[Cite as Crum & Forster Indemnity Co. v. Ameritemps, Inc., 2013-Ohio-5419.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99610


          CRUM & FORSTER INDEMNITY COMPANY

                                                          PLAINTIFF-APPELLEE

                                                   vs.

                                 AMERITEMPS, INC.
                                                          DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CP CV-686166

        BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                          December 12, 2013
ATTORNEYS FOR APPELLANT

L. Terrence Ufholz
Corsin, Sanislo & Ufholz, L.L.C.
304 N. Cleveland-Massillon Rd.
Akron, OH 44333

Dennis J. Bartek
Bartek Law Office
2300 East Market Street
Suite E
Akron, OH 44312

ATTORNEYS FOR APPELLEES

Crum & Forster Indemnity Company

Gary W. Johnson
Weston Hurd L.L.P.
The Tower at Erieview
1301 East Ninth St., Ste. 1900
Cleveland, OH 44114

National Union Fire Insurance Company

Steven G. Janik
Crystal L. Maluchnik
Sonia M. Gassan
Janik L.L.P.
9200 South Hills Boulevard
Suite 300
Broadview Heights, OH 44147-3251
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant, Ameritemps, Inc., a.k.a. Extinct Temps, Inc.

(“Ameritemps”), appeals from the order of the trial court that awarded summary

judgment to third-party defendant National Union Fire Insurance Company of Pittsburgh

(“National Union”) in a declaratory judgment action concerning its obligation to defend

and indemnify under a commercial auto liability policy, and denied Ameritemps’ own

motion for summary judgment. For the following reasons, we affirm.

       {¶2} This is the fourth appeal from two civil cases that resulted from a motor

vehicle accident that happened on October 11, 2006.     In Crum & Forster Indemn. Co. v.

Ameritemps, 2012-Ohio-4160, 976 N.E.2d 957 (8th Dist.) (“Crum & Forster I”), this

court set forth the relevant underlying facts and procedural history and stated:

       This case arises out of the October 11, 2006 motor vehicle accident
       involving Raymond Kestranek and defendant Kevin Crosby who traveled
       left of center and struck Kestranek’s vehicle. At the time of the accident,
       Crosby, and his passengers Tabious Harris, Calin Tucker, and Joe
       Wimbley, were all employed by Ameritemps as temporary employees.
       Kestranek v. Crosby, 8th Dist. Cuyahoga No. 93163, 2010-Ohio-1208, ¶ 5.
       They were in Crosby’s “own personal vehicle” and were en route to Prime
       Woodcraft, a job site in Garettsville, Ohio. Id. at ¶ 6. Following the
       accident, the Kestraneks filed suit against Ameritemps and various other
       parties and alleged, inter alia, that Ameritemps was vicariously liable for
       the negligent acts of its employee under a theory of respondeat superior.
       Id. at ¶ 11. The trial court found that Crosby was not in the course and
       scope of his employment at the time of the accident as a matter of law, and
       awarded Ameritemps summary judgment. Id. at ¶ 13.
       {¶3} This court reversed and remanded, concluding that:

       The record reveals that Crosby was not only transporting himself but three
       other individuals to the client’s location, Prime Woodcraft, providing labor
       on behalf of Ameritemps, his employer. The record also contains testimony
       that Ameritemps required Harris and Tucker to drive with Crosby from
       Ameritemps’ dispatch office and that Ameritemps stopped providing a van
       once Crosby started driving. The record further reveals that Ameritemps
       transferred money from the paychecks of those employees who rode with
       Crosby to Crosby’s paycheck to compensate him for driving. Although
       Ameritemps characterizes its policy as a “mere favor” done for its
       employee, a conflicting inference can be made: Ameritemps transferred the
       money because it wanted Crosby to drive the other temporary employees in
       furtherance of its business. While Ameritemps attempts to distance itself
       from its employees’ practice of riding together from the dispatch office,
       reasonable minds could find that they facilitated and promoted this
       arrangement. Indeed, an inference can be made that Ameritemps required
       Crosby to drive the other employees. Construing this evidence in a light
       most favorable to the Kestraneks, and given the conflicting inferences that
       can be drawn from the undisputed facts, we find that Ameritemps is not
       entitled to judgment as a matter of law.

