[Cite as Curry v. Estate of Akers, 2016-Ohio-581.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Ryan J. Curry,                                       :

                 Plaintiff-Appellant,                :
                                                                    No. 15AP-836
v.                                                   :         (C.P.C. No. 14CV-4735)

The Estate of Boyd F. Akers et al.,                  :    (ACCELERATED CALENDAR)

                 Defendants-Appellees.               :

                                            D E C I S I O N

                                    Rendered on February 18, 2016


                 Lazzaro Luka Law Offices, LLC, Lynn A. Lazzaro, Lori A.
                 Luka, and Gillian A. Steiger, for appellant.

                 Gallagher, Gams, Pryor, Tallan & Littrell L.L.P., and
                 James R. Gallagher, for appellee State Farm Fire and
                 Casualty Company.

                   APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
        {¶ 1} Plaintiff-appellant, Ryan J. Curry, appeals from the judgment of the
Franklin County Court of Common Pleas denying his motion for summary judgment on
the issue of uninsured motorist coverage and granting defendant-appellee, State Farm
Fire and Casualty Company's ("State Farm"), motion for summary judgment on the same
issue. For the reasons that follow, we affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Curry was injured when he accidentally struck and killed Boyd Akers on
Interstate I-270 in Gahanna, Ohio around 9:30 p.m. on April 16, 2012. Curry was driving
a 2006 Ford Fusion with the permission of and owned by his girlfriend, Tina Pignatelli.
The vehicle was insured by State Farm and contained an uninsured motorist clause.
No. 15AP-836                                                                           2


       {¶ 3} At the time of the accident, Boyd Akers and his two daughters, Amanda
Akers and Kourtney Akers, were returning from shopping at Eastland Mall in a 1990
Buick Century purchased by Boyd but titled in the name of 19-year-old Amanda Akers.
Boyd Akers had a suspended driver's license. It is not disputed that the Buick was
uninsured.
       {¶ 4} Boyd Akers was driving the Buick with Amanda Akers' permission.
Kourtney Akers was speaking to someone about activating a cell phone they had just
purchased. Boyd Akers was upset with the cell phone company and began making
comments. Kourtney Akers put her hand over Boyd Akers mouth in an attempt to quiet
him. This upset Boyd Akers who pulled the car off the road and parked on the berm near
the grass adjacent to the northbound lanes of I-270. He then exited the vehicle, crossed
all four northbound lanes of I-270 on foot, climbed over the median fence separating the
north and southbound lanes, and crossed all four southbound lanes of the freeway.
       {¶ 5} Upon reaching the other side of I-270 he made or received a cell phone call
with a friend that lasted approximately three minutes. Then he re-crossed all four
southbound lanes, climbed the median fence, and was crossing the northbound lanes
while cars were swerving around him. Amanda and Kourtney Akers exited the Buick and
began screaming at him not to cross the road. Amanda Akers testified that Boyd Akers
was more than halfway through the fourth northbound lane when he was struck by Ryan
Curry's vehicle. He had nearly reached the rear of the Buick when Ryan Curry struck and
killed him. Both the Ohio Traffic Crash Report and Amanda Akers indicated that Boyd
Akers was returning to his vehicle when he was struck and killed.
       {¶ 6} Ryan Curry testified he was traveling between 60 and 65 mph when he saw
a car in front of him suddenly swerve. He then saw Boyd Akers in the second northbound
lane of I-270 and almost immediately struck him. Akers' body was propelled through the
air and into the driver's side windshield of Curry's vehicle. After striking Akers, Curry
engaged heavy braking and came to a final stop under the Tech Center Drive bridge.
Curry sustained bodily injury and was transported to Grant Medical Center. He also
received psychiatric care after the accident.
       {¶ 7} State Farm denied coverage based on the uninsured motorist provisions of
the policy issued to Tina Pignatelli. State Farm took the position that the injuries
No. 15AP-836                                                                             3


