[Cite as Turner v. Univ. of Cincinnati, 2018-Ohio-2287.]



JACOB TURNER                                           Case No. 2016-00769JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Anderson M. Renick
       v.
                                                       DECISION
UNIVERSITY OF CINCINNATI

       Defendant



        {¶1} Before the court are (1) a motion for summary judgment with an attendant
memorandum filed on April 13, 2018, by defendant University of Cincinnati (UC)
wherein UC contends that it is entitled to judgment as a matter of law on plaintiff Jacob
Turner’s corrected complaint and (2) an unopposed motion for leave to file a reply brief
filed on May 22, 2018 by UC. Because the court determines that UC is entitled to
judgment as a matter of law, the court concludes that UC’s motion for summary
judgment should be granted and that UC’s motion for leave to file a reply brief should be
denied as moot.

    I. Background
        {¶2} On October 27, 2016, Turner, through counsel, filed a corrected complaint
alleging that, about two years earlier, on October 26, 2014, at about 8:30 p.m., he was a
passenger in a motor vehicle, which was owned by Sherri M. Messmore and which was
being driven by Connor Messmore.                    According to Turner, Connor Messmore—a
member of UC’s Ultimate Frisbee Club Team—“was driving Mr. Turner and three other
teammates home from a sanctioned tournament in Columbus, Ohio that the club team
had been scheduled to participate in with knowledge of the defendant. Consequently,
Mr. Messmore was operating a non-owned vehicle in the conduct of the University of
Cincinnati’s business.” (Corrected Complaint, ¶ 6.)
Case No. 2016-00769JD                      -2-                                DECISION


       {¶3} Turner asserts that, while Connor Messmore was traveling southbound on
Interstate 71, Connor Messmore “negligently allowed his vehicle to drift off the left side
of the roadway, striking the concrete divider, then heading right across all southbound
lanes of travel, striking a vehicle, then veering off the roadway and striking a tree.”
(Corrected Complaint, ¶ 5.) Turner maintains that, as a “direct and proximate result” of
the incident, he “sustained injuries to his face, mouth, teeth, and ankle, among injuries
to other parts of his body, causing severe pain, suffering, mental anguish and
permanent injury, for the treatment of which he has undergone at least ten (10)
surgeries and has incurred reasonable medical expenses in an amount in excess of
Four Hundred Seventy-Six Thousand Dollars ($476,000.00) and expects to incur such
expenses in the future.” (Corrected Complaint, ¶ 10.)
       {¶4} In the corrected complaint, Turner contends that UC should be held liable
(1) because “at all times pertinent to this action, [UC] provided bodily injury liability
coverage through the Inter-University Council – Insurance Consortium Joint Self-
Insurance Pool (hereinafter Agreement)” (Corrected Complaint, at ¶ 3), and (2) because
“[u]nder the terms of the Agreement, at the time of the accident * * * Connor Messmore
was a protected person and Mr. Messmore’s auto was a covered auto entitling
Jacob Turner to recover damages against [UC] for his bodily injuries caused by
Mr. Messmore’s negligence.” (Corrected Complaint, ¶ 8.) According to the corrected
complaint, Turner “demands judgment against defendant University of Cincinnati and
prays for compensatory and general damages in an amount in excess of Twenty Five
Thousand Dollars ($25,000.00), said plaintiff further demands interest, costs and any
further just relief.”   Turner’s corrected complaint does not contain a claim for a
declaratory judgment. And Turner does not pray for a declaratory judgment in the
corrected complaint’s demand.
       {¶5} On April 13, 2018, UC moved for a summary judgment. UC maintains that it
is entitled to judgment as a matter of law (1) because there was no agency relationship
Case No. 2016-00769JD                        -3-                                 DECISION


