[Cite as Conaway v. Cincinnati Ins. Co., 2017-Ohio-8787.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




KLAY L. CONAWAY, ADM. OF
ESTATE OF DARRIN L. CONAWAY, ET AL.,

        PLAINTIFFS-APPELLANT,                               CASE NO. 1-16-55

        v.

THE CINCINNATI INS. CO., ET AL.,                            OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2015 0085

                       Judgment Reversed and Cause Remanded

                          Date of Decision: December 4, 2017




APPEARANCES:

        Bradley C. Warren for Appellants

        Brian A. Newberg and April C. Tarvin for Appellee, The Cincinnati
                Insurance Company
Case No. 1-16-55


WILLAMOWSKI, J.

       {¶1} Plaintiffs-appellants, Kyle L. Conaway (“Kyle”) and Klay L. Conaway,

Administrator of the Estate of Darrin L. Conaway, deceased (“the Estate”), appeal

the verdict and judgment of the Allen County Common Pleas Court determining

that the defendant-appellee, Cincinnati Insurance Company (“CIC”), was not

required under its business auto policy issued to Lee’s Hydraulic & Pneumatic

Services, LLC (“Lee’s”) to cover appellants’ losses resulting from an automobile

accident. For the following reasons, we reverse the judgment of the trial court.

       {¶2} This appeal arises from a car accident which occurred on January 8,

2014, and the facts are generally undisputed. On January 8, 2014, Kyle owned Lee’s

and was its CEO. Oct. 21, 2015 Dep. at 11. Lee’s had several employees which

included Kyle’s father, Darrin Conaway (“Darrin”), and Mark Schlachter (“Mark”).

In January 2014, a business automobile policy issued to Lee’s by CIC provided

coverage for a 1999 Ford F-450 (“the truck”). No individuals were listed as named

insureds on the policy, just Lee’s. Kyle used the truck mainly for business, which

included driving it to and from work daily. Darrin, who lived with Kyle, would also

ride to work with Kyle. Kyle and his father lived in Ada, Ohio, in Hardin County,

several miles from Lee’s in Lima, Ohio.

       {¶3} In January 2014, extremely cold and wintery weather occurred. Id. at

56-57, 59. At approximately 8:30 p.m. around January 6 or 7, 2014, Kyle and Darrin


                                        -2-
Case No. 1-16-55


left their home in the truck to fill it up with fuel for the next workday.1 Id. at 57.

As they were travelling west on State Route 30, just past State Route 235, the truck

broke down as a result of the diesel fuel freezing due to the extremely cold weather.

Id. at 59. Kyle and Darrin called a towing company for assistance and were advised

that the truck could not be towed for a long time. Id. Kyle and Darrin were then

taken to Mark’s home, which was nearby, by an unidentified person. Id. at 61. They

arrived at Mark’s home at approximately 10:00 p.m. Id. at 61. Mark then agreed

to give them a ride home and suggested “why don’t we just go back to your home

and I’ll spend the night, and I’ll take you in to work” the next day. Id. at 62. Mark

suggested this due to the poor weather. Id. at 70. So, Mark drove the three in his

minivan to Kyle’s home. Id. at 62.

        {¶4} On January 8, 2014, the three set out for Lee’s. Id. at 71. Mark was

driving, Kyle and Darrin were passengers in his minivan. Id. The wind pushed the

front of the vehicle to the left and Mark overcorrected. Id. An accident occurred in

which Kyle and Darrin were ejected from the vehicle. Id. at 73. Kyle was injured

and Darrin was killed. Id.




1
 The trial court determined that the date of the breakdown was January 7, 2014, although Kyle’s depositions
and Ex. 4 indicate that it would have been on January 6, 2014. The exact date of the breakdown is irrelevant
as the parties agree that on January 8, 2014, the date of the accident, the truck was not operable and Mark
was driving Kyle and Darrin to work.

                                                    -3-
Case No. 1-16-55


           {¶5} On February 17, 2015, Kyle, individually and in his capacity as the

administrator of Darrin’s estate2, filed a complaint in the trial court for his personal

injuries and wrongful death of his father. Doc. 1. The complaint alleged that Kyle

and Darrin (i.e. the Estate) were insureds under Lee’s business auto policy with

Cincinnati. Id. The complaint requested declaratory relief with respect to insurance

coverage of Kyle’s and the Estate’s losses. Id. CIC filed its answer on May 15,

2015. Doc. 9. On January 29, 2016, CIC filed a motion for summary judgment.

Doc. 29. Kyle and the Estate filed their motion for summary judgment on February

1, 2016. Doc. 31. That same day, the parties entered into a stipulation as to the use

and admissibility of Cincinnati’s business insurance policy in question. Doc. 32.

