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^^^ A L
IN THE SUPREME COURT OF OHIO
STINSON J. CREWS, et al.
Appellee,
vs.
CENTURY SURETY COMPANY,
Appellant.
)))))))))
C,x N 1 3- 02 8 3
On Appeal from the Franklin CountyCourt of Appeals, Tenth AppellateDistrict, Case No. 12AP-320
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CENTURY SURETY COMPANY
M. SHAWN DINGUS (0070201)sdingusgdinpslaw.comPLYMALE & DINGUS, LLC111 West Rich Street, Suite 600Columbus, Ohio 43215(614) 542-0220Fax: (614) 542-0230Counsel forAppelleesStinson J. Crews andStinson Crews Trucking
THOMAS E. SZYKOWNY (0014603)MICHAEL THOMAS (0000947)VORYS SATER SEYMOUR & PEASE LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008(614) 464-5671Fax: (614) 719-4990Counselfor Amicus CuriaeOhio Insurance Institute
RICHARD M. GARNER (0061734)rgarner@davisyoun .g comDAVIS & YOUNG140 Commerce Park Drive, Suite CWesterville, Ohio 43082(614) 901-9600Fax: (614) 901 2723Counsel for AppellantCentury Surety Company
TIMOTHY J. FITZGERALD (0042734)[email protected] C.O. REZIE (0071321)[email protected] SHARPBulkley Building, Sixth Floor1501 Euclid AvenueCleveland, Ohio 44115-2108(216) 241-5310Fax: (216) 241-1608Counsel for Amicus Curiae
'o Association of Civil Trial AttorneyspL^DFEB 14 ?013
CLERK OF COURTSUPREME COURT OF ®HI®
TABLE OF CONTENTS
Paee
...TABLE OF AUTHORITIES ... ....................................................................................................... iii
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST .................:............................................................................1
STATEMENT OF THE CASE AND FACTS ...................:.............................................................7
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ......................................................10
PROPOSITION OF LAW NO. I- A registered commercial flatbed trailer, used to haulconstruction equipment to and from job sites, is not a vehicle maintained for purposes other thantransportation of cargo within the meaning of a commercial general liability policy, and,therefore, claims arising out of the ownership or use of such a trailer are excluded from coverageunder the terms of such policies ...................................................................................................10
PROPOSITION OF LAW NO. II- When considering whether an insurance policy provisionis ambiguous, a reviewing court must consider the context in which the policy provision isused-particularly where that context pertains to a highly regulated commercial activity such asthe use of commercial vehicles upon public roadways ................................................................11
CONCLUSION ..............................................................................................................................14
CERTIFICATE OF SERVICE ......................................................................................................15
Appx. Pa2es
Sauer v. Crews, 10'h Dist. No. 12AP-320, 2012-Ohio-6257 ............................................................1
Sauer v. Crews, 10 th Dist. No. 10AP-834, 2011-Ohio-3310 ..........................................................10
ii
TABLE OF AUTHORITIES
CASES PAGE(S)
Am. Home Assurance Co. v. Fore River Dock & Dredge, Inc.,
321 F.Supp.2d 209, 222-223 (D. Mass. 2004) .............................................................................12
Am. Nat'Z Ins. Co. v Levy,594 N.Y.S. 2d 118 (1992) ..............................................................................................................2
Bobier v. Nat'l Cas Co.,143 Ohio St. 215, 54 N.E.2d 798 (1944) ......................................................................................11
Davidson v. Motorists Mut. Ins. Co.,91 Ohio St.3d 262, 268-270, 201-Ohio-36 ..................................................................................4, 5
Driskell v. Empire Fire & Marine Ins. Co.,
248 Ga. App. 56, 547 S.E.2d 360, 365 (2001) ...............................................................................2
EdwaNd J. Gerrits, Inc. v. Royal Marine Serv., Inc.,456 So.2d 1316, 1317 (Fla. App.3`d Dist. 1984) ..........................................................................12
Flury v. Central Publishing House of Reformed
Church in the United States(1928), 118 Ohio St. 154, 159, 160 N.E. 679 ..................................................................................4
Gomolka vs. State Auto. Mut. Ins. Co.,70 Ohio St.2d 166, 172-173, 436 N.E.2d 1347 (1982) ............................................................6, 12
Kolencik v. Progressive Preferred Ins. Co.,Case No. 04-CV-3507, 2006 U.S. Dist. LEXIS 24855(N.D. Ga. Mar. 17, 2006) ...............................................................................................................2
Lancer Ins. Co. v. Shelton,................................................. 2245 Fed. Appx. 355, 358 (5th Cir. 2007) .......................................
Scott-Pontzer v. Liberty Mut. Fire Ins. Co.,85 Ohio st.3d 660, 1999-Ohio-292 ..................................................................................................7
Scottsdale Ins. Co. v. Oklahoma Transit Auth., Inc.,No. 06-CV-0359, 2008 U.S. Dist. LEXIS 27322
(N.D.Okla. Mar. 28, 2008) .............................................................................................................2
iii
State Farm Fire & Cas. Co. v. Pinson,984 F.2d 610, 613 (4th Cir. 1993) .................................................................................................12
The Travelers Ins. Co. v. The Buckeye Union Cas. Co.,172 Ohio St. 507, 178, N.E.2d 792 (1961) ...............................................................................6, 11
United Farm Ins. Co. v. Pearce,3d Dist. No. 2-08-07, 2008-Ohio-5405 ..................................................................................3, 4, 10
Westfield v. Galatis,100 Ohio St.3d 216, 2003-Ohio-5849 ......................................................................................11, 13
STATUTES
49 CFR 3 93 .100 ................. ......................:....................................................................... ..............13
49 CFR 392.9 .................................................................................................................................13
App. R. 25(A) .................................................................................................................................3
Ohio Constitution Art. IV, §3(B)(4) ...............................................................................................3
R. C. 4501.01(B) . .........................................................................................................................10
R. C. 4923.02(A) ............. .........................................:...................................................................10
OTHER
6-63 New Appleman on Insurance Law Library Edition§63.01 [2] (2013) .........................................................................................................................2, 3
6-69 New Appleman on Insurance Law Library Edition§69.02[2] (2013) .............................................................................................................................5
Motor Carrier Safety Rules HandbookThe Public Utilities Commission of OhioMarch 31, 2011 ................................................................................................................................1
Ohio Department of Insurance, Uninsured and Underinsured MotoristCoverage in Ohio Report Required by Senate Bill 9 Preparedas of October 31, 2003 .....................................................................................................................6
PUCO Safety Handbook, p. 43 ................................................................................................11, 13
iv
Report of the Virginia Department of Transportation andVirginia Commonwealth University's Crash Investigation Teamon Passenger Vehicle Crashes into Stationary Large Trucks tothe Governor and the General Assembly of Virginia,
..............................................................•••House DocumenfNo. 17 (2003) •••••••••••^^^^^^"""""""""'1
Stempel, J., Stempel on InsuNance Contracts
Section 14.01 [A] [2], 14-13 (2007) ..................................................................................................2
v
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST
This appeal will determine what type of liability insurance applies to the catastrophic
injury or death that all too often occurs as a result of collisions between passenger vehicles and
commercial vehicles.' In an attempt to minimize the injuries and damages that can be caused by
such accidents, federal, state and local governments heavily regulate the movement of
commercial vehicles, including trailers, on public roadways.2 Despite heavy regulation, such
accidents still occur. When they do, the importance of insurance coverage, both to defendants
and plaintiffs, is magnified. This case will determine whether insurance coverage for such
accidents will continue to be borne by commercial auto and truckers policies, which are
expressly designed to provide such coverage, or, whether they will be judicially shifted to
commercial general liability ("CGL") policies, despite the fact that such policies specifically
exclude such coverage.
The underlying fatal accident in this case occurred when Julia Augenstein ("Augenstein")
drove her car into the rear of a registered commercial trailer owned by Appellees Stinson J.
Crews and Stinson Crews Trucking (collectively "Crews") that was illegally parked in the middle
1 In 2000, 4,321 people died in multiple vehicle large truck crashes in the United States. Reportof the Virginia Department of Transportation and Virginia Commonwealth University's CrashInvestigative Team on Passenger Vehicle Crashes Into Stationary Large Trucks to the Governorand the General Assembly of Virginia, House Document No. 17 (2003) ("Truck Crash Report"),p. 11. The full report can be found at: http://leg2.state.va.us/ dls/h&sdocs.nsf/ By+Year
/HD 172003/$file/HD 17_2003.pdf2 See Motor Carrier Safety Rules Handbook, The Public Utilities Commission of Ohio, March 31,2011 ("PUCO Safety Handbook") available online at www.puco.ohio.gov.
1
of a public roadway at dusk ("Accident").3 See Sauer v. Crews, 10t" Dist. No. lOAP-834,
2011-Ohio-3310 ("Crews 1"), at ¶¶1-12, 19-20, 24-27.
When Augenstein's personal representative subsequently sued Crews, Crews had two
ISO-based standardized insurance policies that it looked to for coverage: (1) a CGL policy
issued by Century; and (2) a commercial auto policy issued by Progressive.4 The CGL policy
expressly excluded coverage for auto accidents, while the commercial auto expressly provided
such coverage and also included a commercial regulatory endorsement that would provide such
coverage even if it was otherwise precluded by the express provisions of the commercial auto
policy.5 It is widely recognized that damages such as those from the Accident would most likely
3A substantial percentage of the fatalities from such accidents occur when a passenger vehiclecollided with the rear of a commercial vehicle. In 2000, 18% of fatal crashes involving a largetruck and passenger vehicle were caused by the passenger vehicle colliding with the rear of thetruck. Truck Crash Report, p. 11. Automobile crashes in which a moving vehicle crashed intothe rear of a stationary vehicle accounted for 70% of all rear-end crashes and 55% of all fatal
rear-end crashes. Id., at p. 22.4 Most modern CGL and commercial auto policies are based upon standardized languagedeveloped. decades ago by the Insurance Services Office ("ISO"). Stempel, J., Stempel on
Insurance Contracts, Section 14.01 [A] [2], pp. 14-13 (2007); 6-69 New Appleman on InsuranceLaw Library Edition §69.02[2] (2013). Indeed, the Century CGL policy at issue in this appealused the ISO-standard CG 00 01 12 04 which was specifically designed to preclude the type ofcoverage sought by Crews in this case. Seehttp://www.irmi.com/expert/articles/2004/woodward04.aspx (discussing the revisions to the2004 CGL Form designed to shift such coverage to commercial auto policies).5 Form F Uniform Motor Carrier Bodily Injury and Property Damage Liability InsuranceEndorsement ("Form F") is a uniform endorsement used by insurance companies across thecountry to comply with state compulsory insurance requirements for commercial vehicles andwhich protects members of the public who have been injured by the negligent act of a motorcarrier even if the vehicle involved in the accident is not covered by a liability policy. Scottsdale
Ins. Co. v. Oklahoma Transit Auth., Inc., No. 06-CV-0359, 2008 U.S. Dist. LEXIS 27322
(N.D.Okla. Mar. 28, 2008), at p. 18 (citing Driskell v. Empire Fire & Marine Ins. Co., 249 Ga.
