                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a1264n.06

                                                   No. 11-3130

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

                                                                                                    FILED
JEROME S. COLLEY, SR., individually                        )                                   Dec 10, 2012
and as the administrator of the Estate of                  )
Jerome Colley, Jr., deceased,                              )                           LEONARD GREEN, Clerk
                                                           )
         Plaintiff-Appellee,                               )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR THE
REBECCA LYNN REISERT, executor of                          )    SOUTHERN DISTRICT OF OHIO
the Estate of Rudolph Crandall, deceased,                  )
                                                           )
         Defendant,                                        )
                                                           )
STAT E AUTOMOBILE                        MUTUAL            )
INSURANCE COMPANY,                                         )
                                                           )
         Intervenor Defendant-Appellant.                   )




         Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, District Judge.*


         PER CURIAM. The litigation in this case arose in admiralty law, stemming from a

boating accident on the Ohio River near Cincinnati that caused the death of Jerome Colley,

Jr., and Rudolph Crandall. Although the identity of the boat’s operator at the time of the

accident was disputed, the boat itself was titled to Crandall’s mother, Dorothy Crane.1

        *
          The Hon. Paul L. Mahoney, Chief United States District Judge for the W estern District of Michigan,
sitting by designation.

        1
           Crane was originally nam ed a defendant in this action but apparently settled with the plaintiff after
filing a petition for lim itation of liability under 46 U.S.C. § 30505, which resulted in the issuance of a restraining
order by the district court in Case No. 1:09-CV-831. In order to secure protection, Crane had to concede
No. 11-3130
Colley v. Reisert

Jerome Colley, Sr., on behalf of his son’s estate, filed a wrongful death action against

Crandall’s sister, Rebecca Reisert, who was acting as the executor of Crandall’s estate,

alleging negligence in the operation of the boat. As the case progressed to trial, State

Automobile Mutual Insurance Company (State Auto) filed a request to intervene, seeking

a declaratory judgment that the boat was not covered under the homeowner’s and umbrella

insurance policies that it provided to Dorothy Crane.


        State Auto argued that Crandall was the actual owner of the boat, a 1987 Wellcraft

Scarab, because he had purchased the speedboat for his own use and was, in fact, its

principal operator; Crandall had also paid for its maintenance and off-season storage,

undertaken major improvements to the boat, and paid the annual premiums for the State

Farm Insurance policy that he carried on the boat, listing himself as the owner. Indeed,

when the State Auto agent who sold Dorothy Crane the umbrella policy at issue in 2004

learned shortly thereafter that the Wellcraft Scarab was titled in his customer’s name, he

had someone in the State Auto office contact Crane to tell her that it was “urgent to get the

boat out of her name.” Nevertheless, at the time of the fatal boating accident in 2008, the

boat was still titled in Crane’s name.




ownership of the boat involved in the accident under oath.

                                                   -2-
No. 11-3130
Colley v. Reisert

       After carefully reviewing Ohio statutory law, the district court held that “Crane, who

held title to the boat, was the owner,” citing Ohio Revised Code § 1548.04.2 At the same

time, the district court rejected State Auto’s reliance on Smith v. Nationwide Mutual

Insurance Company, 37 Ohio St.3d 150 (Ohio 1988), and its invocation of the Uniform

Commercial Code as misplaced. Smith involved the sale of an automobile that was

involved in an accident before the new owner/operator could secure a valid certificate of

title to the vehicle. In holding that an insurance policy held by the former owner did not

cover the damages, the Ohio Supreme Court opted to apply a provision of the U.C.C.

found in Ohio Revised Code § 1302.42(B) (“title passes to the buyer at the time and place

at which the seller completes performance with reference to the physical delivery of the

goods”), rather than then-§ 4505.04 (“[n]o person acquiring a motor vehicle from the owner

thereof . . . shall acquire any right, title, claim, or interest in or to said motor vehicle until

such person has had issued to him a certificate of title to said motor vehicle”). As the

district court pointed out, “This matter does not involve a sales transaction in which the

boat was physically delivered while a certificate of title was not.” As a result, the court held,

“there is no question that Crane intentionally held the certificate of title for years, so as to

benefit her Son” and, therefore, “was the owner of the boat.”




       2
        That statute provides:
       No court in any case at law or in equity shall recognize the right, title, claim , or interest of any
       person in or to any watercraft or outboard m otor sold or disposed of, or m ortgaged or
       encum bered, unless evidenced: (A) By a certificate of title or a m anufacturer's or im porter's
       certificate issued in accordance with Chapter 1548. of the Revised Code; (B) By adm ission
       in the pleadings or stipulation of the parties.

                                                      -3-
No. 11-3130
Colley v. Reisert

       We conclude that the district court did not err in finding that Dorothy Crane was the

owner of the speedboat at the time of the accident and that her State Auto homeowner’s

policy, as an underlying policy, and her State Auto umbrella policy provided coverage for

the damages claimed by the Colley Estate. Moreover, we find no merit to the claim that

because State Auto’s agent should not have been permitted to testify as an expert, the

district court’s decision must be reversed. The fact that the district court clearly did not rely

on his testimony in deciding to deny a declaratory judgment means that the error – if it was

an error – did not prejudice State Auto.


       AFFIRMED.




                                              -4-
