Pierson v. White Pine Ins. Co.

2022 Ohio 2702, 194 N.E.3d 765

• Court: Ohio Court of Appeals
• Decided: July 28, 2022
• Docket: 21CA3
• Status: Published

Opinion

[Cite as Pierson v. White Pine Ins. Co., 2022-Ohio-2702.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

RICHARD E. PIERSON, et al., :

Plaintiffs-Appellees, : Case No. 21CA3

v. :

WHITE PINE INSURANCE COMPANY, : DECISION & JUDGMENT ENTRY et al.,

:

Defendants-Appellants.

________________________________________________________________ APPEARANCES:

Brian T. Winchester and Chad A. Schmitt, Cleveland, Ohio, for Appellant.

Daniel J. Hurley and Mark Brookes, Columbus, Ohio, for Appellees.

Michael R. Henry, Columbus, Ohio, for Third-Party Defendant- Appellee. ________________________________________________________________

CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED:7-28-22 ABELE, J.

{¶1} This is an appeal from a Highland County Common Pleas

Court summary judgment in favor of (1) Richard E. Pierson and

Hillsboro Scrap & Metal, Inc., plaintiffs below and appellees

herein,1 and (2) United Financial Casualty Company, third-party

For ease of discussion, this opinion refers to Pierson and 1

Hillsboro Scrap & Metal, Inc. (HSM), collectively as “appellees,” and refers to United Financial Casualty Company as HIGHLAND, 21CA3 2

defendant below and appellee herein.

{¶2} White Pine Insurance Company, defendant below and

appellant herein, assigns the following error for review:

“THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS-APPELLEES.”

{¶3} This case arises out of a fatal March 2019 automobile

accident. At the time of the accident, Pierson, while in the

course and scope of employment with Hillsboro Scrap & Metal,

Inc. (HSM), was driving a 1999 Freightliner semi-truck with an

attached 2006 Transcraft trailer. The trailer carried a load of

inoperable vehicles. Pierson’s truck collided with a vehicle

driven by Allen K. Ursell, along with passengers Shaun Rooker

and Alesha Bennett. Sadly, the accident resulted in Ursell’s

death and injuries to the passengers.

{¶4} Appellant issued a commercial automobile insurance

policy to HSM. After HSM notified appellant of the accident,

appellant would not provide coverage for any claim that arose

out of the accident, and further informed HSM that appellant

“will likely not have a duty to defend or indemnify.”

{¶5} Appellees, HSM and Pierson, filed a complaint and

asked the trial court to declare that appellant’s policy (1)

provides primary liability coverage for the accident, and (2)

appellant has a duty to defend and indemnify appellees for any

“UFCC.” HIGHLAND, 21CA3 3

claims arising out of the accident. The passengers, Rooker and

Bennett, also filed counterclaims for negligence, negligence per

se, vicarious liability, negligent hiring and supervising, and

punitive damages. Ursell’s estate filed counterclaims against

appellees for negligence, wrongful death, vicarious liability,

negligent hiring and retaining, and punitive damages.

{¶6} Appellant filed an answer, along with a combined

cross-claim, a counterclaim, and a third-party complaint for

declaratory judgment. Appellant alleged that UFCC issued an

insurance policy to appellees that provides coverage for any

loss arising out of the accident and requested the trial court

to enter a declaratory judgment that (1) appellant’s policy

explicitly excludes coverage for any losses arising out of the

subject accident, (2) appellant does not have a duty to defend

or indemnify appellees, and (3) to the extent that appellant’s

policy provides coverage, UFCC’s policy “is primary and the

policies do not stack limits.”

{¶7} Subsequently, appellant requested summary judgment

regarding its declaratory judgment request. Appellees and UFCC

also filed motions for summary judgment.

{¶8} In its summary judgment motion, appellant asked the

court for judgment in its favor regarding all claims set forth

in appellees’ complaint and in appellant’s cross-claim,

counterclaim, and third-party complaint. Appellant argued that HIGHLAND, 21CA3 4

its insurance policy explicitly excludes coverage for appellees’

claims and, to support its argument, appellant referred to the

policy’s exclusion for the towing and transporting of autos.

That language provides that coverage is excluded for “bodily

injury” or “property damage” arising out of the use of any “auto

that is not identified in ITEM SEVEN in the Auto Dealer

Declarations used to move, tow, haul or carry ‘autos.’”

Appellant asserted that the policy defines “auto” as “a land

motor vehicle, ‘trailer’ or semitrailer” and that a “‘[t]railer’

includes [a] semitrailer.” Appellant claimed that, at the time

of the accident, Pierson was driving a semi-truck, an “auto,”

and that Pierson used the semi-truck to move, tow, haul, or

carry the attached trailer, also an “auto.” Appellant further

asserted that the trailer attached to the semi-truck was moving,

towing, hauling, or carrying “autos” because the crushed pile of

vehicles fell within the policy’s definition of “auto,” i.e.,

land motor vehicle.

{¶9} Appellant further argued that neither the semi-truck,

nor the attached trailer, is listed in Item Seven in the Auto

Dealer Declarations. Item Seven states:

Schedule of Covered Autos Which Are Furnished To Someone Other Than A Class I or Class II Operator or Which Are Insured On A Specified Car Basis

See Schedule of Covered Autos

Appellant points out that the schedule of covered autos “names HIGHLAND, 21CA3 5

only one vehicle,” a “1999 International Rollback,” and the

named vehicle is not the vehicle Pierson was driving at the time

of the accident.

{¶10} Thus, appellant claimed that the towing and

transporting of autos exclusion precludes coverage for the

accident and, consequently, it has no duty to defend or

indemnify appellees for losses arising out of the accident.

Appellant further argued that its policy contains a blanket

exclusion for punitive damages. Thus, appellant requested

summary judgment regarding all claims and a declaration that it

has no duty to provide coverage for the accident or to defend

and indemnify appellees.

