[Cite as Motorists Mut. Ins. Co. v. King, 2014-Ohio-2519.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                               JUDGES:
MOTORISTS MUTUAL INSURANCE                            :        Hon. W. Scott Gwin, P.J.
COMPANY                                               :        Hon. John W. Wise, J.
                                                      :        Hon. Craig R. Baldwin, J.
                         Plaintiff-Appellee           :
                                                      :
-vs-                                                  :
                                                      :        Case No. 2013CA00231
JESSE D. KING, ET AL                                  :
                                                      :
                   Defendants-Appellees               :        OPINION


OWNERS INSURANCE COMPANY

                      Intervenor-Appellant


CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2013CV01410

JUDGMENT:                                                 Affirmed

DATE OF JUDGMENT ENTRY:                                   June 9, 2014

APPEARANCES:
For Intervenor-Appellant-Owners Insurance                 For Plaintiff-Appellee - Motorists Mutual
                                                          Insurance

BRIAN WINCHESTER                                          JAY CLINTON RICE
PATRICK GUMP                                              GALLAGHER SHARP
123 West Prospect Avenue, Ste. 250                        Sixth Floor, Bulkley Bldg.
Cleveland, OH 44115                                       1501 Euclid Avenue
                                                          Cleveland, OH 44115
For Belden Village Auto Sales
MERLE EVANS III
Millennium Centre, Ste. 300
200 Market Avenue N.
Canton, OH 44701
[Cite as Motorists Mut. Ins. Co. v. King, 2014-Ohio-2519.]


Gwin, P. J.

        {¶1}     Appellant appeals the October 20, 2013 judgment entry of the Stark

County Court of Common Pleas granting summary judgment to appellees and finding

Motorists Mutual owes no insurance coverage to King or American Tire, is under no

obligation to defend or indemnify King or American Tire, and is under no obligation to

pay any judgment which may be rendered against King or American Tire.

                                           Facts & Procedural History

         {¶2} On January 13, 2012, Jesse D. King (“King”) was in an automobile

accident in a 2004 Jeep Liberty. On October 23, 2012, Gregg and Deborah Clark, the

other parties involved in the automobile accident with King in January of 2012, filed suit

against King, American Tire, and Belden Village Auto, seeking damages for their

injuries sustained in the accident. The Clarks’ case was subsequently dismissed and

re-filed. Belden Village Auto (“BVA”) is a used car dealership that routinely purchases

vehicles for re-sale. Many of these vehicles need to be repaired or refurbished prior to

re-sale, but BVA does not typically perform these services and often sends its vehicles

to other businesses in Stark County for service and maintenance work. American Tire

is one of the businesses that BVA utilizes for service and maintenance work and the two

have done business for approximately fifteen (15) years.                As a courtesy to its

customers, American Tire sends an employee such as King to pick up the vehicles to be

serviced. BVA owned the 2004 Jeep Liberty that King was driving on the day of the

accident.

        {¶3}     On May 24, 2013, appellee Motorists Mutual Insurance Company

(“Motorists”) filed a complaint for declaratory judgment to determine whether it had any
Stark County, Case No. 2013CA00231                                                       3


obligation under their insurance policy with BVA to King or American Tire for claims

arising out of the January 13, 2012 auto accident. Motorists issued a policy to BVA for

the policy period of March 1, 2011 to March 1, 2012. Appellant Owners Insurance

Company (“Owners”) filed a motion to intervene on September 10, 2013, stating they

are the insurance carrier for American Tire.      The trial court granted the motion to

intervene on September 27, 2013. Owners filed an intervening complaint on October 9,

2013 and contended the vehicle was being delivered, demonstrated, or tested at the

time of the accident and thus Motorists owed a duty to defend and indemnify King and

American Tire.