sustained by Ryan Curry were not caused by an accident arising out of the operation,
maintenance or use of a motor vehicle by an uninsured motorist. State Farm asserted
that, because Boyd Akers was a pedestrian at the time of the accident, Akers himself was
the instrument of the injury, not a motor vehicle.
       {¶ 8} Curry filed suit on April 4, 2014 against the Estate of Boyd Akers, Amanda
K. Akers, and State Farm.
       {¶ 9} Curry and State Farm filed cross-motions for summary judgment.            On
April 27, 2015, the trial court found in favor of State Farm finding that "the cause of the
bodily injury was a person and not a motor vehicle as required by the uninsured motorists
provision." (Emphasis sic.) (April 27, 2015 Decision and Entry, 5.)
       {¶ 10} After the trial court entered judgment for State Farm, Curry filed a motion
for summary judgment against the Estate of Boyd Akers and Amanda Akers. They failed
to respond to the motion. The trial court granted Curry's motion for summary judgment
on August 5, 2015, finding Boyd Akers to be negligent and that Amanda Akers had
negligently entrusted the vehicle to Akers. The trial court set the matter for a hearing on
damages, but held it in abeyance pending a decision from this court on the issue of
uninsured motorist coverage.
       {¶ 11} Curry then appealed to this court on September 4, 2015.
II. ASSIGNMENTS OF ERROR
       {¶ 12} On appeal, Curry sets out the following two assignments of error:
              I. The Trial Court erred to the detriment of the
              Appellant/Plaintiff Ryan J. Curry when it granted summary
              judgment in favor of Appellee/Defendant State Farm Fire and
              Casualty company holding that there were no genuine issues
              of material fact as to whether or not Appellant/Plaintiff Ryan
              J. Curry's [sic] was entitled to uninsured motorist coverage
              under the policy of insurance issued by Appellee/Defendant
              State Farm Fire and Casualty Company to non-party Tina
              Pignatelli for injuries Appellant/Plaintiff Ryan J. Curry
              sustained in an automobile accident on April 16, 2012.

              II. The Trial Court erred to the detriment of the
              Appellant/Plaintiff Ryan J. Curry when it denied summary
              judgment to Appellant/Plaintiff Ryan J. Curry holding that
              Appellant/Plaintiff Ryan J. Curry was not entitled to
              uninsured motorist coverage under the policy of insurance
No. 15AP-836                                                                                4


              issued by Appellee/Defendant State Farm Fire and Casualty
              Company to non-party Tina Pignatelli for injuries
              Appellant/Plaintiff Ryan J. Curry sustained in an automobile
              accident on April 16, 2012.

       {¶ 13} The assignments of error are related and will be addressed together.
III. STANDARD OF REVIEW
       {¶ 14} Our review of summary judgment on appeal is de novo. Comer v. Risko, 106
Ohio St.3d 185, 2005-Ohio-4559, ¶ 8. To obtain summary judgment, the movant must
show that (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion when viewing evidence in favor of the nonmoving party
and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); New Destiny
Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, ¶ 24.
       {¶ 15} The movant bears the initial burden of informing the trial court of the basis
for the motion and of identifying those portions of the record demonstrating the absence
of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280 (1996). Once the
moving party meets this initial burden, the nonmoving party has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for
trial and, if the nonmoving party does not so respond, summary judgment, if appropriate,
shall be entered against the nonmoving party. Id.
       {¶ 16} Summary judgment is appropriate when the evidence is construed most
strongly in favor of the nonmoving party, and reasonable minds can reach only one
conclusion, that being adverse to that party. Civ.R. 56(C).
       {¶ 17} As explained by the Supreme Court of Ohio:
              The moving party cannot discharge its initial burden under
              Civ.R. 56 simply by making a conclusory assertion that the
              nonmoving party has no evidence to prove its case. Rather,
              the moving party must be able to specifically point to some
              evidence of the type listed in Civ.R. 56(C) which affirmatively
              demonstrates that the nonmoving party has no evidence to
              support the nonmoving party's claims. If the moving party
              fails to satisfy its initial burden, the motion for summary
              judgment must be denied. However, if the moving party has
              satisfied its initial burden, the nonmoving party then has a
              reciprocal burden outlined in Civ.R. 56(E) to set forth specific
No. 15AP-836                                                                            5


             facts showing that there is a genuine issue for trial, and if the
             nonmoving party does not respond, summary judgment shall
             be rendered against the nonmoving party.

