[Cite as Dickenson v. Pate, 2011-Ohio-1085.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Gregory L. Dickenson,
:
Plaintiff-Appellee,
:
v.
:
Paula M. Pate,
:
Defendant-Appellant,
:
No. 03AP-403
and
:
Safe Auto Insurance Company,
:
(C.P.C. No. 01CVC07-6746)
(REGULAR CALENDAR)
Defendant/Third-Party
Plaintiff-Appellee,
:
:
v.
:
William L. Pate,
:
Third-Party DefendantAppellant,
:
and
:
Christopher Sekol,
:
Third-Party DefendantAppellee.
:
:
D E C I S I O N
Rendered on March 10, 2011
Boone, Smith & Associates, LLC, and G. Rand Smith, for
Paula and William Pate.
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No. 03AP-403
Mazanec, Raskin, Ryder & Keller Co., L.P.A., and David K.
Frank, for Safe Auto Insurance Company.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1}
This is an appeal by defendant-appellant, Paula M. Pate ("Paula Pate"), and
third-party defendant-appellant, William L. Pate ("William Pate"), from a decision and
entry of the Franklin County Court of Common Pleas granting summary judgment in favor
of defendant/third-party plaintiff-appellee, Safe Auto Insurance Company ("Safe Auto").
{¶2}
On July 16, 1999, plaintiff-appellee, Gregory L. Dickenson ("Dickenson"),
was injured when a 1978 Ford truck, owned by Paula Pate, rolled backwards in a parking
lot and struck Dickenson as he was loading groceries into a vehicle. Paula Pate's truck
had been driven to the parking lot by her husband, William Pate. It is undisputed that
William Pate did not have a valid driver's license at the time of the incident. Safe Auto
had issued a policy of automobile liability insurance to Paula Pate, in effect for the period
of May 20, 1999 through November 20, 1999, under which the Ford truck was listed as a
covered vehicle.
{¶3}
On July 13, 2001, Dickenson filed a complaint against Paula Pate, Safe
Auto, Progressive Insurance Company ("Progressive"), Metropolitan Property and
Casualty Co. ("Metropolitan Property"), and various John Does. The complaint alleged
causes of action against Paula Pate for negligence and negligent entrustment in parking
and securing the truck, and Dickenson sought a declaratory judgment against Safe Auto,
Progressive and Metropolitan Property.
Safe Auto filed an answer, a counterclaim
No. 03AP-403
3
against Dickenson, and cross-claims against Paula Pate, Progressive, and Metropolitan
Property. Safe Auto also filed a third-party complaint against William Pate.
{¶4}
On April 19, 2002, Safe Auto filed a motion for summary judgment with
respect to its counterclaim, cross-claims, and third-party complaint. Safe Auto argued
that an unlicensed driver exclusion contained in the insurance policy operated to exclude
the accident from coverage under the Safe Auto policy issued to Paula Pate. On May 7,
2002, Paula Pate and William Pate (collectively "appellants") filed a memorandum contra
Safe Auto's motion for summary judgment.
{¶5}
By decision and entry filed January 17, 2003, the trial court granted
summary judgment in favor of Safe Auto. The trial court concluded that the unlicensed
driver exclusion in Paula Pate's policy should be enforced on the basis that: (1) William
Pate was the last person to drive the vehicle prior to the accident, (2) William Pate
admittedly parked the vehicle in the precise location from which it rolled and struck
Dickenson, and (3) William Pate's conduct constituted violations under the provisions of
R.C. 4507.02.
{¶6}
On February 13, 2003, appellants filed an appeal, but this court issued a
journal entry of dismissal for lack of a final appealable order. Appellants then filed a
motion with the trial court requesting the court to file an amended entry or to issue a nunc
pro tunc entry. On March 11, 2003, the trial court filed a nunc pro tunc decision and
entry, expressly finding no just reason for delay, and appellants filed a new notice of
appeal. On November 13, 2003, appellants filed a voluntary petition under Chapter 13 of
the Bankruptcy Code, and this court issued a stay of the appeal. On June 22, 2006, the
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parties agreed to an entry dismissing Progressive and Metropolitan Property from the
appeal. In 2010, this court reinstated the appeal.
{¶7}
On appeal, appellants set forth the following three assignments of error for
this court's review:
I. THE TRIAL COURT ERRED IN GRANTING SAFE AUTO'S
MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS
THAT AS A MATTER OF LAW WILLIAM PATE WAS
OPERATING THE VEHICLE AT THE TIME OF THE
ACCIDENT AND, THUS, THE UNLICENSED DRIVER
EXCLUSION OPERATED TO EXCLUDE THE ACCIDENT
FROM COVERAGE UNDER THE POLICY.