between UC and Connor Messmore, (2) because Messmore did not receive permission
from UC to go on the trip to Columbus, (3) because Turner and his teammates did not
complete paperwork required for the trip to Columbus, and (4) because Turner and the
other members of the UC Ultimate Club Frisbee Team failed to rent a vehicle to travel to
Columbus, which, according to UC, is necessary for coverage through the insurance
agreement. In support of its summary judgment motion, UC relies on (1) an affidavit of
Jeffery Logsdon, program coordinator for club sports at UC, that is dated April 6, 2018,
(2) an exhibit attached to Logsdon’s affidavit of April 6, 2018, (3) Logsdon’s testimony
from a deposition held on April 3, 2018, (4) an affidavit of Elizabeth A. Conlin, director of
the Inter University Council (IUC) – Insurance Consortium, and (5) an exhibit attached
to Conlin’s affidavit—a copy of the Inter-University Council-Insurance Consortium Joint
Self-Insurance Pool Automobile Liability Coverage Agreement, Coverage Agreement
Number: IUCIC-AL-July 2014-15 (Insurance Policy).
       {¶6} On May 18, 2018, Turner filed a memorandum opposing UC’s summary
judgment. Turner also has filed two exhibits: (1) Exhibit 4 to Logsdon’s deposition and
(2) Exhibit 5 to Logsdon’s deposition. By Turner’s memorandum in opposition, Turner
“requests that the Court declare that Defendant’s Insurance Policy covers his injuries
and damages, whereby rendering Defendant’s Motion for Summary Judgment moot; or
in the alternative, Plaintiff requests that Defendant’s Motion for Summary Judgment be
denied.”   Turner states in his memorandum: “This Court should treat Defendant’s
Motion, in part, as a Motion for Declaratory Judgment regarding the limited question of
whether Messmore is a protected person under the Insurance Policy and whether
Messmore’s automobile is a covered auto under the Insurance Policy.”
       {¶7} On May 22, 2018, UC moved the court for leave to file a reply to Turner’s
memorandum in opposition; UC represented to the court that Turner “ha[d] no objection
to Defendant’s request.” Two days later—on May 24, 2018—Turner filed a “Notice To
Clarify For The Record” wherein (1) Turner indicated that he “remains unopposed” to
Case No. 2016-00769JD                        -4-                                  DECISION


UC’s motion for leave to file a reply; (2) he took issue with a paragraph in UC’s motion
for leave to file a reply brief; and (3) Turner stated that “it is erroneous to state that
Plaintiff has asked for affirmative relief in the form of a declaratory judgment as it is
Plaintiff’s position that Defendant is the one who sought affirmative relief in the form of a
declaratory judgment, albeit inaccurately titling it as a Motion for Summary Judgment.”
       {¶8} Turner’s suggestion that this court should treat UC’s summary judgment, in
part, as a motion for declaratory judgment is not well-taken for several reasons: (1) this
court’s role is that of a neutral arbiter of matters that are properly presented to the court;
the court’s role generally does not include refashioning a party’s motion, see Greenlaw
v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (stating
that in “our adversary system, in both civil and criminal cases, in the first instance and
on appeal, we follow the principle of party presentation. That is, we rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of matters
the parties present”); id. at 244, quoting United States v. Samuels, 808 F.2d 1298, 1301
(CA8 1987) (R. Arnold, J., concurring in denial of reh’g en banc) (“‘[Courts] do not, or
should not, sally forth each day looking for wrongs to right. We wait for cases to come to
us, and when they do we normally decide only questions presented by the parties’”);
(2) Turner’s corrected complaint does not present a declaratory-judgment claim for the
court to adjudicate; (3) when Turner filed his lawsuit in this court he “was aware” of the
university’s Insurance policy, yet Turner did not present a claim for declaratory relief in
his corrected complaint (Memorandum in Opposition, 3; Complaint); (4) Turner has not
sought to amend his complaint in a manner set forth in Civ.R. 15(A) for the purpose of
adding a claim for a declaratory judgment; and (5) UC expressly has moved for
summary judgment under Civ.R. 56(C) regarding a complaint that does not contain a
claim for a declaratory judgment.
       {¶9} Because there is no proper claim for a declaratory judgment as to the
Insurance Policy, the court should not issue a binding determination that establishes the
Case No. 2016-00769JD                       -5-                                 DECISION


rights and other legal relationship of the parties with respect to the Insurance Policy.
UC’s summary judgment motion and Turner’s response therefore raise these issues for
the court’s determination: (1) whether there is a genuine issue of material fact relative to
whether Connor Messmore’s purported negligence may be imputed to UC, (2) whether
in this instance automobile liability coverage provided to UC through an agreement with
the Inter-University Council – Insurance Consortium Joint Self-Insurance Pool imputes
liability upon UC for Connor Messmore’s purported negligence.

