2012 Ohio 4160
Ohio Ct. App.2012Background
- Crum & Forster filed a declaratory judgment action seeking a determination of its duty to defend and indemnify Ameritemps under a commercial auto policy for a 2006 collision involving Crosby and Ameritemps temporaries.
- Crosby, Harris, Tucker, and Wimbley were in Crosby’s vehicle transporting themselves and others to a Prime Woodcraft work site; Ameritemps dispatched Crosby and reimbursed driving arrangements.
- Ameritemps’ prior litigation with Kestranek concluded Crosby was not conclusively in the course and scope of employment as a matter of law, but the appellate panel suggested genuine inferences could show employment-related driving.
- The policy defined covered autos as those owned, leased, hired, or borrowed, with an explicit exclusion for autos borrowed from an employee, and a separate workers’ compensation/employee exclusion.
- The policy also defined “Employee” to exclude temporary workers, and Crosby was treated as an Ameritemps employee but his vehicle was not owned, leased, or borrowed by Ameritemps.
- The trial court granted Crum & Forster’s summary judgment motion, concluding there was no duty to defend or indemnify under the policy; Ameritemps appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crosby’s vehicle was a covered auto under the policy | Crum & Forster: vehicle qualifies as hired/borrowed auto under policy language | Ameritemps: vehicle not owned/leased by Ameritemps and borrowed from an employee, thus not a covered auto | No; vehicle not a covered auto |
| Whether workers’ compensation/employee exclusions bar coverage | Crum & Forster: exclusions preclude coverage for worker’s comp-related claims | Ameritemps: exclusion does not apply or creates factual issues | Yes, exclusions apply; no duty to defend or indemnify |
| Whether Crosby’s status as a temporary employee affects the coverage | Crum & Forster: temporary-worker status would place him outside employee-related coverage | Ameritemps: Crosby’s status could be factually contested to bring some claims within coverage | No genuine fact issue; not within policy coverage |
Key Cases Cited
- Ward v. United Foundries, Inc., 129 Ohio St.3d 292 (2011-Ohio-3176) (duty to defend compared to indemnity; policy interpretation)
- Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482 (2006-Ohio-6551) (policy language interpretation; construction of coverage scope)
- Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241 (2007-Ohio-4948) (distinction between duty to defend and indemnify)
- Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306 (2007-Ohio-4917) (policy coverage scope and exclusions analysis)
- Sharp v. Thompson, 2008-Ohio-4990 (5th Dist. No. 07CA00016) (workers’ compensation exclusion precludes defense where no coverage)
- Hogue v. Westfield Ins. Co., 2003-Ohio-5405 (4th Dist. No. 03CA20) (car borrowed from employee exclusion interpretation)