(Emphasis sic.) Dresher at 293.
IV. ANALYSIS
      {¶ 18} We begin our analysis by noting how Ohio courts view insurance contracts.
"Ohio has traditionally given a liberal interpretation to insurance coverage. Ambiguities
within a policy are always resolved in favor of the insured." Nationwide Ins. Co. v. Auto-
Owners Mut. Ins. Co., 37 Ohio App.3d 199, 201 (10th Dist.1987). "A contract of insurance
prepared and phrased by the insurer is to be construed liberally in favor of the insured
and strictly against the insurer, where the meaning of the language used in doubtful,
uncertain or ambiguous." Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39 (1945).
      {¶ 19} The State Farm policy provides that it will pay damages for bodily injury an
insured is legally entitled to recover from an uninsured motorist. The policy further
provides that "[t]he bodily injury must be: a. sustained by an insured; and b. caused
by an accident arising out of the operation, maintenance, or use of a motor vehicle by
an uninsured motorist." (Emphasis sic.)
      {¶ 20} Specifically, the policy provides in pertinent part as follows:
             Uninsured Motorist means the owner or operator of:

             1. a motor vehicle, whose ownership,                   operation,
             maintenance, and use of that motor vehicle is:

             a. not insured or bonded for bodily injury liability at the time
             of the accident; * * *

             Insuring Agreement

             1. We will pay compensatory damages for bodily injury an
             insured is legally entitled to recover from an uninsured
             motorist. The bodily injury must be:

             a. sustained by an insured; and

             b. caused by an accident arising out of the operation,
             maintenance, or use of a motor vehicle by an uninsured
             motorist.
No. 15AP-836                                                                            6



(Emphasis sic.) (R. 46; State Farm Insurance Policy, 13-14.)
       {¶ 21} It is undisputed that Ryan Curry is an insured under the State Farm policy.
It is also apparent from the definition of an uninsured motorist that both Boyd Akers and
Amanda Akers were uninsured motorists under the same policy.
       {¶ 22} State Farm denied coverage because it claimed: "The injuries sustained by
Ryan Curry in the above loss were not caused by an accident arising out of the operation,
maintenance or use of a motor vehicle by an uninsured motorist. Boyd Akers was a
pedestrian at the time of loss and he himself was the instrument of injury, not a motor
vehicle." (Plaintiff Ryan J. Curry's Motion for Summary Judgment, exhibit No. 6.)
       {¶ 23} Therefore, the question at the summary judgment stage of litigation is
whether Ryan Curry's injuries were caused by an accident arising out of the use of a motor
vehicle because Boyd Akers was returning to the vehicle when he was struck and killed,
thereby causing injury to Curry. Boyd Akers was arguably only one-half of a lane away
from the vehicle when Curry struck him.
       {¶ 24} The issue is not, as State Farm argues, whether the vehicle itself was the
instrumentality that injured Curry. Grange Mut. Cas. Co. v. Darst, 129 Ohio App.3d 723
(2d Dist.1998). Rather, the issue is whether the accident arose out of Boyd Akers' use of
the vehicle.
       {¶ 25} For example, in Grange, children were left unattended in a car, found
matches, and started a fire. The fire that resulted from the use of the matches by one of
the children was causally connected to the owner's negligence in leaving her two young
children alone and unattended in a car where matches were kept. The court held that the
cause of injury was not disconnected from any negligence involved in the actor's
operation, maintenance, or use of the motor vehicle.
       {¶ 26} Similarly, in Nationwide, a case from this district, a hunter was ejecting
shells from a shotgun which he intended to place in his truck when the gun accidentally
discharged. A slug penetrated the bed of the truck and struck a passenger sitting in the
cab. This court found the injury was connected with the use of the truck as a means of
transporting the parties' hunting equipment.
No. 15AP-836                                                                              7