   II. Law and Analysis
       A. Standard of review for summary judgment.
       {¶10} Civ.R. 56(C) pertains to motions and proceedings for summary judgment,
stating in part: “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.          No evidence or stipulation may be
considered except as stated in this rule.” In State ex rel. Grady v. State Emp.
Rels. Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997), construing Civ.R. 56(C),
the Ohio Supreme Court stated: “Civ.R. 56(C) provides that before summary judgment
may be granted, it must be determined that (1) no genuine issue as to any material fact
remains to be litigated, (2) the moving party is entitled to judgment as a matter of law,
and (3) it appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the nonmoving party,
that conclusion is adverse to the party against whom the motion for summary judgment
is made. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d
466, 472, 364 N.E.2d 267, 274.” And in Dresher v. Burt, 75 Ohio St.3d 280, 298,
662 N.E.2d 264 (1996), a plurality opinion, the Ohio Supreme Court stated that “there
is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for
Case No. 2016-00769JD                      -6-                                DECISION


summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however,
that a moving party, in support of a summary judgment motion, specifically point to
something in the record that comports with the evidentiary materials set forth in Civ.R.
56(C).” (Emphasis sic.) And Dresher holds that

       a party seeking summary judgment, on the ground that the nonmoving
       party cannot prove its case, bears the initial burden of informing the trial
       court of the basis for the motion, and identifying those portions of the
       record which demonstrate the absence of a genuine issue of material fact
       on the essential element(s) of the nonmoving party’s claims. The moving
       party cannot discharge its initial burden under Civ.R. 56 simply by making
       a conclusory assertion that the nonmoving party has no evidence to prove
       its case. Rather, the moving party must be able to specifically point to
       some evidence of the type listed in Civ.R. 56(C) which affirmatively
       demonstrates that the nonmoving party has no evidence to support the
       nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has
       a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts
       showing that there is a genuine issue for trial and, if the nonmovant does
       not so respond, summary judgment, if appropriate, shall be entered
       against the nonmoving party.

(Emphasis sic.) Id. at 293.

       {¶11} The court shall apply the foregoing standard to UC’s summary judgment
motion that is before the court.

       B. Connor Messmore’s actions may not be legally imputed to UC because,
          at the time of the accident, Connor Messmore was not an officer or
          employee of the state and because, as a matter of law, the relationship
          between UC and Connor Messmore is not that of a principal and agent.
       {¶12} The General Assembly has enacted legislation that, subject to exceptions,
waives the state’s immunity from liability, and allows the state to have its liability
determined in this court “in accordance with the same rules of law applicable to suits
between private parties * * *.” R.C. 2743.02(A)(1). According to R.C. 2743.02(A)(2), if a
Case No. 2016-00769JD                      -7-                                DECISION


claimant “proves in the court of claims that an officer or employee, as defined in
[R.C. 109.36], would have personal liability for the officer’s or employee’s acts or
omissions but for the fact that the officer or employee has personal immunity under
section 9.86 of the Revised Code, the state shall be held liable in the court of claims in
any action that is timely filed pursuant to section 2743.16 of the Revised Code and that
is based upon the acts or omissions.” And pursuant to R.C. 109.36(A)(1), the term
“officer or employee” “means any of the following:(a) A person who, at the time a cause
of action against the person arises, is serving in an elected or appointed office or
position with the state or is employed by the state.” See R.C. 109.36(A)(b)-(d) (defining
the term “officer or employee”).
      {¶13} By his corrected complaint, Turner has not alleged that, at the time of the
accident, Connor Messmore was a person elected or appointed to a public office, or that
Connor Messmore was employed by the state. Rather, according to Turner’s corrected
complaint, Connor Messmore is alleged to have been a member of UC’s Ultimate
Frisbee Club Team. (Corrected Complaint, ¶ 6.) In a deposition Turner testified that,
Connor Messmore was 18 years old at the time of the accident, and that Connor is “a
grade below me.” (Turner Deposition of January 9, 2017, 20.) And, according to a
counsel’s representation in Logsdon’s deposition, after Turner’s accident, university
officials exchanged email correspondence that contained information indicating that at
the time of the accident Connor Messmore was a UC student. (Logsdon deposition of
April 3, 2018, 15, 17.) Additionally, when Turner was asked whether Connor Messmore
ever told Turner whether he was employed at UC, Turner stated: “No, he did not say
that to me.” Thus, construing the evidence in favor of Turner, the evidence shows that
at the time of the accident Connor Messmore was a student at UC and he was not an
employee of UC. Therefore, in this case for UC to be held liable for the actions or
omissions of Messmore, a principal-agent relationship needs to be established between
Messmore and UC.
Case No. 2016-00769JD                       -8-                                DECISION


       {¶14} To support its claim that there is no principal-agent relationship between
UC and Messmore, UC cites to Hanson v. Kynast, 24 Ohio St.3d 171, 494 N.E.2d 1091
(1986). Turner urges, however, that UC’s reliance on Hanson is misplaced. In Hanson,
Brian Hanson, a student, sustained a paralyzing injury while playing in a lacrosse game
between Ohio State University and Ashland University, Inc. at the Ashland University
lacrosse field. As described by the Ohio Supreme Court,

       During the game Roger Allen, an OSU player, intercepted an Ashland
       player’s pass and scored a goal. As Allen was scoring the goal, he was
       body-checked from behind by Ashland defender William D. Kynast. Allen
       fell and Kynast allegedly stood over Allen taunting him. Brian Hanson saw
       the contact and Kynast’s subsequent behavior. Concerned for Allen’s
       welfare, Hanson grabbed Kynast from the side or back and held him in a
       bear hug. Kynast immediately twisted and threw Hanson off his back.
       Hanson’s head struck the ground and he sustained serious injuries.

