           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2     Clark et al. v. Chubb                        No. 01-4178
        ELECTRONIC CITATION: 2003 FED App. 0250P (6th Cir.)                  Group of Ins. Cos. et al.
                    File Name: 03a0250p.06
                                                                                           _________________
UNITED STATES COURT OF APPEALS                                                                  COUNSEL
                  FOR THE SIXTH CIRCUIT                                ARGUED: Paul W. Flowers, LAW OFFICE OF PAUL W.
                    _________________                                  FLOWERS, Cleveland, Ohio, for Appellants. Robert D.
                                                                       Anderle, PORTER, WRIGHT, MORRIS & ARTHUR,
 JAMES CLARK and DONNA             X                                   Cleveland, Ohio, for Appellees. ON BRIEF: Paul W.
 CLARK,                             -                                  Flowers, LAW OFFICE OF PAUL W. FLOWERS,
          Plaintiffs-Appellants, -                                     Cleveland, Ohio, W. Craig Bashein, LAW OFFICES OF R.
                                    -  No. 01-4178                     WILLIAM BASHEIN, Cleveland, Ohio, for Appellants.
                                    -                                  Robert D. Anderle, Daniel F. Gourash, Howard G. Strain,
            v.                       >                                 PORTER, WRIGHT, MORRIS & ARTHUR, Cleveland,
                                    ,
                                    -                                  Ohio, for Appellees.
 CHUBB GROUP O F INSURANCE -
                                                                                           _________________
 COS. and FEDERAL                   -
 INSURANCE CO .,                    -                                                          OPINION
         Defendants-Appellees. -                                                           _________________
                                    -
                                   N                                     KAREN NELSON MOORE, Circuit Judge. The plaintiffs,
       Appeal from the United States District Court                    James and Donna Clark, appeal the district court’s grant of
      for the Northern District of Ohio at Cleveland.                  summary judgment to the defendants Federal Insurance
    No. 00-02989—Donald C. Nugent, District Judge.                     Company and Chubb Group of Insurance Companies
                                                                       (collectively “Federal”) and the district court’s denial of their
                    Argued: March 11, 2003                             motion for summary judgment. The Clarks allege that the
                                                                       injuries James Clark sustained in an automobile accident were
               Decided and Filed: July 25, 2003                        covered under three policies of insurance issued by Federal to
                                                                       Clark’s employer, the Clark Rubber Company (“Clark
 Before: MOORE and CLAY, Circuit Judges; LAWSON,                       Rubber”). On appeal, the Clarks claim that the district court
                 District Judge.*                                      erred in holding that they did not comply with the prompt-
                                                                       notice and subrogation provisions in the insurance policies,
                                                                       and erred in holding that one of the policies was not a motor
                                                                       vehicle liability policy at all.
                                                                         Based on the facts of the case and for the reasons set forth
    *
                                                                       below, we REVERSE the district court’s judgment and
     The Honorable David M. Lawson, United States District Judge for   REMAND this case in light of the Ohio Supreme Court’s
the Eastern District of Michigan, sitting by designation.

                                 1
No. 01-4178                      Clark et al. v. Chubb       3    4    Clark et al. v. Chubb                       No. 01-4178
                               Group of Ins. Cos. et al.               Group of Ins. Cos. et al.

recent decision in Ferrando v. Auto-Owners Mutual                 pursue claims on behalf of the injured parties whom it
Insurance Co., 781 N.E.2d 927 (Ohio 2002).                        insures.
