Frankenmuth Mut. Ins. Co. v. Selz

• Decision Date: 10 August 1983
• Docket Number: No. 82-1240,82-1240
• Citation: 6 OBR 227,6 Ohio St.3d 169,451 N.E.2d 1203
• Court: Ohio Supreme Court
• Parties: , 6 O.B.R. 227 FRANKENMUTH MUTUAL INSURANCE COMPANY, Appellee, v. SELZ et al.; Scott et al., Appellants.

Page 169

6 Ohio St.3d 169

451 N.E.2d 1203, 6 O.B.R. 227

FRANKENMUTH MUTUAL INSURANCE COMPANY, Appellee, v. SELZ et al.; Scott et al., Appellants.

No. 82-1240.

Supreme Court of Ohio.

Aug. 10, 1983.

On June 25, 1980, a boat owned by Phil Brondes, Jr. (Brondes) was involved in a collision with a boat operated by Norman A. Peiffer and occupied by Connie J. Peiffer, Walter L. Scott, and Ida M. Scott (hereinafter the Peiffers and Scotts, respectively). The driver of Brondes' boat at the time of the accident was David B. Selz (Selz) who was operating Brondes' boat under the following circumstances.

Brondes had purchased the boat in 1979 and kept it in Toledo during the summer and Florida in the winter. During the winter which preceded the collision giving rise to this appeal, Brondes experienced some mechanical difficulty with his boat while in Florida. Brondes had the boat shipped from Florida to Brenner Marine in Toledo, Ohio, for the necessary repairs. Since Brondes was personally acquainted with Selz, the store manager and primary service manager of Brenner Marine, he directed Selz to make the boat operational for the upcoming summer boating season.

The repairs were completed on June 15, 1980 and the boat was placed in a berth at Brenner Marine where it remained until June 25, 1980. On the evening of the accident, Selz had agreed to take some friends water-skiing. They arrived at the marina between 7:00 and 7:30 p.m. Despite owning a boat similar to Brondes', Selz chose to use Brondes' boat instead of his own. At the time, Brondes was in the Bahamas. Selz made no attempt to contact Brondes and obtain permission to use the boat.

In Brondes' craft, Selz and his passengers travelled approximately five to six miles from the marina where they water-skied for about an hour. Around 9:15 p.m., Brondes' boat, being driven by Selz, collided with the pontoon boat occupied by the Scotts and Peiffers.

In effect at the time of the accident was a marine liability insurance policy issued by Frankenmuth Mutual Insurance Co. (Frankenmuth), appellee herein, to Brondes. The relevant portion of that policy stated:

"(B) Insured. The word 'insured' includes (1) the Named Insured, (2) if residents of the Named Insured's household, his spouse, the relatives of either, and (3) under Coverage B, any person or organization legally responsible for the use of the insured property, providing such use is with the permission of the Named Insured."

Frankenmuth instituted this action in the Court of Common Pleas of Lucas County seeking a declaratory judgment to determine whether coverage existed for the accident under Frankenmuth's policy issued to Brondes. The complaint named as defendants Selz, Grange Mutual Insurance Co. which had issued a homeowner's policy to Selz, Brenner Marine and their insurer, Buckeye Union Insurance Co., the Scotts, and the Peiffers.

The trial court found that Selz had neither the express nor implied permission of Brondes to operate Brondes' boat at the time of the accident and that the insurance policy issued by Frankenmuth to Brondes did not extend coverage for claims arising from the collision. The trial court ruled further that Selz was not operating Brondes' boat within the scope of his employment and, as such, neither Brenner Marine nor its insurer was obligated to extend coverage to claims arising from the accident. The trial court also found that Grange Mutual Insurance Co. was obligated to extend coverage for the accident under the terms of Selz's homeowner's policy. The court of appeals affirmed and held that there was competent, credible evidence to support the trial court's conclusions. The Scotts appealed to this court.

The cause is now before this court upon the allowance of a motion to certify the record.

Eastman & Smith and M. Donald Carmin, Toledo, for appellee.

Spengler, Nathanson, Heyman, McCarthy & Durfee, James R. Jeffery and Kenneth J. White, Toledo, for appellants.

PER CURIAM.

In Gulla v. Reynolds (1949), 151 Ohio St. 147, 85 N.E.2d 116 , we held at paragraphs one and three of the syllabus:

"1. Under the provisions of an automobile insurance policy in which the coverage is extended to include a third person if the actual use of the automobile is with the permission of the named insured, such permission relates to the use to which the automobile is being put by such third person at the time of the accident."

"3. Under such provisions coverage is not afforded when the use made of the motor vehicle constitutes a complete departure from that for which permission was granted."

The facts of Gulla are strikingly similar to the facts of the instant case. In Gulla, the plaintiff was injured when he was struck by a truck driven by Reynolds, the defendant, but owned by one Straus. The plaintiff sought a judgment against Straus' insurance company on the theory that the defendant was an insured under Straus' automobile liability insurance policy. The facts of Gulla reveal that Straus had...