      {¶4}   Motorists filed a motion for summary judgment on September 19, 2013

and argued that neither King nor American Tire is an insured under their policy issued to

BVA because King was using the 2004 Jeep Liberty while working in the business of

servicing and repairing automobiles for American Tire.       Attached to the motion for

summary judgment was the affidavit of John Pizzino (“Pizzino”), owner and president of

BVA. The affidavit stated that BVA is a used car dealership that routinely purchases

vehicles for re-sale and that many of these vehicles need to be repaired or refurbished

prior to re-sale, but BVA does not typically perform these services and often sends its

vehicles to other businesses for service and maintenance work.           Further, that on

January 13, 2012, BVA contacted Gary Brison of American Tire and requested

American Tire performed various services on the 2004 Jeep Liberty, including a safety

check, changing of the oil and oil filter, and lubricating the vehicle. Pizzino stated that

BVA utilized American Tire for fifteen (15) years and it has always been the policy of

American Tire to send an employee to BVA to pick up the vehicles to be serviced as a
Stark County, Case No. 2013CA00231                                                      4


courtesy to its customers and BVA is not charged a fee for this service. In the affidavit,

Pizzino stated the following with regards to King: King was an employee of American

Tire at the time he arrived at BVA on January 13, 2012 to pick up the 2004 Jeep Liberty;

that King was sent to BVA for the sole purpose of picking up the 2004 Jeep Liberty in

order to drive and deliver it to American Tire’s business location so that American Tire

could perform the safety check and other services requested by BVA; that no one at

BVA provided any instructions, directions, or guidance to King regarding the subject

vehicle, its operation, or the route to take back to American Tire; that BVA did not

instruct King as to the manner or mode in which the vehicle was to be driven or the

route over which it was to be driven; that King was not an employee of BVA on January

13, 2012, or at any other time; and that King’s accident on January 13, 2012 occurred

while he was using a BVA vehicle while he was working in the scope and course of his

employment for American Tire, a business engaged in the servicing and repairing of

automobiles. Pizzino also asserted that Gary Brison of American Tire assured Pizzino

on various occasions before January 13, 2012 that American Tire had automobile

liability insurance that would provide for BVA in the event of an accident while an agent

of American Tire was operating a vehicle owned by BVA, including any time an

American Tire agent was driving a BVA auto to and from American Tire for servicing

and repairs.

      {¶5}     Owners filed a brief in opposition to the motion for summary judgment on

October 9, 2013.     Owners argued the “Haulaway” provision of the Motorists policy

provides coverage to King and/or American Tire and that whether King was an agent of
Stark County, Case No. 2013CA00231                                                       5


BVA is a material issue necessary for resolution to interpret the insurance contract and

this is a question for the trier of fact.

       {¶6}    The trial court granted Motorists’ motion for summary judgment on

October 20, 2013. The trial court found King was not an employee of BVA, was working

for American Tire at the time of the accident, and American Tire was in the business of

servicing and repairing automobiles wholly independent of BVA. Further, that Owners

failed to submit any Civil Rule 56(C) evidence and thus failed to place in dispute the

nature of the relationship between King and BVA. The trial court determined King and

American Tire are not “insureds” as defined by the Motorists policy of insurance with

BVA. Thus, the trial court concluded that Motorists owes no insurance coverage to King

or American Tire, is under no obligation to defend or indemnify King or American Tire,

and is under no obligation to pay any judgment rendered against King or American Tire.

       {¶7}    Owners appeals the October 20, 2013 judgment entry of the Stark County

Common Pleas Court and assigns the following as error:

       {¶8}    “I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S

MOTION FOR SUMMARY JUDGMENT.”

                                                      I.

                                            Summary Judgment

       {¶9}    Civ.R. 56 states, in pertinent part:

               “Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed

       in the action, show that there is no genuine issue of material fact and that
Stark County, Case No. 2013CA00231                                                     6


      the moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable

      minds can come to but one conclusion and that conclusion is adverse to

      the party against whom the motion for summary judgment is made, that

      party being entitled to have the evidence or stipulation construed mostly

      strongly in the party’s favor. A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶10} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

      {¶11} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court.       Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review
Stark County, Case No. 2013CA00231                                                      7

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶12} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).

        {¶13} Owners contends the trial court erred because a genuine issue of material

fact exists as to whether King was an agent or servant of BVA and that the trial court

erred in failing to address or find the “Haulaway” endorsement in the Motorists policy

applicable. We disagree.

