Atkinson v. State Farm Mut. Auto. Ins. Co., 83
| Decision Date | 12 June 1984 |
| Docket Number | No. 83,83 |
| Citation | 18 Ohio App.3d 59,480 N.E.2d 819,18 OBR 173 |
| Parties | , 18 O.B.R. 173 ATKINSON, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant; Nationwide Insurance Company et al., Appellees. CA 76. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
The purpose of the "temporary substitute" clause in an automobile liability policy is to afford continuous coverage to an insured while limiting risk to one operating vehicle at a time for a single premium and therefore the insured vehicle for which the substitution is made must be withdrawn from use by some overt act which would reasonably preclude the possibility of both vehicles being driven at the same time. If the vehicle is operable, the insured must take some steps to preclude its use by another during the substitution period. (State Farm Mut. Auto. Ins. Co. v. Lietz, 122 Ga.App. 596, 178 S.E.2d 218, followed.)
James F. Brandabur, Xenia, for plaintiff-appellee Atkinson.
Anthony R. Kidd, Dayton, for defendant-appellant State Farm Mut. Auto. Ins. Co.
Marshall L. Clark and Marshall Peterson, Xenia, for defendants-appellees Nationwide Ins. Co. et al.
The original complaint filed in this action involves an automobile accident between vehicles driven by Judy E. Atkinson and Thomas Schaeffer. Included in the complaint was an action for declaratory judgment to determine what rights plaintiff may have against State Farm Mutual Automobile Insurance Company ("State Farm") and Nationwide Insurance Company ("Nationwide").
Partial summary judgments were requested by both State Farm and Nationwide. The court of common pleas determined in its entry of February 16, 1983 that Thomas Schaeffer was not covered by the policy of Nationwide. This judgment is appealed by defendant, State Farm, after the trial court certified there was no just reason for delay.
Judy Atkinson, an insured of State Farm, was injured on Indian Ripple Road, Greene County, Ohio.
The driver of the other vehicle involved in the accident was Thomas Schaeffer.
The owner of the vehicle driven by Thomas Schaeffer at the time of the accident was his father who had no insurance. His sister, Jenny Schaeffer, was insured by Nationwide. Thomas Schaeffer and Jenny Schaeffer were members of the same household.
The night before this accident occurred, Jenny Schaeffer and Thomas Schaeffer had stayed at their brother's home located on Rosemont Avenue, Dayton, Ohio.
Early on the morning of the accident, Jenny Schaeffer lent Thomas Schaeffer her 1973 Monte Carlo. Thomas borrowed Jenny's 1973 Monte Carlo to go to work at his place of employment in Xenia, Ohio.
The 1973 Monte Carlo was insured under the Nationwide Century II automobile policy.
According to his custom, Thomas Schaeffer stopped at his home to change into his work clothes. After changing his clothes, Thomas re-entered Jenny's car in order to drive to work. Jenny's car would not start. The starter would not turn the engine over. He attempted to start the vehicle many times. Without making further contact with his sister, Jenny, Tom went back into his home, got the keys to his father's car and started driving it to work without the permission of anyone, and on the way to work was involved in the accident with plaintiff, Judy Atkinson.
After learning of the accident, Jenny Schaeffer proceeded to her home, was able to get her car started after some effort, and drove it away.
The pertinent terms of the Nationwide Century II policy are as follows:
After the accident, Jenny Schaeffer was informed by Nationwide that they would not provide coverage for the accident.
State Farm argues that ...
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