App. 56, 547 S.E.2d 360, 365 (2001); Am. Nat'l Ins. Co. v. Levy, 594 N.Y.S. 2d 118 (1992)).
Lancer Ins. Co. v. Shelton, 245 Fed. Appx. 355, 358 (5th Cir. 2007); Kolencik v. Progressive
Preferred Ins. Co., Case No. 04-CV-3507, 2006 U.S. Dist. LEXIS 24855 (N.D. Ga. Mar. 17,
2006).
2
be covered under a company's commercial auto or trucking policy, but not under its CGL
policy.6 Nevertheless, Crews pursued coverage under its CGL policy rather than its commercial
auto policy. Indeed, Crews went so far as to stipulate that its commercial auto policy did not
provide coverage.
In pursuing coverage from Century in the lower courts, Crews acknowledged that the
CGL policy included a standardized exclusion for bodily injury or death arising out of the
ownership, maintenance or use of any "auto", and further acknowledged that the policy defined
"auto" to mean a "land motor vehicle, trailer or semitrailer designed for travel on public roads".
(Emphasis added). However, Crews argued that the automobile liability exclusion was not
applicable because its commercial trailer could also qualify as "mobile equipment" which would
exempt it from the definition of "auto" and, consequently, from the auto liability exclusion.
Unfortunately, the lower courts agreed with this tortured interpretation of the Century's policy
and held that Century's CGL policy would provide coverage for the Accident. Sauer v. Crews,
10th Dist. No. 12AP-320, 2012-Ohio-6257 ("Crews Il").
Now, for the reasons that follow, Century asks this Court to accept jurisdiction of this
matter as a case of public or great general interest.
First, this Court should accept this appeal to resolve the conflict between the Tenth
Appellate District's decision in Crews II and the Third Appellate District's decision in United
Farm Fam. Ins. Co. v. Pearce, 3d Dist. No. 2-08-07, 2008-Ohio-5405.7 In affirming the trial
court, the Tenth Appellate District found that the commercial trailer could constitute "mobile
6 6-63 New Appleman on Insurance Law Library Edition §63.01 [2] (2013).' Century has filed a Motion in the Tenth Appellate District requesting it to certify the conflict tothis Court pursuant to App. R. 25(A) and Art. IV, §3(B)(4) of the Ohio Constitution.
3
equipment" as a "vehicle[] ... maintained primarily for purposes other than the transportation of
... cargo." Sauer v. Crews, 10th Dist. No. 12AP-320, 2012-Ohio-6257 ("Crews Il"), at
¶¶16-27(Emphasis added). The Tenth Appellate District found the term "cargo" to be undefined
and ambiguous as it could mean: (1) "a very general term for items being transported" or (2)
"items in the stream of commerce". Crews II, at ¶¶24-27. As it was undisputed that the
primary purpose of Crews' commercial trailer was to haul its equipment from job site to job site
and not to haul merchantable goods, it was axiomatic that: (1) if the former definition applied,
the trailer would not qualify as "mobile equipment"; but (2) if the latter definition applied, the
trailer might qualify as "mobile equipment". Crews II, at ¶¶16, 24-27. On the other hand, in
Pearce, the Third Appellate District addressed identical policy language in a factually similar
case and found that the term "cargo" was not ambiguous and a dump truck used to deliver asphalt
and haul paving equipment with an attached trailer was not "mobile equipment" as to avoid the
automobile liability exclusion in a disputed CGL policy. The holdings in both cases hinged on
whether the vehicle involved in the accident was one "maintained primarily for purposes other
than the transportation of . .. cargo." Thus, Pearce and Crews II are in direct conflict. For
nearly a century, this Court has held fast to the view that "[iJt must* conceded that any legal
question, upon which two Courts of Appeals disagree, is a question of public and great
general interest" as to invoke the discretionary jurisdiction of this Court under Art. IV,
§2(B)(2)(e). Flury v. Central Publishing House of Reformed Church in the United States
(1928), 118 Ohio St. 154, 159, 160 N.E. 679. (Emphasis added) Outcomes of such cases
should depend upon this Court's jurisprudence--not geography.
4
Second, this Court should accept this appeal to clarify and re-affirm the well-established
distinction between CGL coverage and commercial auto coverage. As previously explained, it
is well-recognized that CGL policies do not generally provide coverage for automobile accidents,
and are to be contrasted with commercial auto and truckers policies that do. g The Tenth
Appellate District's decision to ignore this distinction is reminiscent of previously disavowed
similar efforts to convert CGL, homeowners and other general liability policies into a form of
automobile liability insurance. See Davidson v. Motorists Mut. Ins. Co., 91 Ohio St.3d 262,
268-270, 2001-Ohio-36 (holding that such policies were not intended to be treated as motor
vehicle liability policies). In Davidson, looking to its own prior decisions and those of the
Supreme Court of California, this Court explained that the very nature of such policies manifest
an intent that automobile accidents not be covered thereunder:
"Common sense alone dictates that neither the insurer nor the insuredbargained for or contemplated that such . . . insurance would coverpersonal injuries arising out of an automobile accident that occurred on ahighway ... The reasonable expectations of the insurer ... as ;additionallymanifested in the type of information sought upon application for such apolicy and the relatively small premiums charged-clearly do notcontemplate coverage for automobile-related accidents . . . Nor do thereasonable expectations of the insured contemplate that this ... policy willprovide such extended automobile coverage; other insurance, with apremium commensurate to the increased risks, is available for that
purpose".
91 Ohio St.3d at 269-270. See also Pearce, at ¶16 (finding that dump truck was designed for
travel on public roads, registered with the BMV, used to haul equipment to job sites and was
intended to be insured another policy "indicate that it was the parties' intention that the dump
truck not be covered under the CGL policy"). Davidson's analysis was correct. CGL policies
8 6-69 New Appleman on Insurance Law Library Edition §69.02[2] (2013).
5
and commercial auto policies are underwritten differently, rated differently and treated differently
because they provide coverage for different kinds of risk. This is not some esoteric distinction,
but one with practical ramifications. Recent history shows that when courts use strained
interpretations to judicially expand standardized commercial policy provisions, it can lead to
"difficulty finding insurers willing to write" such coverage and/or rate increases that have
exceeded 200%.9 Such history is part of the reason why amici like The Ohio Insurance Institute
("OII") and the Ohio Association of Civil Trial Attorneys ("OACTA") have joined Century in
asking this Court to hear this appeal.
Finally, this Court should accept this appeal to clarify that when considering whether an
insurance policy provision is ambiguous, a reviewing court must consider the context in which
the policy provision is used. The Travelers Ins. Co. v. The Buckeye Union Cas. Co., 172 Ohio
St. 507, 178 N.E.2d 792 (1961), at paragraph one of the syllabus; Gomolka v. State Auto. Mut.
Ins. Co., 70 Ohio St.2d 166, 172-173, 436 N.E.2d 1347 (1982). The context of this case is
liability coverage for an auto accident involving Crews' commercial trailer-a land vehicle used
to transport property. When interpreting the meaning of the term "cargo", it was incumbent
upon the Tenth Appellate District to consider the term in this context. However, the Tenth
Appellate District reviewed various definitions of "cargo" out of context to determine that the
general use of the term "cargo" was ambiguous because it could have different meanings in
different contexts. Of course, under this approach, any word can be found ambiguous at any
time. If the Tenth Appellate District's analysis is embraced by other courts, this Court may soon
9 Ohio Department of Insurance, Uninsured and Underinsured Motorist Coverage in Ohio ReportRequired by Senate Bill 97 Prepared as of October 31, 2003 ("UM/UIM Report"), pp. 1, 3 and 6.
The full report can be found at http://www.insurance.ohio.gov /Legal/Reports/Documents
6
have no shortage of "ambiguity" appeals. See e.g. Scott-Pontzer v. Liberty Mut. Fire Ins. Co.,
85 Ohio St.3d 660, 1999-Ohio-292. While Crews II likely lacks the breadth of influence of a
case like Scott-Pontzer, the types of cases it will most likely affect-commercial vehicle crashes
causing catastrophic injury or death-have a disproportionately large footprint on the limited
time and resources of litigants and local trial courts such that the public interest is served by
hearing this appeal.
STATEMENT OF THE CASE AND FACTS
Crews is in-the business of repairing private parking lots and driveways. Toward this
end, it utilizes a dump truck and the commercial trailer for hauling an asphalt paver, a skid loader
and other equipment to and from job sites. Crews I, at ¶2.
Crews was a "private motor carrier" under R. C. Chapter 4923 and subject to certain state
and federal safety regulations for intrastate travel of commercial vehicles. Importantly, these
regulations provided that any loads carried on the commercial trailer were considered "cargo".
See PUCO Safety Handbook, p. 43; 49 CFR 392.9.
It is also undisputed that the trailer was registered with the Ohio Bureau of Motor
Vehicles ("BMV") as a cornmercial trailer and bore an Ohio license plate. As such, the
commercial trailer was subject to Ohio's compulsory financial responsibility laws.
Crews intended to specifically insure the commercial trailer under Commercial Auto
Policy No. 03457521-1 issued by Progressive ("Progressive Policy"), but, for reasons that remain
unresolved today, the commercial trailer was never listed on the Progressive Policy. However,
the Progressive Policy included Form F which automatically provided coverage, as required by
/Senate Bill 97 Report.pdf
7
the Ohio Public Utilities Commission ("PUCO"), even if Crews was operating a vehicle that was
not specifically identified under the Progressive Policy. To cover the three commercial vehicles
that were specifically identified on the Progressive Policy, Progressive charged $5,288 every six
months-over $10,000 per year.
