[Cite as Discover Property & Cas. Co. v. Progressive Cas., 2011-Ohio-3841.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96125




        DISCOVER PROPERTY & CASUALTY CO.
                                                   PLAINTIFF-APPELLANT

                                                     vs.

                PROGRESSIVE CASUALTY, ET AL.
                                                   DEFENDANTS-APPELLEES



                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                           Cuyahoga County Common Pleas Court
                                   Case No. CV-618197

               BEFORE:             Blackmon, P.J., Rocco, J., and E. Gallagher, J.

      RELEASED AND JOURNALIZED:                                               August 4, 2011
ATTORNEY FOR APPELLANT
Philip J. Weaver
Smith Marshall, LLP
1425 Superior Building
815 Superior Avenue
Cleveland, Ohio 44114-2703


ATTORNEYS FOR APPELLEES

For Progressive Casualty

Joseph R. Tira
Michael R. Shanabruch
625 Alpha Drive, Box #011B
Highland Heights, Ohio 44143

For Geico Casualty Company

Ian R. Luschin
Williams, Moliterno & Scully Co., L.P.A.
2241 Pinnacle Parkway
Twinsburg, Ohio 44087-2387




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Discover Property & Casualty Co. (“Discover”) appeals

the trial court’s granting of summary judgment in favor of appellees

Progressive Casualty (“Progressive”) and Geico Casualty Company (“Geico”)

and assigns the following error for our review:
      “I.   Discover is entitled to summary judgment because

      Ohio law does not distinguish between carrying property

      for ‘a fee’ for ‘compensation’ or for ‘hire’ whether the

      driver is paid wages, commissions, mileage, and/or tips, or

      any combination thereof.         Insurance policy exclusions

      based     upon     those    phrases      are   ambiguous    and

      unenforceable under any of those payment means.             The

      only exception to the rule is if an insured is paid a specific

      sum for the specific purpose of making the specific

      delivery, which is not the case here.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                       Facts

      {¶ 3} Discover, an insurance carrier for Papa Johns Pizza, filed suit

against Progressive and Geico insurance companies seeking recovery for

attorney fees and litigation expenses incurred in defending Papa Johns in two

different cases. In each case, Papa Johns’ drivers struck pedestrians while

delivering pizzas.    Geico and Progressive were the personal automobile

insurance carriers for the drivers, who were using their own automobiles to

deliver the pizzas.
      {¶ 4} Progressive and Geico filed motions for summary judgment

arguing Discover was not entitled to recover the cost of defending the cases.

They argued their policies excluded coverage for the drivers and their

employers because the accidents occurred while the drivers were delivering

pizzas “for hire” and “for compensation or a fee.” Discover filed cross motions

for summary judgment arguing the exclusion language was ambiguous. The

trial court granted the summary judgment motions of Progressive and Geico,

agreeing that the exclusion language applied.

                   Motion for Summary Judgment Granted

      {¶ 5} In its sole assigned error, Discover argues that the trial court

erred by granting summary judgment in favor of Progressive and Geico.

Specifically, Discover argues there was no evidence presented that the

language used in the exclusion clauses were ambiguous and because there

was no evidence the drivers were paid a “specific sum” for the sole purpose of

delivering pizza. The exclusions did not apply.

      {¶ 6} We review an appeal from summary judgment under a de novo

standard of review. Baiko v. Mays (2000), 140 Ohio App.3d 1, 746 N.E.2d

618, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506

N.E.2d 212; N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997),

121 Ohio App.3d 188, 699 N.E.2d 534. Accordingly, we afford no deference to

the trial court’s decision and independently review the record to determine
whether summary judgment is appropriate.           Under Civ.R. 56, summary

judgment is appropriate when: (1) no genuine issue as to any material fact

exists, (2) the party moving for summary judgment is entitled to judgment as

a matter of law, and (3) viewing the evidence most strongly in favor of the

non-moving party, reasonable minds can reach only one conclusion that is

adverse to the non-moving party. We conclude that Progressive and Geico

were entitled to judgment as a matter of law.

     {¶ 7} Discover argues the exclusion clauses for transportation of food or

property in Progressive and Geico’s insurance polices were ambiguous and

unenforceable because Ohio case law requires that such policies only apply

when the driver is paid a “specific sum” for delivering the product. After

reviewing   the   relevant   case   law,    we   conclude   that   Discover   has

misinterpreted the law.

     {¶ 8} The interpretation of an insurance policy is a question of law

appropriate for summary judgment.          If the insurance policy is clear and

unambiguous, it should be given its plain and ordinary meaning. Sarmiento

v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-Ohio-5410, 835 N.E.2d

692, at ¶9, citing Gomolka v. State Auto Mut. Ins. Co. (1982), 70 Ohio St.2d

166, 167-168, 436 N.E.2d 1347. Ambiguous language contained in the policy

is construed against the insurance company. King v. Nationwide Ins. Co.