II. THE TRIAL COURT ERRED IN GRANTING SAFE
AUTO'S MOTION FOR SUMMARY JUDGMENT ON THE
GROUNDS THAT SAFE AUTO AS A MATTER OF LAW HAS
NO OBLIGATIONS TO PAULA PATE FOR ANY CLAIM
ARISING OUT OF THE ACCIDENT.
III. THE TRIAL COURT ERRED IN GRANTING SAFE
AUTO'S MOTION FOR SUMMARY JUDGMENT BY
RELYING UPON AS FACT A CONTESTED GENUINE
ISSUE OF MATERIAL FACT IN THE CASE.
{¶8}
Appellants' three assignments of error raise various challenges to the trial
court's decision to grant summary judgment in favor of Safe Auto; specifically, appellants
argue that the trial court erred in: (1) finding William Pate was operating the vehicle at the
time of the accident; (2) ruling that Safe Auto had no obligations to Paula Pate; and
(3) relying on a contested issue of material fact in granting summary judgment.
{¶9}
Our review of a trial court's decision granting summary judgment is de novo.
Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶24,
citing Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000-Ohio-186. Under Civ.R. 56(C),
"summary judgment shall be granted when the filings in the action, including depositions
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and affidavits, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Bonacorsi at ¶24.
{¶10} In Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd. (1992), 64 Ohio St.3d
657, 665, the Supreme Court of Ohio discussed a court's role in interpreting insurance
contracts as follows:
[T]his court has consistently held that insurance contracts
must be construed in accordance with the same rules as
other written contracts. Universal Underwriters Ins. Co. v.
Shuff (1981), 67 Ohio St.2d 172, 21 O.O.3d 108, 423 N.E.2d
417; Rhoades v. Equitable Life Assur. Soc. of the United
States (1978), 54 Ohio St.2d 45, 8 O.O.3d 39, 374 N.E.2d
643.
In applying these rules, we have stated that the most critical
rule is that which stops this court from rewriting the contract
when the intent of the parties is evident, i.e., if the language of
the policy's provisions is clear and unambiguous, this court
may not "resort to construction of that language." Karabin v.
State Auto. Mut. Ins. Co. (1984), 10 Ohio St.3d 163, 167, 10
OBR 497, 499, 462 N.E.2d 403, 406. In Tomlinson v. Skolnik
(1989), 44 Ohio St.3d 11, 12, 540 N.E.2d 716, 717-718, this
court expounded upon this rule further:
"* * * Thus, in reviewing an insurance policy, words and
phrases used therein 'must be given their natural and
commonly accepted meaning, where they in fact possess
such meaning, to the end that a reasonable interpretation of
the insurance contract consistent with the apparent object and
plain intent of the parties may be determined.' " (Quoting
Gomolka v. State Auto. Mut. Ins. Co. [1982], 70 Ohio St.2d
166, 167-168, 24 O.O.3d 274, 275-276, 436 N.E.2d 1347,
1348.)
{¶11} Appellants assert, under the first assignment of error, that the primary issue
in this case is whether coverage under the Safe Auto policy extended to the accident and
Dickenson's injuries. Appellants contend that the question of coverage turns upon the
No. 03AP-403
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meaning of an undefined phrase, i.e., "is being operated," as set forth in the General
Provisions section of the State Auto policy. That section of the policy states:
No coverage is afforded under any section of this policy if the
covered auto is being operated by a person who is not a
qualified, licensed driver, or is without a valid driver license, or
whose driver license is expired, revoked or suspended, or is
in violation of any condition of their driving privileges, or is
without privileges to drive for any reason.
{¶12} Appellants argue that the issue as to whether the exclusion applies
necessarily depends upon the determination of what constitutes the "operation" of a
motor vehicle; specifically, whether the truck in this case was being operated by William
Pate at the time of the accident. Appellants contend that the plain and ordinary meaning
of the word "operated" in the context of motor vehicles requires an element of physical
control over the vehicle. Appellants assert that the exclusion is unenforceable where the
facts indicate the alleged operator is outside the vehicle and lacks the capacity to exert
control over the vehicle (i.e., a capacity to drive it) at the time of the accident.
{¶13} Both sides focus upon William Pate's actions in parking the vehicle that day.