                    I. BACKGROUND                                                       II. ANALYSIS
  The parties have stipulated to the facts of this case. On       A. Jurisdiction
March 9, 1994, James Clark was involved in an automobile
accident with David Sholtis. James Clark was an employee             The district court had jurisdiction over this diversity case
of Clark Rubber, which was insured at the time under three        pursuant to 28 U.S.C. § 1332, because the Clarks are citizens
different policies with Federal. First, Clark Rubber was          of Ohio and Federal is an Indiana corporation that has its
insured under a Business Auto policy (the “Auto” policy).         principal place of business in New Jersey. See Lee-Lipstreu
The Auto policy explicitly provided uninsured and under-          v. Chubb Group of Ins. Cos., 329 F.3d 898, 899-900 (6th Cir.
insured motorist (“UM/UIM”) insurance and had a UM/UIM            2003) (holding that federal courts have jurisdiction over
per accident limit of $500,000 and an aggregate limit of          actions by an insured against his or her own insurance
$1,000,000. Second, Clark Rubber was insured under a              company if the two are of diverse citizenship because such
Comprehensive General Liability policy (the “CGL” policy)         actions are not direct actions within the meaning of 28 U.S.C.
with limits of $1,000,000. Lastly, Clark Rubber carried a         § 1332(c)(1)). We have jurisdiction over the district court’s
Commercial Excess Liability policy (the “Excess” policy)          final judgment pursuant to 28 U.S.C. § 1291.
with limits of $1,000,000. Each of these policies was issued
for the period of March 23, 1993 to March 23, 1994 and was        B. Standard of Review
in effect at the time of the accident.
                                                                    The question in this case is whether the district court
   The Clarks settled with Sholtis and his automobile insurer,    properly granted summary judgment to Federal and properly
the Personal Service Insurance Company (“Personal”) on            denied the Clarks’ summary judgment motion. “This court
October 28, 1994, for the limit of their liability policy,        reviews a district court’s grant of summary judgment de
$25,000. Clark received $12,500 and Donna Clark and their         novo.” Plant v. Morton Int’l, Inc., 212 F.3d 929, 933 (6th
two children received $12,500. It is undisputed that in           Cir. 2000). Although the district court’s denial of a motion
exchange for the proceeds of the settlement, the plaintiffs       for summary judgment is usually treated as a nonappealable
released both Sholtis and Personal from all liability in          interlocutory order, when “an appeal from a denial of
connection with this accident. James Clark has also               summary judgment is presented in tandem with a grant of
recovered $100,000 from his own automobile insurance              summary judgment, this court has jurisdiction to review the
policy and $100,000 from his homeowner’s policy, both             propriety of the district court’s denial of summary judgment.”
issued by Prudential. The Clarks admit that Federal did not       Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 235 (6th
receive notice of the accident or the Clarks’ claim until March   Cir. 2003) (quotation omitted). The district court’s denial of
3, 2000. Each of the Federal policies contained clauses that      summary judgment based on purely legal grounds is reviewed
required insureds to notify Federal in case of an accident and    de novo. Id. at 235-36. Summary judgment can be granted
that gave Federal subrogation rights, namely, the rights to       only when, taking all justifiable inferences in the nonmoving
                                                                  party’s favor, there is still no genuine issue of material fact
No. 01-4178                             Clark et al. v. Chubb             5    6        Clark et al. v. Chubb                     No. 01-4178
                                      Group of Ins. Cos. et al.                         Group of Ins. Cos. et al.

and the moving party is entitled to a judgment as a matter of                  judgment to Federal, the Ohio Supreme Court’s recent
law. Plant, 212 F.3d at 934.                                                   decision in Ferrando makes it clear that breaches of prompt-
                                                                               notice and subrogation provisions are only considered
C. An Overview of the Plaintiffs’ Claims                                       presumptively prejudicial. Since the Clarks as of yet have had
                                                                               no opportunity to adduce evidence that might rebut this
   There are three policies at issue: the Auto policy, the CGL                 presumption, we remand this case to the district court so that
policy, and the Excess policy. Although James Clark is not                     it might hear evidence on this point with respect to all three
listed explicitly as an insured under any of the policies,                     of the policies at issue.
