Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc.

2011 Ohio 6465

• Court: Ohio Court of Appeals
• Decided: December 8, 2011
• Docket: 2011-CA-00027
• Status: Published

Opinion

[Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: GRANGE MUTUAL CASUALTY : Hon. W. Scott Gwin, P.J. COMPANY : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellant : : -vs- : Case No. 2011-CA-00027 : BUCKEYE LAKE MARINA, INC. : : OPINION Defendant-Appellee

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Case No. 2010-CV-585

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 8, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

STEVEN J. ZEEHANDELAR LES CHAMBERS Zeehandelar Sabatino & Associates, LLC 825 N. Houlk Road, Ste. 304 471 E. Broad St., Ste. 1200 Delaware, OH 43015 Columbus, OH 43215

ALESSANDRO SABATINO, JR. Zeehandelar Sabatino & Associates, LLC 471 E. Broad St., Ste. 1200 Columbus, OH 43215 [Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]

Gwin, P.J.

{¶ 1} Plaintiff-appellant Grange Mutual Casualty Company appeals a summary

judgment of the Court of Common Pleas of Fairfield County, Ohio, entered in favor of

defendant-appellee Buckeye Lake Marina, Inc. Appellant assigns a single error to the

trial court:

{¶ 2} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT-APPELLEE, BUCKEYE LAKE MARINA, INC., BASED

SOLELY ON THE EXCULPATORY CLAUSE CONTAINED IN THE WORK ORDER

PROVIDED BY APPELLEE TO APPELLANT’S INSURED, STANLEY AUGSBURGER.”

{¶ 3} The trial court found the following facts were undisputed. Grange’s insured,

Stanley Augsburger, took his boat and towing trailer to the Marina’s premises in August

2009 for repair work. Augsburger signed a service order which provided:

{¶ 4} “I hereby authorize the above repair work to be done along with the

necessary materials. You and your employees may operate the unit herein described

on any waterways or elsewhere for purposes of testing, inspection, or delivery at my

risk. An express mechanic’s lien is acknowledged on above the unit to secure the

amount of repairs thereto. It is also understood that you will not be held responsible for

loss or damage to the unit (or articles left in or with the unit) in case of fire, theft,

accident, inclement weather conditions or any other cause beyond your control.”

{¶ 5} At sometime during the period when the boat and trailer were on the

Marina’s premises, they were stolen and have not been recovered. The court found the

Marina’s premises are lighted, but has no security personnel. However, the owner and

his family irregularly patrol the grounds. Fairfield County, Case No. 2011-CA-00027 3

{¶ 6} The service order is a contract between the Marina and Augsburger, and

the trial court must construe the language as a matter of law. Leber v. Smith, 70 Ohio

St.3d 548, 553, 1994-Ohio-361, 639 N.E.2d 1159. We review the trial court’s legal

determinations de novo. Saunders v. Mortensen, 101 Ohio St.3d 86, 2004–Ohio–24,

801 N.E.2d 452.

{¶ 7} First, Grange argues the language in the exculpatory clause was vague or

ambiguous regarding the Marina and its agents’ liability for negligence. Secondly,

Grange argues the trial court erred in finding the exculpatory clause relieved the Marina

of all liability for the loss of Augsburger’s boat and trailer.

{¶ 8} The trial court correctly found this action involves a bailment, and so, when

the Marina accepted Augsburger’s boat and trailer, it undertook two duties: (1) to

safeguard the property through the exercise of ordinary care, and (2) to return the

property undamaged. Judgment Entry at Pg. 3, citing Collins v. Click Camera & Video,

Inc. (1993), 86 Ohio App. 3d 826, 621 N.E. 2d 1294. The trial court recited the elements

of a claim against the bailee: (1) the existence of a bailment contract; (2) the delivery of

the bailed property to the bailee; and (3) failure of the bailee to redeliver the bailed

property undamaged at the termination of the bailment. Id.

{¶ 9} The court found Grange had established all three elements of its cause of

action, and there would be genuine issues of material fact as to whether the Marina

exercised ordinary care in protecting the property. However, the trial court found the

contract provision excused the Marina of liability for certain kinds of losses, including

theft. Fairfield County, Case No. 2011-CA-00027 4

{¶ 10} Valid exculpatory clauses or releases constitute express

assumptions of risk. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d

780. These clauses are to be strictly construed against the drafter unless the language

is clear and unambiguous.

{¶ 11} Grange argues the exculpatory clause does not set forth clearly

that the Marina would not be liable for its negligence and/or the negligence of its

employees and agents. Grange maintains the exculpatory clause refers only to causes

beyond the Marina’s control, but the loss that occurred because of theft was not beyond

the Marina’s control. Grange argues the boat was not stored in a secured area of the

facility, but rather in an open lot on its trailer where a thief could easily drive up, hitch

the property to a vehicle and drive away.

{¶ 12} The trial court found the exculpatory provision specifically sets out

various potential causes of loss or damage, including fire, theft, accident, and inclement

weather, or any other cause beyond the Marina’s control. The trial court noted that

while these were beyond the Marina’s control, it could take precautions to prevent or

diminish damages caused by any of the stated factors. The court concluded the

exculpatory clause excused the Marina from liability for any negligence in failing to take

precautions to prevent damage or loss to the property.

{¶ 13} We find the contract language is sufficiently clear and unambiguous

that the Marina would not be responsible if the boat and trailer were stolen.

{¶ 14} The assignment of error is overruled. Fairfield County, Case No. 2011-CA-00027 5

{¶ 15} For the foregoing reasons, the judgment of the Court of Common

Pleas of Fairfield County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 1107 [Cite as Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc., 2011-Ohio-6465.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

GRANGE MUTUAL CASUALTY COMPANY : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : BUCKEYE LAKE MARINA, INC. : : : Defendant-Appellee : CASE NO. 2011-CA-00027

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellant.