[Cite as Martens v. Auto-Owners Ins. Co., 2019-Ohio-5423.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Donald Martens, III                                          Court of Appeals No. L-19-1011

        Appellant                                            Trial Court No. CI0201701688

v.

Auto-Owners Insurance Company                                DECISION AND JUDGMENT

        Appellee                                             Decided: December 31, 2019

                                                *****

        Drew R. Masse, for appellant.

        Shannon J. George, for appellee.

                                                *****

        SINGER, J.

        {¶ 1} Appellant, Donald Martens, III, appeals the January 22, 2019 judgment of

the Lucas County Court of Common Pleas granting summary judgment to appellee,

Auto-Owners Insurance Company. Because we find appellant was occupying the vehicle

pursuant to the terms of the insurance contract, we reverse.
       {¶ 2} Appellant brings forth one assignment of error for our review:

              The trial court erred when it granted summary judgement in favor of

       Appellee Auto-Owners Insurance Company.

                                           Facts

       {¶ 3} On or about September 19, 2016, appellant and his boss arrived at 9955

Brint Road, Sylvania, Lucas County, Ohio. They were at the address to perform

driveway sealing services for a residential address. The truck and the attached trailer

were parked on the eastbound side of the road with about half of the truck in the grass

and half on the roadway. Traffic cones were placed around the vehicle to direct traffic

away from the truck. Appellant and his colleagues removed weed trimmers and other

work equipment out of the truck and trailer and placed the equipment on the grass area

next to the driveway. The unloading was completed prior to appellant’s injury.

       {¶ 4} Appellant then returned to the street side of the truck to ask his boss which

end of the driveway they would begin their work. Both men were inside the traffic cones,

but outside of the vehicle, while they discussed what the work for the day would entail.

Appellant entered the area specifically to ask his boss on which end of the driveway they

should begin work. The two men spoke in what would be the middle of the right lane of

Brint Road. Appellant was mere feet from the truck at this time.

       {¶ 5} Appellant’s boss noticed a car bearing down on them. Appellant looked up

to see a shocked look on his boss’s face. Appellant froze because he was unsure which

action he should take. A negligent, underinsured driver then struck the truck and




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appellant. Appellant broke his left leg in three places and required surgery and physical

rehabilitation.

       {¶ 6} At all times, the truck was covered under an insurance policy issued by

appellee to appellant’s employer. Appellant filed the initial action against appellee

seeking benefits under the underinsured motorist benefits of that policy.

       {¶ 7} During the course of the litigation, appellee filed a motion for summary

judgment which sought to have the trial court determine appellant was not covered under

the insurance policy because he was not “occupying” a vehicle at the time of the accident.

Appellee argued it was entitled to judgment because appellant was not in, on, entering,

exiting, or alighting from the vehicle at the time of the accident. Appellant filed a cross-

motion for summary judgment in response seeking a legal determination that he was

occupying the vehicle at the time of the accident.

       {¶ 8} The trial court agreed with appellee and granted its motion for summary

judgment. The trial court found that appellant was not immediately entering or exiting

the vehicle and was not alighting from the vehicle at the time he was injured. The trial

court found that appellant did not have a sufficient relationship with the vehicle in order

to be considered occupying the vehicle. The trial court came to this conclusion, in part,

because appellant was not conducting a work related activity at the time of the accident

and his presence in the roadway was not vital to performing his work related duties. The

trial court also denied appellant’s cross-motion for summary judgment.




3.
                                           Law

       {¶ 9} An appellate court reviews a trial court’s summary judgment decision de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment will be granted when no genuine issues of material fact exist when

after, construing all the evidence in favor of the nonmoving party, reasonable minds can

only conclude that the moving party is entitled to judgment as a matter of law. Civ.R.

56(C). Accord Lopez v. Home Depot, USA, Inc., 6th Dist. Lucas No. L-02-1248, 2003-

Ohio-2132, ¶ 7. When a properly supported motion for summary judgment is made, an

adverse party may not rest on mere allegations or denials in the pleading, but must

respond with specific facts showing there is a genuine issue of material fact. Civ.R.

56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984).

       {¶ 10} “The interpretation of a written contract, such as an insurance policy, is a

matter of law that we review de novo.” Willis v. Gall, 2015-Ohio-1696, 31 N.E.3d 678,

¶ 10 (4th Dist.), citing Shafer v. Newman Ins. Agency, 4th Dist. Highland No. 12CA11,

2013-Ohio-885, ¶ 10. If the language of a contract is ambiguous or susceptible to more

than one interpretation, it must be construed in favor of the insured and against the

insurer. Id. at ¶ 13, citing Dominish v. Nationwide Ins. Co., 129 Ohio St.3d 466, 2011-

Ohio-4102, 953 N.E.2d 820, ¶ 7.