       {¶4} This court rejected the Kestraneks’ request to find that Crosby was within

the course and scope of his employment as a matter of law, noting that the Kestraneks

did not move for summary judgment on that basis and that a reviewing court “cannot

provide a party with relief that they did not first seek below.”

       {¶5} On February 27, 2009, Crum & Forster filed a declaratory judgment action

seeking a determination of its duty to defend and indemnify under a commercial auto

liability policy issued to Ameritemps.       On October 6, 2010, Ameritemps filed a

third-party complaint against National Union in the declaratory judgment action seeking
coverage under two insurance policies National Union issued to Ameritemps: a general

liability policy and a commercial umbrella policy.

       {¶6} On December 23, 2011, the trial court granted summary judgment in favor

of Crum & Forster and determined that Crum & Forster was not required to provide

Ameritemps a defense or indemnification in the lawsuits arising from the October 11,

2006 motor vehicle accident caused by Crosby.        On appeal in Crum & Forster I, this

court affirmed the trial court’s grant of summary judgment.

       {¶7} On February 5, 2013, the trial court granted summary judgment in favor of

National Union regarding its duty to defend and indemnify Ameritemps in the underlying

litigation and denied a cross motion for summary judgment filed by Ameritemps. This

appeal followed.

       {¶8} In its sole assignment of error Ameritemps argues that the trial court erred

in granting summary judgment in favor of National Union because issues of material fact

exist to be determined at trial.

       {¶9} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.

Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine

issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and

(3) reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party, said party being entitled to have the evidence construed most

strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679,

1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor

Soccer Club, 82 Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving for

summary judgment bears the burden of showing that there is no genuine issue of material

fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio

St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

      {¶10}    An insurance policy is a contract, and the relationship between the insurer

and the insured is purely contractual in nature. Nationwide Mut. Ins. Co. v. Marsh, 15

Ohio St.3d 107, 109, 472 N.E.2d 1061 (1984). The interpretation and construction of

insurance policies is a matter of law to be determined by the court using rules of

construction and interpretation applicable to contracts generally. Gomolka v. State Auto.

Mut. Ins. Co., 70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347 (1982); Value City, Inc. v.

Integrity Ins. Co., 30 Ohio App.3d 274, 276, 508 N.E.2d 184 (10th Dist.1986).

      {¶11}    In insurance policies, as in other contracts, words and phrases are to be

given their plain and ordinary meaning unless there is something in the contract that

would indicate a contrary intention. Olmstead v. Lumbermens Mut. Ins. Co., 22 Ohio

St.2d 212, 216, 259 N.E.2d 123 (1970). Where the provisions of an insurance policy

are clear and unambiguous, courts may not indulge themselves in enlarging the contract
by implication in order to embrace an object distinct from that contemplated by the

parties. Gomolka at 168.

       {¶12}     However, where the provisions of a contract of insurance are reasonably

susceptible to more than one interpretation, they will be strictly construed against the

insurer and liberally in favor of the insured. King v. Nationwide Ins. Co., 35 Ohio St.3d

208, 519 N.E.2d 1380 (1988), paragraph one of the syllabus.

       {¶13}     An insurer’s duty to defend is broader than, and distinct from, its duty to

indemnify. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241,

2007-Ohio-4948, 874 N.E.2d 1155, ¶ 19. The scope of the allegations in the complaint

against the insured determines whether an insurance company has a duty to defend the

insured.   Id.   The insurer must defend the insured in an action when the allegations

state a claim that potentially, or arguably, falls within the liability insurance coverage but

the insurer need not defend any action or claims within the complaint when all the claims

are clearly and indisputably outside the contracted coverage. Id.