Federal does not dispute that the Clarks are insureds pursuant
to the Ohio Supreme Court’s decision in Scott-Pontzer v.                       D. The Auto Policy
Liberty Mutual Fire Insurance Co., 710 N.E.2d 1116, 1120
(Ohio 1999).1 Considering the Clarks’ claims under each of                       The Clarks’ first claim is under the Auto policy. Federal
the policies in turn, we ultimately conclude (as the district                  acknowledges that the Auto policy explicitly provides
court did) that the Clarks have breached the prompt-notice                     UM/UIM insurance and does not dispute that the Clarks are
and subrogation provisions in all three of the policies.                       insureds under it. Three parts of the Auto policy are relevant
However, while the district court believed that these breaches                 here. First, the Auto policy has a general notification clause,
alone were sufficient to justify the grant of summary                          which requires that insureds notify Federal “promptly”:
                                                                                   2.    DUTIES IN THE EVENT OF ACCIDENT,
    1                                                                                    CLAIM, SUIT OR LOSS
       In Scott-Pontzer, the Ohio Supreme Court held that an employee,             a.    In the event of “accident”, claim, “suit” or “loss”,
who was not acting within the scope of his em ploym ent at the tim e of his              you must give us or our authorized representative
injury, was no netheless an insured under his corporate em ployer’s
commercial liability policy when the policy designated the corporation as                prompt notice of the “accident” or “loss”. Include:
the named insured, but defined “insured” to include “you” and “[i]f you                  (1) How, when and where the “accident” or “loss”
are an individual, any family member.” Scott-Pontzer v. Libe rty Mut. Fire                    occurred;
Ins. Co., 710 N.E .2d 1 116 , 1118 (O hio 199 9). T he O hio Supreme Co urt              (2) The “insured’s” name and address; and
reasoned that it “would be nonsensical to limit protection solely to the                 (3) To the extent possible, the names and addresses
corp orate entity, since a corporation, itself, cannot occupy an automobile,
suffer bodily injury or death, or operate a motor vehicle. Here, naming                       of any injured persons and witnesses.
the corporation as the insured is meaningless unless the coverage extends          b.    Additionally, you and any other involved “insured”
to some p erson or p ersons — including to the corporation's em ployees.”                must: . . .
Id. at 1119. Claims that involve an employee seeking coverage under his                  (2) Immediately send us copies of any request,
or her employer’s commercial policies that rely on an ambiguous                               demand, order, notice, summons or legal paper
provision defining who is an insured have com e to be kno wn as Sco tt-
Pontzer claims. See Lee-Lipstreu v. Chubb Group of Ins. Cos., 329 F.3d                        received concerning the claim or “suit”.
898, 899 (6th C ir. 200 3) (describing further the nature of these Sco tt-               (3) Cooperate with us in the investigation,
Pontzer claims).                                                                              settlement or defense of the claim or “suit.”
     W e note that all of the insurance policies in this case have the same
sort of ambiguity regarding who is an insured as the policy in Sco tt-         J.A. at 237-38. This notification clause was later amended to
Pontzer referred to above, making it reasonable for the parties to assume
that the C larks were, in fact, insureds under the po licy.
                                                                               require prompt notification of a potential settlement:
No. 01-4178                      Clark et al. v. Chubb          7   8      Clark et al. v. Chubb                       No. 01-4178
                               Group of Ins. Cos. et al.                   Group of Ins. Cos. et al.

  2.   DUTIES IN THE EVENT OF ACCIDENT,                               The Ohio Supreme Court, in a decision issued after the
       CLAIM, SUIT OR LOSS is changed by adding the                 parties filed their appellate briefs (but before oral argument),
       following:                                                   has made clear the law that governs breaches of these types of
   ...                                                              notice and subrogation clauses. See Ferrando, 781 N.E.2d at
  c. A person seeking Uninsured Motorists Coverage                  945-46. The Ohio Supreme Court explained its holdings as
       must also promptly notify us in writing of a tentative       follows:
       settlement between the “insured” and the insurer of
       the vehicle described in paragraph F.3.b. of the                    Accordingly, we hold that when an insurer’s denial of
       definition of “uninsured motor vehicle” and allow us             UIM coverage is premised on the insured’s breach of a
       30 days to advance payment to that insured in an                 prompt-notice provision in a policy of insurance, the
       amount equal to the tentative settlement to preserve             insurer is relieved of the obligation to provide coverage
       our rights against the insurer, owner or operator of             if it is prejudiced by the insured’s unreasonable delay in
       such vehicle described in paragraph F.3.b. of the                giving notice. An insured’s unreasonable delay in giving
       definition of “uninsured motor vehicle.”                         notice is presumed prejudicial to the insurer absent
                                                                        evidence to the contrary.