       {¶ 27} Curry argues that the instant case is most like State Auto. Mut. Ins. Co. v.
Rainsberg, 86 Ohio App.3d 417 (8th Dist.1993). In Rainsberg, the Cuyahoga County
Court of Appeals found that the insured's injuries arose out of the use of the uninsured
motor vehicle where the insured suffered injuries when he struck pedestrians who were
attempting to divert traffic from a stalled, uninsured motor vehicle on the Ohio Turnpike.
The court found that the insured's injuries arose out of the use of the uninsured motor
vehicle because the chain of events preceding the accident exclusively concerned the
pedestrians trying to obtain help for their stalled vehicle and to divert traffic away from
their stalled vehicle. Id. at 422. The court explained that its case was unlike cases in
which the injury suffered by the insured stemmed from an act wholly disassociated from
and independent of the use of the vehicle. Id.
       {¶ 28} The court noted that ownership, maintenance or use of the uninsured
vehicle "has been judicially construed to require 'that a causal relation or connection must
exist between the accident or injury and the "ownership, maintenance or use" of a vehicle
in order for the accident or injury to come within the meaning of the clause "arising out of
the ownership, maintenance or use" of a vehicle.' " Id. at 421, quoting 89 A.L.R.2d 150,
153. " 'Where such causal connection or relation is absent, coverage will be denied.' " Id.
at 421, quoting 89 A.L.R.2d 150, 153.
       {¶ 29} Also, the court stated:
              "A number of authorities in this area define the term 'arising
              out of to mean 'originating from' or 'growing out of' or 'flowing
              from.' " Annotation, supra, 89 A.L.R.2d at 61. The term has
              also been used to mean 'causally connected with, not
              proximately caused by.' See Manufacturers Cas. Ins. Co. v.
              Goodville Mut. Cas. Co. (1961), 403 Pa. 603, 607, 170 A.2d
              571, 573. Therefore, the issue is not one of proximate cause. It
              is sufficient if the use is connected with the accident or the
              creation of a condition that caused the accident. The
              consensus is that the issue is not one of proximate cause but
              the requirement of some causal relation or connection. * * *

              "* * * [I]t is required that there be a factual connection
              growing out of or originating with the use of the vehicle."
              (Emphasis added.)

(Emphasis sic.) Id. at 421, quoting 89 A.L.R.2d 150, 153.
No. 15AP-836                                                                                8


        {¶ 30} State Farm argues the instant case is governed by Kish v. Central Natl. Ins.
Group, 67 Ohio St.2d 41 (1981), and its progeny. Kish is the leading Supreme Court of
Ohio case involving claims made under uninsured motorist provisions limiting coverage
to injuries caused by accidents arising out of the "ownership, maintenance or use" of an
automobile.
        {¶ 31} In Kish, the driver of an insured vehicle, was stopped at a traffic signal when
his vehicle was struck from behind by another vehicle. Kish got out of his car to confer
with the driver of the other vehicle, and the other driver emerged from his vehicle with a
shotgun. When Kish observed that the driver had a gun, he tried to get back to his car, but
before he could do so the other driver fatally shot him.
        {¶ 32} The Supreme Court of Ohio held that a "but for" analysis was inappropriate
to determine whether recovery should be allowed under the uninsured motorist
provisions. Rather, "the relevant inquiry is whether the chain of events resulting in the
accident was unbroken by the intervention of any event unrelated to the use of the
vehicle." Kish at 50. In applying that standard to the facts of the case, the court held that
"the intentional, criminal act of the murderer was an intervening cause of injury unrelated
to the use of the vehicle," thus agreeing with the lower court's finding that " 'the death [of
Kish] resulted from an act wholly disassociated from and independent of the use of the
vehicle as such.' " Id.
        {¶ 33} The court in Kish further found the facts of that case distinguishable from
other cases in which "the injury causing instrumentality is the vehicle itself." Id. at 51.
The court determined that if the murderer had used his vehicle instead of a shotgun to kill
Kish, under the terms of the policy the automobile would have been the instrumentality
causing the injury and therefore would constitute "use" of the uninsured vehicle. Id.
        {¶ 34} Stenger v. Lawson, 146 Ohio App.3d 550 (10th Dist.2001), is a case from
this district in which the court applied the analysis in Kish to a situation involving road
rage.
        {¶ 35} Stenger involved a driver who honked his horn at another driver who failed
to proceed after a light turned green. The other driver got out of his vehicle to confront
the insured and tripped the insured, causing him to fall and sustain injuries. The
uninsured motorist policy stated that, "[w]e will pay damages for bodily injury an insured
No. 15AP-836                                                                               9


