Opinion
Case No. 3:05CV7375.
January 30, 2007
ORDER
This is an action for declaratory judgment in which the intervenor, United Ohio Insurance Company [United Ohio] seeks a declaration that it need neither defend nor provide coverage under a policy of homeowners insurance and an umbrella policy issued to defendants Michael Brown and Angela Brown. The parties agree that, for purposes of this litigation, the defendant Anthony Brown [Anthony] is also an insured under the policies.
Pending is United Ohio's motion for summary judgment. For the reasons that follow, the motion shall be denied.
On October 27, 2004, at about 1:15 a.m., Anthony, driving a pickup truck owned by Michael, his father, lost control of the vehicle, went off the road, and struck a fence. Anthony's passenger, plaintiff Brett Marten, was injured as a result of the accident.
Rather than notifying the police or otherwise calling for appropriate assistance, Tony called Michael to tell him about the accident. Michael arrived at the scene about five minutes after Tony's call.
At the crash scene, plaintiff did not appear seriously hurt. He was fully conscious, had no trouble breathing, and expressed no distress. In response to an inquiry from Michael, plaintiff, who had remained sitting in the truck, complained, however, about his "shoulder."
Tony and Michael decided to tow the truck to their home. Plaintiff remained in the passenger seat as the truck was towed to the defendants' residence, which was about two miles from the crash scene. During the trip, plaintiff still had no difficulty breathing, and he was able to speak in a normal tone of voice when they arrived at the residence.
Tony's sister [and Michael's daughter], defendant Angela Brown [Angela] was present at the family home. Angela had been a 9-1-1 dispatcher for the Wood Count Sheriff's Department for more than seventeen years. Though not medically trained, Angela had been trained as to how to respond to vehicle accidents. As part of that training, Angela had been instructed to dispatch medical personnel, including both EMS and the Fire Department, to any injury accident. She knew that moving an accident victim could make him worse.
Though an EMS station was less than ten minutes away, no one called for medical assistance. Angela did not instruct or suggest to Tony or Michael that they make such call.
Plaintiff could not get out of the truck by himself. He did not want to be moved, and became combative and uncooperative.
Tony and Michael pulled plaintiff out by his arms and placed plaintiff in defendant in Celina Brown's car [Celina being Michael's wife and step-mother of Tony and Angela]. Celina drove plaintiff to the hospital, arriving about fifty-five minutes after the accident had occurred.
Medical personnel determined that plaintiff was seriously injured, a lung having collapsed. Plaintiff was thereon life-flighted to another facility.
Defendants claim that they are entitled to coverage under the United Ohio homeowners and umbrella policies. United Ohio claims coverage is precluded by a provision in the policies that excludes coverage for injuries arising out of use or unloading of a motor vehicle.
Discussion
The underlying homeowners policy provides coverage for accidental injuries arising from an "occurrence," which means "an accident" which results in "bodily injury." The policy contains a "motor vehicle" exclusion, whereby no coverage is provided for bodily injury "arising out of . . . use . . . [and] unloading of motor vehicles . . . operated by . . . an insured."
Plaintiff claims that this exclusion does not apply because his injuries were aggravated when he was taken out of the truck, despite his insistence that he not be moved, placed in Celina's vehicle, and conveyed to the hospital. He does not dispute the fact that he suffered some degree of injury as a result of the collision; he claims, though, that he was thereafter further injured by acts unrelated to the accident itself.
United Ohio contends that plaintiff's injuries arise from Tony's use of a motor vehicle. It also argues that any subsequent injury or aggravation of plaintiff's injuries occurred, at the worst, while Tony and Michael were removing — i.e., unloading — him from the truck.
I agree with the plaintiff that a reasonable trier of fact could conclude that, if plaintiff ultimately is able to provide medical proof of the extent to which his injuries were aggravated as a result of how he was handled, the motor vehicle exclusion does not apply. The decisions not to call for medical assistance and to move and transport the plaintiff were independent of the accident which caused the initial injuries.
United Ohio points out that plaintiff has not yet provided medical proof of how and when his injuries were aggravated. There is, however, sufficient evidence in the record contrasting how he appeared and responded immediately after the accident with his medical condition on arrival at the hospital to enable this case to proceed without such proof.