{¶11} Appellees filed a combined summary judgment motion in

opposition to appellant’s motion and argued that the exclusion

for the towing and transportation of autos “is irrelevant and

inapplicable” because Pierson did not haul “autos” at the time

of the accident. Instead, appellees claimed that Pierson

carried “scrap metal and crushed vehicles.” Appellees also

contended that (1) appellant incorrectly interpreted the towing

exclusion because appellant’s interpretation would render

coverage illusory, and (2) the policy is internally inconsistent

and this inconsistency creates “some ambiguity.”

{¶12} Appellees also disputed appellant’s argument that the

trailer attached to the semi-truck establishes that the semi- HIGHLAND, 21CA3 6

truck was moving, towing, or hauling an “auto.” Appellees

contended that a semi-truck with an attached trailer constitutes

a single unit and, hence, a single “auto.” Appellees claimed

that because courts have uniformly held that a tractor-trailer

combination is viewed as one vehicle for insurance purposes,

they disagreed with appellant’s interpretation of the towing

exclusion to mean that the semi-truck, an “auto,” was towing the

2006 trailer, also an “auto.” Appellees further argued:

[I]t is common sense that a semi-tractor does not move, haul, tow or carry anything (i.e. cargo), unless it has an attached trailer. Rather, the combination tractor/trailer is what does the moving, hauling, towing. * * * * Simply put, what is being moved, towed, hauled and/or carried is the load, goods, or cargo that is on or in the trailer attached to the semi.

Appellees also noted that, because the towing and transporting

of autos exclusion uses the plural word “autos,” the use of the

plural word shows appellant’s intent to exclude coverage for

vehicles used to tow more than one “auto.” Appellees thus

alleged that the towing exclusion should not preclude coverage

when one “auto,” such as a semi-truck, is used to tow a single

“auto,” such as a trailer. Appellees further opined that

appellant’s interpretation of the towing and transporting of

autos exclusion would render coverage under the policy illusory.

If the trailer “constitutes an ‘auto’ being moved, towed, hauled

or carried, then, appellee reasons, there would never be any

coverage whenever any semi-truck (other than the 1999 HIGHLAND, 21CA3 7

International Rollback semi) owned by Hillsboro * * *is used

with an attached trailer to haul any kind of cargo.” Appellees

thus claimed that “[appellant’s] interpretation would eliminate

all commercial auto liability coverage except when the 1999

International Rollback semi-truck is used.”

{¶13} Consequently, appellees requested the trial court

determine that appellant is obligated to defend and indemnify

appellees for any claims, and to declare that “[appellant’s]

policy provides primary liability coverage in the amount of one

million dollars for the subject accident.”

{¶14} In its summary judgment motion, UFCC also asserted

that appellant’s policy provides coverage to appellees for the

accident and disputed appellant’s argument that the towing and

transporting of autos exclusion precludes coverage. UFCC

claimed the 2006 trailer does not constitute an “auto” because

courts across the country have indicated “that a truck-tractor

and a trailer become one vehicle when they are connected.”

{¶15} UFCC further contended that appellant’s interpretation

of the towing exclusion contradicted the owned autos coverage

for symbol 22 autos. Symbol 22 covers owned autos, as well as

“any ‘trailers’ you don’t own while attached to power units you

own.’” UFCC thus asserted that the symbol 22 definition treats

an owned semi-truck with a non-owned trailer attached to it as a

combined unit for covered auto purposes. UFCC alleged that to HIGHLAND, 21CA3 8

read the towing exclusion to mean that coverage is excluded when

an owned auto, such as a semi-trailer, is used to tow another

owned auto, such as a trailer, would contradict the symbol 22

definition and renders the policy ambiguous.

{¶16} UFCC also argued that the 2006 Transcraft trailer was

not hauling “autos,” or that the objects the semi-truck-trailer

combination carried are not “autos.” UFCC maintained that those

objects are not “land motor vehicles” because they are no longer

capable of operation on land as motor vehicles.

{¶17} After consideration, the trial court granted appellant

summary judgment regarding the punitive damages claims, but

denied appellant’s request for summary judgment regarding its

duty to defend and indemnify appellees for all other claims and

damages arising out of the accident. The court thus entered

summary judgment in appellees’ and UFCC’s favor regarding

appellant’s duty to defend and indemnify appellees for all

claims and damages, except punitive damages.

{¶18} In reaching its decision, the trial court found that

appellant’s policy “is very convoluted, confusing and written in

a way that is not easily understood without rigorous reading and

rereading of the policy.” The court also determined that the

Schedule of Covered Autos form creates an ambiguity as to which

autos are covered. The court noted that the first sentence on

the schedule states that “[t]his endorsement changes the policy HIGHLAND, 21CA3 9

effective on the date of inception unless another date is

indicated below.” The next sentence reads: “(The following

needs to be completed only when this endorsement is issued

subsequent to inception of the policy.)”. The court observed

that because both the policy and the endorsement contain the

same date(April 5, 2018), the two introductory sentences

“contradict each other.” The court explained:

[T]he intent of the first sentence appears to list autos added at the inception date, yet sentence two advises the person inserting the information that it is only to be completed if the endorsement is issued subsequent to the inception of the policy. If as [appellant] argues, this endorsement was intended to limit the coverage to the 1999 Freightliner Rollback, the Court finds it to be contradictory and confusing which creates an ambiguity in the policy that must be construed against [appellant].

Consequently, the trial court determined that appellant’s

policy provides liability coverage and the towing exclusion did

not apply so as to preclude coverage. The court agreed that the

trailer is an “auto,” and that the declarations page indicated

that symbol 22 autos, owned autos, are covered under the policy.

The court stated that “the policy does cover any autos owned by

[appellees] at the time of the collision including the 2006

Tradecraft [sic] trailer and therefore the Item Seven exclusion

does not apply.” The trial court also did not agree with

appellant that the scrap metal loaded onto the trailer fell

within the policy’s definition of “autos.” The court thus HIGHLAND, 21CA3 10

concluded that:

the 1999 Freightliner and the 2006 Autocraft [sic] trailer that were owned by [appellees] at the time of the collision were both covered autos under Symbol 22 on the Auto Dealers Coverage Form (CA 00 25 10 13) of the insurance policy, and the metal on the trailer did not consist of autos that would exclude coverage under “Item Seven” of the “Auto Dealer-Liability, Garagekeepers and Physical Damage Coverage Changes.”

