^^^ 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)tfitzgerald@gallagersharp.comRICHARD C.O. REZIE (0071321)ffezie@gallagersharp.comGALLAGHER 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

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV009394OA887 - N62

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.

2

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV0093940A887 - N63

N

na°

o.^

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

0A887 -Nidanktin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV009394

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

4

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV009394OA887 - N66

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

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV0093940A887 - N67

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

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV0093940A887 - N69

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

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV009394OA887 - N70

MQO0

^

a

I.

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

Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 02 4:37 PM-07CV0093940A887 - N71

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

^-- --- - - -

E1146 - B8

29