To cover non-auto risks, four months prior to purchasing the Progressive Policy, Crews
purchased Commercial Lines Policy No. CCP421036 from Century which included, in pertinent
part, CGL coverage ("Century Policy"). In contrast to the Progressive Policy, for an entire year
of CGL coverage, Century charged only $794.00. The Century Policy expressly excluded
coverage, in pertinent part, for "`bodily injury'. . . arising out of the ownership, maintenance [or]
use ... of any `auto"'. "Auto" included a "trailer ... designed for travel on public roads", but
did "not include `mobile equipment"'. In turn, "mobile equipment" meant five categories of
various construction vehicles that manifestly did not apply to the commercial trailer. The sixth
category of "mobile equipment" pertained to "vehicles ... maintained primarily for purposes
other than the transportation of persons or cargo." However, the definition of "mobile
equipment" concluded with the following provision:
However, "mobile equipment" does not include any land vehicles that aresubject to a compulsory or financial responsibility law or other motorvehicle insurance law in the state where it is licensed or principallygaraged. Land vehicles subject to a compulsory or financial responsibilitylaw or other motor vehicle insurance law are considered "autos".
Under the foregoing, the commercial trailer could not qualify as "mobile equipment" because:
(1) it was a trailer designed for travel on public roadways; (2) was subject to compulsory
financial responsibility laws (and, in fact, was covered under Form F of the Progressive Policy);
and (3) was maintained for the principal purpose of transporting "cargo".
8
It was with these policies in place that on November 24, 2006, Crews was patching and
repairing a parking lot in Grove City, Ohio. As always, the commercial trailer had been used to
haul the paver and skid loader to the job site. When it was time to pave the parking lot the
commercial trailer was parked (illegally) in the middle of the adjacent roadway while Crews
paved the parking lot. Although Crews employed certain safety precautions to divert traffic
around the commercial trailer, the Accident occurred nonetheless. Crews I, at ¶¶2-12.
Augenstein's personal representatives subsequently filed suit against Crews for damages
arising from the Accident. Through intervention and third-party complaints, Crews, Progressive
and Century subsequently presented claims regarding which was responsible for the damages
arising from the Accident. 10 Ultimately, Progressive moved for summary judgment on the basis
that the commercial trailer was not specifically identified on the Progressive Policy, and Crews,
inexplicably, consented to summary judgment in Progressive's favor. The claims against
Century, however, were stayed pending the outcome of the personal representative's tort claims
against Crews. The trial court found Crews' negligence caused the Accident and that Crews
violated various traffic laws. Crews I, at ¶¶10-12. The Tenth Appellate District affirmed. See
generally Crews I.
On remand, Crews and Century filed cross-motions for summary judgment on coverage
under the Century Policy. The trial court found that the commercial trailer could constitute
"mobile equipment", and therefore was not subject to the auto liability exclusion in the Century
Policy. The Tenth Appellate District affirmed. See Crews II, at ¶¶ 9, 35.
'o Crews also made claims for negligent procurement of insurance against its insurance agent forfailing to insure the commercial trailer under the Progressive Policy. These claims were later
dismissed. without prejudice.
9
Century subsequently filed a Motion to Certify Conflict between Crews II and Pearce,
and then timely appealed to this Court.
PROPOSITION OF LAW NO. I- A registered commercial flatbed trailer, used to haulconstruction equipment to and from job sites, is not a vehicle maintained for purposesother than transportation of cargo within the meaning of a commercial general liabilitypolicy, and, therefore, claims arising out of the ownership or use of such a trailer areexcluded from coverage under the terms of such policies.
It is undisputed that the Century Policy:
(1) expressly excluded coverage for "`bodily injury'. . . arising out of
the ownership, maintenance [or] use . . . of any `auto "'.
(Emphasis added).
(2) defined "auto" to include a "trailer . . . designed for travel on
public roads", but did "not include `mobile equipment"'.
(Emphasis added).
(3) defined "mobile equipment" to include "vehicles ... maintained
primarily for purposes other than the transportation of ... cargo."
(Emphasis added). However, the definition of "mobileequipment" concluded with the following provision:
However, "mobile equipment" does not include anyland vehicles that are subject to a compulsory orfinancial responsibility law or other motor vehicleinsurance law in the state where it is licensed orprincipally garaged. Land vehicles subject to acompulsory or financial responsibility law or othermotor vehicle insurance law are considered "autos".
(4) was purchased four months prior to the Progressive Policy-whichwas purchased, in part, to insure the commercial trailer.
Furthermore, it cannot be disputed that:
(1) the commercial trailer qualified as a "motor vehicle" pursuant to R.
C. 4501.01(B).
(2) Crews was a "private motor carrier" pursuant to R. C. 4923.02(A)
(eff. 9-1-2000).
10
(3) Crews' vehicles were subject to proof of financial responsibilitypursuant to R. C. 4923.08(ef£ 1-23-1963) and related state laws.
(4) Crews' use of the commercial trailer was governed by state andfederal regulations that used the term "cargo" to mean anythingcarried by the commercial trailer. See PUCO Safety Handbook, p.
43; 49 CFR 392.9.
Based upon the foregoing, the commercial trailer qualified as an "auto" for purposes of the auto
liability exclusion in the Century Policy and could not possibly qualify as "mobile equipment".
Accordingly, Crews II is patently incorrect and must be reversed.
PROPOSITION OF LAW NO. II- When considering whether an insurance policyprovision is ambiguous, a reviewing court must consider the context in which the policyprovision is used-particularly where that context pertains to a highly regulated
commercial activity such as the use of commercial vehicles upon public roadways.
When analyzing the meaning of words and phrases in an insurance policy, this Court has
explained:
An insurance policy is a contract ... When confronted with an issue ofcontractual interpretation, the role of a court is to give effect to the intentof the parties to the agreement ... We examine the insurance contract as awhole and presume that the intent of the parties is reflected in the languageused in the policy ... We look to the plain and ordinary meaning of thelanguage used in the policy unless another meaning is clearly apparentfrom the contents of the policy . . . When the language of a writtencontract is clear, a court may look no further than the writing itself to find
the intent of the parties . .. As a matter of law, a contract is unambiguous
if it can be given a definite legal meaning . . . (Citations omitted)
(Emphasis added).
Westfaeld Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶¶9-14. Importantly,
insurance policy provisions are "to be construed in light of the subject matter with which the
parties are dealing and the purpose to be accomplished." Bobier v. Nat'Z Cas. Co., 143 Ohio St.
215, 54 N.E.2d 798 (1944), paragraph one of the syllabus; The Travelers Ins. Co. v. The Buckeye
Union Cas. Co., 172 Ohio St. 57, 157 N.E.2d 792 (1961), paragraph one of the syllabus. The
11
meaning of the policy provisions is to be considered "from the instrument as a whole, and not
detached or isolated parts thereof." Gomolka v. State Auto Mut. Ins. Co., 70 Ohio St.2d 166,
172-173, 436 N.E.2d 1347 (1982). If those provisions have a specific contractual definition,
have acquired a "commercial or technical meaning" or have a "special meaning manifested in the
contractual context", that meaning must be applied. Id.
In this case, the holding of Crews II was contingent upon the Tenth Appellate District
finding that the term "cargo" was ambiguous. In reaching this conclusion, the Tenth Appellate
District looked at the term in different contexts in three different cases: Am. Home Assurance
Co. v. Fore River Dock & Dredge, Inc., 321 F.Supp.2d 209, 222-223 (D. Mass 2004) (examining
the term in the context of a marine insurance policy with several ship endorsements and
concluding that "absent ambiguity, this court should give the term `cargo' its plain ordinary
meaning" which "comports with the language of the Policy as a whole"); State Farm Fire & Cas.
Co. v. Pinson, 984 F.2d 610, 613 (4"' Cir. 1993) (examining a watercraft liability policy that did
not use the term "cargo" and concluding that a towed recreational boat was "in use" for purposes
of the policy); Edward J. Gerrits, Inc. v. Royal Marine Serv., Inc., 456 So.2d 1316, 1317 (Fla.
App.3rd Dist. 1984) (summarily holding that a crane used to offload cargo from a barge was not
itself "cargo" for purposes of a marine insurance policy). See Crews II, at ¶¶21-22. None of
these marine-related cases expressly found the term ambiguous,11 and from these cases it is
difficult to understand how the Tenth Appellate District could conclude that the term was
ambiguous in the context of a land-based vehicle risk such ownership and operation of Crews'
commercial trailer.
" Edward J. Gerrits found that "the term `cargo' does not unambiguously include the crane". Id.
12
On the other hand, when considered in the context of "mobile equipment", ie. land
vehicles being maintained for purposes other than transportation of cargo, the term "cargo"
clearly manifests the broad meaning of anything carried by such a vehicle. This is consistent
with 49 CFR 392.9 which provides that a commercial motor vehicle may not be operated until its
"cargo is properly distributed and adequately secured as specified in §§393.100 through
393.136". 49 CFR 393.100 et seq. then describes how each commercial motor vehicle must,
when transporting "cargo" on public roads, be loaded and equipped and the "cargo" secured to
prevent leaking, spilling, blowing or falling from the vehicle. The concern here is with
protecting the motoring public from the loads being transported by commercial vehicles-not
with whether those loads are merchantable or not. The Ohio PUCO makes clear that these
"cargo securement" rules are applicable to private motor carriers, like Crews, because the loads
they carry are no less dangerous than those made up of merchantable goods carried by common
carriers for hire. See PUCO Safety Handbook, p. 43. Thus, the only reasonable interpretation
of "cargo" under the Century Policy, considered in the proper context, is that it means anything
transported by the commercial trailer.
Because the term "cargo" can be given such a definite legal meaning, it cannot be
ambiguous. Galatis, at ¶¶9-14. To hold that the term "cargo" is ambiguous because it might
have a different connotation in a different context is not sound legal reasoning and should be
rejected.