Accordingly, the trial court declared that appellant “is

obligated * * * to defend and to indemnify [appellees] for all

claims and damages excluding punitive damages that may be

awarded to [the injured parties].” This appeal followed.

1.

{¶19} In its sole assignment of error, appellant asserts

that the trial court incorrectly entered summary judgment in

appellees’ and UFCC’s favor. Appellant contends the court

wrongly construed its policy to require appellant to defend and

indemnify appellees for any damages they are obligated to pay as

a result of the accident 2 because the towing and transporting of

2 A trial court decision that declares that an insurer has a duty to defend constitutes a final, appealable order. Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, ¶¶ 24-25, citing Gen. Acc. Ins. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). Even though in the case sub judice the trial court’s decision does not expressly declare that appellant’s policy provides primary liability coverage, the trial court granted appellees’ summary judgment motion except as to the punitive damages claim. The appellees’ summary judgment motion requested the court to declare that appellant’s “policy provides primary liability coverage in the amount of one million dollars for the subject accident.” By granting appellees’ summary judgment motion, the trial court necessarily determined HIGHLAND, 21CA3 11

autos exclusion unambiguously precludes coverage for the

accident.

{¶20} Initially, we emphasize that appellate courts conduct

a de novo review of trial court summary judgment decisions.

E.g., State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d

425, 2019-Ohio- 1329, 128 N.E.3d 209, ¶ 8; Pelletier v.

Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶

13; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Accordingly, an appellate court need not

defer to the trial court’s decision, but instead must

independently review the record to determine if summary judgment

is appropriate. Grafton, 77 Ohio St.3d at 105, 671 N.E.2d 241.

Civ.R. 56(C) provides in relevant part:

* * * * 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the

that appellant’s policy provides primary liability coverage. See Lexington Ins. Co. v. DunnWell, LLC, 2016-Ohio-5311, 69 N.E.3d 1066, ¶ 10 (9th Dist.) (when a decision leads to “the reasonable and logical inference that one party has in fact prevailed, the requirements of finality are satisfied”). HIGHLAND, 21CA3 12

party’s favor.

{¶21} Therefore, pursuant to Civ.R. 56, a trial court may

not award summary judgment unless the evidence demonstrates

that: (1) no genuine issue as to any material fact remains to be

litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) after 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. E.g., State ex rel. Whittaker v. Lucas Cty.

Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172

N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶22} Similarly, the interpretation of an insurance contract

is also a question of law that appellate courts must

independently review without deference to a trial court’s

decision. Sharonville v. Am. Emp. Ins. Co., 109 Ohio St.3d 186,

2006-Ohio-2180, 846 N.E.2d 833, ¶ 6. “The fundamental goal when

interpreting an insurance policy is to ascertain the intent of

the parties from a reading of the policy in its entirety.”

Laboy v. Grange Indemn. Ins. Co., 144 Ohio St.3d 234, 2015-Ohio-

3308, 41 N.E.3d 1224, ¶ 8. Courts must presume that the

language used in the contract reflects the parties’ intent.

Smith v. Erie Ins. Co., 148 Ohio St.3d 192, 2016-Ohio-7742, 69

N.E.3d 711, ¶ 18; Westfield Ins. Co. v. Galatis, 100 Ohio St.3d HIGHLAND, 21CA3 13

216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11.

{¶23} Thus, courts must first review the plain and ordinary

meaning of the language used in a contract “unless manifest

absurdity results, or unless some other meaning is clearly

evidenced from the face or overall contents of the instrument.”

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374

N.E.2d 146 (1978), paragraph two of the syllabus; accord Galatis

at ¶ 11. If the language is clear and unambiguous, “a court may

look no further than the writing itself to find the intent of

the parties.” Galatis at ¶ 11 (citation omitted). “[A]

contract is unambiguous if it can be given a definite legal

meaning.” Id. (citation omitted).

{¶24} Generally, a contract is ambiguous if it is reasonably

susceptible of more than one interpretation. Laboy at ¶ 9. To

determine whether a contract is ambiguous, courts must consider

the contract “‘as a whole,’” and not simply “‘detached or

isolated parts thereof.’” Sauer v. Crews, 140 Ohio St.3d 314,

2014-Ohio-3655, 18 N.E.3d 410, ¶ 13, quoting Gomolka v. State

Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 172, 436 N.E.2d 1347

(1982). Thus, in order to determine whether an insurance policy

provision is ambiguous, a court “must consider the context in

which the provision is used.” Id. at ¶ 14. In other words,

courts “must look at the provision in the overall context of the

policy in determining whether the provision is ambiguous.” Id. HIGHLAND, 21CA3 14

at ¶ 25. “Only when a definitive meaning proves elusive should

rules for construing ambiguous language be employed.” State v.

Porterfield, 106 Ohio St.3d 5, 2005–Ohio–3095, 829 N.E.2d 690,

at ¶ 11, citing Galatis at ¶ 11.

{¶25} When provisions of an insurance policy are deemed to

be ambiguous, “they will be construed strictly against the

insurer and liberally in favor of the insured.” King v.

Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988),

syllabus; see also Sauer at ¶ 11. Courts will not, however,

apply this rule “‘so as to provide an unreasonable

interpretation of the words of the policy.’” Galatis at ¶ 14,

797 N.E.2d 1256, quoting Morfoot v. Stake, 174 Ohio St. 506, 190

N.E.2d 573 (1963), paragraph one of the syllabus. “[O]nly where

a contract of insurance is ambiguous and therefore susceptible

to more than one meaning must the policy language be liberally

construed in favor of the claimant who seeks coverage.” Burris

v. Grange Mut. Cos., 46 Ohio St.3d 84, 89, 545 N.E.2d 83, 88,

1989 WL 122497 (1989), overruled on other grounds by Savoie v.

Grange Mut. Ins. Co., 67 Ohio St.3d 500, 620 N.E.2d 809 (1993)

(citations omitted). Courts may not invoke “the general rule of

liberal construction * * * to create an ambiguity where there is

none.” Id.

