[Cite as Goodell v. Motorists Mut. Ins. Co., 2017-Ohio-8425.]




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


Brian Goodell                                               Court of Appeals No. WD-16-071

        Appellee                                            Trial Court No. 14 CV 176

v.

Motorists Mutual Insurance Company                          DECISION AND JUDGMENT

        Appellant                                           Decided: November 3, 2017

                                                  *****

        Kevin J. Boissoneault and Jonathan M. Ashton, for appellee.

        Lisa C. Haase, Thomas J. Mulvey and Trent M. Thacker,
        for appellant.

                                                  *****

        SINGER, J.

        {¶ 1} Appellant, Motorists Mutual Insurance Company (hereinafter “Motorists”),

appeals from the September 15 and November 17, 2016 judgments of the Wood County

Court of Common Pleas. Both judgments stem from a 2014 lawsuit filed by appellee,

Brian Goodell, against Shawn Pasquale and Motorists, arising out of injuries Goodell
suffered when he was allegedly struck by a truck he was servicing for his employer,

Wylie & Sons, after the truck was put into gear by Pasquale. Goodell asserted he was

negligently injured by Pasquale and Goodell’s loss was covered under Motorists policies

issued to Wylie & Sons.

      {¶ 2} In its September 15, 2016 judgment, the trial court found Goodell’s claims

were excluded from coverage under a commercial general liability policy, but not under a

business automobile policy, and granted in part and denied in part summary judgment to

Motorists. Because Goodell had not moved for summary judgment, the court continued

the case. Goodell immediately moved for summary judgment and on November 17,

2016, the trial court granted summary judgment to Goodell finding he was entitled to

coverage under the auto policy and the company’s umbrella policy. For the reasons

which follow, we affirm.

      {¶ 3} On appeal, Motorists asserts the following assignments of error:

             FIRST ASSIGNMENT OF ERROR: The Trial Court erred in

      denying Appellant’s Motion for Summary Judgment filed October 16,

      2014, specifically because the workers’ compensation and employer’s

      liability exclusions in the Business Auto Coverage Form bar coverage for

      the loss.

             SECOND ASSIGNMENT OF ERROR: The Trial Court erred in

      granting Appellee’s Motion for Summary Judgment by finding:

      (a) Coverage existed under the Business Auto Coverage Form because the




2.
       workers’ compensation, employer liability, and co-employee exclusions did

       not apply; and (b) the affidavit of Thomas Wylie was insufficient to create a

       genuine issue of material fact.

              THIRD ASSIGNMENT OF ERROR: The Trial Court erred by

       denying Appellant’s renewed motion for summary judgment based upon

       the co-employee exclusion and the Wylie affidavit.

                                   Standard of Review

       {¶ 4} The appellate court reviews the grant of summary judgment under a de novo

standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),

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

Summary judgment is a procedural device to end litigation over issues which do not

involve factual disputes and the issues can be decided as a matter of law. Civ.R. 56(C);

Ormet Primary Aluminum Corp. v. Emp. Ins. of Wausau, 88 Ohio St.3d 292, 300, 725

N.E.2d 646 (2000), citing Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64,

66, 375 N.E.2d 46 (1978). Therefore, the court must determine not only that the facts are

undisputed, but that a reasonable trier of fact could come to but one conclusion regarding

the facts, whether directly or by inference, when the facts are construed in a light most

favorable to the nonmoving party. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427,

433, 424 N.E.2d 311 (1981). Summary judgment must be awarded with caution because

it terminates litigation. Murphy v. City of Reynoldsburg, 65 Ohio St.3d 356, 358, 604

N.E.2d 138 (1992).




3.
       {¶ 5} The burden of establishing that summary judgment is an appropriate remedy

always remains on the moving party. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d

1164 (1997). The moving party bears the initial burden of coming forward with a basis

for summary judgment, identifying the evidence in the record which establishes there is

no genuine issue of material fact, and identifying the essential elements of one or more of

the nonmoving party’s claims or defenses that are not supported by the record. Id. at 430;

Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988), quoting Massaro v.

Vernitron Corp., 559 F.Supp. 1068, 1073 (D.Mass.1983). The moving party “must

specifically delineate the basis for which summary judgment is sought in order to allow

the opposing party a meaningful opportunity to respond.” Mitseff at syllabus.

