Federal Insurance v. Executive Coach Luxury Travel, Inc.

[Cite as Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc., 128 Ohio St. 3d 331, 2010-Ohio-
6300.]
FEDERAL INSURANCE COMPANY, APPELLEE, v. EXECUTIVE COACH LUXURY
TRAVEL, INC., APPELLEE; BETTS, ADMR., ET AL., APPELLANTS.
AMERICAN ALTERNATIVE INSURANCE CORPORATION, APPELLEE, v.
EXECUTIVE COACH LUXURY TRAVEL, INC., APPELLEE; BETTS, ADMR., ET AL.,
APPELLANTS.
[Cite as Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc.,
128 Ohio St. 3d 331, 2010-Ohio-6300.]
Insurance — Insureds — Bus service contracted by college is a hired bus under
the college’s insurance policy, and the driver employed by the bus
company is an insured under that same policy — Judgment reversed, and
cause remanded.
(No. 2009-2307 — Submitted September 14, 2010 — Decided
December 28, 2010.)
APPEAL from the Court of Appeals for Allen County,
Nos.1-09-17 and 1-09-18, 2009-Ohio-5910.
__________________
PFEIFER, J.
{¶ 1} In March 2007, the Bluffton University (“Bluffton”) baseball team
was scheduled to play multiple games in Sarasota, Florida. James Grandey Jr.,
Bluffton’s head baseball coach, had contracted with Executive Coach Luxury
Travel, Inc. (“Executive”) to transport the players and coaches to Florida. Jerome
Niemeyer, an Executive employee, was a driver. While driving, he apparently
mistook an exit ramp for another lane on the highway and was unable to stop the
bus at the top of a ramp. The bus crashed onto the roadway below the interstate.
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Niemeyer, his wife, and five Bluffton players were killed in the crash. Others
were injured.
{¶ 2} At the time of the crash, Bluffton had a commercial automobile
policy with Hartford Fire Insurance Company ("Hartford"), a commercial
umbrella policy with appellee American Alternative Insurance Corporation
(“American”), and an excess follow-form policy with appellee Federal Insurance
Company (“Federal”). The Federal policy has a clause stating that its coverage is
subject to the terms, conditions, agreements, exclusions, and definitions of its
“controlling underlying insurance,” which is the American policy. The American
policy is subject to “Underlying Insurance,” which is the Hartford policy. The
Hartford policy language, in other words, controls the extent of the coverage of all
Bluffton’s insurance policies. The issue is whether Niemeyer is an insured within
the language and meaning of Bluffton’s Hartford policy.
{¶ 3} Appellants, who are certain injured passengers and the
administrators of the estates of the deceased, argue that Niemeyer is an insured
because Niemeyer drove a bus that Bluffton hired and with Bluffton's permission.
Their argument is grounded in the principle that words not defined within an
insurance policy must be given their natural and commonly accepted meaning.
Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St. 2d 166, 167-168, 24
O.O.3d 274, 436 N.E.2d 1347. Federal and American counter that Bluffton did
not "hire" the bus because it did not exert control over and possess the bus. They
argue that Bluffton simply contracted for transportation services and did nothing
more than assent to Executive’s authority over its own bus drivers.
{¶ 4} Appellees filed separate complaints for declaratory judgment.
Appellants filed motions to intervene. The trial court granted the motions to
intervene, and shortly thereafter, the cases were consolidated. Appellees and
appellants filed motions for summary judgment. The trial court granted appellees’
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motion for summary judgment, stating that Bluffton had neither hired the charter
bus nor permitted Niemeyer to drive the bus and concluded that Bluffton did not
have control or authority over the bus and the driver. Appellants appealed. The
court of appeals affirmed, concluding that Niemeyer and the bus were not insureds
under the Hartford Policy. Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc.,
Allen App. Nos. 1-09-17 and 1-09-18, 2009-Ohio-5910, ¶ 45. We granted
appellants’ discretionary appeal. Fed. Ins. Co. v. Executive Coach Luxury Travel,