J.A. at 246. Lastly, in addition to these notice clauses, the           ...
Auto policy also has a subrogation provision:                              As in cases involving a breach of a prompt-notice
                                                                        provision, a presumption of prejudice should be applied
  5.   TRANSFER OF RIGHTS OF RECOVERY                                   when evaluating the effects of the breach of a consent-to-
       AGAINST OTHERS TO US                                             settle or other subrogation-related provision. As in
       If any person or organization to or for whom we                  breach of prompt-notice cases, we find that the burden of
       make payment under this Coverage Form has rights                 presenting evidence to show a lack of prejudice should
       to recover damages from another, those rights are                be on the insured who has failed to comply with the
       transferred to us. That person or organization must              terms of the policy. An additional reason for applying a
       do everything necessary to secure our rights and                 presumption of prejudice with the burden of presenting
       must do nothing after “accident” or “loss” to impair             evidence on the insured is that the General Assembly has
       them.                                                            specifically allowed a right of subrogation to providers of
                                                                        UIM coverage [in Ohio Rev. Code § 3937.18(j)].
J.A. at 238.
                                                                    Ibid. We believe that two aspects of Ferrando are essential
   Federal claims that the Clarks breached these provisions by      to this case and thus are worth repeating. First, breaches of
not promptly notifying Federal of their claim and by releasing      notice and subrogation provisions serve to vitiate the
both Sholtis and his insurance carrier from all liability,          coverage provided by an insurance policy only if they are
thereby destroying Federal’s subrogation right against them.        prejudicial to the insurer. Second, breaches are presumed to
The Clarks concede that they did not contact Federal until          be prejudicial unless proven to be harmless by the insureds.
March 3, 2000, roughly six years after the accident. They
also admit that they fully released Sholtis and Personal from
all liability — five years before notifying Federal.
No. 01-4178                             Clark et al. v. Chubb             9    10   Clark et al. v. Chubb                       No. 01-4178
                                      Group of Ins. Cos. et al.                     Group of Ins. Cos. et al.

These twin principles apply equally to breaches of notice                         In this case, we hold that both the prompt-notice and the
provisions and subrogation provisions.2                                        subrogation provisions were breached. First, we turn to the
                                                                               prompt-notice provisions. The Ohio Supreme Court affirmed
  Ferrando has essentially laid out a two-part inquiry                         in Ferrando the earlier notion that “[a] provision in an
describing how courts should handle breaches of prompt-                        insurance policy requiring ‘prompt’ notice to the insurer
notice and subrogation clauses. First, a court must determine                  requires notice within a reasonable time in light of all the
whether the provision was breached. If the relevant provision                  surrounding facts and circumstances.” Ruby v. Midwestern
was breached, a court must then ask whether the insurer was                    Indem. Co., 532 N.E.2d 730, 732 (Ohio 1988) (cited in
prejudiced by the breach. Id. at 947. These inquiries are to                   Ferrando, 781 N.E.2d at 947). The plaintiffs here notified
be kept “separate and distinct” (i.e., one does not determine                  Federal in March of 2000, but the accident occurred in 1994.
