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Scott v. Levans11/3/2000
DECISION AND JUDGMENT ENTRY
This is an appeal from the declaratory judgment of the Lucas County Court of Common Pleas granting summary judgment in favor of appellee, All America Insurance Company ("America"), and denying the motion for summary judgment filed by appellant Gregory A. Levans. For the following reasons we affirm the decision of the trial court.
In March 1997, Levans and Troy D. Scott were in Tennessee on behalf of their company, Matrix Technologies, Inc. ("Matrix"). On Saturday, March 1, 1997, Levans and Scott finished their work, a day ahead of schedule. Levans and Scott attempted to obtain a return flight home on Saturday, but were unsuccessful. Levans and Scott then drove to Knoxville (approximately one hour from their hotel), in the car rented by Levans as part of the business trip, and had dinner. They then proceeded to go to clubs in the Knoxville area. Around 1:30 to 2:00 a.m., on March 2, 1997, they were returning to their hotel in Newport when Levans lost control of his vehicle. Both Levans and Scott were injured. Levans made a claim for workers' compensation, Scott did not. On Levans' injury report, Matrix responded, "The employee was not in the course of business at the time of the accident; he was returning from dinner with another employee." Levans' claim was allowed by the Bureau of Workers' Compensation ("BWC").
Scott sued Levans for his injuries. Levans filed a third- party complaint against Matrix's insurance company, All America Insurance Company, a Central Insurance Company, ("All America") and the rental car company's insurance companies, Liberty Mutual Insurance Company ("Liberty Mutual") and Motorent, Inc. ("Motorent"). Levans was insured personally by American Select Insurance Company, a Westfield Company, ("American Select"). Scott's claims against Levans were settled and dismissed. Levans' claims against Liberty Mutual and Motorent were also settled and dismissed. The remaining issue before the trial court to be decided was the declaratory judgment action between Levans and All America.
Both Levans and All America filed motions for summary judgment. All America argued that, although Levans and the rented vehicle would otherwise have been covered, it did not owe Levans a duty to defend or indemnify based on the following exclusions contained in its policy:
"This insurance does not apply to any of the following:
*
"3. WORKERS' COMPENSATION
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.
*
"5. FELLOW EMPLOYEE
'Bodily injury' to any fellow employee of the 'insured' arising out of and in the course of the fellow employee's employment."
As such, All America argued that because Levans obtained workers' compensation coverage and because Levans and Scott were in the course of their employment at the time of the accident, the exclusions precluded coverage. Levans, on the other hand, argued that they were not in the course and scope of employment at the time of the accident and, therefore, All America should provide primary coverage for the injuries, above the coverage provided by American Select.
The trial court held that the BWC's finding that Levans was in the scope of his employment is conclusive on that issue. The trial court additionally held that, based on the facts and circumstances in this case, the accident occurred in the course and scope of Scott's and Levans' employment and was thus barred by the policy exclusions.
Levans timely appealed t
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