Nationwide Ins. Co. v. Auto-Owners Mutual Ins. Co.

• Decision Date: 07 April 1987
• Docket Number: 86AP-1000,87-LW-0896
• Parties: NATIONWIDE INSURANCE COMPANY, Plaintiff-Appellee, v. AUTO-OWNERS MUTUAL INSURANCE COMPANY, Defendant-Appellant, Mickey Charles, Defendant-Appellee.
• Court: Ohio Court of Appeals

NATIONWIDE INSURANCE COMPANY Plaintiff-Appellee, v. AUTO-OWNERS MUTUAL INSURANCE COMPANY Defendant-Appellant, Mickey Charles, Defendant-Appellee.

No. 86AP-1000.

87-LW-0896 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 7, 1987

Appeal from the Franklin County Common Pleas Court.

Enz Jones & Legrand, Grey W. Jones and James P. Seguin, for appellee Nationwide Insurance Company.

Wiles, Doucher, Van Buren & Boyle Co., L.P.A., and Robert E. Lee, for appellant.

OPINION

YOUNG Judge.

Nationwide brought this declaratory judgment action to determine whether its homeowner policy or Auto-Owner's automobile liability policy would be primarily responsible for a hunting accident involving Mickey Charles, holder of both policies, at the time of the accident. The stipulated facts are as follows:

"On November 30, 1983, Danny Charles, Laura A. Charles, Donald Charles, and Mickey Charles were deer hunting in Perry Township, Licking County, Ohio. Upon conclusion of the outing, the individual s returned to Mickey Charles' vehicle, and Danny Charles climbed into and was sitting in the passenger seat of a 1983 Ford one-half ton pickup owned by Mickey Charles.

"Mickey Charles was standing at the left side of the pickup near the left, rear wheel ejecting the shells from his shotgun into the bed of the truck. He had the safety on and his finger off of the trigger. The gun suddenly and accidentally discharged, and a slug penetrated the bed of the pickup, striking Danny Charles.

"Mickey Charles had intended, after unloading the gun, to put it inside of the cab of the truck behind the seat, to transport the gun and leave the area.

"At the time of the accident, the Plaintiff, Nationwide Insurance Company, had in full force and effect an elite home owners policy of insurance being policy number 91-HO-019-374. At the time of the accident, the Defendant, Auto-Owners Insurance Company, had in full force and effect an automobile liability policy insuring the 1983 Ford pickup truck under policy number 830103 05295401."

The trial court found that the ejection of the shotgun shells into the bed of the truck constituted a "loading" and brought the act within the intended coverage of Auto-Owners' automobile policy. However, since the Nationwide Homeowners policy contained an exclusion for "loading and unloading" a land motor vehicle, the trial court found that the homeowners policy did not apply. Based on this analysis, the trial court granted plaintiff's motion for summary judgment and denied defendant's motion for sumary judgment. This appeal followed. Appellant asserts the following sole assignment of error:

"The Court of Common Pleas erred in granting Plaintiff-Appellee sumary judgment, finding that there was no genuine issue of material fact and denying Defendant-Appellant's Motion for Summary Judgment."

The facts before this court present a case of first impression. Due to the diligent effort of both attorneys, there is case law from other jurisdictions that is persuasive. The parties contend that liability coverage depends on whether the acts of the insured constitute a "loading or unloading" of a vehicle and that the two policies afford complementary coverage, thus making only one liable. However, in reviewing the factual situation this court is not concerned with an analysis of whether or not, and to what extent, the two policies provide complementary coverage. The duty of this court is simply to independently examine the terms of each policy and decide whether that particular policy affords coverage given the stipulated facts. The Nationwide Elite homeowners policy will necessarily be considered first.

Section II of the Homeowners Policy, titled "Protection Against Liability" states, in pertinent part:

"Section II of this Homeowners Policy insures those named in the Declarations against loss from damages for negligent personal acts or damage for negligence arising out of the ownership, maintenance or use of real or personal property * ** " [Emphasis added.]

The Homeowners Policy also contains the following exclusion, and the policy does not extend coverage to:

"e. the ownership, maintenance, operation or use, including loading or unloading, of land motor vehicles * ** "

The court below held:

" * * * [t]he act of ejecting the shells into the truck bed in preparation of loading the gun into the cab constitutes a "loading' sufficient to bring the insured's act within the scope of the intended coverage of Defendant Auto-Owner's Insurance Company's policy. Having found that a "loading' took place, the Court further finds that such loading falls within a specific policy exclusion under the Nationwide policy."

Appellee contends that the ejection of the shells was part of the loading process and therefore the provision in the homeowners policy excluding coverage for the loading or unloading of a land motor vehicle does not obligate Nationwide for liability under the existing policy. Upon review of the record and an independent consideration of the appropriate area of the law, there is no precise definition of "loading and unloading." This language is found in both the homeowners policy and the automobile policy. Furthermore, upon review of the case law provided by both counsel, it is evident that the leading cases in this area of the law involve commercial "loading and unloading" as likewise, does the "completed operations" doctrine. The phrase "loading and unloading" has generally been recognized to be one of extension, expanding the expression of "use." 12 Couch on Insurance 2d 45:126 at 371. But, the trial court did not need to rely on the "loading and unloading" extension. Consequently, it was inappropriate to apply this analysis to both policies in a complementary manner.

Ohio has traditionally given a liberal interpretation to insurance coverage. Ambiguities within a policy are always resolved in the favor of the insured. Bobier v. Natl. Cas. Co. (1944), 143 Ohio St. 215. Likewise, exceptions or exclusions in insurance policies are strictly construed in favor of the insured and coverage against the insurer. 2 Couch on Insurance 2d 15:92.

Language used in an insurance contract is given its ordinary and commonly accepted meaning. Bobier, supra. It is the opinion of this court that in view of the liberal construction by the Ohio courts of contracts of insurance that it would be inappropriate to apply those terms to the usage as indicated in the facts before this court.

Section II of the Homeowners policy provides coverage "from damages for negligent personal acts" and "damage for negligence arising out of the ownership, maintenance and use of real or personal property * * *." Given its clear and precise meaning, this provision provides coverage for the negligent personal act of Mickey Charles when his gun, his own personal property, accidentally fired while he ejected its shells into the bed of the truck, thereby causing injury to his brother. Thus, the general negligence provision of Nationwide's homeowners policy imposes personal liability coverage upon appellee according to the terms of the policy.

The policy issued by Auto-Owners for automobile liability is more specific in outlining its coverage. The Auto-Owners policy states, in Section I Coverages:

"To pay on behalf of the insured * * * and arising out of the ownership, maintenance or use, including the loading or unloading thereof, of the automobile." [Emphasis added.]

All the cases cited...