whether a provision was breached by looking to whether there                   Recognizing the apparent unreasonableness of the six-year
was any resultant prejudice from the breach). Id. at 949.                      delay, the Clarks argue that we must consider that delay in
                                                                               light of the fact that the Clarks’ claim against Federal only
                                                                               became viable because of the 1999 Scott-Pontzer decision,
                                                                               which was handed down five years after the accident and only
    2
      W e note that the state of the law before Ferrando was somewhat          nine months before notice was given. We, however, have
unclear. It appears that before Ferrando, any breach of a subrogation          already rejected this argument. See Lepley v. Hartford Acc.
provision prevented an insured from recovering under an insurance              & Indem. Co., No. 01-4304, __ F.3d __, 2003 WL 21487313
policy, at least in the context where an insured never even informs the        (6th Cir. June 30, 2003). In Lepley, the plaintiff argued “that
insurer of a prospective se ttlement. See Bogan v. Progre ssive Cas. Ins.      prior to the Scott-Pontzer decision, she had no reason to
Co., 521 N.E.2d 447, syllabus para. 4 (O hio 198 8); see also Ferrando v.
Auto-Ow ners Mu t. Ins. Co., 781 N.E.2d 927, 945 (Ohio 2002) (noting that      believe that she would be covered under the policies, and she
under “paragraph four of the syllabus o f Bogan . . . there is no need to      claims that Hartford [in any event] would have denied her
inquire into insurer prejudice when such a [subrogation] clause is             claim.” Id. at *6. We stated that “Lepley may be correct that
breached”).       Ferrando’s overruling of this aspect of Bogan                Hartford would have denied coverage, but Lepley could have
incontrovertibly was a change in the way Ohio law treated breaches of          litigated the matter” and that “[a]waiting a favorable Ohio
subrogation-related insurance clauses. See Tha cker v. Cen t. Mut. Ins. Co.,
N o. 02 CA 9, 20 03 W L 1145449, at *6-*7 (Ohio Ct. App.–4th Dist. Mar.        Supreme Court decision is not a reasonable excuse for
11, 2003) (noting that “under Bogan, settlement withou t an op portunity       delaying notice and failing to preserve subrogation rights.”
for the insurer to exercise its subrogation rights was a per se bar to         Id. In light of Lepley, we must hold that the Clarks have
coverage under the policy” so that the Bogan court’s “analysis contained       breached the notice clauses of the Auto policy.
no prejudice component,” and that all “this changed with the Supreme
Court of Ohio's decision in Ferrando”).                                           It is similarly clear that the Clarks have breached the
     The Ohio Supreme Court’s decision in Ferrando was not a departure
from Ohio preceden t in its treatme nt of promp t-notice p rovisio ns, as it   subrogation provision of the Auto policy. The policy
was clear even before Ferrando that a breach of a prompt-notice                explicitly requires that the plaintiffs do nothing to impair
provision did no t necessarily preclude cove rage. Instead, the breach of      Federal’s right to subrogation, and the Clarks here admit that
the provision had to be preju dicial. See Ruby v. Midwestern Indem. Co.,       they released the tortfeasor and his insurance company several
532 N.E.2d 730, 732 (Ohio 1988 ) (finding “ample evidence that [the            years before Federal was even notified of the accident. This
insurer] was prejudiced by the delay” in the case at bar, but noting that
prejudice could be presumed if there was an “[u]nreasonable delay in the       is a clear breach of the insurance agreement.
giving of notice”).
No. 01-4178                       Clark et al. v. Chubb      11    12       Clark et al. v. Chubb                              No. 01-4178
                                Group of Ins. Cos. et al.                   Group of Ins. Cos. et al.

