2013 Ohio 4262
Ohio Ct. App.2013Background
- Plaintiff Thomas Darno was struck by a vehicle on SR 45 after he and a friend pushed his disabled Jeep off the roadway and then ran when his friend yelled “Run.”
- Darno admitted in response to requests for admission that he completely exited the Jeep, turned on four-way flashers, pushed the Jeep off the road "somewhat," then ran and was struck while running.
- Darno sought underinsured motorist (UIM) benefits from Westfield, the insurer of his vehicle.
- Westfield argued Darno was excluded from UIM coverage because he was “occupying” the insured vehicle when injured, per the policy definition (“in, upon, getting in, on, out or off”).
- Westfield moved for summary judgment solely based on Darno’s admissions; the trial court granted summary judgment for Westfield.
- The Ninth District reversed, holding Westfield failed to meet its initial summary judgment burden because the admissions did not establish as a matter of law that Darno was “occupying” the vehicle at the time of the accident.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Darno was “occupying” the insured vehicle at the time of injury for purposes of policy exclusion | Admissions are conclusory and do not establish Darno occupied the vehicle; factual questions remain about proximity, timing, and relationship to the vehicle | Admissions show Darno had exited, pushed the Jeep off the road, then ran and was struck — thus he was within policy’s "occupying" definition and excluded | Reversed: summary judgment premature — Westfield did not demonstrate entitlement to judgment as a matter of law because the record lacked facts about proximity, timing, and nexus to the vehicle |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Byrd v. Smith, 110 Ohio St.3d 24 (summary-judgment standard under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s initial burden in summary judgment)
- Kish v. Central Nat. Ins. Group, 67 Ohio St.2d 41 (construe uninsured/underinsured coverage liberally in favor of insured)
- Joins v. Bonner, 28 Ohio St.3d 398 ("occupying" analysis considers immediate relationship and reasonable geographic area)
- Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478 (historical treatment of occupancy exclusions)
- State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471 (statutory context permitting certain exclusions)
- Pennington v. Ohio Cas. Ins. Co., 63 Ohio App.3d 527 ("out" or "off" can still be "occupying" when reasonable relationship to vehicle exists)
- Etter v. Travelers Ins. Cos., 102 Ohio App.3d 325 (case-specific, fact-sensitive occupancy analysis)