13
CONCLUSION
Once accepted, this appeal will clarify the boundaries between the types of risks and
losses covered by time-honored, standardized CGL policies and those that remain with
businesses or commercial auto insurers thereby providing clarity and reducing coverage
litigation-something which will benefit plaintiffs, defendants, insurers and the motoring public
in general. It will do so in the context of some of the most serious cases that Ohio litigants and
trial courts face-catastrophic injury and death resulting from accidents between commercial
vehicles and passenger vehicles-which will reduce the toll such cases take on limited judicial
resources. In doing so, it will also have the salutary effect of resolving a current conflict
between the Tenth Appellate District and the Third Appellate District. Based upon the
foregoing, this Court should accept jurisdiction of this matter as a case of public or great general
interest.
rgarner@davisyoun .g comDAVIS & YOUNG140 Commerce Park Drive, Suite CWesterville, Ohio 43082(614) 901-9600Fax: (614) 901-2723Counsel for AppellantCentury Surety Company
14
CERTIFICATE OF SERVICE
I hereby certify that the forgoing was served by ordinary U.S. Mail, on this j*day of
February, 2013 upon:
M.SHAWN DINGUSPLYMALE & DINGUS, LLC111 West Rich Street, Suite 600Columbus, Ohio 43215Counsel for AppelleesStinson J. Crews and Stinson Crews Trucking
THOMAS E. SZYKOWNYMICHAEL THOMASVORYS SATER SEYMOUR & PEASE LLP
52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Counsel for Amicus CuriaeOhio Insurance Institute
TIMOTHY J. FITZGERALDRICHARD C.O. REZIEGALLAGHER SHARPBulkley Building, Sixth Floor1501 Euclid AvenueCleveland, Ohio 44115-2108Counsel for Amicus CuriaeOhio Association of Civil Trial Attorr
15
Counsel foN Appellant Century Surety Company
APPENDIX
Sauer v. Crews,l& Dist. No. 12AP-320, 2012-Ohio 6257
Sauer v. Crews,l0h Dist. No. 10AP-934, 2011-Ohio-3310
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV0093940A887 - N61
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Sharon A. Sauer et al.,
Plaintiffs-Appellees,
V.
Stinson J. Crews et al.,
Defendants/Third-PartyPlaintiffs-Appellees,
Mariann Jackson et al.,
Defendants-Appellees,
Century Surety Company,
Third-PartyDefendant-Appellant.
No. 12AP-320(C.P.C. No. 07CV-9394)
(REGULAR CALENDAR)
11IESCfilE1;fO1lIU
NEl?^!IYGr";'>ytllFf il?":^^?;c+::f^)i^:^;'i^^=;A4^wi7IiUtY'^UC:d't
_4
f3':t_^:. y^^^(i•i^ i^i ^-.^..1»:^ «'^. . t J ^JF^ aii
DECISION
Rendered on December 31, 2ox2
Plymale & Dingus, LLC, M. Shawn Dingus and Michael R.Guluzian, for appellees Stinson J. Crews and Stinson CrewsPaving, Inc.
Weston Hurd LLP, John G. Farnan and J. Quinn Dorgan, forappellant Century Surety Company.
APPEAL from the Franklin County Court of Common Pleas
BRYANT, J.
{¶ 1} Third-party defendant-appellant, Century Surety Company, appeals from a
judgment of the Franldin County Court of Common Pleas granting declaratory relief to
1
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2No. 12AP-320
Century's insureds, third-party plaintiffs-appellees, Stinson J. Crews and Stinson Crews
Paving, Inc. (collectively, "Crews") and determining Crews are entitled to coverage under
their Commercial General Liability ("CGL") policy with Century. Because the trial court
properly concluded the CGL policy provides coverage ta Crews, we affirm.
1. Facts and Procedural History(12) Century's appeal arises out of a fatal traffic collision involving a car Julia
Augenstein was driving and a parked, non-motorized flatbed trailer that Stinson Crews
owned and operated as part of his paving business, Stinson Crews Paving, Inc. According
to this court's decision in Sauer v. Crews, ioth Dist. No. s.oAP-834, 2oii-Ohio-3310,
Crews hitched the flatbed trailer on November 24, 2oo6 to the company's dump truck and
used it to transport an asphalt paver and a skid loader to the job site, a day care center on
Columbus Street. Crews was to patch and repair the deteriorated paving of the day care
center's driveway and parking lot.{¶ 3} Around 5:20 p.m., Augenstein was driving westbound on Columbus Street
and apparently failed. to see Crews' trailer. IIer car hit the rear of the flatbed, and
Augenstein sustained multiple injuries. Emergency medical personnel transported
Augenstein to Grant Hospital, where she was pronounced dead.{14} Augenstein's estate filed a wrongful death and survivorship action against
Crews; Crews, in turn, filed a tliird-party complaint against Century, its CGL carrier,
asserting a claim for breach of its insurance contract with Crews and seeking a declaratory
judgment that Crews are entitled to coverage for the accident under the CGL policy
Century issued to Crews. In response, Century filed a counterclaim requesting the trial
court issue a declaratory judgment that the CGL policy did not require Century to provide
Crews with either a defense or indemnity. Although Crews also filed a third-party
complaint against their automobile carrier Progressive Casualty Insurance Company,
Progressive filed a motion for summary judgment; the trial court granted the motion,
concluding Crews' automobile policy did not cover the trailer.
115) After bifurcating the tort and coverage claims, the trial court conducted a
bench trial on the estate's claims. In a decision filed July 22, 2010, the court found Crews
negligent in parking the trailer on Columbus Street and entered judgment in favor of
Augenstein's estate. This court affirmed the trial court's decision in Sauer.
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na°
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No. x2AP-320 3
{¶ 6) In light of the decision concluding Crews was liable to Augenstein's estate in
the underlying tort matter, the parties renewed their dispute regarding Crews' coverage
under the CGL policy Century issued to Crews. In an entry filed September i6, 2011, the
parties agreed to submit the coverage issue for the trial court's determination on the
briefs. The court also accepted the parties' stipulations as to (i) the CGL policy's
authenticity and admissibility, (2) the trial court's findings of fact at the bench trial, and
(3) this court's Sauer decision.
{¶ 7} On March 19, 2012, the trial court entered a Decision on the Merits as to
Coverage, determining "the trailer involved in this case is mobile equipment and the
policy of insurance provides coverage for Plaintiffs injuries." (R. 289, Decision on the
Merits as to Coverage, i.) Since the decision resolved the final remaining claim in the case,
the court entered a Final Judgment Entry on Apri12, 2012.
YI. Assignments of Error
(18) Century appeals, assigning two errors:
[I.] In declining to apply an exclusion of coverage for "autos"in the commercial general liability insurance policy issued byAppellant Century Surety Company, the trial courterroneously determined that Appellees' flatbed trailer was"mobile equipment" as defined in the policy.
[II.] Even if Appellees' flatbed trailer is "mobile equipment,"the trial court erroneously failed to apply an exclusion ofcoverage for claims arising out of the transport of "mobileequipment."
III. First Assignment of Error - Coverage as "Mobile Equipment" for Trailer
(19) The parties agree that Crews held a valid CGL policy with Century at the
time of the accident and that Crews was found liable for bodily injuiy and property
damage in the amount of $251,552.04, plus interest. The issue is whether Crews' CGL
policy with Century applies on the facts here. Century argues the trial court erred in
granting declaratory judgment in Crews' favor because it incorrectly determined the
trailer was "mobile equipment" and not an "auto" as the CGL policy defines those terms.
3
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No. 12AP-320 4
A. Applicable Law1110) An appellate court reviews a trial court's determination regarding the
justiciability of a declaratory judgment action for an abuse of discretion. Arnott v.
Arnott, 132 Ohio St.3d 401, 2012-Ohio-32o8, 1 13. A trial court's holding regarding
questions of law nonetheless is reviewed on a de novo basis, requiring the appellate
court to review the legal issue without deference to the trial court's decision. Arnott at
116 (noting that "[n]ever have we deferred to the judgment of the trial court on issues of
law").(111) Courts generally interpret insurance policies in accordance with the same
rules applied in interpreting other types of contracts. Hybud Equip. Corp. u. Sphere
Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665 (1992). Because the "interpretation of
written contracts, including any assessment as to whether a contract is ambiguous, is a
question of law," it is subject to de novo review on appeal. State v. Fed. Ins. Co., ioth
Dist. No. o4A:P-1850, 2oo5-Ohio-6807, 122, citing Long Beach Assn., Inc. v. Jones, 82
Ohio St.3d 574, 576 (1998). See also Cleveland Constr., Inc. v. Ohio Public Emp.
Retirement Sys., ioth Dist. No. o7AP-674, 20o8-Ohio=1630, 17.
(112) "When provisions of an insurance policy are reasonably susceptible to
more than one interpretation, we must construe them strictly against the insurer" and
"adopt any reasonable construction that results in coverage for the insured." State Farm
Mut. Auto. Ins. Co. v. Gourley, loth Dist. No. i2AP-200, 2oi2-Ohio-49og, 112, citing
Faruque v. Provident Lffe & Acc. Ins. Co., 31 Ohio St.3d 34, 38 (1987), and Employers
Reinsurance Corp. v. Worthington Custom Plastics, Inc.,. 2og Oliio App.3d 55o (ioth
Dist.1996). The rationale for the rule of construction is that the insurer drafted the policy
and should be held responsible for its language.
(113) In determining whether ambiguities or uncertainties exist, we give words
and phrases their plain and ordinary meaning, "unless manifest absurdity results, or
unless some other meaning is clearly evidenced from the face or overall contents of the
instrument." Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph
two of the syllabus, superseded by statute on other gr•ounds; Hedmond U. Admiral Ins.
Co., ioth Dist. No. o2AP-91o, 2003-Ohio-4138, $ 33. "The intent of the parties to a
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No. x2AP-32o
*«^
However, 'auto'does not inc]ude'mobile equipment.'