(1988), 35 Ohio St.3d 208, 519 N.E.2d 1380, syllabus.
      {¶ 9} The insurance policies in the instant case are unambiguous, and

the exclusions from coverage applies to the set of facts. There is no dispute

that the pizza delivery drivers were working within their scope of

employment because they were delivering pizzas when the accidents

occurred.     The policy exclusion in the Geico policy clearly states that

coverage does not apply for injury or damage arising out the use of a vehicle

for carrying “passengers or goods for hire.”      The policy exclusion in the

Progressive policy clearly states that coverage does not apply for injury or

damage arising out of the use of the vehicle for carrying persons or property

“for compensation or a fee.” Given that both drivers were paid to deliver

pizzas, the exclusions apply. The language used in exclusions was also broad

so as to not require a “specific sum” to be paid for each delivery. Payment in

any form triggers the exclusions.

      {¶ 10} Relying   on cases with distinguishable facts and different policy

language, Discover argues that the exclusionary phrases are ambiguous.

Discover’s reliance on the Ohio Supreme Court’s decision in U.S. Fidelity &

Guaranty Co. v. Lightening Rod Mut. Ins. Co., 89 Ohio St.3d 584,

1997-Ohio-311, 687 N.E.2d 717, is misplaced. In that case, the pizza delivery

driver was paid on an hourly basis and reimbursed for mileage for his

deliveries.   The Ohio Supreme Court found that the policy language that

excluded coverage for cars used to make deliveries “for a fee” was subject to
two interpretations, and thus ambiguous. The language could be interpreted

to exclude coverage for using the car to transport property when there is any

kind of payment, or it could be interpreted to exclude coverage only when a

fee is paid specifically for the act of transporting property.           The court

determined that because the language of the contract was ambiguous, it had

to be construed against the insurer; thus, the exclusion did not apply.

      {¶ 11} Discover relies on U.S. Fidelity to argue that the policy language

in the Progressive and Geico policies are likewise ambiguous. We disagree.

 The language in the Progressive policy includes the term “compensation” in

the exclusion, and the Geico policy includes the term “for hire” in the

exclusion. These added terms resolve the ambiguity that existed in the U.S.

Fidelity case.    In U.S. Fidelity, the court found the exclusion ambiguous

because   it     was   unclear   whether   the   intended   definition    included

“compensation” in any form or when a separate fee is charged exclusively for

the delivery.     Here, the terms “compensation” and “for hire” indicate the

exclusions apply to payment to drivers in any form for the deliveries, not just

a specific sum.

      {¶ 12} Likewise, Discover’s reliance on the cases from other districts are

distinguishable from the instant case because in those cases, like in U.S.

Fidelity, the insurance companies used the narrow language “for a fee” in

the exclusion clause. See Progressive Ins. Co. v. Heritage Ins. Co. (1996), 113
Ohio App.3d 781, 682 N.E.2d 33; Nationwide Ins. Co. v. Johnson (1992), 84

Ohio App.3d 106, 616 N.E.2d 525; Nationwide Ins. Co. v. Thorley (Jan. 16,

1991), 9th Dist. No. 14658; Colonial Ins. Co. of Cal. v. Jermann (1995), 102

Ohio App.3d 384, 657 N.E.2d 336 (policy used the narrow language, “for a

charge” which was as susceptible of varying interpretation as “for a fee”). In

the instant case, the added words, “for compensation” and “for hire” allow a

broader interpretation that any compensation in any form is sufficient for the

exclusion to apply.

      {¶ 13} Discover also relies upon a case from the Seventh District,

Progressive Max. Ins. Co. v. Matta, 7th Dist. No. 07 MA 30, 2008-Ohio-1112,

in which the policy language was identical to the Progressive policy in the

instant case. In Matta, the policy language excluded coverage for delivery of

property or food “for compensation or a fee.” The Seventh District, relying on

the Supreme Court case of U.S. Fidelity, concluded the language was

ambiguous. The Matta case is not binding on our court; thus, we are free to

disagree with the holding, which we do.      The Matta court focused on the

words “for a fee” and found the preceding clause “for compensation” did not

clarify the meaning.       However, we believe the added phrase “for

compensation” distinguishes the policy from the U.S. Fidelity case in which

the exclusionary clause only stated, “for a fee.” See Progressive Cas. Ins. Co.

v. Chalfant (N.D. Ind., 2010), Case No. 109-CV-5.          As we previously
discussed,   the   added    verbiage,   “for   compensation”   indicates   that

compensation in any form applies, resolving the ambiguity that exists when

only the phrase “for a fee” is used.

      {¶ 14} Discover’s argument that no evidence was presented that the

drivers received any compensation in any form ignores the fact that it is

undisputed the drivers were employed by the pizza companies. There is no

evidence the drivers were voluntarily delivering the pizzas. Thus, to argue

they were possibly paid nothing is not reasonable. Accordingly, Discover’s sole

assigned error is overruled.

      Judgment affirmed.

      It is ordered that appellees recover from appellant their costs herein

taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.


PATRICIA ANN BLACKMON, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