124 Ohio St. 3d 1505, 2010-Ohio-799, 922 N.E.2d 969.
Analysis
{¶ 5} Addressing the policy owner, Section II(A)(1)(b) of the Hartford
policy defines an “insured” as “[a]nyone else while using with your permission a
covered ‘auto’ you own, hire or borrow.” The parties refer to this clause as the
"omnibus clause." Appellants argue that pursuant to the plain meaning of "hire"
and "permission," Niemeyer is an insured. Appellees maintain that Executive is
an independent contractor for whom Niemeyer worked and that therefore,
Niemeyer was not using the charter bus with Bluffton’s “permission,” nor did
Bluffton “hire” the charter bus. They believe, therefore, that Niemeyer is not an
insured.
{¶ 6} Pursuant to the policy, a person who otherwise fits the definition of
an insured can be excluded from coverage through five listed exceptions. We
conclude that none of them apply. The omnibus clause excepts from coverage the
owner of an auto that is hired or borrowed. Niemeyer did not own the charter bus
or rent or lend it to Bluffton. The clause also excludes an employee driving his or
her auto or the auto of a family member. Neither Niemeyer nor a family member
owned the charter bus. Anyone selling, servicing, repairing, parking, or storing
"autos" is also excluded. Niemeyer was doing none of those things. Excepted
from coverage also is anyone, not an employee, who is moving property to or
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from a covered auto. Niemeyer was not moving property to or from a covered
vehicle. Finally, coverage excludes partnership members and members of a
limited-liability company when driving an auto owned by the partner or member
or a member of his or her household. Niemeyer was not a partner or member of
any entity involved in this case.
{¶ 7} Having concluded that Niemeyer is not excepted from coverage,
we must determine whether he is an insured. Preliminarily, it is important to
address a policy argument that imbues the arguments of the appellees. The
appellees contend that they never intended to provide coverage for someone like
Niemeyer, whom they consider an unforeseen third party. We consider this
contention disingenuous. The omnibus clause is broad. It applies, with the above
exceptions, to "anyone else." We are not persuaded by the contention that the
driver of a bus that Bluffton rented from a company in the business of renting
buses is an unforeseen third party, when a clause in the insurance policy covers
"anyone else" driving a hired auto.
{¶ 8} The omnibus clause appears straightforward; none of the words in
it are unusual or uncommon, but only "auto" is defined in the policy. All the
involved parties have spent much time and effort advocating for their definition of
the words "hire" and "permission." On its face, it is clear to us that the omnibus
clause applies to the case before us; Bluffton hired the bus from Executive and
granted permission to Niemeyer to drive the bus. Whether the insurance company
intended the clause to apply is immaterial because the language of the policy
supports a conclusion that Niemeyer is an insured. We construe insurance
policies liberally in favor of the insured. Blue Cross & Blue Shield Mut. of Ohio
v. Hrenko (1995), 72 Ohio St. 3d 120, 122, 647 N.E.2d 1358, citing Yeager v.
Pacific Mut. Life. Ins. Co. (1956), 166 Ohio St. 71, 1 O.O.2d 204, 139 N.E.2d 48,
paragraph one of the syllabus.
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{¶ 9} Appellees contend that the meaning of the word “hire” cannot be
determined without recourse to federal circuit court cases, which define “hire” in
terms of control and possession. United States Fid. & Guar. Co. v. Heritage Mut.
Ins. Co. (C.A.7, 2000), 230 F.3d 331, 333. Appellees identify the following as
factors to determine whether a party has possession and control over an auto:
whether the policy holder (1) maintained the vehicle, (2) required the vehicle to be
a certain size or have certain specifications, (3) selected the driver, (4) had the
authority to fire the driver, (5) was “ ‘interested only in the results’ ” of the
transportation, and (6) assumed control of the vehicle by directing loading
operations. Toops v. Gulf Coast Marine Inc. (C.A.5, 1996), 72 F.3d 483, 487-
488. We are not persuaded that these cases should be the law of Ohio. First, they
are factually inapposite in that they involve the loading and hauling of
construction equipment and materials, not the transportation of people. Second,
even under this test, we would conclude that Bluffton hired the bus.