{¶26} “[T]he initial determination of whether an ambiguity HIGHLAND, 21CA3 15

exists presents an abstract legal question, which we [the

appellate court] review on a de novo basis.” Pierron v.

Pierron, 4th Dist. Scioto No. 07CA3153, 2008-Ohio-1286, ¶ 8,

citing Stewart v. Stewart, 4th Dist. Ross No. 92CA1885, 1992 WL

388546, *2 (Dec. 22, 1992). “If we determine that an ambiguity

exists, we afford the trial court discretion to clarify the

ambiguity.” Cisco v. Cisco, 4th Dist. Gallia No. 08CA8, 2009-

Ohio-884,¶ 13, citing Pierron at ¶ 8.

{¶27} In the case sub judice, as we explain below, we do not

agree with the trial court’s determination that appellant’s

insurance policy is ambiguous. Instead, we believe a plain

reading of the entire policy shows that appellant’s policy does

not provide coverage to the appellees for the subject accident.

APPELLANT’S INSURANCE POLICY

{¶28} The Auto Dealers Coverage Form (CA 00 25 10 13) states

that “[v]arious provisions in this policy restrict coverage” and

advises the insured to “[r]ead the entire policy carefully to

determine rights, duties and what is and is not covered.”

{¶29} Section I.D. contains the “Covered Autos Liability

Coverage” provision and states:

We will pay all sums an ‘insured” legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of the covered ‘autos’. HIGHLAND, 21CA3 16

Section I.A indicates that “Item Two of the Declarations

shows the ‘autos’ that are covered ‘autos’ for each of [the

insured’s] coverages.” Item Two of the Declarations states that

“covered autos liability” coverage extends to autos bearing the

numerical designations “22, 27, 29, 32.”

{¶30} As relevant in the case at bar, the policy defines

autos denominated with symbol 22 as “[o]nly those ‘autos you own

(and for Covered Autos Liability Coverage any ‘trailers’ you

don’t own while attached to power units you own). This includes

those ‘autos’ you acquire ownership of after the policy begins.”

The policy defines autos denominated as symbol 27 as “[o]nly

those ‘autos’ described in Item Seven of the Declarations for

which a premium charge is shown (and for Covered Autos Liability

Coverage any ‘trailer’ you don’t own while attached to a power

unit described in Item Seven).” Section V.D. defines “auto” to

mean “a land motor vehicle, ‘trailer’ or semitrailer.” Section

V.X. states that “[t]railer includes semitrailer.”

{¶31} A plain reading of the above coverage provisions shows

that the semi-trailer and the attached trailer are “covered

autos” for purposes of “covered autos liability coverage.” The

next question, however, is whether an exclusion applies.

Although appellant asserts that the policy’s towing and

transporting of autos exclusion precludes coverage for the HIGHLAND, 21CA3 17

accident, appellees and UFCC claim that (1) the towing and

transporting of autos exclusion does not apply, (2) appellant’s

policy is inconsistent and ambiguous, and (3) to accept

appellant’s interpretation of the policy would create absurdity

and render coverage illusory.

TOWING AND TRANSPORTING OF AUTOS EXCLUSION

{¶32} Appellant asserts that the policy’s exclusion

unambiguously precludes coverage when an auto, not specifically

identified in Item Seven of the Declarations, is used to tow,

move, haul, or carry autos. Appellant suggests that Item Seven

refers to the Schedule of Covered Autos and lists one vehicle, a

1999 Freightliner Rollback truck. Appellant thus asserts that

the towing exclusion precludes coverage when any vehicle other

than the 1999 Freightliner Rollback is used to tow, move, haul,

or carry other autos.

{¶33} Appellant points out that, at the time of the

accident, Pierson used an auto not identified in Item Seven

(i.e., not listed on the Schedule of Covered Autos) to tow,

move, haul, or carry autos. Appellant thus contends that,

because the semi-truck (an “auto”) was towing, moving, hauling,

or carrying another “auto” (the 2006 Transcraft trailer), the

towing exclusion unambiguously precludes coverage for the

accident because the accident arose out of the use of an auto HIGHLAND, 21CA3 18

not identified in Item Seven used to tow, move, haul, or carry

other autos.

{¶34} Appellees, on the other hand, contend that “for [the]

exclusion to apply, the insured must be using (1) an ‘auto’ not

identified in Item 7 in the Auto Dealer Declarations (i.e. the

1999 International Rollback), (2) to move, tow, haul or carry

‘autos.’” Although appellees agree that Pierson did not use the

1999 International Rollback on the date of the accident, they do

not agree that Pierson was moving, towing, hauling, or carrying

“autos.” Instead, appellees submit that Pierson “was hauling

scrap metal and crushed vehicles at the time of the collision.”

Thus, appellees reason, because Pierson did not haul “autos” at

the time of the collision, the towing and transporting of autos

exclusion does not apply.

{¶35} Appellees also disagree with appellant that the semi-

truck towed an “auto,” the 2006 Transcraft trailer. Appellees

instead contend that “courts throughout the country have

recognized that a connected tractor-trailer are regarded as the

equivalent of an inseparable unit,” and the towing exclusion

uses the plural word “autos” to indicate that the towing vehicle

must be towing more than one “auto” and appellees thus contend

that, even if the semi-truck had been towing the trailer, it was

only towing one “auto” and the towing exclusion should not apply

when only one “auto” (such as a trailer) is being towed. HIGHLAND, 21CA3 19

{¶36} UFCC likewise asserts that the towing exclusion should

not apply. Although neither the semi-truck nor the trailer

involved in the accident is listed in Item Seven, UFCC argues

that neither vehicle “was being used to move, tow, haul, or

carry ‘autos’” at the time of the accident. Like appellees,

UFCC claims that courts have determined that “a truck-tractor

and a trailer become one vehicle when they are connected.” UFCC

thus contends that the semi-truck did not tow the trailer, but

rather, the semi-truck-trailer combinations is one inseparable

unit. UFCC further disputes appellant’s argument that the

trailer hauled “autos” at the time of the accident because

crushed vehicles are not “autos.”

