Sutton v. Spencer ( 1989 )

The issue to be decided in this case is whether a professional car wash employee who drives a customer's automobile in the course and scope of his employment is "servicing" that vehicle. We hold that he is and are therefore reversing the judgment of the trial court and entering judgment for appellants.

An employee of Hand Auto Wash was involved in a collision with appellee while driving a customer's car.¹ Appellee filed suit against the car wash employee, the customer, and Earl Williams, the alleged owner of Hand Auto Wash. The employee was insured by Motorists Insurance Companies; the customer was insured by State Farm Mutual Automobile Insurance Company; and it is unknown whether the car wash was insured.

The trial court granted appellee's motion to voluntarily dismiss the customer with prejudice and granted appellee's motion for a default judgment against the alleged owner of the car wash. The car wash employee admitted liability and appellee agreed not to execute judgment against the employee's personal assets. Finally, on the evidence, testimony of witnesses and exhibits, the court entered judgment for $20,000 against the employee and the car wash owner.

Appellee then filed a supplemental petition pursuant to R.C.3929.06 against Motorists and State Farm to collect the $20,000 judgment. Appellee moved for summary judgment contending the policies' exclusionary provisions for servicing automobiles were ambiguous and therefore inapplicable. The trial court granted appellee's motion and later amended its entry to state that State Farm would be liable for the first $20,000 of the judgment before Motorists would be obligated to contribute. The insurance companies appealed.

I Motorists' assignments of error² and State Farm's first four assignments of error³ challenge the trial court's interpretation of their insurance policies' exclusionary clauses governing the "servicing" of vehicles. The relevant portion of State Farm's policy provides:

"When Coverage A [Liability] Does Not Apply

"* * *

"THERE IS NO COVERAGE:

"1. WHILE ANY VEHICLE INSURED UNDER THIS SECTION IS:

"* * *

"b. BEING REPAIRED, SERVICED OR USED BY ANY PERSON EMPLOYED OR ENGAGED IN ANY WAY IN A CAR BUSINESS."

The policy defines a "car business" as "a business or job where the purpose is to sell, lease, repair, service, transport, store or park land motor vehicles or trailers." The pertinent portion of Motorists' policy provides:

"EXCLUSIONS

"A. We do not provide Liability Coverage for any person:

"* * *

"6. While employed or otherwise engaged in the business or occupation of:

"a. selling;

"b. repairing;

"c. servicing;

"d. storing;

"e. parking;

"vehicles designed for use mainly on public highways. This includes road testing and delivery."

Appellee maintains that these exclusions are unclear and ambiguous and therefore should be construed liberally in her favor.

When called upon to interpret insurance contracts a court is required to construe provisions strictly against an insurer only when the provisions are ambiguous. See Dairyland Ins. Co. v.Finch (1987), 32 Ohio St.3d 360, 513 N.E.2d 1324; Olmstead v.Lumbermens Mut. Ins. Co. (1970), 22 Ohio St.2d 212, 51 O.O. 2d 285, 259 N.E.2d 123. Otherwise, undefined words used in an insurance policy are to be given their common meaning unless an absurdity results. See King v. Nationwide Ins. Co. (1988),35 Ohio St.3d 208, 519 N.E.2d 1380.

The terms "servicing" vehicles or vehicles being "serviced" are not ambiguous and clearly include the exterior maintenance of the automobile as well as maintenance of the internal operations. When a vehicle is being cleaned it is being serviced, just as if it were being rustproofed, oiled or painted. It would indeed be unreasonable to interpret the word "servicing" as including only one type of maintenance and not another.

"Servicing" is commonly defined as "perform[ing] services for * * * as * * * to repair or provide maintenance for * * *." Webster's Third New International Dictionary (1986) 2075. "Maintenance" is commonly defined as "the labor of keeping something * * * in a state of repair or efficiency: care, upkeep * * *." Id. at 1362. In this geographical area where salt is the predominant method of snow removal, washing a vehicle is certainly necessary to maintain the vehicle. Providing upkeep of the exterior of a vehicle by washing constitutes servicing the vehicle. It would be unduly burdensome to require insurance companies to explain in detail every word, phrase or sentence of an insurance policy as a prerequisite to their efficacy. Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44, 22 OBR 63, 65, 488 N.E.2d 840, 842.

Accordingly, these assignments of error are sustained.

II State Farm has raised the following additional assignment of error:

"The trial court erred in granting defendant/appellee [sic] Motorists' motion to amend the judgment entry of June 12, 1985, which amendment effectively found the appellant State Farm Mutual Automobile Insurance Company's policy of insurance to be primary."

This assignment has been rendered moot by our disposition of State Farm's other assigned errors. However, App. R. 12(A) requires us to render an opinion in dicta. After reviewing the policy language in issue, we conclude that State Farm's policy is primary. Motorists Mut. Ins. Co. v. Lumbermens Mut. Ins. Co. (1965), 1 Ohio St.2d 105, 30 O.O. 2d 428, 205 N.E.2d 67. Accordingly this assignment of error is overruled.

The judgment of the trial court is reversed and judgment is hereby rendered for appellants.

Judgment reversed.

ANN MCMANAMON, P.J., and PARRINO, J., concur.

THOMAS J. PARRINO, J., retired, of the Eighth Appellate District, sitting by assignment.

¹ The parties do not dispute whether the employee was acting in the course and scope of his employment or whether the employee was a permissive user of the customer's automobile at the time of the accident.

² "I. The trial court erred in granting plaintiff's motion for partial summary judgment as the automobile liability policy of appellant Motorists Insurance Companies, excluded coverage for the accident and claims which were the subject of the plaintiff's supplemental complaint.

"II. The trial court erred in overruling defendant, Motorists Mutual Insurance Company's cross-motion for summary judgment as the automobile liability policy of appellant, Motorists Insurance Companies, excluded coverage for the accident and claims which were the subject of the plaintiff's supplemental complaint.

"III. The trial court erred in not finding that an exclusion in the automobile liability policy of Motorists Insurance Companies which excluded coverage for accidents occurring while any person is employed or otherwise engaged in the business or occupation of servicing vehicles did not include professional car washers.

"IV. The trial court erred in finding that an employee of a professional car washer who, while driving a customer's automobile while acting within the course and scope of his employment, was involved in an automobile accident, was entitled to coverage from his personal automobile liability policy for claims arising out of the accident even though the policy excluded coverage for persons employed in the business or occupation of servicing vehicles."

³ "I. The trial court erred in granting plaintiff's motion for partial summary judgment as the automobile liability policy of appellant State Farm Mutual Automobile Insurance Company, excluded coverage for the accident and claims which were the subject of the plaintiff's supplemental complaint.

"II. The trial court erred in overruling defendant, State Farm Mutual Automobile Insurance Company's cross-motion for summary judgment as the automobile liability policy of appellant, State Farm Mutual Automobile Insurance Company's [sic], excluded coverage for the accident and claims which were the subject of the plaintiff's supplemental complaint.

"III. The trial court erred in not finding that an exclusion in the automobile liability policy of State Farm Mutual Automobile Insurance Company which excluded coverage for accidents occurring while any motor vehicle is being serviced by any person engaged in any way in a car business did not include the washing of a vehicle by a professional car washer.

"IV. The trial court erred in finding that an employee of a professional car washer who, while driving a customer's automobile while acting within the course and scope of his employment, was involved in an automobile accident, was entitled to coverage from the vehicle owner's policy even though the policy contained an exclusion for coverage of accidents while any motor vehicle is being serviced by any person engaged in any way in a car business."