       {¶ 6} Once the moving party has met this burden, the non-moving party must

come forward with specific evidence which supports the claims or defenses for which the

non-moving party bears the burden of production at trial and which would establish there

is a genuine issue of fact for trial. Civ.R. 56(E); Dumas v. Estate of Dumas, 68 Ohio

St.3d 405, 408, 627 N.E.2d 978 (1994), quoting Wing v. Anchor Media, Ltd. of Texas, 59

Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the syllabus, limited by

Dresher v. Burt, 75 Ohio St.3d 280, 295, 662 N.E.2d 264 (1996) and Mitseff.

       {¶ 7} In the case before us, Goodell has the burden to prove coverage under the

policies and his loss. City of Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186, 2006-

Ohio-2180, 846 N.E.2d 833, ¶ 19, quoting Inland Rivers Serv. Corp. v. Hartford Fire Ins.

Co., 66 Ohio St.2d 32, 34, 418 N.E.2d 1381 (1981). Motorists has the burden of




4.
establishing that an exclusion to coverage applies. Neal-Pettit v. Lahman, 125 Ohio St.3d

327, 2010-Ohio-1829, 928 N.E.2d 421, ¶ 19.

                               Assignment of Error No. 2

       {¶ 8} We address the assignments of error out of order to first address the issue of

whether Motorists presented a sufficient question of fact as to whether Pasquale was an

employee of Wylie & Sons to defeat the grant of summary judgment to Goodell and

justify the grant of summary judgment to Motorists.

       {¶ 9} This case is complicated by the fact that there have been two complaints and

two separate filings for summary judgment. In Goodell’s first complaint, he contended

that he was an “insured” under the uninsured/underinsured motorist and/or medical

payments provisions and that Pasquale was on the premises of Wylie & Sons with the

permission of the owners, managers, and operators of the premises. In its answer,

Motorists denied this allegation “in the manner and form alleged,” and answered only

that Pasquale was performing work on company vehicles, but not the one which caused

harm to Goodell. Both parties sought summary judgment.

       {¶ 10} In his motion, Goodell asserted Pasquale was an insured under the general

liability and umbrella policy because he was a “volunteer employee.” Under the terms of

the Motorists policy, “employee” is defined in the general liability and auto policies

simply as follows: “‘Employee’ includes a ‘leased worker.’ ‘Employee’ does not

include a ‘temporary worker.’” Attached to Goodell’s motion was his affidavit wherein

he attested that Pasquale is a friend of Thomas Wylie and he allowed Pasquale to be




5.
present in the shop on a daily basis and to operate Wylie & Sons’ trucks, including the

one which Pasquale operated while Goodell was performing maintenance on it.

      {¶ 11} Motorists argued in its motion only that the policies excluded coverage for

injuries for bodily injury which arose out of and in the course of Goodell’s employment.

Attached to Motorists’ motion was the affidavit of Thomas Wylie who attested that

Goodell was injured in the course and scope of his employment by a vehicle owned by

Wylie & Sons and he had received workers’ compensation for his injuries.

      {¶ 12} However, before the summary judgment motions were ruled upon, Goodell

voluntarily dismissed his claims against Motorists without prejudice. The trial court

granted default judgment against Pasquale and awarded Goodell damages.

      {¶ 13} Goodell filed a supplemental complaint against Motorists, pursuant to R.C.

3929.06, to recover the judgment rendered against Pasquale. Goodell asserted Pasquale

was insured under both the general liability and auto policies because he was on the

premises with the permission and acting as a “volunteer worker.” Motorists answered

admitting only that Wylie & Sons was the “named insured” and asserted that the claim

was barred by the exclusions. Motorists neither admitted nor denied that Pasquale was a

“volunteer worker” or an “insured.”

      {¶ 14} Motorists moved for summary judgment arguing coverage was barred

under the workers’ compensation exclusion and the employer’s liability exclusion.

Motorists also asserted that it was undisputed that both Goodell and Pasquale were

“acting within the course and scope of their respective employment activities with Wylie




6.
& Sons.” Attached to the motion was the same previously-filed Wylie’s affidavit that did

not address Pasquale.

      {¶ 15} Goodell filed a memorandum in opposition arguing Pasquale was a

“voluntary worker” under the general liability policy and an “insured” under the auto

policy because he was permitted to be on the premises and use the company’s trucks.