6
^**
12. 'Mobile Equipment' means any of the following types of land vehicles,
including any attached machineiy or equipment:
a. Bulldozers, farm machinery, forldifts and other vehicles designed
for use principally off public roads;
b. Vehicles maintained for use solely on or next to premises you own
or rent;
c. Vehicles-that travel on crawler treads;
d. Vehicles, whether self-propelled or not, maintained primarily to
provide mobility to permanently mounted:
(i) Power cranes, shovels, loaders, diggers or drills;
(2) Road construction or resurfacing equipment such as
graders, scrapers or rollers;
e. Vehicles not described in a., b., c. or d. above that are not self-
propelled and are maintained primarily to provide mobility to
permanently attached equipment of the following types:
(Y) Air compressors, pumps and generators, including
spraying, welding, building cleaning, geophysical exploration,
lighting and well services equipment; or
(2) Cherry pickers and similar devices used to raise or lower
workers;
f. Vehicles not described in a., b., c. or d. above maintained primarily
for purposes other than the transportation of persons or cargo."
(Century CGL Policy, Form CG oo 0112 04, at 12-13.)
C. Application of the Policy Terms
{116} The equipment at issue is a non-motorized ig9o Hudson flatbed trailer that
Crews used for hauling machinery to and from job sites by attaching it to one of his
trucks. Crews' CGL policy with Century excludes "autos" from liability coverage, defining
an auto to be a trailer. The same definition, however, excludes "mobile equipment" from
5
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No.12AP-32o 7
the definition of a non-covered auto. If we assume the trailer falls under the definition of
an "auto," the issue is whether the flatbed trailer is covered under the policy as an
exemption from the "auto" exclusion.
{4117} The trailer does not meet the descriptions of mobile equipment provided
in i2(a)-(e); if the trailer is "mobile equipment," it is pursuant to 12(f). Century disputes
the trial court's finding that the trailer qualified as "mobile equipment" under that
provision, which defines mobile equipment as "[vJehicles * * " maintained primarily for
puiToses other than the transportation of persons or cargo." The trial court determined
that because the meaning of "cargo" was ambiguous, ambiguities had to be resolved in
the insured's favor. Applying that maxim, the trial court concluded the flatbed trailer did
not haul cargo.(118) Since the flatbed trailer could not feasibly or safely be used to transport
people, the relevant inquiry is whether the trailer was maintained primarily for the
transportation of "cargo." The policy does not define "cargo," so we apply the " 'ordinary
meaning unless manifest absurdity results, or some other meaning is clearly evidenced
from the face or overall contents of the instrument."' State ex rel. Petro v. R.J. Reynolds
Tobacco Co., 104 Ohio St.3d 669, 2004-Ohio-7102,1123, citing, Alexander at paragraph
two of the syllabus; see also Haimbaugl: v. Grange Mut. Cas. Co., ioth Dist. No. o7AP-
676, 2oo8-Ohio-4ooi, 130.(119) The definitions found in tvio commonly used dictionaries are virtually the
same. Black's Law Dictionary defines "cargo" to mean "goods transported by a vessel,
airplane, or vehicle." Black's Law Dictionaiy 226 (8th ed.2004). Merriam-Webster's
Online Dictionary defines "cargo" as "the goods or merchandise conveyed in a ship,
airplane, or vehicle: FREIGHT." (Emphasis sic.) Merriam-Webster's Online Dictionary,
httR: ILwww.merriam-webster.com/dicition=lcargo (accessed Dec. 28, 2012).
(¶ 20) Both definitions include the term "merchandise," "goods," or both.
Merriam-Webster's Online Dictionary defines "merchandise" as "the commodities or
goods that are bought and sold in business: WARES"; the definition thus suggests items
in the stream of commerce. (Emphasis sic.) "Goods," in turn, is defined in the same
dictionary to include "(3)(a) something that has economic utility or satisfies an
economic want[;] (b) plural: personal property having intrinsic value but usually
6
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No. 12AP-320 9
20o3-Ohio-7232, 137, quoting Butche v. Ohio Cas. Ins. Co., 174 Ohio St. 144 (1962),
paragraph three of the syllabus. "'It is not the responsibility of the insured to guess
whether certain occurrences will or will not be covered based on nonspecific and generic
words or phrases that could be construed in a variety of ways. ^**[I]n order to defeat
coverage, "the insurer must establish not merely that the policy is capable of the
N construction it favors, but rather that such an interpretation is the only one that can^ uM
fairly be placed on the language in question. " Id., quoting Andersen v. Highland
House Co., 93 Ohio St.3d 547, 549 (20oi), quoting Reiter, Strasser & Pohlman, The
Pollution Exclusion Under Ohio Law: Staying the Course, 59 U.Cin.L.Rev. u65, 1179
(1991).M {^( 24} Century failed to do so. Because the policy does not define "cargo," the
term's use creates an ambiguity and its meaning is open to interpretation. One possible
p definition of "cargo" is undisputedly a very general term for items being transported.
N Another valid and commonly used definition of "cargo" limits the term's usage to
describing items in the stream of commerce. The policy provides no indication that it is
o using the term in the broader sense. Given the competing but valid interpretations, the
trial court properly concluded the term is ambiguous and construed it against Century.
{¶ 25) As it did in the trial court, Century relies on the Third District's decision in
Q UnitedFarm Family Mut. Ins. Co. v. Pearce, 3d Dist. No. 2-o8-07, 2oo8-Ohio-5405. In
a Pearce, the policy-holder's dump truck was involved in a traffic accident. Among otherrn arguments, the insured invoked the provision in its policy that created an exemption
from the "auto" exclusion for "[m]obile equipment *** maintained primarily for0 purposes other than the transportation of persons or cargo." Id. at 112. The dump truck
o was used "primarily to haul asphalt and equipment to the job site"; the truck carried
asphalt in its "dump bed" while it "hauled various pieces of paving equipment *** using
a lowboy trailer." Id. at 1i4, i5.(126) Analyzing the definition of "cargo," the Third District noted "'[c]argo' is
defined as 'the lading or freight of a ship, airplane, or vehicle: the goods, merchandise,
or whatever is conveyed; LOAD, T^'REIGHT usu. used of goods only and not of live
animals or persons.' " (Emphasis sic.) Id. at 'p 25, citing Webster's Third International
.Dictionary 339 (2002). The court continued, "'Goods' are 'tangible movable personal
7
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MQO0
^
a
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No. i2AP-320 10
property having intrinsic value[.'] "** 'Convey' means 'to bear from one place to
another: CARRY, TR.ANSPORT."' (Emphasis sic.) Id. According to these definitions, the
court determined "[a]sphalt and equipment fall within the definition of a good, and
thus, cargo"; and therefore, is not "mobile equipment" under the policy. Id. at 115.
(127) The issue here is not whether Crews' paving equipment falls within the
meaning of the term "cargo" under one of its definitions, but whether the policy is
ambiguous as to that term. Because the term is ambiguous, the CGL policy did not
clearly and unambiguously exclude coverage for Crews' trailer; the contract must be
construed in Crews' favor to the end that Crews was not carrying cargo and thus was
covered under Century's CGL policy. Accordingly, the trial oourt properly determined
the flatbed trailer was "mobile equipment" as defined in the policy.
(128) Century's first assignment of error is overruled.
IV. Second Assignment of Error - Transportation of "Mobile Equipxnent"
{J 29) Contuiy's second assignment of error asserts, even if Crews' flatbed trailer is
"mobile equipment," the trial court erroneously failed to apply an exclusion of coverage
for claims arising out of the transport of "mobile equipment." Section "h" under the
"Exclusions" portion of the policy excludes from coverage "'[blodily injury' or 'property
damage' arising out of: (i) The transportation of 'mobile equipment' by an'auto' owned or
operated by or rented or loaned to any insured." (Century CGL Policy, Form CG 00 0112
o4,-at 2,4.)1130) In the context of insurer-created exclusions, it is "presumed that 'that
which is not clearly excluded from the contract is included.' " Prudentiat Prop. & Cas.
Ins. Co. v. Koby, 124 Ohio App.3d 174,178 (iith Dist.1997), quoting Home Indemn. Co.
of N.Y. v. Plymouth, 146 Ohio St. 96 (1945) ► paz'agraph two of the syllabus. See also
Beaverdam Contracting v. Erie Ins. Co., 3d Dist. No. 1-0-17, 2oo8-Ohio-4953, 119
(concluding that although the party seelting to recover under an insurance policy bears
the burden of proof to demonstrate that the policy provides coverage for the particular
loss, "when an insurer denies liability coverage based upon a policy exclusion, the
insurer bears the burden of demonstrating the applicability of the exclusion"), citing
Continental Ins. Co. v. Louis Marx & Co., Inc., 64 Ohio St.2d 399 (Y98o), syllabus.
8
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No. 12AP-320 11
{131} Pursuant to the same rules of constivction applied above, we consider the
plain meaning of the policy's language. To "transport" is "to transfer or convey from one
place to another." Merriam-Webster's Online Dictionary, http://www.merriam-
webster com/dictionary/transUOrt (accessed Dec. 28, 2012). The record reveals that the
flatbed trailer was unattached to any motorized vehiele at the time of the accident; the
accident occurred well after the flatbed trailer had been parked. Because the accident did
not arise out of transporting the flatbed trailer, the exclusion does not apply.
(132) Century nonetheless asserts, in effect, that an auto's previously transporting
a piece of mobile equipment should disqualify the mobile equipment from coverage,
though it is no longer in transit or even attached to an auto. Because "mobile equipment"
must arrive at the job site somehow, and frequently arrives by auto, extending the policy's
exclusion to items previously transported by auto would call into question the value of
exempting "mobile equipment" from the "auto" exclusion at all.
{133} Pursuant to the plain meaning of the provision, section "h" does not
encompass "mobile equipment" already transported to the job site. As a result, the
provision does not exclude the flatbed trailer here. Further, despite Century's assertion
that transporting the trailer caused the accident "because (Crews] placed its trailer in the
roadway, thus blocking traffic and causing the underlying accident," no language in the
policy suggests the trailer should be treated differently because it was set to rest in a
public street. (Appellant's Reply Brief, 9-10.)
{q 34) Century's second assignment of error is overruled.
V. Disposition
{¶ 35) Having overruled Century's two assignments of error, we affirm the decision
of the rranklin County Court of Common Pleas.Judgment affirmed.
KLLAT7C and FRENCH, JJ., concur.
9
E1146 - A88
-^G
•^ - • f 7--• -- .'
f:fl:I I ^1LEa ^T OFA!'Pft', r,,5'IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT 20-11 JUN 30 pH 2; 2^a
CLERK OF COURTS•Sharon A. Sauer, Co-Executor of the.-- 41;Estate of Julia Augenstein et al., COWQF ^^^ps
Plaint''s-Appellees, .1^lL Q $ Z011No. 10AP-834
V. LJ:ljI!s C.P.C. No. O7CVC07-9394) J
Sfinson J. Crews et al., (REGULAR CALENDAR)
Defendants-Appellants.