On March 9, 2016, the trial court overruled both motions for summary judgment.

Doc. 37.

           {¶6} A bench trial took place on October 17, 2016. Doc. 51. On October

24, 2016, the trial court issued its Findings of Fact, Decision, Verdict and Judgment

Entry in favor of CIC on the issue of coverage, thereby dismissing plaintiffs’

complaint. Id. Kyle and the Estate then filed a timely notice of appeal. Doc. 54.

On appeal, they raise the following assignment of error.

           The trial court erred in rendering a verdict that [CIC] owes no
           coverage in accordance with its business auto policy provision
           insuring a “temporary substitute” for a covered vehicle.



2
    At some point, the executor of Darrin’s estate was changed to be Klay Conaway.

                                                    -4-
Case No. 1-16-55


       {¶7} In the sole assignment of error, Kyle and the Estate assert that the trial

court erred in determining that CIC was not obligated under its insurance policy

with Lee’s to cover Kyle’s and the Estate’s losses because Kyle and Darrin were

not occupying a vehicle for which coverage existed or a temporary substitute vehicle

for a covered auto when the accident occurred. Any party with an interest in a

written contract may obtain a declaration of rights under the contract through

declaratory judgment. R.C. 2721.02. “The de novo standard of review is the proper

standard for appellate review of purely legal issues that must be resolved after the

trial court has decided that a complaint for declaratory judgment presents a

justiciable question under R.C. 2721.” Arnott v. Arnott, 132 Ohio St.3d 401, 2012-

Ohio-3208, 972 N.E.2d 586, ¶ 17. De novo appellate review means that the court

of appeals independently reviews the record and no deference is given to the trial

court’s decision. State v. Moore, 3d Dist. Seneca No. 13-17-07, 2017-Ohio-4358,

¶ 7.

       {¶8} In the sole assignment of error, Kyle and the Estate claim that the trial

court erred in finding that the vehicle in which they were traveling was not a

“temporary substitute vehicle” as defined in the policy. An insurance policy is a

contract whose interpretation is a matter of law. Laboy v. Grange Indemn. Ins. Co.,

144 Ohio St.3d 234, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8.

       The fundamental goal when interpreting an insurance policy is to
       ascertain the intent of the parties from a reading of the policy in

                                         -5-
Case No. 1-16-55


       its entirety and to settle upon a reasonable interpretation of any
       disputed terms in a manner designed to give the contract its
       intended effect. Burris v. Grange Mut. Cos., 46 Ohio St.3d 84, 89,
       545 N.E.2d 83 (1989). Words and phrases must be given their
       plain and ordinary meaning “unless manifest absurdity results,
       or unless some other meaning is clearly evidenced from the face
       or overall contents of the instrument.” Alexander v. Buckeye Pipe
       Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph
       two of the syllabus.

Id. When the provisions in a contract are ambiguous, those provisions will be

construed liberally, but reasonably, in favor of the insured. Id. at ¶ 9.

       {¶9} The question before the trial court in this case is whether the minivan

in which Kyle and Darrin were passengers when the accident occurred was a

“temporary substitute vehicle” under the terms of the policy. The insurance contract

in question here provides coverage to a “natural person * * * for injuries that occur

while ‘occupying’ an ‘auto’ for which coverage is provided in the coverage Form

or a temporary substitute for such covered ‘auto’.” Ex. 5. The policy then requires

that for a temporary substitute vehicle to be covered, the named vehicle “be out of

service because of its breakdown, repair servicing, ‘loss’ or destruction.” Id. The

text of the policy does not define “temporary substitute”.

       {¶10} There is no dispute that the covered vehicle was owned by the

business, that the business provided the insurance coverage, and that no individuals

were named insureds on the policy, just the corporation. There is also no dispute

that as CEO of the corporation, Kyle used the corporate vehicle to get to and from


                                          -6-
Case No. 1-16-55


work as well as in the course of the business day. Prior to the day of the accident,

the vehicle was being driven to a gas station to be fueled up for the next work day.

