim also seeking
declaratory judgment as to its coverage obligations.
{¶4} Both the Schmuckers and Wayne Mutual filed motions for summary judgment.
The Schmuckers filed a memorandum in opposition to Wayne Mutual’s motion for summary
judgment and Wayne Mutual replied. On August 10, 2010, the trial court granted Wayne
Mutual’s motion for summary judgment and denied the Schmuckers’. The Schmuckers have
timely appealed, asserting two assignments of error for our review, which have been rearranged
for purposes of analysis.
II
Assignment of Error Number Two
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
WAYNE MUTUAL’S MOTION FOR SUMMARY JUDGMENT.”
{¶5} In their second assignment of error, the Schmuckers assert that the trial court
erred in granting Wayne Mutual’s motion for summary judgment. Specifically, they argue that
3
Nina was not “operating” the vehicle such that the terms of the policy would exclude coverage
for her actions. We agree.
{¶6} An appellate court reviews an award of summary judgment de novo. Grafton v.
Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. It applies the same standard as the trial court,
viewing the facts of the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio
App.3d 7, 12. Summary judgment is proper under Civ.R. 56(C) if:
“(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) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in the favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.” Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
The party moving for summary judgment bears the initial burden of informing the trial court of
the basis for the motion and pointing to parts of the record that show the absence of a genuine
issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the
moving party must support its motion by pointing to some evidence in the record of the type
listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party bears the burden
of offering specific facts to show a genuine issue for trial. Id. at 293; Civ.R. 56(E).
{¶7} “An insurance policy is a contract.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d
216, 2003-Ohio-5849, at ¶9. “When confronted with an issue of contractual interpretation, the
role of a court is to give effect to the intent of the parties to the agreement [by] *** look[ing] to
the plain and ordinary meaning of the language used *** unless another meaning is clearly
apparent from the contents of the policy.” Id. at ¶11. In circumstances where an insurance
policy contains terms that are “susceptible [to] more than one interpretation, they ‘will be
construed strictly against the insurer and liberally in favor of the insured.’” Sharonville v. Am.
4
Employers Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, at ¶6, quoting King v. Nationwide Ins.
Co. (1988), 35 Ohio St.3d 208, syllabus. Additionally, an insurance policy exclusion “will be
interpreted as applying only to that which is clearly intended to be excluded.” (Emphasis in
original.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd. (1992), 64 Ohio St.3d 657, 665.
{¶8} Initially, we note that the trial court made two legal conclusions in its entry: first,
that Nina is a “covered person” under the terms of Wayne Mutual’s insurance policy and,
second, that one of Wayne Mutual’s exclusions applies, which in turn precludes it from having to
provide Nina with liability coverage for her actions. In arriving at its first conclusion, the trial
court looked to the provision of Wayne Mutual’s policy that provides coverage for a “family
member for the *** use of any motor vehicle.” The court then relied upon a past decision from
this Court in which we interpreted the term “use” for the purposes of an insurance contract as
“the privilege or benefit of using something.” McCall v. State Farm Mut. Auto. Ins. Co., 9th
Dist. No. 23601, 2007-Ohio-5109, at ¶17, quoting Webster’s New Collegiate Dictionary (1980)
1378. Thus, the trial court concluded that Nina was a “covered person” under the terms of
Wayne Mutual’s policy because she was “in use of the *** Jeep at the time of the accident[.]” In
other words, Wayne Mutual did not prevail on the issue of coverage. Hence, the Schmuckers
agree with the trial court’s conclusion that Nina is covered by Wayne Mutual’s policy and do not
challenge that portion of the judgment. Instead, the Schmuckers’ sole challenge on appeal stems
from the trial court’s second conclusion, that an exclusion in Wayne Mutual’s policy precludes
coverage for Nina’s actions. Accordingly, we confine our review to a determination of whether
the trial court erred in deciding that issue.
{¶9} In its motion for summary judgment, Wayne Mutual set forth several exclusions
that it argues would bar coverage in this situation. One of the exclusions to coverage relied upon
5
by Wayne Mutual in its motion provides that it “do[es] not provide Liability Coverage for any
covered person *** who operates any motor vehicle and is 14 years of age or older and does not
possess a valid operator license or learner permit.” Wayne Mutual points to Edward’s deposition
testimony confirming that Nina did not have a valid license or learner’s permit at the time and
the undisputed fact that Nina was fourteen years old when the accident occurred. Wayne Mutual
acknowledges that the term “operate” is not defined in its policy and offers a definition from an
unspecified edition of Black’s Law Dictionary, which allegedly defines the term to mean “to
perform a function, or operation, or produce an effect,” though the Ninth Edition of Black’s Law
Dictionary contains no such term or definition. Wayne Mutual further states that “[c]learly
Nina’s status as a passenger does not make her an operator of the vehicle” but notes that “if the
Court construes Nina’s act of grabbing the steering wheel as ‘operation’ of the vehicle,” that its
policy would preclude coverage for her actions under the previously quoted exclusion.