  Having determined that the prompt-notice and subrogation         F-02-012, 2003 WL 257407, at *1 (Ohio Ct. App.–6th Dist.
provisions were breached, however, we find ourselves unable        Feb. 4, 2003).3
to proceed on the “prejudice” component of the Ferrando
analysis. Under Ferrando, the breach of the prompt-notice          E. The CGL Policy
and subrogation provisions is presumed to be prejudicial, and
the plaintiffs have the obligation of overcoming that                We now turn to the second policy at issue in this case, the
presumption with persuasive evidence. Here, however, the           comprehensive general liability (“CGL”) policy. Ultimately,
Clarks as of yet have had no chance to prove that Federal was      we draw the same conclusion with regard to the CGL policy
not prejudiced by the Clarks’ breaches of the prompt-notice        that we drew in our analysis of the Auto policy. While the
and subrogation provisions. Without the benefit of Ferrando,       Clarks have breached the prompt-notice and subrogation
the district judge ended his analysis when he concluded that       provisions of the CGL policy, it is unclear whether the
the Clarks had breached the two provisions; he assumed that        breaches have been prejudicial to Federal. For that reason, we
any breach in the notice and subrogation provisions                remand this claim as well to the district court for further
foreclosed the Clarks’ claim.                                      proceedings.

  Although the plaintiffs have not rebutted the presumption          The CGL policy does not, by its text, provide UM/UIM
of prejudice at this point in the litigation, it is certainly      coverage. However, under the version of OHIO REV . CODE
possible that, now informed of Ferrando’s standards, they          ANN . § 3937.18 in existence at the time the policy covering
could adduce evidence to this effect on remand. We therefore       Clark’s accident was issued (and therefore the version legally
remand this case to the district court so that it may determine,   relevant here, see Wolfe v. Wolfe, 725 N.E.2d 261, 266 (Ohio
as an initial matter, whether the plaintiffs can overcome the      2000)), insurers were required to offer UM/UIM coverage
presumption of prejudice that attaches to their breaches of the
prompt-notice and subrogation provisions. We note that this
has been the procedure in several post-Ferrando Ohio cases              3
where the factfinding was conducted before Ferrando was                  Our decisio n to rem and this case is in no way inconsistent with our
                                                                   decision in Lepley, where we dismissed the plaintiff’s case after
decided; many courts have remanded Scott-Pontzer cases to          determining that the prompt-notice provision in the policy was breached
the trial court for further proceedings, reasoning that it would   and that the plaintiff had no t shown the bre ach to be no n-prejudicial. See
be manifestly unjust to dismiss the plaintiffs’ claims before      Lepley v. Hartford Acc. & Indem. Co., No. 01-4304, __ F.3 d __ , 20 03 W L
they had an opportunity to show that their breaches of notice      21487 313, at *6-*7 (6th Cir. June 30, 2003 ).
and subrogation provisions were non-prejudicial. See, e.g.,             The distinguishing feature abo ut Lepley is that in Lepley the district
Marshall v. Colonial Ins. Co. of Cal., No. 80868, 2003 WL          court had already analyze d the p rejud ice issue and had stated in its
                                                                   opinion that Lepley offered “no evidence to show that the more than
21054784, at *4 (Ohio Ct. App.–11th Dist. May 12, 2003);           fourteen-year delay in receiving [notice] did not prejudice the
Contrucci v. Nationwide Mut. Fire Ins. Co., No.                    defendants.” Id. at *6. Here, however, the district court did not examine
2002CA00403, 2003 WL 1958247, at *3 (Ohio Ct. App.–5th             the issue of p rejud ice, believing that it was unnecessary. Given that the
Dist. Apr. 21, 2003); Brozovic v. St. Paul Fire & Marine Ins.      purpo se of our remanding this case is to insure that the plaintiffs have, at
Co., No. F-02-012, 2003 WL 252483, at *4 (Ohio Ct.                 some point in the litigation, an opportunity to show that their breaches of
                                                                   the prompt-notice and subrogation provisions are non-prejudicial, we find
App.–8th Dist. Feb. 6, 2003); Cincinnati Ins. Co. v. Carroll,      Lepley’s dismissal of the plaintiff’s claim co mpletely consonant with our
                                                                   decision to remand the case here.
No. 01-4178                              Clark et al. v. Chubb             13     14       Clark et al. v. Chubb                           No. 01-4178
                                       Group of Ins. Cos. et al.                           Group of Ins. Cos. et al.