       {¶14}     National Union issued two insurance policies to Ameritemps that were in

effect at the time of the underlying motor vehicle accident. The general liability policy,

in “Section I. Coverages” provides in relevant part:

        We will pay those sums that the Insured becomes legally obligated
       to pay as damages because of bodily injury or property damage to
       which this insurance applies. We will have the right and duty to
       defend any suit seeking those damages. * * *
       {¶15} The general liability policy contains an “Aircraft, Auto or Watercraft”

exclusion that provides that the insurance does not apply to:

       Bodily injury or property damage arising out of the ownership,
       maintenance, use or entrustment to others of any * * * auto * * * owned or
       operated by * * * any insured.

       {¶16}   Section II defines who is an insured under the general liability contract

and includes within that definition:

       Your employees, other than your executive officers, but only for acts
       within the scope of their employment by you or while performing duties
       related to the conduct of your business. * * *

       {¶17}   Ameritemps argues that a question of fact remains as to whether or not

Crosby was acting within the scope of his employment at the time of the accident and

because such question exists, the accident arguably falls within the general liability

insurance coverage thus triggering National Union’s duty to defend. National Union

maintains that Crosby was acting within the scope of his employment with Ameritemps

at the time of the accident and cites our decision in Crum & Forster I as having

determined this issue. Indeed, in that case we found an exclusion in the Crum &

Forster auto insurance policy to be applicable because we found Crosby to be an

employee who was injured arising out of and in the course of his employment by
Ameritemps.1 Id. at ¶ 21.

          {¶18}   The doctrine of the law of the case establishes that the decision of a

reviewing court in a case remains the law of that case on the legal questions involved for

all subsequent proceedings in the case at both the trial and reviewing levels. U.S. Bank

Natl. Assn. v. Perry, 8th Dist. Cuyahoga No. 99608, 2013-Ohio-3814, ¶ 10, citing Pipe

Fitters Union Local No. 392 v. Kokosing Constr. Co., Inc., 81 Ohio St.3d 214, 218,

1998-Ohio-465, 690 N.E.2d 515.

          {¶19}   Consistent with our decision in Crum & Forster I, we find that Crosby

was an employee of Ameritemps acting within the scope of his employment at the time

of the accident.    Therefore, Crosby qualifies as an “insured” under the National Union

general liability policy and the “Aircraft, Auto or Watercraft” exclusion applies to bar

coverage.

          {¶20}   Appellant next argues that the general liability policy provides coverage

under the “Employer’s Liability Coverage Stop Gap Endorsement.”          The endorsement

states:



      1
        Appellant correctly points out that our decision in Crum & Forster went
further than our decision in Kestranek v. Crosby, 8th Dist. Cuyahoga No. 93163,
2010-Ohio-1208, wherein we declined to find that Crosby was within the course and
scope of his employment as a matter of law. Our decision in Kestranek did not
foreclose such a finding, rather we explained that the Kestraneks never moved for
partial summary judgment asking the trial court to make such a declaration and
upon de novo review we could not provide a party with relief that they did not first
       We will pay on behalf of the insured those sums that the insured becomes
       legally obligated to pay as damages arising out of Employer’s Liability
       caused by an occurrence or offense that takes place within the coverage
       territory and during the policy period.

       {¶21}    The endorsement defines “Employer’s Liability” as “liability for bodily

injury arising out of and in the course of an insured employee’s employment by you

provided that the employment must be necessary or incidental to YOUR work.”

However, the endorsement clearly states that it “forms a part of” the general liability

policy itself and further states in bold capital letters:

       ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS SHALL
       REMAIN UNCHANGED.

       {¶22}    We examine an insurance contract as a whole, which means that an

endorsement is read as though it is within the policy. Ward v. United Foundries, Inc.,

129 Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 18, citing Penn Traffic Co. v.

AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199, ¶ 30.