{¶10} In response, the Schmuckers argue that Wayne Mutual’s assertions throughout its
counterclaim and motion for summary judgment evidence the fact that it views Edward as the
party who was operating the vehicle and considers Nina only a passenger, not the operator of the
vehicle. Specifically, they point to Wayne Mutual’s counterclaim in which it specifically names
Edward as “the operator of the *** Jeep *** involved in the subject accident[.]” The
Schmuckers further note that in Wayne Mutual’s summary judgment motion, it definitively
states, based on Edward’s deposition testimony, that “Nina was not operating the vehicle at the
time of the accident.” We note that Wayne Mutual also asserts that it is “only logical” that, as
the driver of the Jeep, “Edward *** was the operator of the vehicle at the time of the accident.”
Consequently, the Schmuckers argue that Wayne Mutual does not interpret its own policy in
such a manner that would support the conclusion that Nina’s actions demonstrate she was
6
operating the vehicle at the time of the accident. In its reply memorandum, Wayne Mutual
continues to “maintain[] that Nina was not the operator of the vehicle, and therefore coverage
does not apply” but further states that “should the court determine that Nina was operating the
vehicle, the exclusion applies to preclude coverage for her actions.”
{¶11} To interpret the undefined term in the policy, we must look to the plain and
ordinary meaning of the word “operate.” See, e.g., McCall at ¶17; Galatis at ¶11. The
dictionary provides several definitions, one of which is “to cause to function[.]” Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2004) 869. In Doe v. Marlington Local School Dist.
Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, the Supreme Court had cause to look at the
meaning of the term “operation” as that word is used in the phrase “operation of a motor vehicle”
and found in the statutory immunity section of the Revised Code. Doe at ¶17. There, the Court
similarly stated that “‘operate’ is ‘[t]o control or direct the functioning of.’” Id. at ¶20, quoting
Webster’s II New College Dictionary (3d Ed. 2005) 786. Under either definition, for Nina to be
considered an “operator” and therefore excluded from coverage under the terms of Wayne
Mutual’s policy, she would have had to have been in control of, or in a position to direct the
functioning of, the vehicle at the time of the accident. Based on our review of the deposition
testimony, there is no evidence that this was the case, nor would we construe a temporary reach
for the steering wheel as evidence that Nina was “operating” the vehicle under the plain meaning
of that term. Causing a vehicle to function requires more than simply directing its steering and
would necessarily include control over the vehicle’s ability to start, stop, and adjust its speed, as
only the vehicle’s driver could do.
{¶12} We acknowledge, however, that other courts have considered a passenger who
grabs the steering wheel to be “operating” a vehicle for the purposes of a conviction under R.C.
7
4511.19, Ohio’s statute prohibiting operation of a vehicle while under the influence of alcohol or
drugs. See State v. Wallace, 1st Dist. Nos. C-050530 & C-050531, 2006-Ohio-2477, at ¶7-15;
State v. Schultz, 8th Dist. No. 90412, 2008-Ohio-4448, at ¶30, fn.6. See, also, Columbus v.
Freeman, 10th Dist. No. 08AP-519, 2009-Ohio-1046, at ¶7-17 (affirming convictions under the
terms of the Columbus City Code for operation of a motor vehicle while under suspension and
reckless operation where a passenger grabbed the steering wheel and caused the vehicle to
swerve and wreck). We are unpersuaded by those decisions, however, as they hinge on the
statutory definition of “operate” as set forth in the traffic code section of the Revised Code; a
definition that those same courts acknowledge is the result of a legislative enactment largely
designed to combat alcohol-related offenses. See Wallace at ¶12-14 (noting that the definitions
of “operate” and “operation” as found in R.C. 4511.01 were not designed to “limit operating
offenses to drivers[,]” but were the result of deliberate effort of “the General Assembly[ to]
expan[d] *** the definition of ‘operate’ to include anyone who causes movement of a vehicle
*** [and] discourage persons from putting themselves in the position in which they can
potentially cause the movement of a motor vehicle while intoxicated,” as well as to allow for
multiple prosecutions where the combined actions of impaired occupants cause the movement of
a vehicle) (internal quotations and citations omitted); Schultz at fn.6 (citing to Wallace and
noting that the General Assembly’s definition of “operate” is “still broad enough to encompass
an impaired passenger who grabs the steering wheel of a moving vehicle”).