Goodell argued the employer liability exclusion is not applicable as the exclusion applies

only to the insured’s employees and Goodell is not Pasquale’s employee. Goodell also

disputed that Pasquale was not a co-employee. Goodell argued the only evidence in the

case was that Pasquale was a frequent, permissive user of the company trucks. Goodell

attached a second affidavit to his reply memorandum attesting Pasquale was not an

employee of Wylie & Sons, but worked on the company’s property mainly on his own

customers’ vehicles and sporadically did repair work on company vehicles as an

independent contractor charging Wylie for each job. Goodell further attested that when

customers complained to Wylie about Pasquale, he would tell those customers that

Pasquale was not his employee; Wylie argued with Pasquale about the complaints; and

Wylie had nothing to do with Pasquale’s work.

      {¶ 16} In its reply brief, Motorists argued there is no evidence that Pasquale was a

“volunteer worker.” Alternatively, Motorists argued, that even if Pasquale was a

“volunteer worker,” he is not an “insured” under the general liability policy because even

a voluntary worker is specifically excluded as an insured if he causes a work-related

bodily injury to a co-employee while in the course of his employment.




7.
       {¶ 17} On September 15, 2016, the trial court granted summary judgment to

Motorists in part. The trial court concluded Pasquale was not an insured under the

general liability policy because there was no evidence presented that he was a “volunteer

worker” for Wylie & Sons. The only evidence before the court were Goodell’s two

affidavits. Therefore, the only evidence before the court was that Pasquale was a friend

of Tom Wylie, he had permission to be on the premises and operate company vehicles,

and Pasquale was not an employee of Wylie & Sons. While Motorists asserted in its

motion that Pasquale was “acting within the course and scope of [his] employment

activities,” there was no evidence to support this assertion and the assertion itself does

not clearly establish Pasquale was an actual employee of Wylie & Sons.

       {¶ 18} Irrespective of whether Pasquale was a “volunteer worker” or not, the trial

court further concluded that the general liability policy specifically excluded Pasquale as

an insured because he caused bodily injury to an employee in the course and scope of the

employee’s employment. Therefore, the trial court granted summary judgment to

Motorists regarding the general liability policy. Goodell did not challenge this finding on

appeal and coverage under the general liability policy is not an issue in this appeal.

       {¶ 19} Regarding the auto policy, however, the court found that the “insured”

under that policy could be either the “name insured” on the declarations page or anyone

who uses a covered vehicle of the insured with permission, irrespective of the person’s

employment status. The trial court further determined the policy unambiguously

provides that Pasquale is a separate “insured” and that none of the exclusions applied to




8.
Pasquale because he was not Goodell’s employer. The court noted the second appellate

district came to the same conclusion in Motorists Ins. Cos. v. BFI Waste Management,

133 Ohio App.3d 368, 728 N.E.2d 31 (2d Dist.1999). The court also found that because

Pasquale was an insured under the auto policy, he was also covered by the umbrella

policy as a separate insured. The trial court denied summary judgment to Motorists as to

the auto policy. Motorists appealed from this judgment.

       {¶ 20} Goodell was granted leave to move for summary judgment asserting

coverage under the auto and umbrella policies. Motorists’ motion for leave to renew its

prior motion for summary judgment was eventually denied as moot.

       {¶ 21} Motorists opposed Goodell’s motion summary judgment arguing the fellow

employee exclusion also excluded coverage under the auto policy. This exclusion bars

coverage for bodily injury to a fellow employee arising out of and in the course of the

fellow employee’s employment. Motorists attached to its memorandum, a new Wylie

affidavit wherein he attested Pasquale was “acting as an employee” at the time of the

accident, “was paid hourly,” and was working 40-50 hours per week at that time.

       {¶ 22} Goodell filed a reply opposing consideration of new arguments and moved

to strike the new Wylie affidavit arguing the issue of Pasquale’s employment status could

not be reconsidered and, alternatively, that the new affidavit was conclusory and

unsupported by factual evidence presented in Goodell’s second affidavit.

       {¶ 23} On November 17, 2016, the trial court granted summary judgment to

Goodell. The trial court found that while Wylie attested that Pasquale was an employee




9.
working 40-50 hours per week at the time of the accident, he did not provide any

supporting documents. In light of Goodell’s second affidavit that Pasquale was not an

employee and only used the shop to repair vehicles for his customers, the trial court

found Wylie’s bald contradictory affidavit, which did not include supporting

documentation, did not give rise to a genuine question of material fact when such

documentation was readily available. The trial court concluded Motorists had not met its

burden of demonstrating the exclusion applied to the facts of this case. The trial court

found both Motorists’ motion for leave to renew its motion for summary judgment and

Goodell’s motion to strike Wylie’s second affidavit as moot. The trial court granted

summary judgment to Goodell and found Motorists was liable to pay the judgment

rendered against Pasquale. Motorists appealed from this judgment also.