is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The
bodily injury must be caused by accident arising out of the operation, maintenance or use
of an uninsured motor vehicle." (Emphasis sic.) Id. at 553.
       {¶ 36} After recapping Kish and other cases involving intentional criminal conduct,
the court found that "the conduct that inflicted harm on Stenger was the act of the other
individual, Lawson, exiting his vehicle and tripping Stenger, i.e., the instrumentality that
caused injury to Stenger was Lawson rather than an uninsured vehicle." Stenger at 555.
"Further, 'an intentional criminal assault, with an instrumentality other than a motor
vehicle, is considered an intervening cause of injury unrelated to the use of the vehicle.' "
Id. quoting Scott v. Nationwide Mut. Ins. Co., 6th Dist. No. L-99-1191 (Dec. 23, 1999).
       {¶ 37} In Magan v. State Farm Fire & Cas. Ins. Co., 10th Dist. No. 02AP-1397,
2003-Ohio-4411, this court noted that, "the determination of each particular case is
extremely fact driven, and each case has some slight factual variation that places it either
within or outside the purview of the 'ownership,' 'operation,' 'maintenance,' or 'use' of an
uninsured vehicle. Thus, we must determine which cases have the most factually similar
circumstances to the present case." Id. at ¶ 10.
       {¶ 38} The intervening cause of injury does not have to be criminal conduct; it can
be negligence. In Estate of Nord v. Motorist Mut. Ins. Co., 105 Ohio St.3d 366, 2005-
Ohio-2165, a Cleveland EMS ambulance was transporting a patient to the hospital.
During the trip a paramedic accidentally dropped a syringe, striking the patient in the eye
and injuring him. Despite the fact the patient was riding in an uninsured motor vehicle,
the Supreme Court of Ohio ruled the carelessness of the paramedic was the cause of the
injury, and thus there was no causal link between the ownership, maintenance, or use of
the ambulance and the dropping of the syringe. Id. at ¶ 14. The fact that the injury
occurred inside the vehicle was not dispositive because to rule in such a manner would
supplant the causation requirement. Id.
       {¶ 39} In this case, Boyd Akers was returning to the vehicle after parking and
exiting the vehicle because he was angry at something a passenger in the vehicle had
done. But after Boyd Akers parked the vehicle along the side of the freeway, he embarked
on a bizarre course of conduct that put him and others at risk. Here, as in Stenger, the
chain of events may have started when Boyd Akers was inside the vehicle and his
No. 15AP-836                                                                               10