{¶13} In its decision, the trial court relied on a related provision in the same section of
the Revised Code’s traffic statute to define the term “operator.” In doing so, it then concluded
that “[u]nder this definition, Nina [was] considered an operator of the vehicle.” Thus, the trial
court did not apply the “plain and ordinary” meaning of the term, but instead, relied upon a
8
statutory definition of the term, a definition that is recognized as being specifically designed to
include a broader range of activities than simply controlling or directing the function of the
vehicle. See Wallace at ¶12-14; Schultz at fn.6; Freeman at ¶17. Moreover, our interpretation of
the term “operate” appears to be consistent with the manner in which Wayne Mutual interprets
that term as well, given its repeated and express statements that Edward was “in control” of the
vehicle at the time of the accident, not Nina. Because there is no indication that Wayne Mutual’s
policy “clearly intended [Nina’s actions] to be excluded,” summary judgment based on the
application of the foregoing exclusion was inappropriate. (Emphasis in original.) Hybud Equip.
Corp., 64 Ohio St.3d at 665. Furthermore, “[i]f an exclusionary clause will reasonably admit of
an interpretation that would preserve coverage for the insured, then as a matter of law, a court is
bound to adopt the construction that favors coverage.” Burgess v. Erie Ins. Group, 10th Dist.
06AP-896, 2007-Ohio-934, at ¶12, quoting Watkins v. Brown (1994), 97 Ohio App.3d 160, 164.
{¶14} As indicated, Wayne Mutual argued in its summary judgment motion that there
are several different provisions in its policy that would exclude coverage for Nina’s actions.
Wayne Mutual reiterates the applicability of those same exclusions in its brief to this Court. The
trial court’s decision, however, only addressed one of the exclusions and gave no indication that
it considered the other grounds asserted by Wayne Mutual in its summary judgment motion.
That is, there is no evidence that the trial court considered whether the provisions excluding
coverage for intentional acts, unpermitted use, or regular use by another family member were
reviewed by the trial court. Were this Court to consider Wayne Mutual’s supplemental
arguments in support of excluding coverage, we would in effect, be sitting as the trial court,
rather than conducting a de novo review of the trial court’s decision. Murphy v. Reynoldsburg
(1992), 65 Ohio St.3d 356, 360 (noting that Civ.R. 56 “mandates that the trial court make the
9
initial determination whether to award summary judgment; the trial court’s function cannot be
replaced by an ‘independent’ review of an appellate court”). Moreover, this Court has recently
reiterated its unwillingness to “consider alternate grounds in support of a motion for summary
judgment” for the first time on appeal where the trial court has not engaged in a review of the
issue in the first instance. Allstate Ins. Co. v. Smeltzer, 9th Dist. No. 25136, 2011-Ohio-2632, at
¶15, quoting Guappone v. Enviro-Cote, Inc., 9th Dist. No. 24718, 2009-Ohio-5540, at ¶12. See,
also, B.F. Goodrich Co. v. Commercial Union Ins., 9th Dist. No. 20936, 2002-Ohio-5033, at
¶38-44. While “[i]t is understandable that the trial court did not pass upon the alternative
grounds urged by [Wayne Mutual] in support of [its] motion for summary judgment because of
its belief that [Wayne Mutual] was entitled to summary judgment based upon the grounds that it
did consider[,]” we conclude that “it would be inappropriate for this [C]ourt to consider the
evidence presented by [the parties] and pass upon [the alternative] grounds without the trial
court first doing so.” Orvets v. Natl. City Bank, Northeast (1999), 131 Ohio App.3d 180, 194.
Accord Roark v. Medmarc Cas. Ins. Co., 9th Dist. No. 07CA009146, 2007-Ohio-7049, at ¶16
(reversing the trial court’s decision on summary judgment but declining to address defenses to
insurance coverage on appeal where the trial court had not yet done so); Lang v. Holly Hill
Motel, Inc., 4th Dist. No. 05CA6, 2005-Ohio-6766, at ¶22-23 (reversing the trial court’s decision
on summary judgment and remanding for further consideration of the open and obvious doctrine
which was not previously considered by the trial court). Because the trial court did not consider
the alternative grounds for summary judgment as asserted by Wayne Mutual and we decline to
do so in the first instance, we must remand this matter to the trial court for further review.