SCOPE OF EXCLUSION

{¶37} The “towing and transporting of autos” exclusion

appears in an endorsement to the insurance policy. The top of

the endorsement reads, “THIS ENDORSEMENT CHANGES THE POLICY.

PLEASE READ IT CAREFULLY.” The endorsement then indicates it

“modifies insurance provided under the * * * AUTO DEALERS

COVERAGE FORM.” Section H. states that “[t]he following

exclusions are added to” Section I.D.4. of the covered autos

coverages and to Section II of the exclusions listed under the

“General Liability Coverages.”

{¶38} The endorsement states that “[t]his insurance does not HIGHLAND, 21CA3 20

apply to any of the following:”

Towing and Transporting of Autos

“Bodily injury” or “property damage” arising out of the ownership, operations, maintenance or use of any “auto” that is not identified in ITEM SEVEN in the Auto Dealer Declarations used to move, tow, haul or carry “autos.”

ITEM SEVEN provides:

Schedule Of Covered Autos Which Are Furnished To Someone Other Than A Class I or Class II Operator Or Which Are Insured On A Specified Car Basis

The “Schedule of Covered Autos” begins with an explanation that

reads:

This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below: (The following needs to be completed only when this endorsement is issued subsequent to inception of the policy.)

The Schedule indicates that it is effective April 5, 2018 and

lists one vehicle, a “1999 International Rollback.”

{¶39} After our review, we believe that the plain language

of the policy, and the context of the towing and transporting of

autos exclusion, shows that the exclusion precludes coverage if

an auto, other than an auto listed in Item Seven (which, in

turn, references the Schedule of Covered Autos), is used to tow,

move, haul, or carry other autos. While we generally agree with

the trial court’s view of the complexity and difficulty in

deciphering insurance contract language, in the case sub judice HIGHLAND, 21CA3 21

we find no ambiguity concerning this exclusion. Instead, this

provision plainly references other parts of the policy (Item

Seven and the Schedule of Covered Autos) to further define the

exclusion. It is important to recognize that an insurance

exclusion does not become ambiguous simply because it cross-

references other forms or endorsements that comprise the policy.

See generally 2 Couch on Ins. Section 18:19 (3d Ed. 2021 Update)

(“When properly incorporated into the policy, the policy and the

rider or endorsement together constitute the contract of

insurance and are to be read together to determine the contract

actually intended by the parties.”).

{¶40} In the case sub judice, we further believe that the

Schedule of Covered Autos form language, that the trial court

reviewed in isolation and concluded creates a contradiction,

does not require a conclusion that the towing and transporting

of autos exclusion is ambiguous. That language is introductory

and, even if it appears to be contradictory, it does not negate

the obvious identification of one specific auto on the Schedule

of Covered Autos. Moreover, the second page of the entire set

of documents that consists of the policy, forms, and

endorsements lists the “forms and endorsements [that] are made

part of the policy at time of issue [sic] and are effective on

the inception date of the policy.” Included in the list is the

“Schedule of Covered Autos.” Including the “Schedule of Covered HIGHLAND, 21CA3 22

Autos” in the listing of forms and endorsements evidences a

clear intent to make the Schedule of Covered Autos part of the

policy on the inception date of the policy. We further note

that neither appellees nor UFCC seriously dispute that the

towing exclusion’s reference to Item Seven, and Item Seven’s

reference to the Schedule of Covered Autos, renders the policy

ambiguous.

{¶41} Therefore, after our review of the policy language, we

believe that the entirety of the policy, and the context of the

towing and transporting of autos exclusion, show that this

exclusion is plain and unambiguous. See generally Liberty Mut.

Ins. Co. v. Sims, Tx.Ct.App. No. 12-14-00123-CV, 2015 WL

7770166, *4 (Dec. 3, 2015) (reviewing insurance policy in

entirety, including endorsements and listing of forms, to

conclude policy not ambiguous). This exclusion applies if an

auto, not identified in Item Seven, is used to tow, move, haul,

or carry autos. Item Seven references the Schedule of Covered

Autos. The Schedule of Covered Autos lists one vehicle–-a 1999

Freightliner Rollback. Thus, the exclusion applies if an auto,

other than the 1999 Freightliner Rollback, is used to tow, move,

haul, or carry autos.

{¶42} After having clarified the scope of the towing and

transporting of autos exclusion, we now review whether the HIGHLAND, 21CA3 23

undisputed facts in the case at bar show that the exclusion

should apply so as to preclude coverage under appellant’s policy

for the subject accident.

APPLICABILITY OF EXCLUSION

{¶43} Appellant asserts that, at the time of the accident,

Pierson used an auto not identified in Item Seven (the semi-

truck) to tow, move, haul, or carry another auto (the trailer).

Appellant thus asserts that the towing exclusion should apply to

preclude coverage.

{¶44} However, appellees and UFCC argue that this exclusion

should not apply because the semi-truck cannot be considered to

have been towing another “auto,” i.e., the trailer. They assert

that case law has recognized that a semi-truck and attached

trailer are functionally one vehicle for purposes of determining

insurance coverage.