According to appellants, William Pate exited the truck, and the truck was "legally parked
with the engine turned off, and was car-lengths away when the accident occurred."
Appellants' Brief at 5. As such, appellants contend, William Pate lacked any capacity of
control over the vehicle.
{¶14} In contrast, Safe Auto argues that the accident arose when William Pate
"improperly parked" the truck, "which then rolled backwards and over Mr. Dickenson while
he loaded groceries into a vehicle." (Safe Auto Brief at 5.) Safe Auto further contends
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No. 03AP-403
that the truck rolled away "immediately" after William Pate departed from it. (Safe Auto
Brief at 9.)
{¶15} Appellants rely in part upon two cases from other jurisdictions, Marshall v.
Safeguard Mut. Fire Ins. Co. (1963), 202 Pa.Super. 161, and Oregon Mut. Ins. Co. v.
Fonzo (1970), 2 Wash.App. 304. In Marshall, the court affirmed a common pleas court
decision in which that court construed the words "is being operated" to mean "actual
physical control of the automobile" by the driver. Marshall v. Safeguard Mut. Fire Ins. Co.
(1963), 32 Pa.D.&C.2d 24, 32. In Fonzo, the court interpreted an exclusionary clause in
an automobile liability policy which precluded coverage with reference to any claim arising
from accidents occurring while the automobile "is being operated by an excluded person."
Fonzo at 309. In considering that language, the court held that such clause "does not bar
recovery unless the excluded person was in personal physical management of the
automobile at the time of the accident." Id.
{¶16} Safe Auto also relies in part upon a case from another jurisdiction,
Cacchione v. Wieczorek (1996), 674 A.2d 773. In Cacchione, the court held that "parking
is unquestionably an act normally related to the operation of a vehicle [and that] [t]he
movement of the vehicle ceases, and the operation of the vehicle terminates, at the
moment the vehicle is properly parked." Id. at 776. (Emphasis added.)
{¶17} In cases involving the construction of insurance exclusionary clauses, the
word "operate" has been "interpreted to include activities on the part of the driver which
are usual and customary to the operation of a motor vehicle." Heritage Ins. Co. of Am. v.
Phelan (1974), 17 Ill.App.3d 443, 446-47. In this respect, courts have held that "[a]
person need not be inside a vehicle to operate the vehicle."
Melchert v. Melchert
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No. 03AP-403
(Minn.App.1994), 519 N.W.2d 223, 226, citing Vesely v. Prestige Cas. Co. (1972), 4
Ill.App.3d 726, 728.
{¶18} In Vesely, the insured vehicle was involved in a collision when the driver
stopped the car, left the motor running, and went into a store. The trial court granted
summary judgment in favor of the plaintiffs, including the driver, in plaintiffs' action
seeking a declaration that the automobile policy issued by the defendants-insurers
covered the decedent and the driver. The defendants-insurers appealed, contending that
the policy contained a clause excluding coverage when the car was being operated by
the driver because of the driver's accident record. The appellate court reversed the
judgment of the trial court, holding that "[t]he word 'operate' is not limited to a state of
motion produced by the mechanism of the car," and therefore "[l]eaving an automobile
when its engine is running, while the driver goes into a store – obviously, with the intent of
making a quick purchase – is in substance a continued operation of the car by the driver."
Id. at 728.
{¶19} In Republic Ins. Co. v. Haverlah (Tex.1978), 565 S.W.2d 587, the court held
that an insured pilot "operated" an airplane when the plane moved during the insured's
attempt at maintenance in setting blocks under its wheels.
In holding that the term
"operated by" was not limited to the movement of a vehicle, the court cited by analogy
automobile cases in which "absences from the driver's seat did not preclude a finding that
the insured was operating the automobile." Id. at 589. Further, the court observed, "[t]he
term 'operating' does not contemplate a constant and unceasing motion, but includes
such stops as the driver ordinarily makes in the course of operating a car, and moments
of rest are as much the operating of a car as moments of progress." Id.
No. 03AP-403
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{¶20} In the present case, the trial court, while noting a lack of civil cases in Ohio
dealing with what constitutes "operation" of a motor vehicle, found that "the concept of
'operating' a motor vehicle is considerably broader than mere driving." In support, the trial
court, by analogy, relied in part upon Ohio statutory criminal provisions that prohibit an
individual from operating a vehicle without a valid license (R.C. 4507.02(A)(1)), and which
prohibit permitting an unlicensed driver to operate a motor vehicle (R.C. 4507.02(A)(2)).