Smeltzer at ¶15; Guappone at ¶12; B.F. Goodrich Co. at ¶44.
10
{¶15} Additionally, we note that in response to the Schmuckers’ foregoing assignment
of error, Wayne Mutual attempts to argue that it should not be required to provide coverage for
Nina because she was not a “user” of the vehicle, thereby eliminating the applicability of any
coverage exclusions. As previously stated, Wayne Mutual did not prevail on the issue of
insurance coverage. Consequently, we decline to address this argument, as Wayne Mutual is
asking this Court to modify the judgment of the trial court to conclude that Nina is not covered
under its policy – a determination that is materially different as a matter of law from the trial
court’s conclusion that Nina is covered by the policy, but excluded from coverage based on the
nature of her actions.
{¶16} App.R. 3(C)(1) requires that a party “who intends to defend a judgment *** and
who also seeks to change the judgment *** shall file a notice of cross appeal within the time
allowed by App.R. 4.” Wayne Mutual did not file a cross-appeal in this case. “It is well
established that a party seeking to defend the trial court’s judgment, yet asking to modify its
terms, must do so via filing a notice of cross-appeal.” Ware v. King, 3d Dist. No. 9-09-34, 2010-
Ohio-1637, at ¶19 (concluding that summary judgment was inappropriate on one of plaintiff’s
claims and citing App.R. 3(C)(1) when declining to address a statute of limitations argument
offered as an alternative in support of the judgment). See, also, Colonial Life & Acc. v. Leitch,
9th Dist. No. 24263, 2008-Ohio-6616, at ¶17-19 (concluding there was a genuine issue of
material fact as to insurance beneficiary coverage and rejecting the appellee’s attempt to raise a
cross-assignment of error because it sought to alter the terms of the trial court’s judgment in her
favor and could only be properly addressed by this Court through a cross-appeal); Harper v. Dog
Town, Inc., 7th Dist. No. 08-NO-348, 2008-Ohio-6921, at ¶51-52 (dismissing the appellees’
conditional assignments of error because the alleged errors sought to change the trial court’s
11
judgment and were not offered in defense of it). Thus, Wayne Mutual was required to file a
cross-appeal if it wanted to defend its judgment on appeal by asking this Court to modify the trial
court’s ruling on the issue of coverage. Id. See, also, Glidden Co. v. Lumbermens Mut. Cas.
Co., 112 Ohio St.3d 470, 2006-Ohio-6553, at ¶29-37 (discussing the difference between a
party’s attempt to defend its judgment from a lower court and an attempt to modify the judgment
on appeal). Because Wayne Mutual did not do so, this Court will not consider its argument
related to the issue of coverage. Ware at ¶19; Leitch at ¶19.
{¶17} For the foregoing reasons, the Schmuckers’ second assignment of error is
sustained, and the matter is remanded to the trial court for further proceedings consistent with
this opinion.
Assignment of Error Number One
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TO
GRANT PLAINTIFF/APPELLANTS’ MOTION FOR SUMMARY
JUDGMENT.”
{¶18} A review of the Schmuckers’ first assignment of error would require us to
consider the other exclusions not yet addressed by the trial court, which we will not do in the
first instance, as previously stated. Accordingly, their first assignment of error is overruled.
III
{¶19} The Schmuckers’ second assignment of error is sustained and their first
assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas is
reversed and the cause is remanded for further proceedings consistent with the foregoing
opinion.
Judgment reversed,
and cause remanded.
12
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY
DICKINSON, J.
CONCURS, SAYING:
{¶20} The lead opinion, speaking only for its author, has wrongly concluded that
because Wayne Mutual did not file a cross-appeal challenging the trial court’s determination that
Nina was a “covered person” under the policy, that issue is not before this Court. Wayne Mutual
has presented this argument as an alternative ground for upholding the trial court’s declaratory
judgment in its favor, not as an attack on that declaratory judgment. The lead opinion has
confused the judgment in Wayne Mutual’s favor with the grounds supporting that judgment.