       {¶23}    The stop gap endorsement in this policy plainly states that the exclusions

of the general liability policy remain unchanged.       This is not an instance where the stop

gap provision specifically modified the general liability policy by deleting a specific

exclusion.     See, e.g., Ward v. United Foundries, Inc., 129 Ohio St.3d 292,

2011-Ohio-3176, 951 N.E.2d 770, ¶ 5.          The “Aircraft, Auto or Watercraft” exclusion


seek below.
remains unchanged by the stop gap endorsement and applies to bar coverage under the

entire policy, including the stop gap endorsement.       Therefore, we conclude that the

subject accident and underlying litigation did not trigger a duty to defend or indemnify

on the part of National Union pursuant to either the general liability policy or its stop gap

endorsement.

       {¶24}   Appellant next argues that National Union owed a duty to defend the

underlying litigation pursuant to a commercial umbrella policy in effect at the time of the

accident.   That policy provides in relevant part:

       I. Coverage

       We will pay on behalf of the Insured those sums in excess of the Retained
       Limit that the Insured becomes legally obligated to pay by reason of
       liability imposed by law or assumed by the Insured under an Insured
       Contract because of Bodily Injury, Property Damage, Personal Injury or
       Advertising Injury that takes place during the Policy Period and is caused
       by an Occurrence.

       ***

       II. Defense

       We shall have the right and duty to defend any claim or suit seeking damages
       covered by the terms and conditions of this policy when:

       1. The applicable Limits of Insurance of the underlying policies listed in the
       Schedule of Underlying Insurance and the Limits of Insurance of any other
       underlying insurance providing coverage to the Insured have been exhausted by
       payment of claims to which this policy applies; or

       2. Damages are sought for Bodily Injury, Property Damage, Personal Injury or
      Advertising Injury covered by this policy but not covered by any underlying
      insurance listed in the schedule of Underlying Insurance or any other underlying
      insurance providing coverage to the Insured.

      {¶25}    However, the commercial umbrella policy contains an “Automobile Liability

Follow-Form Endorsement” which provides:

      This Insurance does not apply to Bodily Injury or Property Damage rising out of
      the ownership, maintenance, operation, use, loading or unloading of any auto.

      However, if insurance for such Bodily Injury or Property Damage is provided by a
      policy listed in the Schedule of Underlying Insurance:

      1. This exclusion shall not apply; and

      2. The insurance provided by our policy will not be broader than the insurance
      coverage provided by the policy listed in the Schedule of Underlying Insurance.

      {¶26}    The above endorsement excludes automobile liability coverage except to

the extent that such coverage is provided within the schedule of underlying insurance.

The parties do not dispute that at the time of the accident appellant had underlying

automobile liability insurance in the form of the Crum & Forster policy addressed above.

 As this court previously found in Crum & Forster I, the Crum & Forster policy does not

provide coverage for the subject accident, and broader coverage cannot be found within

the above endorsement.

      {¶27}    Finally, appellant’s argument in favor of stop gap coverage under the

commercial umbrella policy fails for the same reason.   The stop gap liability insurance

that appellant cites within the schedule of underlying insurance is the National Union
stop gap liability provision from the general liability policy. We determined above that

the stop gap provision in the general liability policy did not provide coverage for the

subject accident and, as such, it cannot create coverage under the commercial umbrella

policy.2      Appellant’s arguments that a duty to defend or indemnify on the part of

National Union was triggered by the subject accident and underlying litigation pursuant

to the commercial umbrella policy are without merit.

          {¶28}   We conclude that the trial court did not err in granting summary judgment

in favor of National Union and denying appellant’s motion for summary judgment.

          {¶29}   Appellant’s sole assignment of error is overruled.

          {¶30}   The judgment of the trial court is affirmed.

          It is ordered that appellee recover from appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

          A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




      2
       Although not explicitly argued by appellant, the same logic applies to
preclude coverage through the general liability policy that is listed on the schedule
of underlying insurance in the commercial umbrella policy.
EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