DECISION
Rendered on June 30, 2011
Lamkin, Van Emen, Tdmb/e, Beals & Doughterty, LLC,Timothy L. Van €man and Keri N. Yaeger, for appellees.
Freund, Freeze & Amold, Kenneth E. Marrrs and Sandra R.Mclntosh, for appellants.
APPEAL from the Franklin County Court of Common Pleas
I
KLATf, J.
{11} Defendants-appellants, Sanson J. Crews and Stinson Crews Paving, Inc.,
appeal from a judgment of the Franklin County Court of Common Pleas In favor of
plaintfFs-appellees, Sharon A. Sauer and Karen S. Streets. In that judgment, the trial
court found that defendants° negligence caused the death of plaintiffs' mother, Julia
Augenstein. For the following reasons, we affirm the trial courrs decision.
10
^O
E1146 - A89No. 1OAP-834 2
(121 The morning of November 24, 2006, Crews, owner of Sgnson Crews
•Pavtng, inc., anived at the Grove City Christian Child Care Center to patch and repair the
deteriorated paving of the day care centers driveway and parking lot. Crews brought with
him an asphalt paver and a skid loader, which he hauled to the job site on a flatbed trailer.
Sometime in the afternoon, Crews parked the empty trailer on the street in front of the day
care•center.
(13} Columbus Street, the street on which the day care center Is located,
consists of three lanes, with the middle lane designated a tum-only lane. Columbus
Street runs east-west and has a 35-mile-per-hour speed limit. The portion of Columbus
Street that includes the day care center is a no-paricing zone.
{94} Despite the "no parking" signs posted nearby, Crews parked the trailer In
the westbound lane of Columbus Street, immediately to the east of the day care centees
entrance. The trailer blocked the majority of the westbound lane, forcing motorists to
detour Into the tum-only lane to avoid i#. The trailer, which was dark in color and only two
to three feet in height, had no illuminated lights or reflective tape on it.
{15} Crews directed his employee, George Siler, to place cones behind the
trailer to alert westbound drivers to its presence. Siler posifloned two to five orange, 12-
inch tall, non-reflecdve cones in a diagonal line beginning at the rear, outside corner of
the trailer and ending at the curb. At most, the cones extended 30 feet from the rear of
the trailer.
t16} Around 5:20 p.m., Crews and his employees were repaving the portion of
the day cane centers driveway located closest to the street. Raymond Jackson, owner
and driver of a 14-wheel dump truck, had just delivered a load of fresh asphalt to the job
11
.E1146 - A90No. 10AP-$34 3
site. Jadcson backed his truck into the driveway to dump asphait Into the paver that
Stinson was operating. A sizable portion of Jackson's cab extended into the westbound
lane of Columbus Street. Crews told Siler to go into the street to direct Jackson into
position to dump the asphalt and flag traffic around the dump truck.
{¶7} At this point, any westbound driver on Columbus Street encountered at
least four different obstacles blocking the lane of travel. First, the driver had to negodate
around the trailer and accompanying cones located immediately to the east of the day
care center's entrance. Then, the driver had to avoid the truck cab and Siler, who had
positioned fiimself in the center, tum-oniy lane at a point west of the truck cab and east of
the trailer.
{%} Augenstein encountered these obstructions as she drove her Buick Park
Avenue from the Elks Club to her home. Rather than flagging Augenstein out and around
the trailer, Siler flagged Augenstein toward the trailer. As Augenstein began tuming her
car left to drimre between the truck and Siler, she hit the rear of the trailer. Apparently,
Augenstein did not see the trailer.
{19} As a resuit of her collision with the trailer, Augenstein sustained fractured
vertebrae, a break in her spinal cord near the base of her brain, a compound fracture of
her r+ght hand, a fracture of her left mandible, and fractured ribs. Emergency medical
personnel transported Augenstein to Grant Hospital, where she was pronounced dead.
{¶ t 0} On July 17, 2007, Sauer and Streets, co-executors of Augenstein's estate,
filed a complaint against Crews in the trial cour!~' In the complaint, plaintiffs asserted both
9 The parties later entered into a written sdpuiation, signed by the tui court, agreeing t® add S4dnson cn^sPavtng, Inc. as a defendant
12
E1146 - A91
No. 10AP-8344
survivorship and wrongful death claims. in their answer, defendants denied liabiiity for
Augenstein's death, and they asserted contributory fault as an affinnative defense.
{It 1) Crews then fiied a third-party complaint against Century Surety Company
("Century"). Crews alleged that the commercial general liability poiicy that he had
secured from Century provided him with coverage for Augenstein's aocldent. Century,
however, declined coverage. Cnows thus asserted a daim for breach of contract against
Century, and he sought a dedaratory judgment that he was entiUed to coverage for the
aocident under the Century policy. In retum, Century filed a counterclaim requesting the
trial court to issue a declaratory judgment that the commercial general liability policy did
not require Century to provide Crews with either a defense or indemnity.
{112) For purposes of triai, the triai court bifurcated plaintiffs' claims from Crew's
third-party claims and Century's counterclaim. Over the course of a four-day bench triai,
piaintiffs and defendants presented evidence. On July 22, 2010, the trial court Issued its
decision, which induded findings of fact and conclusions of law. The trial court concluded
that defendants were negligent in: (1) faiiing to use ordinary care for the safety of
motorists, inctuding Augenstein; (2) violating R.C. 4513.10(A), which requires a vehicie
parked on a roadway open to traffic to be equipped with a red light visible from a distanoe
of 500 feet to the rear of the vehide; (3) violating R.C. 4511.74(A), which prohitzits any
person from placing an obstruction upon a highway without proper authority; (4) vioiafing
R.C. 4511.88(A)(14) and (16), which prohibit any person from parking a vehicle at any
place where signs prohibit paricing or on the roadway portion of a thruway; (5) viotadng
R.C. 4511.22(A), whlch prohibits stopping so as to Impede or bbck the normal and
reasonable movement of traffic; and (6) vioiating the Codified Ordinances of Grove City,
13
.E1146 - A92No. 10AP-834
5
Secdon 907.17, which prohibits any person from obstructing any rights-of-way without first
obtaining a construcdon permit. The trial court also conduded that "[djefendants'
negligence was 100% the proximate cause of injudes and damages sustained by the
[pJlaind#fs, inciuding the wron9fui death of Julia Augenstein" and that "Julia Augenstein
was not negligent and no conduct on the part of Julia Augenstein proximately caused the
subject collision." (Conclusions of law, ¶2 and 3.)
{113) On August 3, 2010, the trial court entered judgment against defendants In
the amount of $251,552.04, plus interest. The judgment entry stated that there was "no
just reason for delay," thus allowing the instant appeal even though the third-party claims
and counterclaim remain unresolved. Civ.R. 54(B). On appeal, defendants assign the
foiiowing error.
The trial court erred in attributing 100% of the liability for theaccident to Appellants, and zero to Piaintiffs' decedent.
(914) The contributory fault of the plaintiff (or, In this case, the decedent) may be
asserted as an affirmative defense to a tort daim. R.C. 2315.32(B), Strff v. Luke Med.
Prackilonner.% Inc., 3d Dist. No. 1-10-15, 2010-Oh1o-6251, ¶56. If a decedent's own
negligence contributed to her death and that negligence was "not gn:ater than" the
combined tortious conduct of all other persons involved, then the contributory fault of the
decedent does not bar the recovery of damages from the other persons involved. R.C.
2315.33. However, the trial court must diminish any compensatory damages recoverable
by an amount that Is proportionally equal to the percentage of the decedent's negligence.
Id.; R.C. 2315.35. See also Essdey v. Volkman, 4th Dist. No. 09CA3308, 2010-Ohio-
4771, 130.
14
E1146 - A93No. 10AP-834 6
1115j Defendants argue that the trial court effed in not apportioning some
percentage of liability to Augenstein because: (1) she faffed to maintain an assured dear
distance ahead In violation of R.C. 4511.21(A); (2) she operated her motor vehicle while
under the Influence of alcohol in vioiaflon of R.C. 4511.19(A)(1)(a); and (3) she got behind
the wheel despite having a significant blind spot In her vision due to macular
degeneration. Each of these arguments requires this court to apply the manifest weight
of-the-evidence standard. Under that standard, where there exists competent, credible
evidence supporting the findings and conciusions of the trial court, an appellate court
must affirm the triai courYs judgment. Myers v. Garson, 66 Ohio St.3d 610, 614, 1993-
Ohio-9. The manifest weight-of-the-evidence standard requir+es an appellate court to
presume that the findings of a trier of fact are comect. State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 124; Seasons Coa1 Co. v. Cleveland (1984), 10 Ohio St3d 77, 80.
This presumpflon arises because the trier of fact, who can observe the witnesses'
demeanor, gestures, and voice inflections, is best able to weigh and judge the credibility
of the proffered testimony. id. Consequently, an appellate court cannot reverse a
dedsion simply because it holds a different opinion regarding the credibiiity of the
witnesses and evidence before the triai aourL iMlson at ¶24; Seasons Coal Co. at 81.
{916} To estabiish a daim for negligence, a party must prove: (1) the existence of
a legal duty, (2) a breach of that duty, and (3) injury that is the proximate cause of the
breach. Wallace v. Ohio Dept. of Commence, Div. of State Flre Marshall, 96 Ohio St.3d
266, 2002-Ohlo-4210, ¶22. Where a legisiative enactment imposes a specific duty for the
safety of others, failure to perform that duty is negiigence per se. Chambers v. St Mary's
School, 82 Ohio St3d 563, 565, 1998-Ohio-184. In cases of negligence per se, a party
15
-E1146 - A94No. 10AP-834 7
can conclusively establish the first two elements of negiigence, duty and breach of duty,
by merely proving the commission or omission of a specific act prohibited or required by
statute. Lang v. Holty Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, ¶15. Here,
defendants argue that Augenstein was negligent per se when she violated R.C.
4511.21(A) by faifing to maintain an assured clear distance ahead of her vehicle so that
she could avoid colliding with the trailer.
