Cook v. Kozell, 38502

• Decision Date: 10 June 1964
• Docket Number: No. 38502,38502
• Citation: 176 Ohio St. 332,199 N.E.2d 566
• Parties: , 27 O.O.2d 275 COOK, Appellant, v. KOZELL; Fireman's Fund Ins. Co., Appellant, Continental Casualty Co., Appellee.
• Court: Ohio Supreme Court

Page 332

176 Ohio St. 332

199 N.E.2d 566, 27 O.O.2d 275

COOK, Appellant, v. KOZELL; Fireman's Fund Ins. Co., Appellant Continental Casualty Co., Appellee.

No. 38502.

Supreme Court of Ohio.

June 10, 1964.

Syllabus by the Court

Under a standard garage liability policy of insurance, issued to an automobile dealer who is the named insured, which policy contains an endorsement that reads 'it is agreed that coverage under this policy is extended to include vehicles until delivery is made to either the original purchaser or person so designated by the insured as the one for whom delivery was intended,' coverage of a permissive user of a car owned by the automobile dealer is extended until such time as delivery of the car is made by the automobile dealer to the purchaser, and then such coverage ceases.

Certified by the Court of Appeals for Cuyahoga County.

Robert Cook was the owner-operator of a tractor-trailer unit which was damaged as a result of a collision with an automobile driven by defendant Kozell.

The Fireman's Fund Insurance Company had issued a $500 deductible policy of collision insurance on Cook's vehicle and under the terms of this policy made payment to Cook.

Cook instituted an action for damages for property loss, loss of income and other expenses in the Cleveland Municipal Court against Kozell, joining Fireman's as a defendant. Upon trial, Cook was awarded a judgment of $3,900, and Fireman's recovered a judgment of $486.94.

The judgments against Kozell were not paid.

This cause of action arose when Cook and Fireman's filed a supplemental petition in the Cleveland Municipal Court against the Continental Casualty Company, a new party defendant. Continental had issued a garage liability policy of insurance, naming the Euclid Ford Company as the insured.

Kozell had purchased the car which he was driving at the time of the accident from the Euclid Ford Company, and the title to this vehicle was in the process of being transferred to his name.

Continental filed an answer to the supplemental petition, denying that Kozell was a named insured in any policy of insurance written by the company; and that Kozell had complied with any of the terms, provisions and conditions of such policy of insurance issued by Continental. Continental alleges that Kozell had purchased and operated the automobile prior to the time of the accident; that Kozell did not report the accident and did not forward any suit papers or advise the company that he had been sued; that Kozell had made no request upon the company to defend the lawsuit brought against him by Cook; that kozell retained his own counsel to defend the lawsuit and conducted the trial of the case without notice to Continental; and that Kozell acted contrary to the interests of Continental and, therefore, voided and terminated such policy of insurance so far as the interests of Kozell, Cook and Fireman's were concerned.

Continental denies that it was liable for the judgment obtained against Kozell and denies all the other allegations set forth in the supplemental petition.

Cook and Fireman's filed replies to the answer of Continental, denying the affirmative allegations made in the answer filed by Continental. The replies do not deny that the automobile had been purchased and driven by Kozell prior to the accident.

Cook and Fireman's moved for summary judgment against Continental.

The accident occurred on January 31, 1961.

A photostatic copy of a certificate of title, dated February 2, 1961, and indicating that Kozell took title to the automobile involved on that date, was filed. Copies of letters allegedly exchanged between Continental and counsel representing Cook were also filed in support of the motion for summary judgment.

The motion for summary judgment was granted.

On appeal, the Court of Appeals reversed the judgment of the trial court and remanded the cause to the Cleveland Municipal Court for trial upon the supplemental petition and the answer of Continental.

The Court of Appeals certified the record to this court on the ground of a conflict with a judgment rendered upon the same question by the Court of Appeals for Lucas County in the case of Ohio Farmers Ins. Co. v. Hoosier Casualty Co., 117 Ohio App. 507, 193 N.E.2d 153.

Woodle & Wachtel, Cleveland, George R. Hewes, Toledo, and Hollingsworth & Hollingsworth, for appellant.

McNeal & Schick, Cleveland, for appellee.

O'NEILL, Judge.

The two important questions to be determined are: (1) Was Kozell an insured of Continental at the time of the accident? (2) Was the 1955 Dodge automobile, which he had purchased from the owner, the Euclid Ford Company, and which had been delivered to him at the time of purchase, covered at the time of the accident by the garage liability insurance policy issued by Continental to the Euclid Ford Company?

These questions are raised by the supplemental petition, wherein it is alleged 'that Andrew J. Kozell and said 1955 Dodge automobile were then and there insured by the new party defendant, Continental Casualty Company, against liability on account of any suit or judgment for property damage, loss of use and other expenses occasioned while Andrew J. Kozell was operating...