       The trainers for both teams came onto the field to attend Hanson. After
       discovering the seriousness of his injury (Hanson was numb and could not
       move), an assistant trainer for Ashland was sent to telephone the fire
       department for an ambulance.

       Upon arriving on the scene, the ambulance driver discovered that the
       main entrance to the playing field was blocked by an illegally parked
       automobile. As a result, the ambulance driver had to find another
       entrance.

Hanson at 171-172. Hanson later sued Kynast and Ashland University in a common
pleas court, maintaining that, because Kynast was acting as the agent of Ashland
University, the university was therefore liable for Kynast’s wrongful acts under the
doctrine of respondeat superior and that the university was directly liable for negligently
failing to have an ambulance or emergency vehicle present at the site of the game, and
in permitting a motor vehicle to be parked so as to block the main entrance to the
playing field. Ashland moved for summary judgment. The common pleas court granted
Ashland’s motion, holding that no agency relationship existed between Kynast and
Case No. 2016-00769JD                       -9-                                DECISION


Ashland University and that Ashland did not have a legal duty to have an ambulance at
the game. In a split decision, an appellate court reversed the common pleas court’s
judgment, holding that genuine issues of material fact existed on the question of agency
and upon the university’s duty to provide medical personnel at the game.
       {¶15} The Ohio Supreme Court reversed the appellate court, agreeing with the
trial court’s conclusion that there was an absence of proof as to the existence of a
principal-agent relationship and agreeing with the trial court’s general finding that, as a
matter of law, Ashland University was not bound by Kynast’s conduct under the doctrine
of respondeat superior. Hanson states:

             This court is of the opinion that this relationship between Kynast
      and Ashland is a relationship common to many students attending
      universities. A university offers a diversified educational experience which
      includes classroom instruction in a great variety of subjects as well as
      optional participation in events such as school clubs, and intramural and
      intercollegiate sports. All of these offerings are designed to expand and
      enrich a student’s overall educational experience. Students evaluate and
      determine which university best meets their needs, and then pay a fee to
      attend that university. The relationship formed under these conditions has
      previously been characterized as contractual. Zumbrun v.. U.C.L.A.
      (1972), 25 Cal. App. 3d 1, 10, 101 Cal. Rptr. 499, 502. The student pays a
      fee and agrees to abide by the university rules. In exchange, the university
      provides the student with a worthwhile education.

             This relationship does not constitute a principal-agent relationship.
      The student is a buyer of education rather than an agent. Restatement of
      the Law 2d, Agency (1958) 73, Section 14 J, states that a buyer retains
      goods primarily for his own benefit, while an agent is one who retains
      goods primarily for the benefit of the one who delivers those goods. In the
      instant case, the “goods” to be delivered is an education and the university
      delivers that education to the student for a fee. It is clear that a student
      retains the benefit of that education for himself rather than for the
      university.
Case No. 2016-00769JD                       -10-                                 DECISION


(Emphasis added). Hanson at 174. The court determines that Hanson is controlling for
the legal proposition that in this case the relationship between UC and Connor
Messmore is not that of a principal and agent.
       {¶16} Nonetheless, in Turner’s corrected complaint Turner seems to suggest that
liability should be imputed to UC based on the Insurance Policy that provides
automobile liability coverage to UC. The court finds this contention to not be well-taken.
       {¶17} An insurance policy is a contract. Westfield Ins. Co. v. Galatis, 100 Ohio
St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 9. And the Ohio Supreme Court has
held that the construction of written contracts is a matter of law. Alexander v. Buckeye
Pipeline Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus.
In Alexander, the court held that common words appearing in a written instrument
“will be given their ordinary meaning unless manifest absurdity results, or unless some
other meaning is clearly evidenced from the face or overall contents of the instrument.”
Alexander at paragraph two of the syllabus. Here, the Insurance Policy states: “In
consideration of payment of premium and in reliance upon statements made in the
applications, the IUC-Insurance Consortium agrees to provide its Member Institutions
with the Coverage set forth in this Coverage Agreement. Such coverage is subject to
the limitations, conditions, provisions and other terms of this Coverage Agreement.”
Thus, by the policy’s express terms the contract is between IUC-Insurance Consortium
and its member institutions. And, based on the court’s review of the Insurance Policy,
the court does not find a provision in the Insurance Policy that purports to impute liability
to a member institution for the acts of a student of a member institution, which were
performed while driving a car owned by a student’s family member. With regard to
whether liability may be imputed to UC for Connor Messmore’s purported negligence,
the court therefore determines that (1) no genuine issue as to any material fact remains
to be litigated in this case, (2) UC is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
Case No. 2016-00769JD                     -11-                               DECISION