{117} R.C. 4511.21(A) states that "no person shall drive any motor vehicie *** in
and upon any street or highway at a greater speed than will pennit the person to bring it
to a stop within the assured clear distance ahead." A driver violates the assured-dear-
distance-ahead statute if she collides with an object that: (1) was ahead of her In her path
of travel, (2) was stationary or moving in the same direction as she, (3) did not suddenly
appear in her path, and (4) was reasonably discemabie. Pond v. Leslein, 72 Ohio St.3d
50, 52, 1995-Ohio-193; Ziegler v. Wendel Poulhy Serros., Inc. (1993), 67 Ohio St.3d 10,
12, overruled on other grounds, Fidelhoftz v. Peller, 81 Ohio St.3d 197, 1998-Ohio-462.
Cases involving the assured-dear-distance-ahead statute require evaiuation of the
conduct of the driver in light of the facts surrounding the coliision. Pumefl v. Nonis, 10th
Dist. No. 04AP-1281, 2006-Ohio-1473, 116. Viotation of the assured-clear-distance-
ahead statute constltfts negligence per se. Pond at 53; Ziegler at 12.
(118} In the case at bar, piaintiffs tadtly concede that the trailer was ahead of
Augenstein In her path of travel, the trailer was stationary, and the trailer did not suddenly
appear In Augenstein's path. Thus, the only matter in dispute is whether the trailer was
reasonably discemable. In arguing. that the trailer was reasonably discemable,
defendants rely on SmJddy v. Wedding Party, Inc. (1887), 30 Ohio St.3d 35, where the
16
E1146 - A95No. IOAP-834 8
Supreme Court of Ohio held that, "[a]n automobile, van, or tsuck stopped on a highway in
a driver's path during daylight hours is, in the absence of extraordinary weather
oonditions, a reasonably discemable object as a matter of law." !d. at paragraph two of
the syllabus. We do not find Smiddy controlling for two reasons. First, the rule
announced in Smiddy applies to automobifes, vans, and trucks-not tlathed trailers. The
trailer at issue here was only two- to three-feet tail. Thus, it lacked the height and
conspicuousness of an automobile, van, or truck. Given the differences in shape and
size between a traiier and a motor vehicle, we decline to expand Smiddy to cover the
instant situation.
{119} Second, the record contains evidence that the accident ocxurred in twiiight,
not daylight. Mark Riee, piamtifts' expert witness on accident reconstnuction, testfied that
the sun set in Grove City on the date of the accident at 5:11 p.m. Augenstein coiiided
with the trailer at 5:29 p.m.--almost 20 minutes after sunset. EUie Francis, one of
defendants' expert witnesses, testifred that the 30-minute time period after the sun sets is
calied civii twiiight, during which light diminishes rapidly before completely ceding to
darkness. The' accident, therefiore, happened well within the civii twiiight period and only
12 minutes before nighttime.
{120} Moreover, Douglas E. Stonerock, a Grove City poiice officer, testfied that
as he drove to the accident scene, it was dusk and street lights were on. As Officer
Stonerock arrived at the accident scene only four minutes after Augenstein struck the
trailer, his testimony constitutes evidence of the fight'sng cond'+tions around the time of the
collision. Because the evidence nocounted above qualifies as competent, credible
17
.E1146 - A96No. 10AP-834
9
evidence that the accident happened during twilight, Smiddy did not require the trial court
to find that the trailer was reasonably discemable as a matter of law.
(121) In arguing to the contrary, defendants rely on the testimony of witnesses
who stated that it was still daylight when Augenstein collided with the trailer. Under the
manifest-weight-of-the-evidence standard, when the evidence is susceptible to more than
one interpn:tation, appellate courts must give it the interpretafion consistent with the trial
court's judgment. Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584, 1995-
Ohio-289. Appellate courts do not reweigh the evidence. Browning v. Ohio State
Highway Patroi,151 Ohio App.3d 798, 2003-Ohio-1108, 114. Here, the evidence that the
accident occurred during twilight is consistent with the trial courrs judgment. Thus, we
rely on that evidence in reviewing the judgment.
{¶22} Defendants next argue that the record lacked competent, credible evidence
that the trial court could rely on to find that the trailer was not reasonably discemable. We
disagree.
{923) 'The word 'discemable' ordinarily implies something more than 'visible: "
McFadden v. Elmer C. Breuer Transp. Co. (1952), 156 Ohio St. 430, 442. "Discemabie"
connotes cognWve awareness and describes an object that is mentally pemeptible or
distinguishable, while "visible" means merely capable of being seen. Id.; Tritt v. Judd's
Moving & Storage, Inc. (1990), 62 Ohio App.3d 206, 217-18: Moreover, the object struck
must be reasonably discemable for a fime sufficient to allow the driver to avoid it with the
exercise of reasonable care. Venegoni v. Johnson, 10th Dist. No. OIAP-1284, 2002-
Ohio-1988.
18
E1146 - A97
No. 10AP-83410
1124) Here, ttte record contains evidence of rnuitiple factors that prevented the
trailer from being reasonably discemable. First, Crews failed tD provide westbound
motorists with adequate wamin8 that the trailer was blocking their lane of tr.avei. Had
Crews obtained a construction permit from Grove City to obstruct Columbus Stn;et, he
would have had to subm(t a traffic control plan consistent with the Ohio Manual of Uniform
Traffic Control Devices ("OMUTCD"). According to Rice, piaintiffs' expert wiMess on
accident reconstruction, the OMUTCD sets forth the standard in Ohio for the confguration
of waming and channeling devices necessary when commercial equipment blocks the
roadway. To comply with the OMUTCD, Cn:ws would have had to use traffic cones to
channel westbound traffic into the tum-oniy lane beginning 245 feet from the rear of the
trailer. Additionaliy, Crews would have had to post various warning signs prior to the
trafflc cones, informing drivers of "road work ahead," "right lane dosed ahead," and '9ane
ends, merge left." Crews failed to post any waming signs, and the diagonal line of traffic
cones that Siler placed behind the trailer extended, at most, only 30 feet.
{925} Furthermore, Ben Townsend, a motorist who traveled west on Columbus
Street around 3:15 p.m. on the day of the accident, testified that he almost hit the trailer
himself. Townsend stated that the cones were not far enough away from the trailer to
give westbound motorists a decent waming that the trailer was blocking the lane.
Defendants attack the credibility of Townsend's testimony because he did not report his
near miss untg after the accident. However, when det,ermining whether competent,
credible evidence supports a trial courYs judgment, we do not judge a witness's credibility.
Da/esandro v. Ohio Dept. of Transp., 10th Dist No. 10AP-241, 2010-Ohio-6177, 114.
19
,E1146 - A98No. 10AP-834
11
1126} Second, the traileft discemability was decreased by the posidoning of the
dump truck and Silees flagging, both of which distracted attention away from the trailer.
The seven- to eight-foot high dump truck protruding Into the westbound iane dwarfed and
overshadowed the two- to three-foot high trailer next to it. Rather than standing before
the trailer to guide westbound motorists around both it and the truck, Slier positioned
himself between the trailer and truck. Due to Sifers position, he did not provide
westbound motorists with advance waming of the trailer, and, in fact, shifted focus to the
obstacle that he preceded-the dump truck. Moreover, Siler, who was standing in the
center, tum-only lane, flagged Augenstein toward the trailer, rather than out and around
the trailer. Thus, instead of assisting Augenstein in avoiding the trailer, Siler directed
Augenstein right into the trailer.
{127} Third, the lack of sufficient illuminaflon reduced the tralier's discemability.
Although darkness was fast approaching, the trailer did not have any lights on it to wam
approaching motorists of its presence. The only advanced waming that the trailer
blocked the road-the traffic cones-were only 12 inches in height and non-reflec6ve.
{128} Defendants argue that the record contains evidence that the trailer was
reasonably discemable. Relying on Crews' and Silees testimony that numerous motorists
negobated around the trailer without incident, defendants contend that the trailer was
reasonably discemabie because every motorist, other than Augenstein, saw and avoided
the trailer. We concur with defendants that this evidence could have supported a finding
in their favor on the Issue of the trailer's discemability. However, the existence of
evidence on both sides of an issue does not justffy reversal of the trial courCs judgment.
Ohio Consumers' Counsel v. Pub. UtiJities Comm., 125 Ohio St.3d 57, 2010-Ohio-134,
20
E1146 - A99
No. 1DAP-834 12
¶50; Amsbary v. Brumfield, 177 Ohio App.3d 121, 2008-0hio-3183, ¶14. The trial court
found more persuasive the evidence proving that the trailer was not reasonably
discemable, and we cannot reweigh the evidence to come to a different conclusion.
(129) In sum, we conclude that competent, credible evidence supports a finding
that the trailer was not reasonably discemable. Thus, the trial court did not err in refusing
to find Augenstein negligent per se for faiium to maintain an assured clear distance
ahead.
{130} We next tum to defendants' second argument the trial court erred In not
attributing some fauft to Augenstein because she violated R.C. 4511.19(A)(1)(a) when
she drove under the inRuence of alcohol. R.C. 4511.19(A)(1)(a) prohibits any person
from operat(ing} any veh'uft *«* within this state, if, at the fime of the operation, (t)he
person Is under the influence of aicohoi:' A person is "under the influence of alcohol" if
he is in a state of intoxication or exhibits a lessening "of the cleamess of inteilect and
control of himself which he would othennnse possess." State v. Hardy (1971), 28 Ohio
St.2d 89, 90. Operabion of a motor vehide while under the infiuence of aloohot is
negligence per se. Erie Ins. Co. v. Columbus (May B. 1980), 10th Dist. No. 79AP-815;
Kemock v. Mark If (1978), 62 Ohio App.2d 103,119 20.
(131} Augenstein struck the trailer while driving home from the Elks Ciub, where
once a week she typically had a cocktail consisting of blended whisky and 7-Up.
Augenstein had a blood alcohol level of .03 at the time of her death z Dr. Joseph Ohr,
one of defendants' expert witnesses, testified that a blood alcohol level of .03 is
intoxicatng in an 86-year-old female iike Augenstein. Ohr opined that the consumption of
2 The legal limit In Ohio is.08. R.C. 4511.19(A)(1)(b).
21
E1146 - B1 13No. 10AP-834
alcohol Impaired Augenstein's driving ability and contributed to the acddent. The trial
court, however, rejected this tesdmony, finding Ohr not credible on the issues of
intoxicatlon and impairment.