whenever they offered a motor-vehicle insurance policy. See                       to the parking-attendant provision in the case at bar, “did not
OHIO REV . CODE ANN . § 3937.18(A) (1994); see also Gyori                         create automobile liability coverage”). As a result, it would
v. Johnston Coca-Cola Bottling Group, Inc., 669 N.E.2d 824                        not be inappropriate for us to conclude that the CGL policy
(Ohio 1996) (interpreting the statute before the 1997 changes                     was not a motor-vehicle policy within the meaning of former
made to it in H.B. 261); Linko v. Indem. Ins. Co. of N. Am.,                      OHIO REV . CODE ANN . § 3937.18. Nevertheless, we decline
739 N.E.2d 338 (Ohio 2000) (same). Federal does not                               to do so at this time, because this very issue is currently
dispute that UM/UIM coverage was not offered properly                             pending before the Ohio Supreme Court. See Burkhart v.
under Linko and Gyori or that James Clark was an insured                          CNA Ins. Co., No. 2001CA00265, 2002 WL 316224 (Ohio
under the CGL policy.4 Federal instead argues that it never                       Ct. App.–5th Dist. Feb. 25, 2002), accepted for review, 770
had any obligation to offer UM/UIM coverage because the                           N.E.2d 1048 (Ohio July 3, 2002) (argued April 15, 2003).
CGL policy was not a motor-vehicle policy within the                              Burkhart involves precisely the same question presented here,
meaning of the statute.                                                           whether “parking attendant” and “mobile equipment”
                                                                                  exceptions to a commercial policy’s general exclusion of
   At first glance the CGL policy does not appear to be a                         automobile coverage are sufficient to render the policy a
motor-vehicle policy; it categorically excludes automobile                        motor-vehicle policy within the meaning of former OHIO
coverage. However, there are two exceptions to that general                       REV . CODE ANN . § 3937.18. Because the Ohio Supreme
exclusion, one providing coverage in cases of property                            Court’s decision in Burkhart will definitively resolve this
damage arising out of the operation of mobile equipment (the                      issue and because a remand is already in order in this case, we
“mobile equipment” exception), and the other providing                            choose not to rule upon this issue at this time, allowing the
liability coverage for incidents arising out of the parking of                    district court below to reexamine it on remand with the
automobiles on or next to the company’s premises (the                             benefit of the Ohio Supreme Court’s decision in Burkhart,
“parking attendant” exception). The Clarks have expressly                         which by then will have been decided.5
abandoned the argument that the mobile-equipment exception
is sufficient to turn the CGL policy into a motor-vehicle                           We now turn to Federal’s arguments that the Clarks cannot
policy, see Appellant Br. at 20-21 n.5, and we have squarely                      recover under the CGL policy because they have breached the
rejected the argument that a parking-attendant exception can                      prompt-notice and subrogation provisions therein. The CGL
transform an insurance policy into a motor-vehicle policy                         policy contains the following provisions:
within the meaning of OHIO REV . CODE ANN . § 3937.18, see
Lee-Lipstreu, 329 F.3d at 903 (holding “that the ‘parking
attendant’ provision in the Federal policy,” which is identical


    4
       Federal does dispute that Donna Clark was an insured under the
CGL policy. Because the district court did not rule on this question and               5
because we have already decided to remand this case to the district court                The district court is bound to follow our decision in Lee-Lipstreu
for it to address the Clarks’ claim under the Auto policy, we decline to          unless our decision is rejected by the Ohio Supreme Co urt. All of our
address this issue. W e leave this issue to the district court to handle in the   decisions in diversity cases are efforts to apply state law; we welcome
first instance on remand.                                                         clarificatio ns of state law by the Ohio Supreme Court.
No. 01-4178                            Clark et al. v. Chubb     15   16   Clark et al. v. Chubb                      No. 01-4178
                                     Group of Ins. Cos. et al.             Group of Ins. Cos. et al.