The trial court concluded that, because William Pate was the last person to drive the
vehicle prior to the accident, "and he admittedly parked the vehicle in the precise spot
from which it rolled and eventually struck Plaintiff, and he did all of the above in violation
of R.C. 4507.02, * * * the unlicensed driver exclusion in Mrs. Pate's policy should be
enforced."
{¶21} As noted above, both sides focus upon William Pate's actions in parking the
vehicle. According to appellants, the vehicle was "legally parked" when the accident
occurred; in contrast, Safe Auto's argument that the trial court did not err in granting
summary judgment is premised primarily upon its contention that William Pate "improperly
parked" the vehicle at the time of the accident, and that the truck "immediately" rolled into
Dickenson after William Pate departed the vehicle.
{¶22} The sole evidence as to the manner in which the vehicle was parked is
contained in the affidavit of William Pate, which is lacking in any detail. According to
William Pate's affidavit, he "parked and exited" the vehicle, and the truck then "moved by
its own volition towards Dickenson," thereby causing the accident. (William Pate Affidavit,
¶5.) William Pate's affidavit further contains the conclusory statement that he was "not
No. 03AP-403
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driving or operating the vehicle at the time and immediately preceding the time" of the
accident. (William Pate Affidavit, ¶6.)
{¶23} Paula Pate, who provided the only deposition testimony of record, stated
that the Ford truck had a manual transmission. Paula Pate testified in her deposition that,
on the date of the incident, she drove to the accident scene immediately after receiving a
phone call from her husband informing her of the accident. When asked whether she had
any understanding as to how the accident occurred, she responded: "Not really, no."
(Paula Pate Depo. at 23.)
{¶24} The fact that William Pate was the last person to drive the vehicle, or that
he may have been in violation of R.C 4507.02, is not, in our view, dispositive of whether
the exclusionary clause applies to the facts of this case. Nor, however, do we adopt
appellants' narrow construction that the exclusion is unenforceable merely because the
alleged operator was not physically inside the vehicle at the time of the incident.
{¶25} Accepting the proposition set forth in Cacchione at 776, that "parking is
unquestionably an act normally related to the operation of a vehicle," and further
accepting William Pate's affidavit testimony that he "parked and exited" the vehicle prior
to the accident, the record in this case contains insufficient evidence to determine
whether or not William Pate "properly" parked/secured the vehicle such that the operation
of the vehicle terminated at the time Dickenson was injured. In viewing the evidence in a
light most favorable to the non-moving party, we conclude that genuine issues of material
fact exist as to whether the actions of William Pate were sufficient to trigger application of
the exclusionary language ("is being operated") of the policy, thereby precluding the grant
of summary judgment in favor of Safe Auto.
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No. 03AP-403
{¶26} Accordingly, we sustain appellants' first assignment of error, and remand
this matter to the trial court for further proceedings.
{¶27} Under the second assignment of error, appellants contend that the trial
court erred in granting Safe Auto's motion for summary judgment on the basis that Safe
Auto, as a matter of law, had no obligation to Paula Pate for any claim arising out of the
accident.
Appellants' argument is premised in part upon their contention that the
unlicensed driver exclusion is unenforceable. However, in light of our finding that genuine
issues of material fact exist with respect to whether the exclusionary clause applies to the
facts of this case, this assignment of error is rendered moot.
{¶28} Under the third assignment of error, appellants argue that the trial court
erred in granting Safe Auto's motion for summary judgment by relying on a contested
issue of material fact. Specifically, appellants assert that the trial court erred in adopting
and relying upon the declarations page advanced by Safe Auto. Appellants maintain that
the declarations page, which lists William Pate as an excluded driver, was not in effect on
the date of the accident.
{¶29} While the trial court's decision references the fact that a "copy of the
Declarations Page of the policy" was attached to an affidavit, there is no language in the
court's decision suggesting that summary judgment was granted on the basis of whether
or not William Pate was listed as an "excluded driver" under the declarations page.
Accordingly, appellants cannot show error based upon the trial court's reference to a
declarations page.
overruled.
Appellants' third assignment of error is not well-taken, and is
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No. 03AP-403
{¶30} Based upon the foregoing, appellants' first assignment of error is sustained,
appellants' second assignment of error is rendered moot, and appellants' third
assignment of error is overruled. The judgment of the Franklin County Court of Common
Pleas is reversed, and this matter is remanded to the trial court for further proceedings in
accordance with law, consistent with this decision.
Judgment reversed and cause remanded.
BRYANT, P.J., and TYACK, J., concur.
_____________________