       {¶ 24} On appeal from the second judgment, Motorists argues it had presented a

sufficient question of fact as to whether Pasquale was an employee of Wylie & Sons. We

agree with the trial court’s conclusion that the second Wylie affidavit was insufficient to

defeat the grant of summary judgment to Goodell.

       {¶ 25} Motorists’ arguments relating to Pasquale’s status changed over the course

of this case. It first admitted only that Pasquale was permitted to work on company

vehicles at the company shop while Goodell sought to classify Pasquale as a “volunteer”

employee based on facts attested to in Goodell’s first affidavit. While Motorists later

asserted in its first motion for summary judgment that Pasquale was a “co-employee,”

and two exclusions barred recovery, Motorists did not submit any evidence of Pasquale’s




10.
employment status. Goodell, however, presented evidence (through Goodell’s second

affidavit) that Pasquale was at the shop on a daily basis, used company trucks with

Wylie’s permission, and was not a co-employee. Motorists continued to argue there was

no evidence that Pasquale was a “volunteer employee.” It was not until after Goodell

filed his second motion for summary judgment (based on the trial court’s denial of

summary judgment to Motorists and its finding of coverage under the auto and umbrella

policies) that Motorists presented evidence that Pasquale was acting as an hourly-paid

employee at the time of the accident by means of Wylie’s second affidavit.

       {¶ 26} Motorists argues this case is distinguishable from prior cases where a

baldly-contradictory affidavit was not considered sufficient evidence to overcome

summary judgment. Kott Ents., Ltd. v. McClain, 6th Dist. Lucas No. L-15-1086, 2016-

Ohio-325, ¶ 25; Huntington Natl. Bank v. Belcher, 6th Dist. Wood No. WD-11-055,

2012-Ohio-3731, ¶ 13. Motorists asserts that because Goodell has argued Pasquale was a

“volunteer worker” and attested that Pasquale was on the premises daily and performed

some work for Wylie & Sons, the second Wylie affidavit was not contradictory and only

further supported the fact that Pasquale was an employee. We disagree. We find the

second Wylie affidavit was contradictory to the prior evidence in the record, which

consisted only of the admissions, Goodell’s two affidavits, and Wylie’s first affidavit.

An assertion that Pasquale was a volunteer employee or an independent contractor is not

the equivalent of the assertion he was a co-employee.




11.
       {¶ 27} Motorists also argues Wylie’s second affidavit was at least sufficient to

demonstrate there was a genuine issue of a material fact to warrant a trial. We disagree.

Even in his second affidavit, we note that Wylie attested only that Pasquale “acted as an

employee” at the time of the accident and was being paid on an hourly basis. The

affidavit did not include readily-available documentary evidence to support the assertion

that Pasquale was an actual employee. We conclude that the second Wylie affidavit, in

light of the other evidence, did not conclusively state Pasquale was an employee.

Therefore, we conclude that the second Wylie affidavit, even if were admissible, does not

raise a genuine issue of material fact regarding as to whether Pasquale was a co-

employee.

       {¶ 28} Therefore, we find Motorists’ second assignment of error not well-taken.

                               Assignment of Error No. 3

      {¶ 29} In its third assignment of error, Motorists argues the trial court erred by

denying Motorists’ renewed motion for summary judgment based upon the fellow

employee exclusion and the Wylie affidavit.

      {¶ 30} The substance of this argument is that the trial court should have

considered Wylie’s second affidavit, an issue already addressed under Motorists’ second

assignment of error and rejected. The trial court denied Motorists’ motion to renew its

motion for summary judgment as moot on the basis that the court was granting summary

judgment to Goodell based on the evidence submitted in connection with Motorists’ prior

motion for summary judgment. Motorists has failed to demonstrate that the trial court




12.
erred in finding the motion moot. Therefore, we find Motorists’ third assignment of error

not well-taken.