{132) In Its role as trier of fact, "[a] triai court is not required to automatically
accept expert opinions offered from the witness stand." State v. White, 118 Ohio St.3d
12, 2008-Ohio-1623, 171. See also McKay Machine Co. v. Rodman (1967), 11 Ohio
St.2d 77, 82 (holding that a trier of fact "can accept all, a part or none of the testimony
offered by a witness whether it is expert opinion or eyewitness facr'). However, "expert
opinion 'may not be anbitrarrly ignored, and some reason must be objedively present for
ignoring expert opinion fiestimony.' " White at ¶71 (emphasis sic) (quotlng United States
v. Ha11(C.A.5,1978), 583 F.2d 1288,1294). See also H.R. v. L.R.,181 Ohio App.3d 837,
2009-Ohio-1685, ¶15 (holding that even when expert testimony is not directly
controverted, a trier of fact may reject that tesgmony as long as the record contains
objectively discemable reasons for doing so); Stancourt v. Worthington City School Dist.,
10th Dist. No. 07AP-835, 2008-Ohio-4548, ¶30 (same). A fact finder can reject expert
opinion for a muldtude of reasons, inctuding unreliability, increduiity, or darity. McCabe v.
Sitar, 7th Dist No. 06 BE 39, 2008-Oh1o-3242, ¶24; Hatbfson v. Conover, 3d Dist No. 6-
06-03, 2006-Ohio-6196, ¶20. Cross-examination may reveal inconsisbencies and errors
in an expert's testimony, an expert may contradict his own testimony, or nonexpert
w(itnesses may rebut expert tesdmony and challenge an experYs credibility. Sims v.
Dibler, 172 Ohio APP•3d 486, 2007-Ohio-3035, ¶44.
{133) In the case at bar, the record contains muitiple reasons for the trial courrs
dedsion to disbelieve Ohr. First, immediately after testifying that alcohol impaired
22
E1146 - B2No. 10AP-834 14
Augenstein and it was more iikety than not that that impairment contributed to the
accident, Ohr admitted to the foiiowing on cross-examination:
Q: If I go home tonight and have a glass of wine, am iimpaired?
A Yes.
Q: So when you say aicohoi * * * caused impairment in JulieAugenstein, you don't know the degree of fmpairment, doyou?
A: No, t don't.
0: And therefore, you don't know the degree to which aicohoicaused or contributed to cause this accident?
A: That Is true.
(Tr. 5'l9.)
(134) Ohrs answers to the above quesdons suggest that he beCeves that even de
minimus consumption of alcohol results In impairment. However, Ohio law prohibits
drunken driving, not driving after a drink. State v. Taylor (1981), 3 Ohio App.3d 197, 198.
In other words, aithough alcohol may have some Influence on a person, that person Is not
"under the influence" until she displays intoxication or an adverseiy aitered ability fio act
and react. Hardy at 91. In opining that one alcoholic drink causes impairment, Ohr
reveals that his definition of Impairment falls short of the level of inebriation necessary for
a person to be under the Influence. Moreover, Ohr conceded that he did not know to
what degree alcohol contributed to the accident, undercutting his eariier testimony
regarding causation.
113S} Second, Christopher Emmeihainz, an officer with the Grove City Police
Department and lead investigator of Augenstein`s accident, refuted Ohrs tesbimony.
1 23
E1146 - B3No. 10AP-834 15
Emmelhainz acknowledged that Augenstein had alcohol in her system at the time of the
crash, but he stated that it was not at "a level that someone would be impaired." (Tr.
233.) Additionally, Emmelhainz did not uncover any evidence that demonstrated
impaired driving before the accident; rather, the evidence showed that Augenstein was
driving at the 35-mile-an-hour speed limit, she obeyed traffic signals, and she was not
weaving. At the conclusion of his investgation, Emmelhainz conciuded that the sole
cause of the accident 'Was the trailer illegally blocking the lane of travel without being
properly marked so that vehicular traffic [was] aware [that it was) there." (Tr. 190.)
Emmelhainz did not attribute any fault to Augenstein.
{136} Third, Streets' testimony also rebutted Ohr's opinion 'that Augenstein was
Impaired. As a bartender at the Elks Club for 13 years, Streets often saw her mother
dunng Augenstein's weekly Friday visits to the Elk Club. Streets stated that she never
saw her mother Impaired after imbibing her customary drink.
{137} We conclude that the weaknesses in Ohr's own testimony, as well as
Emmelhainz's and Streets' contradictory testimony, consfitute objectivvely discemable
reasons to disregard Ohrs testimony on the Issues of intoxication and impairment.
Therefore, the trial court did not err in rejecfing that portion of Ohrs opinion.
{^38} Frands, another of defendants' expert witnesses, opined that a blood
alcohol level of .03 would have negatively impacted Augenstein's visual capability, her
ability to attend and respond, and her ability to monitor her movements. Francis
concluded that these deficiencies, in combination with Augenstein's vision problems,
could explain why Augenstein cxashed into the trailer. The trial court did not explidtly find
this tesfimony incredible. However, given that the trial court conduded that Augenstein
24
E1146 - B416
No. 1OAP-834
was not negi'rgent, the trial court necessarily had to disbelieve Francis. Just as
Emmeihaints and Streets'testimony;ustifies the re;ection of Ohes opinion, we find that
Emmelhainz!s and Streets' testimony also constitubes a basis for the hiai oouct to
disbelieve Francis' opinion.
{139} In weighing the evtdence, the trial court disbelieved both Ohr and Francis
and ooncluded that Augenstein did not violate R.C. 4511.19(A)(1)(a). Emmeihalru?s and
Streets' testimony is competent credible evidence suppordng the trial courYs conclusion.
• Therefore, we find that the triai court did not erT in refusing to find Augenstein negligent
per se for driving under the influence.
{1401 We next tum to defendants' final argument the trial court erred in not
attribufing to Augenstein some fault for the accident because she was driving with a
significant blind spot in her left eye due to macular degeneration. Defendants fail to
specify what duty Augenstein breached by driving with a blind spot in one eye. Generally,
the existence of a duty depends on the foreseeabii'^ty of injury. Wallace at123; Tex ►er v.
D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St3d 677, 680, 1998-Ohio-602.
• •"[Ijf a reasoridbiy prudent person would have anticipated that an injury was likely to resuit
from a particular act, the court could find that the duty element of negligence is satisfied "
Wallace at ¶23. We find that a reasonably prudent person could foresee that injury to
other motorists and pedestrians would likely oocur if a motorist drove without sufficient
visuat acuity. Consequently, Augenstein had a duty to refrain from driving If she did not
have sufficient visual acuity. The operative question, therefore, is whether Augenstein
breached that duty.
25
Z1146 - B5 17No. 10AP-834
{141} The parties do not dispute that Augenstein had a valid Ohio drivees license
at the dme of her death. Plaintifts introduced Augenstein's license into evidence, and it
indicates that Augenstein applied for and received a renewed license on August 29,
2006-approximately three months prior to the accident. Pursuant to R.C. 4507.12(A),
with one inapplicable exception, "each person applying for the renewal of a drivees
license shall submit to a screening of the person's vision before the license may be
renewed." If the results of the vision screening "indicate that the vision of the person
examined meets the standards required for licensing, the deputy registrar may renew the
person's drnrers license." R.C. 4507.12(8). When Augenstein visited her
ophthalmologist, Dr. Charfes J. Hickey, on September 12, 2006, she told Hickey that she
had "passed [her] drivers test recentiy." (Defendants' exhibit FF, Hickey's medical
records for Augenstein.) Augenstein's driver's license and Hickey's medical• record
constitute competent, credible evidence proving that Augenstein did not breach her duty
to possess sufficient visual acuity to drive before getdng behind the wheel.
M42) Defendants rely on the testimony of Frands, their expert witness, to argue
that Augenstein's vision was so diminished that she was negligent, if not reckless, in
driving. Francis, however, conceded on cross-examinatRon that Augenstein had sufftcient
vision to meet the technical requirements necessary to drive.
{143} Defendants also attack the medical record documenfing Augensteln's
passage of the vision screening to renew her driver's license. Defendants argue that the
medical record is not proof that Augenstein had sufficient visual acuity to drive because
the record merely states that Augenstein passed a"drivers test," and does not specify
that that test measured Augenstein's visual acuity. We reject this argument. In Ohio, the
26
E114 6 - B618
No. IOAP-834
only test a resident must pass to renew her license is a vision screening. R.C.
4507.09(B). Moreover, since Hickey is a specialist in eye problems, it logically foilows
that Augenstein would report to him events relevant to her vision, such as passage of a
vision screening to renew her driver's ticense. in any event, the medical record is not the
only evidence that Augenstein passed the vision screening. The very fact that the Bureau
of Motor Vehides ("BMV") issued Augenstein a renewed license is evidence that she
passed the vision screening. R.C. 4507.12(C) (prohibiting the BMV from issuing a
drivers license to an individual who does not meet the vision standards required for
licensing).
(144} Finai{y, defendants hypothesize that the vision screening did not adequately
test Augenstein's vision, and they question whether the screening was appropriatieiy
administered and the resuits cornectly interpreted. Defendants also point to Francis'
tesbrnony that a person can cheat on the vision test by using peripheral vision to see what
she cannot see with her central vision, or memorizing the letters used to test the right eye
and repeating those during a test of the left eye. Because this cdiaifenge to the results of
Augenstein's vision scnaening depends on mere specuiabon, we find it unavailing. We
also note that Augenste(n had no need to cheat or depend on BMV emor to pass the
vision screening-as Francis admifted, Augenstein met the vision requirements to drive.
{145} In sum, we oonclude that the record contains competient, credible evidence
that Augenstein had sufficient visual acuity to drive. We thus conclude that the triai court
did not err in refusing to find Augenstein negfigent for driving with compromised vision.
27
E1146 - B7 19No. 1OAP-834
{146} As each of the bases for attributing contributory fault to Augenstein fai1, we
overrule defendants` sole assignment of error, and we affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment aff"rrmed
BRE)WN and FRENCH, JJ., concur.
28
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