                                        Insurance Policy

        {¶14} The construction of an insurance contract is a matter of law to be

determined by the court. Chicago Title Ins. Co. v. Huntington Nat’l Bank, 87 Ohio St.3d

270, 719 N.E.2d 955 (1999). In interpreting the contract, a court is to give effect to the

intent of the parties to the agreement. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, 797 N.E.2d 1256 (2003). In doing so, “[w]e examine the insurance

contract as a whole and presume that the intent of the parties is reflected in the
Stark County, Case No. 2013CA00231                                                       8


language used in the policy. We look to the plain and ordinary meaning of language

used in the policy unless another meaning is clearly apparent from the contents of the

policy. When the language of a written contract is clear, a court may look no further

than the writing itself to find the intent of the parties.” Id. The general rule of liberal

construction cannot be employed to create an ambiguity where there is none.

Progressive Max Ins. Co. v. Grange Mut. Cas. Co., 8th Dist. Cuyahoga No. 81656,

2003-Ohio-4564. “Only where a contract of insurance is ambiguous and, therefore,

reasonably susceptible to more than one meaning must the policy language be

construed liberally in favor of the insured who drafts the instrument.” Id.

       {¶15} Under the “Garage Coverage Form” of the Motorists policy with BVA, it

states that, “we will pay all sums an ‘insured’ legally must pay as damages because of

‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an

‘accident’ and resulting from ‘garage operations’ involving the ownership, maintenance

or use of covered ‘autos.’” Section (II)(A)(2). It is well settled that “a person is not an

insured under the liability provisions of an automobile insurance policy unless defined

by the terms of the policy as an insured.” Stoner v. Ford, 5th Dist. Morrow No. CA926,

2002-Ohio-514. Section (II)(A)(3)(a) of the Garage Coverage Form further provides as

follows:

              The following are “insureds” for covered “autos”:

              (1) You for any covered “auto”

              (2) Anyone else while using with your permission a covered

              “auto” you own, hire, or borrow except:

                                                 ***
Stark County, Case No. 2013CA00231                                                        9


              (c) Someone using a covered “auto” while he or she is

              working in a business of selling, servicing, repairing, parking

              or storing “autos” unless that business is your “garage

              operations.”

              (3) Anyone liable for the conduct of an “insured” described

              above but only to the extent of that liability.

       {¶16} Several courts in Ohio have found that this exclusionary language

provided in Section (II)(A)(3)(a)(2)(c) applies so that the driver is not an “insured” under

an insurance policy. Westfield Ins. v. Reitler, 3rd Dist. Crawford No. 3-93-16, 1994 WL

43856 (Feb. 4, 1994); Shelby Mut. Ins. Co. v. Pelic, 11th Dist. Trumbull No. 3982, 1988

WL 112366 (Oct. 21, 1988). Further, in Councell v. Douglas, 163 Ohio St. 292, 126

N.E.2d 597 (1955), the Ohio Supreme Court held that when the owner of an automobile

arranges with a service station for the servicing of his automobile and, at the time of

making such arrangements, it is agreed that an employee of the station will ride home

with the customer and drive his automobile back to the station for servicing, and where

the owner does drive home and surrenders his car to the employee to be driven back to

the station for servicing, the owner is not responsible for the negligence of the station

employee in driving the automobile back to the service station. Id. at syllabus. The

Ohio Supreme Court reasoned that after the owner relinquished the automobile to the

service station employee, he relinquished any right to control the mode or manner of

doing the work for which he had contracted. Id.

       {¶17} Owners contends that whether King was an agent or servant of BVA on

the date of the accident is a genuine issue of material fact that must be determined by a
Stark County, Case No. 2013CA00231                                                        10


trier of fact. Whether an individual is an agent is usually a question for the trier of fact.