{¶45} We first observe that the case authority that

appellees and UFCC cite do not involve towing-transporting-autos

exclusions, but instead include situations when separate

insurance policies cover a semi-truck and an attached trailer

and a court must determine which insurance policy provides

coverage for an accident. E.g., Contrans, Inc. v. Ryder Truck

Rental, Inc., 836 F.2d 163, 165–66 (3d Cir.1987) (emphasis

added) (when “an accident arises out of the use of a combined HIGHLAND, 21CA3 24

vehicle such as a tractor-trailer and where separate policies

cover the tractor and the trailer, all insurance applicable to

the combined vehicle comes into play, regardless of which part

of the rig was physically involved in the accident”); Blue Bird

Body Co. v. Ryder Truck Rental, Inc., 583 F.2d 717, 726–27 (5th

Cir.1978) (emphasis added) (“The question of which policy

provides primary coverage for the liability thus boils down to

whether the accident arose out of the use of the tractor, the

trailer, or both.”). When separate insurance policies cover a

semi-truck and an attached trailer, the law regards the two

units as a combined unit so as to require both insurance

policies to provide coverage for an accident that arises out of

the use of the combined semi-truck and attached trailer. Blue

Bird at 727, quoting Risjord & Austin, 7 Automobile Liability

Insurance Cases 9540 (“‘Where a truck and towed trailer are

involved in an accident, the courts are well-advised to avoid

the metaphysics and hold that the accident arose out of the use

of each.’”).

{¶46} The case at bar, however, does not involve a situation

in which separate insurance policies cover the semi-truck and

the trailer. Instead, no serious dispute exists that

appellant’s policy defines both vehicles as covered autos for

purposes of Covered Autos Liability Coverage. The question thus

is not which of two separate policies should apply to the HIGHLAND, 21CA3 25

subject accident, but instead whether appellant’s towing and

transporting of autos exclusion applies to preclude coverage.

The case authority that appellees and UFCC cite state nothing

about a towing-transporting-autos exclusion like the language in

the case at bar. Thus, we believe those cases are not applicable

to the towing-transporting-autos exclusion involved in the case

sub judice.

{¶47} Furthermore, we point out that a well-regarded

insurance treatise explicitly recognizes the validity of towing-

transporting-autos exclusions:

A towing-trailer exclusion is valid, and the insurer is, therefore, not liable where the policy contains an exclusion from coverage for liability while the automobile is “used for towing or propelling trailers or other vehicles used as trailers,” and such a trailer was attached to the insured’s car at the time of the accident. So, a provision in a policy insuring a truck that it should not be used for towing a trailer and expressly stipulating that the policy did not cover the truck while being so used precludes recovery for injuries caused by being struck by the insured truck while towing a trailer. There is general recognition that the exclusion’s validity stems from the fact that there is an increased risk created by the use of the vehicle in towing operation.

8A Couch on Ins. Section 121:51 (footnotes omitted); accord

Waddey v. Maryland Cas. Co., 171 Tenn. 112, 100 S.W.2d 984, 986,

7 Beeler 112, 109 A.L.R. 654 (1937) (“Where a policy of

automobile liability insurance expressly excepts accidents

occurring while the machine is used for towing a trailer, it has

been held that the insurer is not liable for an accident HIGHLAND, 21CA3 26

occurring when the insured has a trailer attached to his car,

without reference to whether the towing of the trailer was

causally connected with the accident.”) The treatise also

explains the effect of attaching a trailer to another auto in

the context of a towing exclusion:

The manner of attaching the trailer to the automobile cannot alter the fact that the attached trailer is only a trailer, and conversely, it will not be regarded as part of the automobile, rather than a trailer, regardless of the manner in which it is connected to the automobile. To illustrate, the fact that a semitrailer is attached to an insured automobile by an iron bar does not make the trailer part of the insured automobile so as to preclude the operation of the towing-trailer exclusion.

8A Couch on Ins. Section 121:59 (footnotes omitted).

{¶48} Consequently, in the case at bar we disagree with the

appellees’ and UFCC’s assertions that the truck could not have

been moving, towing, hauling, or carrying an “auto,” i.e., the

trailer. Instead, we believe that the case authority they cite

is inapplicable to the facts here. As Couch on Insurance

indicates, an insurance policy may exclude coverage for autos

that are used to move, tow, haul, or carry other autos,

including trailers.

{¶49} Although none of the parties provided a definition of

the word “tow,” the following definition appears in a 1939 case:

“The word ‘towing’ signifies movement. As defined in Webster’s

New International Dictionary: ‘to tow’ means ‘to pull’, ‘to HIGHLAND, 21CA3 27

drag’, ‘to draw’, ‘to pull about’, ‘to drag or take along with

one’.” Maryland Cas. Co. v. Aguayo, 29 F.Supp. 561, 564

(S.D.Cal.1939). A modern dictionary likewise defines the word

“tow” to mean “to draw or pull along behind.”

https://www.merriam-webster.com/dictionary/tow.

{¶50} In the case sub judice, the operator used a truck to

draw or pull along behind the 2006 Transcraft trailer. We agree

with appellant that, under the plain language of the policy, the

truck (an auto) was used to tow, move, haul, or carry another

auto, the 2006 Transcraft trailer. Moreover, we do not agree

with appellees that use of the plural word “autos” in the towing

exclusion shows that the exclusion does not apply unless the

towing vehicle is towing more than one vehicle. Instead, as in

cases of statutory construction, courts that construe contracts

should read the singular and plural forms of words

“‘”interchangeably so long as such a construction is consistent

with the evident purposes of the contract.”’” Garlock v. Silver

Dollar Camp, 3rd Dist. No. 5-20-35, 2021-Ohio-1690, 173 N.E.3d

88, ¶ 14, quoting Grange Life Ins. Co. v. Bics, 9th Dist. Lorain

No. 01CA007807, 2001 WL 1044081, *3 (Sept. 12, 2001), quoting

Ohio Development Co. v. Ellis, 2d Dist. Montgomery No. CA 10340,

1987 WL 18831, *5 (Oct. 22, 1987); accord R.C. 1.43 (“[t]he

singular includes the plural, and the plural includes the

singular”). HIGHLAND, 21CA3 28

{¶51} For example, in Bertelstein v. Marks, 25 Ohio Law Abs.

117, 120 (2nd Dist.1937), the court determined that an

automobile liability insurance policy that excluded liability

when the automobile was used to carry “passengers for a

consideration” applied even though the subject accident involved

only a single passenger. In reaching its decision, the court

quoted another case that construed the same language,

Lumbermen’s Mutual Casualty Co. v. Wilcox, 16 Fed. Supp. 799

(1936). In Lumbermen’s, the court explained:

The contention is made that the word “passengers” is used and that in the instant case there was but a single passenger. The rule of construction is that singular number includes plural number in the interpretation of contracts, and a contrary construction is only necessary when the plain intent of the contract shows the contrary construction necessary to give effect to the intention of the contracting parties.

