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Cincinnati Insurance Co. v. Lohri9/29/2005
{ } Defendant-appellant, Albert E. Lohri, Successor Guardian for the Estate of Beverly A. Trick ("appellant"), appeals from the decision of the Franklin County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, Cincinnati Insurance Company ("appellee").
{ } Appellants and appellee filed with the trial court a stipulated statement of material facts. According to the joint stipulation, appellant's Ward, Beverly Trick ("Ms. Trick"), was hired by CareStar, Inc. ("CareStar"), as a skilled nurse to provide care in the Lancaster, Ohio home of Daniel Shaeffer. On February 19, 1991, Ms. Trick was en route in her personal automobile to the Shaeffer home when a negligent uninsured third-party struck her head-on. Ms. Trick suffered severe injuries rendering her comatose. Ms. Trick sustained damages in the amount of $1,485,659 as determined by the Fairfield County Ohio Common Pleas Court Order entered on August 6, 1993.
{ } Appellant issued to CareStar policies of insurance, which included endorsements. Specifically at issue here are the Hired and Non-Owned Auto Endorsement, and the Uninsured Motorists Insurance Endorsement. On January 22, 2004, appellee filed a complaint for declaratory judgment against appellant seeking a determination of the parties' rights and obligations regarding the availability of insurance coverage to appellant. Specifically, appellee sought a declaratory judgment holding that appellant is not entitled to uninsured motorists coverage under appellee's policies and that Ms. Trick was not in the course and scope of employment for CareStar at the time of the accident. Appellee moved for summary judgment and the trial court granted appellee's motion finding that Ms. Trick was not within the scope and course of employment at the time of the accident, and, therefore, was not entitled to coverage under appellee's policies. Appellant timely appealed.
{ } On appeal, appellant asserts the following single assignment of error:
THE TRIAL COURT ERRED IN DETERMINING THAT THE "GOING AND COMING" RULE EXCLUDED APPELLANT FROM COVERAGE UNDER A CONTRACT OF INSURANCE ISSUED BY CINCINNATI INSURANCE COMPANY.
{ } Civ.R. 56(C) states that 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. "
{ } Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66. " he moving party bears the initial responsibility 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 fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving party meets its initial burden, the non-movant must then produce competent evidence showing that there is a genuine issue for trial. Id. Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously with any doubts resolved in favor of the no
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