                                  Assignment of Error No. 1

       {¶ 31} Motorists makes several arguments in its first assignment of error that the

trial court erred by denying summary judgment to Motorists and granting summary

judgment to Goodell based on its finding that the workers’ compensation and employer’s

liability exclusions were not applicable and that Goodell was entitled to coverage under

the auto and umbrella policies.

       {¶ 32} Insurance policies are contracts and the general rules of contract

interpretation apply to them. World Harvest Church v. Grange Mut. Cas. Co., 148 Ohio

St.3d 11, 2016-Ohio-2913, 68 N.E.3d 738, ¶ 28; Ward v. United Foundries, Inc., 129

Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 18. The contract is read as a whole,

with the endorsement as part of the contract policy. Id., citing Penn Traffic Co. v. AIU

Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, 790 N.E.2d 1199, ¶ 9. As with any

contract, the intent of the parties is presumed to lie in the language used by the parties in

the policy unless the language is ambiguous. Id. Where the language is clear and

unambiguous, the court must merely apply the plain and ordinary meaning of the

language to give effect to the clear intent of the parties and does not apply the rules of

interpretation or construction. Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186,

2006-Ohio-2180, 846 N.E.2d 833, ¶ 6; Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11; Penn Traffic at ¶ 9. Exclusions are to be




13.
construed to bar coverage only as “to that which is clearly intended to be excluded.”

World Harvest, quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio

St.3d 657, 665, 597 N.E.2d 1096 (1992).

       {¶ 33} The following are the relevant portions of the auto policy at issue (the

umbrella policy contains similar language). The introduction to the auto policy defines

“you” and “your” as the “Named Insured.” Under the liability coverage provisions, the

policy defines an “insured” as “[y]ou * * *” or “[a]nyone else while using with your

permission a covered ‘auto’ you own * * *.” The policy also includes a severability

clause, which provides that “* * * with respect to the Limit of insurance, the coverage

afforded applies separately to each insured who is seeking coverage or against whom a

claim or ‘suit’ is brought.” Also at issue are the following three exclusions in the policy

which preclude coverage under certain circumstances: The workers’ compensation

exclusion bars coverage for:

                Any obligation for which the ‘“insured” or the “insured’s” insurer

       may be held liable under any workers’ compensation, disability benefits or

       unemployment compensation law or any similar law.

The employee indemnification and employer’s liability exclusion excludes

coverage for:

                “Bodily injury” to:

                a. An “employee” of the “insured” arising out of and in the course

       of:




14.
              (1) Employment by the “insured”; or

              (2) Performing the duties related to the conduct of the “insured’s”

       business; or

              ***

              This exclusion applies:

              (1) Whether the “insured” may be liable as an employer or in any

       other capacity; and

              (2) To any obligation to share damages with or repay someone else

       who must pay damages because of the injury.

       {¶ 34} It is undisputed that Goodell received workers’ compensation benefits for

his injuries and that Pasquale was an insured under the policies. Goodell argues the

workers’ compensation and employer liability exclusions do not apply to Goodell’s

claims because Pasquale is not Goodell’s employer and Pasquale did not incur any

liability for the workers’ compensation benefits Goodell received.

       {¶ 35} Motorists first argues these two exclusions create a blanket exclusion for all

injuries to employees arising out of and in the course of employment because such

injuries are already covered by workers’ compensation and the purpose of a general

liability policy is to insure losses to third parties. Motorists cites United States Liab. Ins.

Co. v. Benchmark Constr. Servs., 797 F.3d 116, 122 (1st Cir.2015) (citation omitted).

We find this case distinguishable, however, because the case before us involves coverage




15.
under only the auto policy, not a commercial general liability policy. The language of the

general liability and auto policies are different in the case before us.

       {¶ 36} Second, Motorists argues the “insured” language in the workers’

compensation exclusion refers to the “named insured,” Wylie & Sons, not Pasquale.

Therefore, Motorists argues, the workers’ compensation exclusion is unambiguous and

bars Goodell’s recovery under the auto policy. Motorists relies upon Crum & Forster

Indemn. Co. v. Ameritemps, Inc., 2012-Ohio-4160, 976 N.E.2d 957 (8th Dist.), which

relied upon the holding in Sharp v. Thompson, 5th Dist. Knox No. 07CA00016, 2008-

Ohio-4990, ¶ 19, 23.