Id. at 800 (citations omitted). Thus, based largely upon the

Lumbermen’s court’s statement, the Bertelstein court likewise

determined that the plural word “passengers” also included the

singular form of the word, “passenger.”

{¶52} Similarly, in the case sub judice we apply the general

rule of contract construction that the plural word “autos”

includes the singular word “auto,” unless the insurance policy

plainly indicates that only the plural form applies. Here, we

do not find anything in the contract’s plain language to suggest

that the term “autos” does not also include the singular form of HIGHLAND, 21CA3 29

the word, “auto.” Consequently, we disagree with appellees that

the towing exclusion applies only when the towing vehicle is

towing more than one auto.

{¶53} Appellees and UFCC next contend that the towing

exclusion should not apply because the crushed vehicles loaded

onto the trailer are not “autos.” They therefore assert that,

even if the truck (an auto) was towing an auto (the trailer),

the towed auto was not towing “autos.” We, however, believe

that this particular issue is moot. The exclusion applies when

an auto, not identified in Item Seven, is used to tow, move,

haul, or carry autos. As we have previously determined, the

truck (an auto) is not identified in Item Seven, and that truck

was used to tow, move, haul, or carry autos (the 2006 Transcraft

trailer). “Under a trailer exclusion in an automobile policy,

the insurer is exempt from liability whether or not the attached

trailer actually caused or contributed to the accident.” 11

Couch on Insurance, Section 156:88; see Waddey v. Maryland Cas.

Co., 171 Tenn. 112, 100 S.W.2d 984 (1937), quoting Berry on

Automobiles, vol. 6, p. 776 (“‘Where a policy of automobile

liability insurance expressly excepts accidents occurring while

the machine is used for towing a trailer, it has been held that

the insurer is not liable for an accident occurring when the

insured has a trailer attached to his car, without reference to

whether the towing of the trailer was causally connected with HIGHLAND, 21CA3 30

the accident.’”); Coolidge v. Std. Acc. Ins. Co., 114 Cal.App.

716, 722, 300 P. 885 (Cal.App.1931) (towing exclusion applied

when automobile towing trailer loaded with sheep and noted that

“[t]he express terms of the policy exempted the insurance

company from liability when the insured automobile was used to

propel or tow a trailer. ”).

{¶54} Thus, even if one could argue that the 2006 Transcraft

trailer caused or contributed to the accident, the towing

exclusion means that appellant is exempt from liability.

Accordingly, in the case sub judice the question of whether the

2006 Transcraft trailer carried “autos” does not affect the

outcome of our decision.

INCONSISTENCY AND AMBIGUITY

{¶55} Appellees and UFCC also contend that the insurance

policy is inconsistent and contradictory and, as a result, the

policy must be deemed to be ambiguous and should be construed to

require appellant to defend and indemnify appellees.

{¶56} Appellees’ inconsistency argument begins with their

agreement that the truck Pierson drove, the 1999 Freightliner

truck, is not identified in Item Seven. They assert, however,

that the “policy expressly provides auto liability coverage for

all vehicles” that the insured owns. Appellees point out that

because the commercial auto liability coverage extends to symbol HIGHLAND, 21CA3 31

22 “(owned autos)” and symbol 27 “(specifically described

autos),” providing coverage for symbol 22 and symbol 27 autos

“makes the Policy coverages internally inconsistent and

unnecessarily creates some ambiguity.” Appellees do not further

elaborate upon this argument, however.

{¶57} UFCC also argues that the policy is inconsistent and

contradictory. In particular, UFCC asserts that appellant’s

interpretation of the towing exclusion means that the truck

towing the trailer contradicts the policy’s symbol 22 definition

of covered autos because the policy defines symbol 22 covered

autos to mean owned autos and “any ‘trailers’ you don’t own

while attached to power units you own.” UFCC contends that this

definition shows that the policy treats a combined tractor-

trailer as one auto for symbol 22 coverage, but does not

similarly treat them as one unit for purposes of the towing

exclusion. UFCC thus claims that the inconsistency means that

the towing exclusion is ambiguous and must be strictly construed

against appellant.

{¶58} Initially, we observe that in the insurance policy

context, if any inconsistency appears between the terms of the

original insurance policy and an endorsement to that policy,

“the endorsement terms control.” Baker v. Aetna Cas. & Sur.

Co., 107 Ohio App.3d 835, 843, 669 N.E.2d 553 (10th Dist.1995),

citing Workman v. Republic Mut. Ins. Co., 144 Ohio St. 37, 46, HIGHLAND, 21CA3 32

56 N.E.2d 190 (1944), overruled in part by Brewer v. De Cant,

167 Ohio St. 411, 149 N.E.2d 166 (1958) (“the endorsement must

be regarded as a modification of the terms of the original

contract of insurance if a clear inconsistency appears”).

Indeed, courts have recognized that “endorsements by their very

nature are designed to trump general policy provisions.”

Nationwide Mut. Ins. Co. v. Schmidt, 307 F.Supp.2d 674, 677

(W.D.Pa.2004). Consequently, when “a conflict exists between

provisions in the main policy and the endorsement, the

endorsement prevails.” Id.; accord Besic v. Citizens Ins. Co.

of the Midwest, 290 Mich.App. 19, 26, 800 N.W.2d 93, quoting 4

Holmes, Appleman on Insurance (2d ed), Section 20.1, p 156

(“[E]ndorsements often are issued to specifically grant certain

coverage or remove the effect of particular exclusions.”).

{¶59} In the case sub judice, to the extent the towing

exclusion, which is included in an endorsement, may be

inconsistent with, or contradicts, the provisions in the main

policy’s “Covered Autos Liability Coverage,” the endorsement

prevails. We therefore reject appellees’ and UFCC’s claim that

an ambiguity exists because the towing exclusion contained in an

endorsement to the policy conflicts with the general policy

provisions.