What matters at this point is that a jury could find that acts independent of and unconnected to the collision worsened the plaintiff's condition. Angela knew that accident victims should not be moved. She also knew that the proper response was to call for medical assistance. Even before then, Tony and Michael decided to move the truck, with the plaintiff in it, rather than contact the police or call for medical assistance.
United Ohio contends that under the policy's definition of "occurrence" all injuries to the plaintiff resulted from a single "occurrence," encompassing all that happened from the time Tony lost control of the truck until plaintiff arrived at the hospital and was found to be in serious condition. This argument is, however, circular, as it assumes that there was only one "occurrence" under the policy.
Paragraph 6 of the Definitions provision of the policy defines "occurrence" as "an accident." The issue is, therefore, whether a jury could find that there was one accident or two [or perhaps more] accidents.
As a general rule in Ohio, the word "occurrence" is broader than the term "accident." See Grand River Lime Co. v. Ohio Casualty Ins. Co., 32 Ohio App.2d 178, 184 (1972). Here, however, there is an equivalence between the terms: § 6 of the Definitions states, "Occurrence means an accident." [Emphasis supplied.]
The ordinary meaning in Ohio of "accident" in liability insurance policies where the term is undefined is "unintended and unexpected happenings." Owens-Illinois, Inc. v. Aetna Cas. Sur. Co., 990 F.2d 865, 871-872 (6th Cir. 1993). Moving, removing, and transporting the plaintiff after the initial conclusion, a jury could find, constituted a distinct occurrence/accident [or set of occurrences/accidents] under the policy.
Alternatively, and contrary to how the parties have framed the issue in this case, the determinative issue may be viewed as one of intervening cause: i.e., the post-accident acts of Tony, Michael, Angela, and Celina could be proximately found to have aggravated the injuries inflicted at the time of the collision.
The Ohio Supreme Court has held:
Where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency.Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 323 (Syllabus ¶ 1).
In Hurt a manufacturer had negligently packed forgings on pallets. A truck driver transporting the pallets became aware that they were falling off the truck. He stopped and tried to fix the problem, but did so negligently. Thereafter, a forging fell off the truck and injured the plaintiff. The court held that the truck driver's intervening negligence relieved the manufacturer of liability for its initial negligent palletizing of the forgings.
The defendants' actions in moving the vehicle, removing the plaintiff from the vehicle, placing him in another vehicle, and driving him to a hospital occurred after the original collision was over. A jury could find that those subsequent acts, moreover, did not flow naturally and predictably from the collision. When and how performed, those acts, a jury could fine, created a new risk of harm distinct from the harm caused by Tony's loss of control of the vehicle. Thus, that new risk of harm, though preceded by Tony's operation of the vehicle, could be found not to have arisen from that operation.
United Ohio's reply brief suggests that the "motor vehicle" exclusion's reference to "unloading" bars recovery for any injury caused while Tony and Michael pulled the plaintiff from the truck. I disagree for two reasons: first, by not having raised this contention in its original brief, United Ohio has waived it.
Second, the meaning of the term "unloading," which could be given multiple meanings under the policy [namely, to remove contents and cargo, or people, or contents and cargo and people] should be construed narrowly against the insurer. Derr v. Westfield Cos., 63 Ohio St.3d 537, 542 (1992). A court gives "plain language its ordinary meaning." Miller v. Marrocco, 28 Ohio St.3d 438, 439 (1986).
In conventional and common parlance, to unload a vehicle refers to cargo and contents, not people [unless, perhaps, they are passengers for hire]. In removing the plaintiff, Tony and Michael were not "unloading" him within the meaning of the policy.
To be sure, to the extent that plaintiff incurred injuries from the collision he cannot, as a result of the policy's "motor vehicle exclusion," recover under the United Ohio policy. But, if a jury finds that the defendants thereafter were negligent, and the plaintiff proves the consequence of their negligence [i.e., the extent to which his original injuries were aggravated], the damages thereby resulting are outside the policy's exclusion and thus covered.
Conclusion
It is, therefore,
ORDERED THAT the motion of the intervenor United Ohio Insurance Company for summary judgment be, and the same hereby is denied in part and granted in part as provided herein.
So ordered.