As the vehicle was being driven, the vehicle broke down and could not be driven.

The vehicle had to be towed. Kyle had to call an employee of the corporation to

give them a ride home and a ride to the business the next morning. The ride to work

would normally have been accomplished by driving the covered vehicle. Because

the covered vehicle was inoperable, Kyle was forced to use another vehicle. While

riding in, i.e. occupying, the other vehicle, an accident occurred causing injury to

Kyle and death to Darrin. There is no dispute that Kyle and Darrin were occupying

the vehicle at the time of their injuries. The only dispute herein is whether this

vehicle was a temporary substitute vehicle. This issue raises the question of whether

Kyle intended to use the vehicle as a temporary substitute. A review of the record

shows that Kyle was asked in his deposition what he intended. Kyle testified that

he considered the minivan as a temporary substitute for the truck as it related to his

getting to and from work.

       Q. Now you indicated that [the truck] was used to take you and
       your father to work. Was this minivan used as a substitute to take
       you and your father to work?

       Mr. Newberg: Objection.

       A. Absolutely.

       Q. Okay. I’ll rephrase it then. You indicated [the truck] was
       used to take your father and you to work?

                                         -7-
Case No. 1-16-55



       A. Yes.

       Q. Was this minivan used to take you and your father to work on
       January 8, 2014?

       A. Yes, absolutely.

       Q. Would you have been in that car, you and your father, would
       you have been in that car, but for [the truck] breaking down?

       Mr. Newberg: Objection, calls for speculation.

       Q. Go ahead.

       A. No.

       Q. Okay. In other words, I’ll even rephrase, if [the truck] had
       not broken down, per your normal and customary routine, would
       you have been in [the truck] on January 8, 2014?

       A. Yes.

Aug. 23, 2016 Dep. at 41-42. Even if the trial court determined that this testimony

was not credible, the surrounding facts support the intention to use the minivan as a

substitute for the purpose of getting to and from work.

       {¶11} Although the language of the policy does not explicitly define what is

meant by a temporary substitute vehicle, we can determine the definition by looking

at the plain and ordinary meaning of the language used in the contract. Hartley v.

Miller, 3d Dist. Logan No. 8-08-33, 2009-Ohio-1923, ¶ 20. The general meaning

of the terms would be a vehicle used as a replacement for a short period of time.

The language of the policy does not require that the covered vehicle be unavailable

                                         -8-
Case No. 1-16-55


for a set time nor that there be an extensive agreement to use another vehicle before

a vehicle can be designated as a temporary substitute. The insurer could have added

any of these provisions if it so chose. Instead the policy merely states that the

covered vehicle be out of service due to a breakdown or repair.3 At the time of the

accident, the covered vehicle was out of service due to a breakdown, was not

working and had not been repaired. Thus, it was inoperable and a temporary vehicle

was necessary.

         {¶12} One of the standard uses of the truck was to provide transportation for

Kyle and Darrin from their home to the office. Kyle testified that he used the truck

to provide transportation for him and Darrin from their home to work and back, to

perform service calls, and “to transport jobs”. Aug. 23, 2016 Dep. at 14-15. The

truck was owned by the corporation and provided to him for his use as a company

vehicle. Id. at 18. Additionally, approximately 40% of the usage of the truck was

for transporting people with only 60% used for hauling items. Id. at 75. Kyle

indicated that he did not attempt to rent another vehicle because Mark had offered

to drive him and Darrin to and from work. Id. at 35. Kyle indicated that if he would

have rented a vehicle, it would have not been a full replacement for the truck, but




3
  Any alleged manifest absurdity which could possibly arise, does not arise in this case. Any manifest
absurdity which could possibly arise on different facts is the result of the language chosen by the drafter of
the contract. CIC could have chosen to add restrictions to the definition of “temporary substitute vehicle.”
It did not. Thus we will not add any restrictions.

                                                     -9-
Case No. 1-16-55


rather just a regular vehicle to transport him and Darrin to and from work and

workers to job sites. Id. at 70.

       {¶13} A plain reading of the insurance contract indicates that if the covered

vehicle breaks down, a natural person may receive coverage for injuries if they are

merely “occupying” a temporary substitute vehicle. Arguably, from the facts

presented and found by the trial court, Kyle and Darrin were occupying the minivan

as it took them to work, a task that was normally completed by the covered vehicle.

