Who’s on First? Employer’s Insurer While Driving Home

Trucker Driving to his Home Where Truck is Garaged is Still Working for Employer

INSURERS SHOULD AVOID LITIGATING OVER WHO INSURES WHAT

It should be axiomatic that insurers who both insure the same person should resolve coverage disputes rather than litigate. When two insurers disputed which was required to defend and indemnify an insured they brought about a necessary appeal when they could have, and should have, resolved the dispute directly or with the assistance of Alternative Dispute Resolution like mediation.

Acuity, A Mutual Insurance Company (“Acuity”) preferred to litigate and, after losing,  appealed the decision of the Butler County Court of Common Pleas granting summary judgment to  Great American Assurance Company (“GAAC”). In Great American Assurance Company v. Acuity, A Mutual Insurance Company, et al., 2022-Ohio-501, No. CA2021-08-097,  Court of Appeals of Ohio, Twelfth District, Butler (February 22, 2022) the Court of Appeals resolved the dispute between insurers.

FACTS

This case arose from a vehicular accident between a 2000 Volvo tractor owned by Herb Winsted (“the Truck”) and another motor vehicle. At the time of the accident, Winsted was an independent contractor for Wm. Hafer Drayage Co. (“Hafer”), which is an intermodal trucking company that hauls containers via company drivers and independent contractors.

Pursuant to his independent contractor agreement with Hafer, Winsted provided transportation related services to Hafer and used the Truck to move containers to and from different warehouses. Winsted began exclusively hauling loads for Hafer in 2019, and at the time of the accident, the Truck displayed Hafer’s name and “DOT” number on its door.

Winsted’s Insurance Coverage

Pursuant to Winsted’s independent contractor agreement with Hafer, the Truck was covered by Hafer’s “public liability [and] property damage * * * insurance coverage[.]” At the time of the accident, Hafer was insured with Acuity via a Commercial Auto and Commercial Excess Liability Policy (“the Acuity Policy”). Pursuant to the Acuity Policy, Acuity agreed to injuries caused by an accident and resulting from the ownership, maintenance or use of a covered auto. The parties do not dispute that the Acuity Policy includes the Truck in its schedule of covered autos.

Winsted also obtained a Non-Trucking Liability and Physical Damage Policy from GAAC for the Truck while it was not being operated on behalf of Hafer (“the GAAC Policy”). Obtaining such a policy was a requirement of Winsted’s independent contractor agreement with Hafer. Pursuant to the GAAC Policy, GAAC agreed to provide liability coverage for the Truck as described by Part (II)(A) of the policy.

Winsted’s Business for Hafer and the Day of the Accident

While working with Hafer, Winsted received his job assignments from Hafer’s dispatcher.  After completing his final assignment of the day, Winsted would either proceed to the Hafer shipping yard (“the shipping yard”), or go directly to his home. Winsted typically began and ended his workday with the Truck at his home.

On October 4, 2019, the date of the accident,  Winsted informed dispatch that he had completed a delivery, but still had a chassis. At that point, dispatch instructed Winsted to return to the shipping yard to return the chassis. The location of Winsted’s final delivery was approximately two or three miles from the Hafer shipping yard. Upon arriving at the shipping yard, Winsted returned the chassis and submitted his weekly paperwork to the dispatcher.  On his way home, Winsted stopped at Ollie’s Bargain Outlet (“Ollie’s”), where his wife was working at the time, and purchased blue jeans. After leaving Ollie’s, Winsted continued his customary route home, stopping for fuel at a Marathon gas station on the way. The accident occurred after Winsted left the Marathon gas station, around 5:00 p.m., and on Winsted’s typical route home from the shipping yard.

After purchasing fuel, Winsted continued on Hamilton Cleves Road, as he would have on a typical drive home. Approximately five to seven minutes from Winsted’s home, at the intersection of Cincinnati Brookville Road and Brown Farm Drive, Winsted collided with another vehicle, allegedly causing harm to the vehicle’s minor passengers. Thus, despite the brief departures and returns to his normal route, Winsted’s drive home from the shipping yard was the same route he would have typically taken at the end of a workday.

The Declaratory Action and Summary Judgment Decision

After the accident, GAAC filed a complaint for declaratory judgment in the trial court. Relevant here, GAAC requested the trial court to enter a judgment against Acuity declaring that, based on the language in the Trucking or Business Use Exclusion in the GAAC Policy did not provide coverage for injury arising out of the October 2019 accident.

The trial court granted GAAC’s motion for summary judgment and denied Acuity’s motion. In so doing, the trial court held that “based upon the undisputed facts, * * * the GAAC Policy does not provide coverage based upon the application of the GAAC Policy’s Trucking or Business Use Exclusion.”

The Appeal

The words and phrases contained in an insurance policy must be given their plain and ordinary meaning unless there is something in the contract that would indicate a contrary intention. It is well established that contracts of insurance are to be strictly construed against the insurer, especially when an exclusionary clause is at issue.

The parties do not dispute that the Truck is a covered auto as defined by the GAAC Policy, that the Truck was regularly garaged at Winsted’s home, or that the shipping yard is a facility of Hafer, a lessee. The primary issue on appeal is whether Winsted was “in the business of [Hafer],” as that term is defined in the Trucking or Business Use Exclusion, at the time of the accident.

The Court of Appeal concluded that when a driver is operating a vehicle in the business of a motor carrier on a customary route, short personal detours do not take the driver out of the business of the motor carrier and that Winsted was operating the Truck “in the business of Hafer at the time of the accident.” This is because Winsted had completed his short personal detours and returned to his customary route home before the accident occurred. Consequently, because Winsted was traveling from a Hafer facility to the place where the Truck was regularly garaged at the time of the accident, the GAAC Policy excludes any coverage for damage or liability.

Lastly, while the court agreed with Acuity that Winsted did not travel directly from the Hafer facility to his home, it disagreed that such a fact precludes application of the GAAC Policy’s Trucking or Business Use Exclusion. Winsted’s brief personal detours did not negate that Winsted was traveling from the facility of the lessee to a location where the Truck was regularly garaged, nor did they alter his status of being in the business of Hafer at the time of the accident. On this basis, reasonable minds could only conclude that the GAAC Policy does not provide coverage in this instance.

Thus, in light of the plain and unambiguous language in the policy GAAC has demonstrated that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

Because the Trucking or Business Use Exclusion conclusively resolves this dispute. Finding no error in the trial court’s decision granting summary judgment in favor of GAAC.

ZALMA OPINION

The Court of Appeal, as the parties were required to do, read both insurance policies and applied the terms and conditions of the policies as written. Since Winsted garaged the Volvo Tractor at his home and started and ended his work for Hafer at that home, the Court of Appeal, affirming the trial court, concluded that since the accident happened before he got home he was in the course and scope of his work and the Acuity policy applied to the accident and the GAAC policy, that excluded business uses, did not. A decision that could easily have been reached if the two insurer’s adjusters met and reviewed the facts rather than turning the dispute over to lawyers.


© 2022 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

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