ILLUSORY COVERAGE HIGHLAND, 21CA3 33

{¶60} Appellees and UFCC argue that to interpret the towing

and transporting of autos exclusion as appellant suggests would

render insurance coverage under the policy illusory and lead to

absurd results. Appellees assert that appellant’s interpretation

of the towing exclusion “would eliminate all commercial auto

liability coverage except when the 1999 International Rollback

semi-truck is used.” Appellees further assert that appellant’s

policy interpretation will lead to absurd results, but do not

further expound upon this argument.

UFCC similarly contends that appellant’s interpretation of

the policy “would render certain provisions illusory and lead to

absurd results.” UFCC asserts that appellant’s interpretation

of the policy means that “the 1999 Freightliner semi-truck and

the 2006 Transcraft trailer would have been covered if they

hadn’t been carrying ‘autos’ at the time of the accident.” UFCC

claims that appellant’s “reasoning is flawed,” and to apply

appellant’s interpretation means that owned auto coverage under

symbol 22 “would become indistinguishable from the coverage

offered under symbol 27,” i.e., “[o]nly those ‘autos’ described

in Item Seven of the Declarations.” UFCC argues that to

construe the policy as appellant suggests means that “symbol 22

would appear to grant a benefit to the insured while actually

granting none, rendering it illusory.” UFCC further asserts

that to interpret the policy as appellant suggests “would only HIGHLAND, 21CA3 34

provide coverage if the insureds were ‘bobtailing’ (i.e.,

driving a tractor without a trailer).” UFCC thus claims that,

because appellant’s interpretation would “only allow coverage in

the narrowest of circumstances, while potentially leading to

numerous uninsured semi-truck on the road,” appellant’s

interpretation would be absurd.

{¶61} In general, an insurance contract is not illusory

unless it fails to confer “some benefit to the insured.” Ward

v. United Foundries, Inc., 129 Ohio St.3d 292, 2011-Ohio-3176,

951 N.E.2d 770, ¶ 24; accord H.P. Mfg. Co., Inc. v. Westfield

Ins. Co., 2018-Ohio-2849, 117 N.E.3d 146, ¶ 33 (8th Dist.). In

the case sub judice, we do not agree that to interpret the

towing exclusion to preclude coverage renders the policy

illusory. Instead, the policy confers some benefit to the

insured because the policy provides coverage to covered autos,

which includes all autos that appellees own. The record does

not contain evidence regarding all of the autos that appellees

own that could be considered covered autos under the policy.

Instead, the record only indicates that appellees own the truck

and trailer involved in the accident, along with another truck

not involved in the accident. All three vehicles are covered

autos under appellant’s policy. However, simply because the

towing and transporting of autos exclusion may limit the

circumstances under which these covered autos may be entitled to HIGHLAND, 21CA3 35

insurance coverage does not render the coverage illusory. The

truck would not be subject to the towing and transporting of

autos exclusion if it were not, in fact, towing, moving,

hauling, or carrying autos. Alternatively, it would not be

subject to the exclusion if it were identified in Item Seven.

Moreover, even if the truck’s coverage would be limited to

“bobtailing,” as UFCC indicates, UFCC has not cited any case

authority to indicate that insurance policies limited to bobtail

coverage are illusory.3

{¶62} The trailer likewise is a covered auto under the

policy. The trailer would not be subject to the towing and

transporting of autos exclusion if an auto identified in Item

Seven of the policy were towing, moving, hauling, or carrying

the trailer. Again, simply because the policy limits coverage

3 One court has explained “bobtail insurance” as follows:

“Bob-tail” in trucking parlance is the operation of a tractor without an attached trailer,” and “bobtail insurance” typically refers to insurance for when a tractor is not being used in the business of an authorized carrier. Prestige Casualty Co. v. Michigan Mutual Insurance Co., 99 F.3d 1340 (6th Cir. 1996); Clarendon Nat. Ins. Co. v. Medina, 645 F.3d 928, 932 (7th Cir. 2011) (defining “bobtail insurance” as coverage for “truck drivers while they are ... driving their cabs without trailers outside the service of the federally licensed carriers under whose authority they operate.”).

Lopez v. W. Surplus Lines Agency, Inc., D.N.M. No. 1:19-cv- 00349-JCH-LF, 2021 WL 4478023, *2 (Sept. 30, 2021). HIGHLAND, 21CA3 36

does not mean the insurance policy is illusory.

{¶63} For similar reasons, we do not believe that to

interpret the towing and transporting of autos exclusion will

lead to absurd results. Appellees maintain covered autos

liability for covered autos that are not identified in Items

Seven when those covered autos are not used to tow, move, haul,

or carry other autos. Simply because appellees may not have

realized at the time the policy was issued that it precluded

coverage when any auto other than the 1999 Rollback truck was

used to move, tow, haul, or carry other autos does not (1) make

the insurance policy is ambiguous, (2) make coverage illusory,

or (3) lead to absurd results.4

CONCLUSION

Therefore, based upon the foregoing reasons, we believe

appellees’ and UFCC’s favor regarding appellant’s duty to defend

and indemnify appellees for any claims and damages, except

punitive damages, arising out of the accident. Accordingly, we

sustain appellant’s sole assignment of error and reverse the

trial court’s judgment that declared appellant has a duty to

defend and indemnify appellees for any claims and damages,

excluding punitive damages, arising out of the accident.

4 The two vehicles involved in the subject accident are listed on the declarations page of UFCC’s policy. HIGHLAND, 21CA3 37

JUDGMENT REVERSED AND CAUSE REMANDED CONSISTENT WITH THIS OPINION. HIGHLAND, 21CA3 38

JUDGMENT ENTRY

It is ordered that the judgment entry be reversed and this

cause be remanded for further any proceedings deemed necessary

to carry this judgment into execution. Appellant shall recover

of appellees the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Highland County Common Pleas Court to carry

this judgment into execution.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.