       {¶ 37} In the Crum case, an employee sued the employer for coverage under a

commercial general liability policy for injury caused by a co-employee. Id. at ¶ 2. The

appellate court held the workers’ compensation and scope of employment exclusions

barred coverage. Id. at ¶ 20. Likewise, the Sharp case involved an employee suing his

employer for injuries sustained while on the job. Id. at ¶ 3-4. Both of these cases are

distinguishable on their facts. In the case before us, the employee of the named insured

sued only the tortfeasor who is separately insured under the employer’s auto policy.

       {¶ 38} A court’s role on summary judgment is merely to apply the unambiguous

insurance provisions as written, irrespective of the purpose behind including workers’

compensation and employer liability exclusions. Motorists’ arguments are premised on a

reading of the policy that presumes that the named insured, Wylie & Sons, was the only

possible insured under the policy. The auto policy before us clearly names Pasquale as




16.
an insured. We also agree with the trial court that the plain language of the entire auto

policy, including the severability clause and exclusions, provides that coverage is barred

under the policy only when an injured employee sues his employer. Pasquale, the

“insured,” is not Goodell’s employer and, therefore is not subject to the workers’

compensation statutes and Goodell’s injuries did not arise out of the insured’s

(Pasquale’s) business. Therefore, we agree with the trial court that the plain language of

the auto policy provides that neither exclusion applies to Pasquale’s liability. Our

holding that we must apply the contract language as written is consistent with the

holdings in Mendoza v. Bishop, 12th Dist. Butler No. CA2004-04-080; 2005-Ohio-238,

¶ 66-68; Motorists Ins. Cos. v. BFI Waste Mgt., 133 Ohio App.3d 368, 376-377, 728

N.E.2d 31 (2d Dist.1999); Travelers Ins. Co. v. Auto-Owners (Mut.) Ins. Co., 1 Ohio

App.2d 65, 71-72, 203 N.E.2d 846 (10th Dist.1964).

       {¶ 39} Alternatively, Motorists argues that even if Pasquale is the insured, the

workers’ compensation exclusion still applies because either Pasquale, as the insured, or

Motorists, as the “insured’s insurer,” would have an obligation to reimburse the Bureau

of Workers’ Compensation Bureau as a statutory subrogee pursuant to R.C. 4123.931(A).

Motorists does not cite any case in support of its argument and we reject it. The workers’

compensation exclusion applies to an insured who could be held “liable” under the

workers’ compensation law to participate in the workers’ compensation system. That

exclusion does not apply to Pasquale. R.C. 4123.931 gives the statutory subrogee (the

administrator of the bureau or certain employers) the right to recover settlements or




17.
judgments an employee received from a third-party tortfeasor. That right is derived from

the right of the injured employee to recover damages from the tortfeasor and his insurer,

not from any liability of the tortfeasor.

       {¶ 40} Third, Motorists argues the employer liability exclusion applies even if

Pasquale is the insured because it excludes coverage for employees injured in the course

and scope of their employment. We disagree with this argument because the language of

the exclusion requires the injured party to be in the course and scope of his employment

of the insured. In this case the insured is Pasquale, not Wylie & Sons. While it is

undisputed that Goodell was injured while he was working for Wylie & Sons, the

exclusion only bars recovery by employees of the insured, Pasquale. Therefore, the

exclusion is not triggered in this case. The cases cited by Motorists on this issue are

distinguishable on their facts because they involve employees suing their employer.

Crum, 2012-Ohio-4160, 976 N.E.2d 957; GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio

App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345 (2d Dist.), ¶ 3-4 Skula v. Nationwide Ins.

Co., 8th Dist. Cuyahoga No. 65486, 1994 Ohio App. LEXIS 1929 (May 5, 1994), *2-3.

       {¶ 41} Fourth, Motorists argues that the trial court erred in relying upon BFI, 133

Ohio App.3d 368, 728 N.E.2d 31, because the BFI court did not address the application

of Cook v. Kozell, 176 Ohio St. 332, 336, 199 N.E.2d 566 (1964) (a non-party to the

insurance contract cannot assert an interpretation detrimental to the contracting parties).

We find this argument meritless because we found the language of the contract was

unambiguous and, therefore, we are not interpreting the contract. Rather, we are




18.
applying the language of the contract as written under the general rule that the parties to

the contract intended the language they employed. Lutz v. Chesapeake Appalachia,

L.L.C., 148 Ohio St.3d 524, 2016-Ohio-7549, 71 N.E.3d 1010, ¶ 9.