       {¶ 11} “When an insurance contract is clear and unambiguous, its interpretation is

a question of law.” Hoff v. Agricultural Ins. Co., 6th Dist. Lucas No. L-03-1242, 2004-

Ohio-3983, ¶ 15, citing Leber v. Smith, 70 Ohio St.3d 548, 553, 639 N.E.2d 1159 (1994).




4.
As with any other contract, the court must look to the terms of the policy to determine the

intention of the parties concerning coverage. Id., citing Minor v. Allstate Ins. Co., Inc.,

111 Ohio App.3d 16, 20, 675 N.E.2d 550 (2d Dist.1996). “The court must give the

words and phrases in the policy their plain and ordinary meaning.” Id., citing State Farm

Auto. Ins. Co. v. Rose, 61 Ohio St.3d 528, 575 N.E.2d 459 (1991). When the plain and

ordinary meaning of the language contained in an insurance policy is clear and

unambiguous, a court cannot resort to construction of that language. Id., citing

Tomlinson v. Skolnik, 44 Ohio St.3d 11, 12, 540 N.E.2d 176 (1989).

       {¶ 12} The Ninth District in Darno v. Westfield Ins. Co., 2015-Ohio-2619, 34

N.E.3d 967, ¶ 12 (9th Dist.) explained:

              The meaning of the term “occupying” has been the subject of much

       litigation in the area of uninsured motorist and medical payment coverage.

       In examining the wide array of factual situations that have been litigated on

       this topic, “it is apparent that determining whether a person is ‘occupying’ a

       vehicle is not as easy as it might appear at first blush.” Robson v. Lightning

       Rod Mut. Ins. Co., 59 Ohio App.2d 261, 263, 393 N.E.2d 1053 (10th

       Dist.1978). The Supreme Court of Ohio has stated that “the word

       ‘occupying’ should not be given an unduly narrow definition.” Kish v.

       Cent. Nat. Ins. Group, 67 Ohio St.2d 41, 51, 424 N.E.2d 288 (1981). Ohio

       courts favor a liberal interpretation because “although the term ‘occupying’

       as defined in the insurance contract may not seem ambiguous on its face, it




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          often becomes ambiguous when determining whether insurance coverage

          should be extended in certain factual circumstances.” Etter v. Travelers

          Ins. Cos., 102 Ohio App.3d 325, 328, 657 N.E.2d 298 (2d Dist.1995), citing

          Robson at 263.

          {¶ 13} “In construing uninsured motorist provisions of automobile insurance

policies which provide coverage to persons ‘occupying’ insured vehicles, the

determination of whether a vehicle was occupied by the claimant at the time of an

accident should take into account the immediate relationship the claimant had to the

vehicle, within a reasonable geographic area.” Joins v. Bonner, 28 Ohio St.3d 398, 401,

504 N.E.2d 61 (1986), citing Robson at 263. The Supreme Court of Ohio found that a

passenger who exited a vehicle and who was in the process of crossing the street, was

considered to be occupying the vehicle he left because of where the claimant was located

at the time of the accident, why he was in the vehicle, and why he exited the vehicle. Id.

at 398.

          {¶ 14} Appellate courts have found that if the claimant is performing a task related

to the operation of an insured vehicle the claimant has a sufficient basis to be found they

were occupying the vehicle in order to be provided coverage under an insurance policy.

Halterman v. Motorists Mutual Ins. Co., 3 Ohio App.3d 1, 443 N.E.2d 189 (8th

Dist.1981); see also Auto-Owners Ins. Co. v. Phillips, 6th Dist. Lucas No. L-88-271,

1989 WL 65097 (June 16, 1989). Further, a claimant has a sufficient relationship to the

insured vehicle if his or her conduct is “foreseeably identifiable with the normal use of




6.
the vehicle.” State Farm Mut. Auto. Ins. Co. v. Cincinnati Ins. Co., 8th Dist. Cuyahoga

No. 62930, 1993 WL 215450 (June 17, 1993). A claimant’s activities must be “vehicle-

oriented” rather than “highway oriented.” Id.

                                         Analysis

       {¶ 15} The insurance policy defines occupying as “Occupying means being in or

on an automobile as a passenger or operator, or being engaged in the immediate acts of

entering, boarding or alighting from an automobile.”