  DUTIES IN THE EVENT OF OCCURRENCE, CLAIM                            breached the above prompt-notice and subrogation provisions
  OR SUIT                                                             in the CGL policy. The Clarks argue that the prompt-notice
  a. You must see to it that we are modified6 as soon as              and subrogation provisions that appear in the CGL policy do
      practicable of an occurrence which may result in a              not apply to the UM/UIM coverage that arises by operation of
      claim                                                           law. We, however, rejected this argument in Lepley, where
  ...                                                                 we made the distinction between conditions precedent, which
  c. You and any other involved insured must:                         do “carry over” into coverage implied from an insurance
      (1) immediately send us copies of any demands,                  policy, and liability exclusions, which do not “carry over”
          notices, summonses or legal papers received in              into implied coverage. This distinction was necessary to
          connection with the claim or suit;                          reconcile the Ohio Supreme Court’s holding that scope-of-
      (2) authorize us to obtain records and other                    employment exclusions in a written policy did not apply to
          information;                                                UM/UIM coverage that arose as a matter of law under that
      (3) cooperate with us in the investigation,                     policy, see Scott-Pontzer, 710 N.E.2d at 1120, with the
          settlement or defense of the claims or suit; and            obvious fact that some provisions of the written policy (such
      (4) assist us, upon our request, in the enforcement             as the definition of who an insured is under the policy) must
          of any right against any person or organization             also apply to implied UM/UIM coverage — as otherwise even
          which may be liable to the insured because of               parties with absolutely no connection to Federal that were
          injury or damage to which this insurance may                injured by an underinsured motorist could recover under
          also apply.                                                 Federal’s policy.      Lepley concluded that notice and
                                                                      subrogation clauses were conditions precedent (rather than
J.A. at 259.                                                          liability exclusions), and held that “notice and subrogation
                                                                      clauses are valid and enforceable preconditions to an
  OUR RIGHT TO RECOVER PAYMENT                                        insured’s duty to provide underinsured motorist coverage
  If the insured has rights to recover all or part of any             even where UM/UIM coverage arises as a matter of law.”
  payment we have made under this insurance, those rights             Lepley, __ F.3d __, 2003 WL 21487313, at *4 (quotation and
  are transferred to us. The insured must do nothing after            brackets omitted). Under Lepley, notice and subrogation
  loss to impair them. At our request, the insured will               provisions do apply to implied UM/UIM coverage, and we
  bring suit or transfer those rights to us and help us               reject the Clarks’ contentions to the contrary.
  enforce them.
                                                                        Having concluded that the prompt-notice and subrogation
J.A. at 261.                                                          provisions do apply to the UM/UIM coverage that arises by
                                                                      operation of law under the CGL policy and having determined
  For the same reasons that we concluded that the Clarks had          that the Clarks did in fact breach those provisions, we find
breached the prompt-notice and subrogation provisions in the          ourselves again unable to determine whether the breaches
Auto policy, we must also conclude that the Clarks had                were prejudicial because the district court ended its analysis
                                                                      after determining the issue of breach. Because the Clarks
                                                                      should be given the chance to show that the breaches were in
   6
       Presumably this was meant to read ‘notified.’
No. 01-4178                       Clark et al. v. Chubb      17
                                Group of Ins. Cos. et al.

fact not prejudicial, we remand this issue to the district court
for further proceedings.
F. The Excess Policy
  Having remanded this case on the issues of whether the
Clarks should recover on the Auto and CGL policies, we do
not address the Clarks’ claim under the excess policy. In
order to recover under the excess policy, the policy apparently
requires the Clarks to have recovered under one of the other
policies and to have exhausted the limits of the other policy.
The district court, having concluded that the Clarks could not
recover under either of the two other policies, did not address
the excess policy. Because the district court did not rule on
the excess policy, we decline to do so as well, leaving this
matter for the district court to address on remand.
                    III. CONCLUSION
  For the foregoing reasons, we REVERSE the district
court’s judgment and REMAND this case for further
proceedings consistent with this opinion.