       {¶ 42} Finally, Motorists argues the trial court did not consider the effect of the

severability clause upon the exclusions. Severability clauses are added to policies to

ensure that each individual insured under the policy has a separate insurable interest.

Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718, 913 N.E.2d 426,

¶ 68, O’Donnell, Jr., concurring in part and dissenting in part (citations omitted); Liberty

Univ., Inc. v. Citizens Ins. Co. of Am., 792 F.3d 520, 526 (4th Cir.2015).

       {¶ 43} Motorists asserts that the trial court’s holding created a “backdoor”

recovery for an employee’s workplace bodily injury and circumvents the purpose of the

exclusions and requires the employer to pay a premium for coverage that was not

intended. Therefore, Motorists argues the exclusions should prevail over the severability

clause and exclude coverage for employment injuries. Motorists argues this case is

similar to cases where a policy exclusion is written in terms of the actions of “an insured”

and/or “any insured,” and the severability clauses is found to be ambiguous and the

exclusion applies as intended by the parties or the exclusion overrides the severability

clause. See Safeco at ¶ 42, 69-71; Reconciling the Irreconcilable Conflict in Insurance

Severability of Interests Clause Interpretation, 20 Conn.Ins.L.J. 61, 68 (2013).




19.
       {¶ 44} We find the case before us is distinguishable because the exclusions in this

case use the phrase “the insured” and “the insurer,” which refers to one individual and

thus are consistent with the severability clause. Safeco Ins. at ¶ 61. Accord Shelby Mut.

Ins. Co. v. Schuitema, 183 So.2d 571, 574 (Fla.App.1966), aff’d on appeal, 193 So.2d

435 (Fla.1967) (an employee exclusion, which denied coverage to “employees of the

insured” injured on the job and covered by workers’ compensation law was not

applicable to a potential buyer who caused injury to a car salesperson while the potential

buyer was in an automobile for sale because the dealership policy defined “insured” as

also including anyone using a covered automobile with permission of the named insured

(a/k/a the omnibus insured) and the exclusion language limited the exclusion to the

named insured (the dealership)). See also Travelers Home & Marine Ins. Co. v. Stahley,

239 F.Supp.3d 866, 874-875, fn. 58 (E.D.Pa.2017) (“any insured” creates a joint liability

unlike “the insured” which is consistent with the severability clause) and Michael

Carbone, Inc. v. Gen. Acc. Ins. Co., 937 F.Supp. 413, 420 (E.D.Pa.1996) (in dicta the

court stated that “where a policy exclusion refers to ‘the insured,’ the existence of a

severability clause further supports the interpretation of each insured as separate”).

       {¶ 45} Application of the severability clause is altered, however, where the

exclusion covers both the named insured and the fellow employee/omnibus insured.

Oppenheim v. Reliance Ins. Co., 804 F.Supp. 305, 310 (M.D.Fla.1992) (employee’s

claim against a supervisor, rather than their employer for a work-related injury was

barred by the workers’ compensation and fellow-employee exclusions because the policy




20.
prohibited recovery when the employee was covered under the workers’ compensation

system).

         {¶ 46} In the case before us, the exclusions apply only to “the insured.” Pursuant

to the severability clause, “the insured” is either the named insured or Pasquale as the

omnibus insured. Each insured is considered individually as to whether the exclusion

applies and the language clearly applies the exclusions to Wylie & Sons but not Pasquale

because he is not Goodell’s employer.

         {¶ 47} Motorists argues the result of this application is that greater coverage is

provided for an omnibus insured than the named insured who purchased the policy. We

disagree. Ohio has a compulsory contribution system to compensate injured workers

which requires employers must maintain workers’ compensation insurance, R.C. Chapter

4123, and, therefore, the named insured need not separately insure against injury to

employees under a commercial general liability policy. However, Wylie & Sons also

obtained an automobile policy to cover potential liability arising out of the use of a

company vehicle by any person permitted to use the vehicle. Motorists drafted the policy

language of the policy so that it permitted Goodell to recover perhaps more than if had he

been injured by a fellow employee. We cannot alter the clear language of the policy.

         {¶ 48} Therefore, we conclude that Motorists’ first assignment of error is not well-

taken.




21.
       {¶ 49} Having found that the trial court did not commit error prejudicial to

Motorists and that substantial justice has been done, the judgment of the Wood County

Court of Common Pleas is affirmed. Motorists is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment affirmed.




       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.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




22.