       {¶ 16} The insurance contract in this matter is ambiguous because the definition of

“occupying” is susceptible to multiple interpretations based on applying that definition to

the facts at hand. Several courts, including the Ohio State Supreme Court, have found

that the term “occupying” is ambiguous when used in a car-insurance context. Joins at

401. We see no reason to find otherwise.

       {¶ 17} Further, attempting to apply the term “occupying” to the facts at hand,

makes the term ambiguous and susceptible to multiple interpretations. Two such

interpretations are presented by both parties. The Fourth District found the definition of

“occupying” as defined by appellee to be ambiguous in Willis. Willis at ¶ 21-24 (“We

conclude that the definition of ‘occupying’ is not plainly unambiguous, but rather is

susceptible to more than one interpretation”).

       {¶ 18} As we find the term “occupying” as used in this context is ambiguous, we

now turn to whether appellant was in close geographic proximity to the vehicle and if he

had a sufficient relationship with the vehicle in order to be granted coverage. Appellant




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was clearly in close geographic proximity to the company’s truck. He was hit by the

other motorist while he was next to the vehicle.

       {¶ 19} The question then becomes what his relationship to the vehicle was and

whether that relationship was sufficient to determine that he was occupying the vehicle.

We find that such a sufficient relationship did exist.

       {¶ 20} First, he was performing a task related to the vehicle. The vehicle was used

as a truck for the company’s work as contractors and landscapers. His boss was still in

the truck at the time appellant was struck by the errant vehicle. Getting directions on

how to start their work for the day plainly deals with the purpose of the truck at the time

of the accident.

       {¶ 21} Further, appellant’s actions were foreseeably identifiable with the normal

use of the vehicle. Speaking with one’s coworker inside of a vehicle that is parked for

the express purpose of beginning to work, is a foreseeably identifiable use of the truck

and those who occupy it.

       {¶ 22} Appellant was near the vehicle, at the time he was struck, in order to speak

with his boss about the day’s activities. Appellant had already unloaded the back of the

truck and prepared some of the materials for the day near the driveway where they would

shortly begin work. Appellant was speaking to his boss to ask which end of the driveway

they would start on. All of this information leads us to find that appellant had a sufficient

relationship with the vehicle.




8.
       {¶ 23} We find no evidence presented that appellant was leaving the truck area or

attempting to perform a task that was not work related at the time of the accident. The

discussion that was taking place between appellant and his boss could have taken place

outside of the roadway rather than within the coned-off area of the road, but there is no

requirement that a claimant will only be covered by an underinsured driver policy if they

were performing a task that had to be completed in the road.

       {¶ 24} What is required by case law, is that the claimant is in close geographic

proximity with the vehicle, the claimant has a sufficient relationship with the vehicle, and

the claimant was acting with a purpose related to the vehicle.

       {¶ 25} Appellant had more of a relationship to the vehicle than the claimant in

Joins. Appellant was near the vehicle speaking to a person related to the purpose of the

vehicle. Appellant had not left the area of the truck as the claimant in Joins. In Joins, the

claimant left the vehicle with no intention of returning the vehicle. Here, appellant

retained a relationship with the vehicle and the purpose behind the vehicle.

       {¶ 26} This is also not the case as in Darno where a claimant was found to not

have a relationship with the covered vehicle because the claimant was running away from

the oncoming vehicle that would later injure him. Appellant remained with the vehicle

he arrived at the scene with.

       {¶ 27} The case before us today is similar to State Farm, where a claimant was

injured on a roadway by an underinsured driver. The claimant was in a covered vehicle

for the purpose of buying and transporting twenty cases of pop. During the delivery of




9.
the pop, two cases of pop fell off of the truck and the claimant exited the vehicle to

recover the bottles. The claimant was injured while he was on the roadway picking up

the bottles.

       {¶ 28} Appellant similarly was pursuing the purpose behind why he was in the

covered vehicle and was in the process of completing his duties with his employer. He

was located next to the vehicle to seek guidance on the job they were about to embark on.

Appellant was engaged in a task which was reasonably related to the operation of the

vehicle.

       {¶ 29} As we find that appellant was both in geographic proximity to the vehicle

and had a sufficient relationship with the vehicle, we find appellant was occupying the

truck at the time of the accident. On consideration thereof, the judgment of the Lucas

County Court of Common Pleas is reversed. The matter is remanded to proceed in a

manner consistent with this decision. Pursuant to App.R. 24, appellee is ordered to pay

the costs of this appeal.


                                                                         Judgment reversed
                                                                            and remanded.




10.
                                                               Martens v. Auto-Owners
                                                               Ins. Co.
                                                               C.A. No. L-19-1011




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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