13
{¶21} Cross-appeals are required only if “[a] person who intends to defend a judgment
or order against an appeal taken by an appellant . . . also seeks to change the judgment or
order[.]” App. R. 3(C)(1). Under Rule 3(C)(2) of the Rules of Appellate Procedure, cross
appeals are not required if “[a] person who intends to defend a judgment or order appealed by an
appellant on a ground other than that relied on by the trial court . . . does not seek to change the
judgment or order[.]” The trial court’s “judgment” in this case was a declaration that Wayne
Mutual was not required to provide coverage for Nina’s alleged negligence. Whether Nina was
not a covered person or whether she was a covered person but her alleged negligence fell within
an exclusion from coverage are alternative potential grounds in support of that “judgment.”
According to the Ohio Supreme Court, “without filing a cross-appeal, an appellee can ‘urge in
support of a decree any matter appearing in the record, although his argument may involve an
attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored
by it.’” Kaplysh v. Takieddine, 35 Ohio St. 3d 170, 175 (1998) (quoting United States v. Am. Ry.
Express Co., 265 U.S. 425, 435 (1924)).
{¶22} In this case, Wayne Mutual is not seeking to enlarge its own rights or lessen those
of the Schmuckers. Wayne Mutual’s arguments are intended to defend the trial court’s judgment
on a ground other than that relied on by the trial court. Wayne Mutual has not attacked the trial
court’s declaratory judgment in its favor. It has not sought to modify that declaratory judgment
in any way. Wayne Mutual agrees with the trial court that the policy did not provide coverage
for Nina’s alleged negligence, but has argued that the trial court’s judgment is correct for an
alternative reason. Rather than relying exclusively on the applicability of the exclusion, as the
trial court did, Wayne Mutual has argued in the alternative that the trial court’s judgment was
correct because Nina was not a “user” of the motor vehicle. Because a cross-appeal was not
14
required in this situation, this Court cannot reverse the trial court’s judgment in Wayne Mutual’s
favor without first considering this alternative argument. See, e.g., State v. Gaines, 12th Dist.
Nos. CA2010-07-010, CA2010-O7-011, 2011-Ohio-1475, at ¶28-29; Schaaf v. Schaaf, 9th Dist.
No. 05CA0060-M, 2006-Ohio-2983, at ¶19 (“It is well established in Ohio that ‘a reviewing
court is not authorized to reverse a correct judgment merely because erroneous reasons were
assigned as the basis thereof.’”) (quoting State ex rel. Carter v. Schotten, 70 Ohio St. 3d 89, 92
(1994)).
{¶23} Wayne Mutual has argued that Nina was not a “covered person” under the policy
because she was not a “user” of the vehicle. Under the policy, Wayne Mutual was obligated to
“pay damage for bodily injury or property damage for which any covered person becomes
legally responsible because of a motor vehicle accident[.]” The policy defines a “[c]overed
person” as “any family member for the ownership, maintenance or use of any motor vehicle[.]”
Wayne Mutual has conceded that Nina is a “family member” under the policy, but has argued
that she did not “use” the motor vehicle. It is undisputed that she did not own or maintain the
vehicle. The policy does not define the word “use.”
{¶24} Relying on a decision of this Court, the trial court determined that “use” should be
defined as “the privilege or benefit of using something.” McCall v. State Farm Mut. Auto. Ins.
Co., 9th Dist. No. 23601, 2007-Ohio-5109, at ¶17 (quoting Webster’s New Collegiate Dictionary
(1980) 1378). The trial court interpreted this Court’s decision in McCall as giving the word
“use” a broad definition “to include all proper uses of an automobile.” The trial court correctly
determined that Nina was “us[ing]” the vehicle at the time of the crash. See, e.g., Brown v.
Kennedy, 141 Ohio St. 457, 464 (1943) (holding that, despite fact that boyfriend was driving the
vehicle while daughter of insured was riding as passenger, daughter was “using” the vehicle for
15
the purpose of transportation between home and school at the time of the crash); Grange Mut.
Cas. Co. v. Rosko, 146 Ohio App. 3d 698, 2001-Ohio-3508, at ¶26-27 (agreeing with out-of-state
precedent holding that passengers were “using” a vehicle for purposes of liability coverage in
various factual scenarios). Having determined that Grange Mutual’s argument fails, I concur in
the remainder of the lead opinion.
APPEARANCES:
TIMOTHY B. PETTORINI, and SARAH B. GORDON, Attorneys at Law, for Appellants.
EDWARD A. DARK, Attorney at Law, for Appellees.
FRANK G. MAZGAJ, and GREGG PEUGEOT, Attorneys at Law, for Appellees.
JOHN E. JOHNSON, JR. Attorney at Law, for Appellees