viewing such evidence most strongly in favor of Turner, that conclusion is adverse to
Turner.
      {¶18} Turner urges, however, that the Insurance Policy’s coverage “extends to
Messmore because he is a protected person under the Insurance Policy and that he
was driving a covered vehicle act at the time of the accident.”       (Memorandum In
Opposition, 3-4.) Whether Messmore should be deemed a protected person under the
Insurance Policy is not properly before the court because Turner has failed to assert a
claim for a declaratory judgment that asks the court to establish the rights and other
legal relationship of the parties with respect to the Insurance Policy. See generally
R.C. 2743.03(A)(2) (conferring exclusive, original jurisdiction to this court to issue a
ruling on a declaratory judgment claim, if a claimant in a civil action described in
R.C. 2743.03(A)(1) “also files a claim for a declaratory judgment, injunctive relief, or
other equitable relief against the state that arises out of the same circumstances that
gave rise to the civil action described in [R.C. 2743.03(A)(1)]”). Moreover, whether in
this case Turner made a claim under the Insurance Policy is uncertain because, in
response to a question posed to him in a deposition that asked whether Turner notified
UC that he was making any type of claim under any policy of insurance that UC may
have, Turner answered: “I’m not sure. I don’t think so. If I made a claim?” (Turner
deposition dated January 9, 2017, 64.)
      {¶19} Under these circumstances, if the court were to render a ruling on a non-
existent declaratory-judgment claim or if the court were to render a ruling when no claim
has been made on the Insurance Policy, this court essentially would be issuing an
advisory opinion—a premature declaration on an issue or abstract proposition. But, as
the Ohio Supreme Court stated nearly 50 years ago: “It has become settled judicial
responsibility for courts to refrain from giving opinions on abstract propositions and to
avoid the imposition by judgment of premature declarations or advice upon potential
controversies.”   Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970).
Case No. 2016-00769JD                     -12-                                DECISION


Accord Kyle v. Ohio State Univ., 10th Dist. Franklin No. 13AP-603, 2014-Ohio-2143,
¶ 30. Accordingly, the court determines that judicial restraint cautions against issuing a
premature ruling on a potential declaratory-judgment claim relative to the UC’s
automobile liability coverage agreement through the Inter-University Council—Insurance
Consortium for the period of July 1, 2014 to July 1, 2015. See Capital Care Network of
Toledo v. Ohio Dept. of Health, Slip Op. No. 2018-Ohio-440, ¶ 31 (“As Chief Justice
Roberts has stated, ‘[I]f it is not necessary to decide more, it is necessary not to
decide more.’ PDK Laboratories, Inc. v. United States Drug Enforcement Admin., 362
F.3d 786, 799, 360 U.S. App. D.C. 344 (D.C.Cir.2004) (Roberts, J., concurring in part
and concurring in judgment)”).

   III. Conclusion
      {¶20} Wherefore, because, as set forth above, the court concludes that UC is
entitled to judgment as a matter of law, the court determines that UC’s motion for
summary judgment filed on April 13, 2018, should be granted.           The court further
concludes that UC’s motion for leave to file a reply brief filed on May 22, 2018, should
be denied as moot.




                                          PATRICK M. MCGRATH
                                          Judge
[Cite as Turner v. Univ. of Cincinnati, 2018-Ohio-2287.]



JACOB TURNER                                           Case No. 2016-00769JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Anderson M. Renick
       v.
                                                       JUDGMENT ENTRY
UNIVERSITY OF CINCINNATI

       Defendant


        {¶21} For the reasons set forth in the decision filed concurrently herewith, the
court GRANTS defendant University of Cincinnati’s motion for summary judgment filed
on April 13, 2018. The court DENIES defendant University of Cincinnati’s motion for
leave to file a reply brief filed on May 22, 2018, as moot. Judgment is rendered in favor
of defendant University of Cincinnati. Court costs are assessed against plaintiff Jacob
Turner. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.




                                                    PATRICK M. MCGRATH
                                                    Judge


Filed May 30, 2018
Sent to S.C. Reporter 6/13/18