Estate of Rhome v. USCCS, Ltd. Partnership, 5th Dist. Stark No. 2006CA00185, 2007-

Ohio-2618. However, when the facts are not in dispute, the trial court is permitted to

grant summary judgment. Id., citing Osborne v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d

825 (1992); see also Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988). In

this case, Motorists submitted with its motion for summary judgment the affidavit of

Pizzino, the owner and President of BVA. Pizzinio states that BVA does not typically

perform repair or refurbishing of the vehicles and thus BVA often sends its vehicles to

other businesses for service and maintenance work. In Pizzino’s affidavit, he avers that

BVA has utilized American Tire for fifteen (15) years and that it has been the policy and

practice of American Tire to send an employee to BVA to pick up the vehicles to be

serviced as a courtesy to its customers and that American Tire does not charge a fee

for this service. The affidavit further states that King was never an employee of BVA,

that no one provided him with instructions, directions or guidance regarding the vehicle

or its operation, and that BVA did not instruct King as to the manner or mode in which

the vehicle was to be driven or the route over which it was to be driven.            Pizzino

concludes his affidavit by stating that King’s accident on January 13, 2012 occurred

while King was using a BVA vehicle while he was working in the scope and course of

his employment for American Tire, a business engaged in the servicing and repairing of

automobiles.

       {¶18} As Motorists met their evidentiary burden to establish there is no issue of

material fact as to whether King was as agent of BVA on the date of the accident,

Owners has the reciprocal burden to point to evidentiary material that suggests
Stark County, Case No. 2013CA00231                                                   11


summary judgment is not warranted. No contrary Civ.R. 56(C) evidence was presented

by Owners to indicate that King was an agent of BVA on January 13, 2012. The record

does not support the contention that BVA maintained control or had the right to control

the mode and manner of the servicing of the 2004 Jeep Liberty.

      {¶19} In this case, King and/or American Tire do not fall within the definition of

“insured” because the undisputed evidence is that picking up and delivering the vehicle

was part of the service provided by American Tire as a courtesy to its customers free of

charge. See Westfield Ins. Co. v. Reitler, 3rd Dist. Crawford No. 3-93-16, 1994 WL

43856 (Feb. 4, 1994). The policy definition of an “insured” specifically excepts someone

like King who was using a covered “auto” while working in a business of selling,

servicing, repairing, parking or storing autos unless that business was BVA’s “garage

operations.” The unrebutted evidence demonstrates that King was using a covered

auto while working in the scope and course of his employment for American Tire, a

business engaged in the servicing and repair of automobiles wholly independent of

BVA. Accordingly, we find no genuine issue of material fact exists as to whether King

was an agent or servant of BVA and that neither King nor American Tire qualify as an

“insured” under the Motorists policy.

                            “Haulaway” Endorsement and Exclusion

      {¶20} Also included in the Motorists insurance policy with BVA is an

endorsement to the Garage Coverage Form titled “Haulaways Not Covered.”             The

endorsement modifies the Garage Coverage Form and provides that liability coverage

does not apply to a covered “auto” which is a haulaway owned, hired, or held for sale by

you. However, “this exclusion does not apply: (a) while a haulaway held for sale by you
Stark County, Case No. 2013CA00231                                                    12


is being delivered, demonstrated, or tested.” Owners contends that, because of this

provision, King and American Tire are “insureds” under the Motorists policy.

      {¶21} An endorsement cannot be read to expand coverage beyond that which is

provided by the policy in the first instance because “an exclusion does not create

coverage, but excludes it. Thus, an exception to an exclusion cannot create coverage

where the coverage is not provided in the insuring agreement.” Blake v. Thornton, 182

Ohio App.3d 716, 2009-Ohio-2487, 914 N.E.2d 1102 (8th Dist.).            Exclusions are

irrelevant if coverage is not provided under the insuring agreement and are relevant in

construing an insurance policy only when the policy provides coverage in the first place.

Id. In this case, the “Haulaway” endorsement did not broaden or modify the definition of

who is an insured for the purposes of liability coverage under the Motorists policy and

there is nothing ambiguous about who is insured. See Progressive Max Ins. Co. v.

Grange Mut. Cas. Co., 8th Dist. Cuyahoga 81656, 2003-Ohio-4564.             As discussed

above, neither King nor American Tire qualify as insureds under Motorists’ policy.

Accordingly, the “Haulaway” endorsement is not relevant because the policy does not

provide coverage in the first place. Thus, the “Haulaway” endorsement cannot be read

to expand coverage beyond that which is provided by the Motorists policy.
Stark County, Case No. 2013CA00231                                              13


      {¶22} Based on the foregoing, we find the trial court did not err in granting

summary judgment to Motorists. The October 20, 2013 judgment entry of the Stark

County Court of Common Pleas granting summary judgment is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
