Progressive Preferred Ins. Co. v. Lloyd's

{¶ 39} The majority opinion reverses the grant of summary judgment in favor of Certain Underwriters at Lloyd's London on the grounds that a genuine issue of material fact exists as to whether Schmidt's injuries arose out of the "use" of an automobile. I must respectfully dissent.

{¶ 40} As an initial matter, whether the coverage exclusion of the Lloyd's policy applies in the present case is not a factual issue for the jury to determine. The interpretation of an insurance contract is a matter of law.Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684. The underlying facts of this case are not in dispute. The terms "ownership, maintenance, use or entrustment of any * * * auto" are not ambiguous. Therefore, it is for the court to determine whether Schmidt's claims arose out of the "use" of an automobile. Cf.Kish v. Cent. Natl. Ins. Group of Omaha (1981),67 Ohio St.2d 41, 52, 21 O.O.3d 26, 424 N.E.2d 288.¹

{¶ 41} In determining whether the exclusion for use of an auto applies, "[t]he relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle." Id. at 50, 21 O.O.3d 26, 424 N.E.2d 288.

{¶ 42} Under the majority's analysis, Crum-Griesmer's act of driving the van into the culvert constitutes the original act of negligence, while Crum-Griesmer's act of moving Schmidt constitutes an "intervening" act, arguably unrelated to the use of an automobile.

{¶ 43} I disagree. The whole sequence of events resulting in Schmidt's injuries arose from the use of an automobile, in this case, a van. Crum-Griesmer's negligent act of moving Schmidt without securing her with safety straps was motivated by the need of two passengers of the van to exit it. The van that Schmidt was occupying had an estimated ten-degree tilt toward the right because Crum-Griesmer had driven it into a culvert. Schmidt had to be moved because she blocked the only exit from the van. The other exits from the van were blocked because Crum-Griesmer had driven it into a culvert. Schmidt was left alone in the van so that Crum-Griesmer could summon a tow truck. Rather than being an independent, intervening act, moving Schmidt arose directly out of the use of the van.

{¶ 44} In Estate of Nord v. Motorists Mut.Ins. Co., 105 Ohio St.3d 366, 2005-Ohio-2165,826 N.E.2d 826, relied upon by the majority, the "absence of a causal nexus" between the injury and the operation of a vehicle was patent. Id. at ¶ 13. The reason for the paramedic's handling of the syringe in Nord was unrelated to the operation of the ambulance. The paramedic's dropping the syringe into Nord's eye was unrelated to the operation of the ambulance. The fact that Nord's injury occurred in an ambulance was a "fortuitous" occurrence. Id. at ¶ 14.

{¶ 45} In the present demonstrated above, the reason for Crum-Griesmer's moving Schmidt was inextricably linked to the use of the van. For the foregoing reasons, I respectfully dissent.

¹ Although the majority states that "given the law set by the Supreme Court in Nord, summary judgment is inappropriate," Nord, in fact, reinstated the original grant of summary judgment entered by the trial court.