daughter did something that upset him. But the subsequent, intervening conduct of Boyd
Akers in crossing eight lanes of interstate highway, having a telephone conversation and
re-crossing the highway broke the chain of causation such that Curry's injuries were the
result of Boyd Akers' unlawfully or negligently entering the freeway and interfering with
traffic rather than from the operation, maintenance or use of an uninsured motor vehicle.
Curry's bodily injury arose from the intervening conduct of Boyd Akers rather than from
the use of an uninsured motor vehicle.
       {¶ 40} We find Rainsberg distinguishable in that the conduct of the pedestrians on
the Ohio Turnpike in that case was related to trying to divert traffic away from a stalled
vehicle. There were no intervening acts unrelated to the use of the vehicle, and the
conduct was related to the operation (or lack of operation) and use of the vehicle.
V. AMANDA AKERS' IMPUTED NEGLIGENCE
       {¶ 41} In addition to Boyd Akers' negligence in parking his vehicle on the side of a
major highway and interfering with traffic on both sides of I-270, Curry also argues that
Boyd Akers' negligence should be imputed to Amanda Akers under the doctrine of
imputed negligence. Curry contends that under this doctrine, Amanda Akers was
operating, maintaining, or using the 1990 Buick Century and therefore should be liable for
Boyd Akers' negligence.
       {¶ 42} Under the doctrine of imputed negligence, "[w]here the owner of a motor
vehicle being driven by another is an occupant thereof, a rebuttable presumption or
inference arises that the owner has control over it and that the driver is acting as his agent
in operating the vehicle." Ross v. Burgan, 163 Ohio St. 211 (1955), paragraph one of the
syllabus. Moreover, "[i]n the absence of evidence to rebut such presumption, any
negligence of the driver in operating the motor vehicle is imputable to the owner riding
therein." Id. at paragraph two of the syllabus.
       {¶ 43} Here, Boyd Akers was not operating or using the motor vehicle when he
caused the accident that resulted in Curry's bodily injury. As discussed above, Boyd
Akers' behavior in exiting the vehicle and crossing a busy freeway on foot was an
intervening cause of injury unrelated to the use of the vehicle. Thus, the doctrine of
imputed negligence is inapplicable to this case.
No. 15AP-836                                                                              11


       {¶ 44} Curry also contends that Amanda Akers negligently entrusted the 1990
Buick to Boyd Akers because she knew or should have known that he was driving with a
suspended license. Curry argues that Amanda Akers was the owner and a passenger of
the 1990 Buick Century that was not insured for bodily injury liability at the time of the
accident. She entrusted the keys and use of the vehicle to Boyd Akers, whose license was
under suspension, to operate the vehicle on the day of the accident.
       {¶ 45} A claim for negligent entrustment arises when "an owner entrusts his motor
vehicle, with permission to operate the same, to a person so lacking in competency and
skill as to convert the vehicle into a dangerous instrumentality." Williamson v. Eclipse
Motor Lines, Inc., 145 Ohio St. 467 (1945). "[L]iability in such cases arises from the
combined negligence of the owner and the driver; of the former in entrusting the machine
to an incompetent driver, and of the driver in its operation." Id. at 471. Not only must the
owner entrust the vehicle to the driver with permission to drive, but the driver must be
one "whose incompetency, inexperience or recklessness is known or should have been
known by the owner." Dowe v. Dawkins, 10th Dist. No. 93AP-860 (1993), quoting
Williamson at paragraph two of the syllabus.
       {¶ 46} Here, there is no evidence in the record that Amanda Akers had any
knowledge that Boyd Akers was driving with a suspended license. Curry submitted an
Ohio Bureau of Motor Vehicles Abstract showing Boyd Akers' license was suspended, but
there was no evidence that Amanda Akers had knowledge or any reason to know that her
father was driving under a license suspension.
       {¶ 47} Additionally, while Amanda Akers may have given her father permission to
drive the vehicle, his operation of the vehicle did not convert it into a dangerous
instrumentality. It was Boyd Akers' decision to exit the vehicle and cross a busy freeway
in front of oncoming traffic that was the intervening cause of injury unrelated to the use of
the vehicle.
VI. CONCLUSION
       {¶ 48} Based on the foregoing, we conclude that reasonable minds could only reach
one conclusion and that conclusion is adverse to Curry. Thus, the trial court did not err in
denying Curry's motion for summary judgment and granting summary judgment in favor
No. 15AP-836                                                                   12


of State Farm. The two assignments of error are overruled, and the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                               Judgment affirmed.

                          BROWN and SADLER, JJ., concur
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