Kyle testified that he intended to use the minivan to get to and from work until the

truck could be repaired. Thus, as a matter of law, the minivan was temporarily being

used as a substitute for the truck, which makes it a covered vehicle pursuant to the

policy. For this reason, the trial court erred in finding that CIC did not owe a duty

to provide coverage. The assignment of error is sustained.

       {¶14} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Allen County

is reversed and the matter is remanded for further proceedings.

                                                           Judgment Reversed and
                                                                Cause Remanded
SHAW, J., concurs.


ZIMMERMAN, J., dissents.

       {¶15} The starting point in the interpretation of an insurance policy has been

established in Ohio by the Ohio Supreme Court. “An insurance policy is a contract

                                        -10-
Case No. 1-16-55


whose interpretation is a matter of law”. Sharonville v. Am. Employers Inc. Co.,

109 Ohio St.3d 186, 2006-Ohio-2180. And, when interpreting an insurance policy,

the purpose “is to ascertain the * * * reasonable interpretation of any disputed terms

in a manner designed to give the contract its intended effect”. Laboy v. Grange

Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio 3308 (2015), citing Burris v.

Grange Mut. Cos., 46 Ohio St.3d 84 (1989), overruled on other grounds. (Emphasis

added). Further, in such interpretation, the “plain and ordinary” meaning of the

words and phrases of the contract must be applied “unless manifest absurdity results

or unless some other meaning is clearly evidenced from the face or overall contents

of the instrument”. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978),

¶2 of syllabus. In the case before us, the majority’s determination that Mark

Schlachter’s minivan was a “temporary substitute vehicle” is a manifest absurdity.

       {¶16} I do not take lightly calling the majority’s interpretation of the

Cincinnati policy a “manifest absurdity”. Those words are harsh. However, the

majority’s reasoning (that Mark’s vehicle was Kyle’s temporary substitute vehicle)

has resulted in the jurisprudence of this Court that any, yes any, vehicle that Kyle

intended to use “as a substitute for the purpose of getting to and from work” would

meet the definition of a substitute vehicle. (See ¶10, majority opinion). Thus, had

Kyle ridden to work that day via Uber or Lyft, by a taxi or bus, if he hitch-hiked a

ride or even if he stole a vehicle, as long as it was his intention to use the vehicle as


                                          -11-
Case No. 1-16-55


a substitute to go to work, such vehicle would be a temporary substitute vehicle

according to the majority’s logic.

        {¶17} On the other hand, the trial court’s analysis of the issue drilled deeper

by differentiating between the “use” of a vehicle and the “occupancy” of it as a

passenger in its determination that Mark’s minivan was not Kyle’s substitute

vehicle. In its decision, the trial court cited Boxler v. Allstate Ins. Co., 9th Dist.

Summit No. 14752 (1991), a 9th District Court of Appeals case that involved an

issue analogous to that presented here. Relying on Boxler, the trial court concluded,

and I agree, that Kyle and Darrin’s “use” of Mark’s vehicle was limited to that of a

passenger. As such, the trial court found that “there is no evidence that Kyle ever

had permission to use or occupy Mark’s minivan as anything other than as a

passenger * * *”. (Pg. 8, Trial court’s judgment entry). Stated clearer, Mark as the

owner of the “temporary substitute vehicle”, not Kyle, possessed the authority to

define the scope of the permissible use of his vehicle.

        {¶18} Thus, the trial court correctly determined that in order for Kyle to

“use” Mark’s minivan, Mark’s permission was required4. Kyle’s intention to “use”

Mark’s vehicle as a substitute vehicle while riding as a passenger in it is irrelevant

and of no consequence. As noted in McCall v. State Farm Mut. Auto. Ins. Co., 9th

Dist. Summit No. 23601, 2007-Ohio-5109, “use” is generally defined as “the


4
 Please see Cincinnati Business Auto Insurance Policy (Doc. 32), specifically “Business Auto Coverage
Form Section 1, ¶C(3).

                                                 -12-
Case No. 1-16-55


privilege or benefit of using something”. Mark only gave Kyle a ride to work, not

the benefit or privilege of using it.

       {¶19} Therefore, I respectfully dissent.

/jlr




                                        -13-
