Ohio Casualty Insurance Group v. Robinson

338 N.W.2d 898, 127 Mich. App. 138
CourtMichigan Court of Appeals
DecidedJuly 11, 1983
DocketDocket 62145
StatusPublished
Cited by7 cases

This text of 338 N.W.2d 898 (Ohio Casualty Insurance Group v. Robinson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Casualty Insurance Group v. Robinson, 338 N.W.2d 898, 127 Mich. App. 138 (Mich. Ct. App. 1983).

Opinions

N. J. Kaufman, J.

On January 20, 1978, Eugene Robinson drove his pickup truck to Tom Marks’s Garage, a repair garage owned by Tom Marks. Robinson went there to pick up a hydraulic jack. As Robinson and Marks were loading the jack into the truck, Robinson slipped on some grease on the garage floor. He fell and suffered a back injury.

Eugene and Edith Robinson sued Tom Marks for negligence. Mr. Marks’s insurer, Ohio Casualty Insurance Group, brought this action for declaratory relief to establish that Mr. Marks is also an insured under Mr. Robinson’s automobile policy with Riverside Insurance Company, a member of the Transamerica Group.1 Under Ohio Casualty’s theory, if Mr. Marks were an insured under the Transamerica policy, then Ohio Casualty would not be solely liable for Mr. Robinson’s injuries. The Monroe County Circuit Court granted summary judgment for Ohio Casualty on January 6, 1982. Transamerica appeals.

In this case we are faced with the confusing task of determining whether the noninjured party (Mr. Marks) to the accident would be covered by the injured party’s insurance policy (Mr. Robinson’s policy with Transamerica). Transamerica raises four issues in this regard, which we now consider.

[141]*141I

Transamerica first argues that Marks was not "using” the truck and therefore is not a defined insured under the Transamerica policy. In Section I of the policy Transamerica agrees to pay for injuries "arising out of the ownership, maintenance, or use of the insured automobile, including the loading and unloading thereof’. It is nowhere required in the policy that the "user” also be the driver, and case law does not impose such a construction. See, e.g., BASF Wyandotte Corp v Transport Ins Co, 523 F Supp 515 (ED Mich, 1981). The clear wording of the Transamerica policy designates Mr. Marks as an "insured” while he is loading or unloading the insured vehicle. We therefore find no error in the trial court’s conclusion that Mr. Marks was "using” the vehicle when Mr. Robinson was injured.

II

Transamerica next argues that Mr. Marks was specifically excluded from coverage because he is a "person operating a repair shop”. Section III of the policy provides that:

"The insurance with respect to any person or organization other than the Named Insured or spouse does not apply:
"(1) to any person or organization or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any occurrence arising out of the operation thereof * * *.”

Ohio Casualty argues that Mr. Marks did not operate "an automobile sales agency [or] repair shop” under the policy because he repaired trucks [142]*142and trailers, not automobiles. Assuming for the sake of argument that only "automobile” repair shops are excluded from coverage, we believe Mr. Marks’s business fits within the exclusionary language of Transamerica’s policy.2 We conclude this because of the policy’s definition of "automobile” in Section IV:

"Except where specifically stated to the contrary, the word 'automobile’ wherever used shall include its equipment and other equipment permanently attached thereto and shall mean the described automobile, a land motor vehicle, trailer, semi-trailer or house-trailer, not operated on rails or crawler-treads, but, except with respect to Section (2) Coverage C Medical Payments, none of the foregoing shall include a motorcycle unless specifically described in the Policy, and except while actually upon public roads, does not mean a farm type tractor or equipment * *

A truck is a "land motor vehicle”, MCL 475.1; MSA 22.531, and is nowhere excluded by the policy from the "automobile” definition. In fact, the insured "automobile” in this case is a truck. The trial court found, though, that Mr. Marks was not excluded under Section III. This finding is clearly erroneous and merits reversal.

Ill

Transamerica raises as its third issue the argument that Mr. Marks was not a named insured [143]*143under the "use of other automobiles” section of the Transamerica policy. We are unable to consider this issue because it was not addressed by the trial court.

IV

In its final issue, Transamerica argues that, if Tom Marks is an insured under the Transamerica policy, Ohio Casualty would still be obligated to pay as the primary insurer of the Marks premises under Ohio Casualty’s policy. That policy states:

"The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company’s liability under this policy shall not be reduced by the existence of such other insurance.
"When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below * # * »

Transamerica argues that the Ohio Casualty policy establishes primary liability by Ohio Casualty to the policy limit of $100,000. Ohio Casualty argues that the Transamerica policy applies "on the same basis”, and therefore Transamerica has pro-rata liability. As discussed in the second issue, the Transamerica policy excludes Mr. Marks as the operator of a repair shop. The Transamerica policy therefore does not apply "on the same basis” as the Ohio Casualty policy, and Transamerica has no pro-rata liability.

[144]*144V

As mentioned earlier, this case involves a determination of whether the noninjured party to the accident would be covered by the injured party’s insurance policy. Throughout these proceedings the parties seem to have assumed that the Robin-sons have a cause of action against the garage owner’s insurer, Ohio Casualty.3 It has become apparent in our treatment of the issues, though, that Mr. Robinson’s injury arose out of the use of his vehicle as that term is used in the no-fault act. MCL 50).3105(1); MSA 24.13105(1). See MCL 500.3106(c); MSA 24.13106(c); Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 331; 224 NW2d 896 (1975). It would be contrary to the strong public policy behind the no-fault act if Transamerica were completely absolved of liability for injuries arising out of the use of an automobile it insures.

The trial court and Ohio Casualty in its brief cite 16 Couch, Insurance, 2d, § 62:1 as supporting pro rata liability among insurers. The two Michigan cases cited in Couch, however, do not support pro rata liability. In Werner v Travelers Indemnity Co, 55 Mich App 390; 222 NW2d 254 (1974), the plaintiffs decedent was killed in an accident involving an uninsured motorist. The plaintiffs decedent and the owner-driver of the car she was riding in were insured by different companies. Despite a "pro rata” clause in the driver’s policy, the Court held that his policy was the primary policy for the passenger’s representative to look to for recovery. The passenger’s policy was secondary

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. State Farm Mutual Automobile Insurance
438 S.E.2d 869 (West Virginia Supreme Court, 1993)
Celina Mutual Insurance v. Aetna Life & Casualty Co.
454 N.W.2d 93 (Michigan Supreme Court, 1990)
Central Mutual Insurance v. Walter
372 N.W.2d 542 (Michigan Court of Appeals, 1985)
Griffin v. Lumbermens Mutual Casualty Co.
341 N.W.2d 163 (Michigan Court of Appeals, 1983)
Ohio Casualty Insurance Group v. Robinson
338 N.W.2d 898 (Michigan Court of Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
338 N.W.2d 898, 127 Mich. App. 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-casualty-insurance-group-v-robinson-michctapp-1983.