{¶ 10} When Grandey requested a bus from Executive, he had certain size
and leisure requirements. He specifically requested a bus that was large enough to
hold the entire team and that had a DVD player. Executive sought and received
Bluffton’s express permission to allow Niemeyer, a driver with whom Grandey
had had experience, to drive the bus. Grandey testified at deposition that he had
the authority to direct Niemeyer to stop driving if he was driving dangerously.
Grandey could also request that Niemeyer stop the bus for any reason, including
whenever the players needed a break or a meal. The Bluffton players loaded their
equipment and luggage onto the charter bus. Finally, when Grandey discovered
that a DVD player was not working properly, he had the driver stop the bus, and
Grandey fixed it. We consider these facts to collectively establish the requisite
level of control and possession to meet the test advocated by appellees, even
though we do not adopt that test.
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{¶ 11} Appellees also rely on Combs v. Black, 10th Dist. No. 05 AP-1177,
2006-Ohio-2439. We consider this reliance misplaced, as the case provides more
support to appellants. The insurance policy in Combs contains an exception to its
omnibus clause that is similar to the second exception in this case, except that, in
addition to excluding from coverage the owner of an auto that is hired or
borrowed, it also excepts agents and employees of the owner. Id. at ¶ 19. If that
exception had been in the Hartford policy, Niemeyer could not be an insured. But
there is no such exception in the Hartford policy, and we will not create one. The
existence of the exception in Combs is compelling evidence that Niemeyer is not
an unforeseen third party.
{¶ 12} Two key terms, "hire" and "permission," are used in the omnibus
clause and have common and ordinary definitions. The term "hire" means to
“procure the temporary use of property, usu. at a set price.” Black’s Law
Dictionary (9th Ed.2009) 799; see also Merriam-Webster’s Collegiate Dictionary
(11th Ed.2006) 589. The term "permission" is defined as authorization. Black’s
Law Dictionary at 1255; see also Merriam-Webster’s Collegiate Dictionary at
923.
{¶ 13} We conclude that the lower courts erred when they determined that
Niemeyer was not an insured. Based on the facts of this case, we conclude that
Bluffton hired the bus when Grandey procured the use of the bus in exchange for
payment to Executive. We also conclude that Niemeyer was driving the bus hired
by Bluffton with Bluffton's permission because Executive had sought and
Grandey had granted a request to allow Niemeyer to drive the bus. Accordingly,
we conclude that Niemeyer is an insured pursuant to the omnibus clause.
Conclusion
{¶ 14} We reverse the judgment of the court of appeals and remand the
cause to the trial court for further proceedings.
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Judgment reversed
and cause remanded.
BROWN, C.J., and O’CONNOR and CANNON, JJ., concur.
LANZINGER, J., concurs in judgment only.
LUNDBERG STRATTON and O’DONNELL, JJ., dissent.
TIMOTHY P. CANNON, J., of the Eleventh Appellate District, sitting for
CUPP, J.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 15} I respectfully dissent. In order to insure a third party, the omnibus
clause requires that the policyholder own, hire, or borrow a covered “auto.” Both
courts below agreed that reasonable minds could not differ in concluding that
Bluffton did not “hire” the Executive Coach bus. I agree.
{¶ 16} The omnibus clause of the Hartford policy does not apply to the
facts of this case, because Bluffton did not “hire” a bus or give “permission” to
Jerome Niemeyer to drive. Instead, as the trial court found, the evidence
demonstrates that Bluffton contracted with Executive Coach for transportation
services – and a bus and driver were incidental to the contract. Executive Coach
chose a bus to provide Bluffton with transportation, and Executive Coach hired
Niemeyer to drive. Although Executive Coach worked to accommodate the
requests of its client, ultimately, Executive Coach was responsible for assigning a
bus and a driver to provide transportation services to Bluffton. Thus, Niemeyer
was not an insured under the omnibus clause.
{¶ 17} As the trial court concluded: “Bluffton University’s use of the
motor coach and any authority Bluffton had over the motor coach driver was
always subject to the permission Executive Coach gave its driver and its customer
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Bluffton University to use the motor coach.” Additionally, the court found that
Bluffton could not use the bus in any manner that Executive Coach did not allow.
{¶ 18} The majority’s narrow interpretation expands the scope of
coverage beyond what the parties to the insurance policy intended. Although the
majority considers the parties’ intent immaterial, the “fundamental goal in
insurance policy interpretation is to ascertain the intent of the parties from a
reading of the contract in its entirety, and to settle upon a reasonable interpretation
of any disputed terms in a manner calculated to give the agreement its intended
effect.” Burris v. Grange Mut. Cos. (1989), 46 Ohio St. 3d 84, 89, 545 N.E.2d 83.
We have held that provisions in an insurance contract that are reasonably
susceptible of more than one interpretation will be construed liberally in favor of
the insured. King v. Nationwide Ins. Co. (1988), 35 Ohio St. 3d 208, 519 N.E.2d
1380, syllabus. See also Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-
Ohio-5849, 797 N.E.2d 1256, ¶ 13. But this “ ‘rule will not be applied so as to
provide an unreasonable interpretation of the words of the policy.’ ” Id. at ¶ 14,
quoting Morfoot v. Stake (1963), 174 Ohio St. 506, 23 O.O.2d 144, 190 N.E.2d
573, paragraph one of the syllabus.
{¶ 19} Today’s opinion unreasonably extends coverage to a third party
and effectively opens the door for similar claims under other scenarios because the
omnibus clause is standard in many insurance policies. For example, in its brief,
appellee American Alternative Insurance Corporation applies the majority’s
interpretation to the following scenarios: An attorney hails a taxi and asks the
driver to drive her to the airport. On the way, the driver loses control of the taxi
and negligently causes an accident that injures numerous people. Or a bride and
groom climb into a waiting limousine to get to their reception. The chauffer falls
asleep at the wheel and causes an accident. Finally, a church contracts with a bus
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company to transport its members to a social event. The bus driver causes an
accident on the way.
{¶ 20} Based on the majority’s interpretation of the omnibus clause, the
taxi company, limousine company, bus company, and their drivers could rely on
the customer’s liability insurance to supplement their own coverage because there
is little to distinguish these examples from the facts in this case. But the drivers in
these situations are not intended to be insured under the omnibus clause of a
customer’s liability policy.
{¶ 21} I believe that the trial court properly interpreted the omnibus clause
in the Hartford policy and concluded that Niemeyer was not an insured at the time
of the accident: “Bluffton had contracted with Executive Coach for services and
the bus was only incident to said contract. Bluffton therefore hired Executive
Coach to provide charter service.” Therefore, “Bluffton College could not be
found to have owned, hired, or borrowed the vehicle at the time of the accident.”
{¶ 22} Consequently, I respectfully dissent and would affirm the judgment
of the court of appeals.
O’DONNELL, J., concurs in the foregoing opinion.
__________________
Gallagher Sharp, D. John Travis, and Gary L. Nicholson, for appellee
Federal Insurance Company.
Crabbe, Brown & James, Steven B. Ayers, and Robert C. Buchbinder; and
Bates & Carey, L.L.P., and Daniel I. Graham Jr., for appellee American
Alternative Insurance Corporation.
Cubbon & Associates Co., L.P.A., and James E. Yavorcik, for appellant
Timothy E. Berta.
Connelly, Jackson & Collier, L.L.P., Steven R. Smith, Steven P. Collier,
Janine T. Avila, and Adam S. Nightingale, for appellant Feroen J. Betts.
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Transportation Injury Law Group, P.L.L.C., and Douglas Desjardins, for
appellant Geneva Williams.
Dyer, Garofalo, Mann & Schultz and John Smalley, for appellants Kim
Askins and Jeffrey E. Holp.
Robison, Curphey & O'Connell and David W. Stuckey, for appellant
Caroline Arend.
______________________
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