Ohio Cas. Ins. Co. v. Herring–Jenkins

Decision Date18 November 2011
Docket NumberCause No. 2:10–CV–300–TLS.
Citation830 F.Supp.2d 566
PartiesThe OHIO CASUALTY INSURANCE COMPANY, Plaintiff, v. Laura HERRING–JENKINS, Personal Representative of the Estate of Christopher D. Jenkins, Defendant.
CourtU.S. District Court — Northern District of Indiana


Mark D. Gerth, Kightlinger & Gray L.L.P., Indianapolis, IN, for Plaintiff.

David C. Jensen, Louis W. Voelker, III, Eichhorn & Eichhorn, Hammond, IN, Jon F. Schmoll, Steven L. Langer, Langer & Langer, Valparaiso, IN, for Defendant.



On March 16, 2010, Christopher D. Jenkins was struck and killed by an uninsured motorist while working to repair potholes in a construction lane on Interstate 80 in Indiana. The Plaintiff, Ohio Casualty Insurance Company, insured the dump truck Jenkins was working behind when he was hit. Ohio Casualty has filed a Complaint for Declaratory Judgment requesting that the Court declare that its policies do not provide coverage for the claims of Defendant Laura Herring–Jenkins, who is representing Jenkins's Estate. The Defendant has filed a counter-claim seeking a declaration that coverage is afforded under these same policies. Both parties have filed motions for summary judgment, which are fully briefed. The disputed issues of law are whether Jenkins was “using” or “occupying” the insured vehicle at the time of the accident so as to be an “insured” under the business automobile insurance policy issued by Ohio Casualty, and, if he was not an insured, whether Ohio Casualty was nonetheless required by statute to extend uninsured motorist coverage to Jenkins.


On July 26, 2010, Ohio Casualty filed its Complaint for Declaratory Judgment against Defendant Laura Herring–Jenkins, the personal representative of the Estate of Christopher D. Jenkins. According to the Complaint, the Defendant had asserted a claim for uninsured motorist benefits under business automobile and umbrella policies issued by Ohio Casualty to C. Lee Construction Services for the wrongful death of Jenkins. The Complaint alleges that no coverage was afforded under either policy, and requests that the Court enter judgment declaring the same. On September 27, the Defendant filed an Answer to Complaint for Declaratory Judgment, and on March 31, 2011, filed an Amended Answer and Counterclaim. The Defendant's Counterclaim for Declaratory Judgment asks the Court to enter judgment declaring that coverage is afforded under the business automobile policy and the umbrella policy, and to award compensatory damages. On April 20, Ohio Casualty answered the counterclaim.

On June 7, Ohio Casualty and the Defendant filed their respective motions for summary judgment [ECF Nos. 25 & 27] and briefs in support [ECF Nos. 26 & 28]. The Motions have been fully briefed and are ripe for this Court's consideration.


Jenkins was a foreman for Walsh Construction Company (Walsh). According to a Subcontract Agreement between Walsh and C. Lee Construction Services (C. Lee), C. Lee furnished a driver and a dump truck for use by Jenkins and other Walsh employees to go back and forth to job sites on Interstate 80.

On March 16, 2010, C. Lee assigned its employee, Ronald Teslow, to drive Jenkins to and from the I–80 work site where Jenkins's crew would be filling potholes. Teslow first met Jenkins and another Walsh crew member named Eugene at a staging area where Jenkins and Eugene shoveled cold patch material into the back of the C. Lee dump truck. Eugene and a third Walsh employee rode to the I–80 work site in a Walsh truck known as a Crash Attenuator Truck. At the job site, Jenkins and Eugene exited the vehicles to repair potholes. They walked a couple feet behind the C. Lee truck shoveling cold patch material from the back of the truck into potholes. When they were finished repairing the potholes on a particular section of road, Jenkins directed Teslow to drive to the next pothole, either with hand signals or, if Teslow did not see Jenkins's signals, verbally. The third Walsh crew member drove the Crash Attenuator Truck behind Eugene and Jenkins as a protective barrier. Warning lights, directional arrows, and barrels all acted to direct traffic out of the lane where the crew worked.

After working three or four hours, the crew broke for “lunch,” around midnight. Jenkins rode with Teslow in the C. Lee truck to a truck stop where they ate inside the truck. After lunch, Teslow drove Jenkins back to the interstate and they resumed filling potholes. About an hour and one-half into their work, Robert Anthony Shannon (Shannon) drove through a clearly marked construction zone and hit and killed Jenkins, who had been walking behind and to the left of the C. Lee dump truck as it was moving to the next section of road for repair. As a result, Shannon was convicted, by a guilty plea entered pursuant to a plea agreement, of a Class C Felony, Reckless Operation of a Vehicle in a Highway Work Zone Causing Death.

Shannon was uninsured at the time of the accident. Jenkins's estate, through its personal representative Laura Herring–Jenkins, has asserted an uninsured motorist claim under the terms of a primary business automobile insurance policy issued by Ohio Casualty to C. Lee, and under the terms of a commercial umbrella policy issued by Ohio Casualty to C. Lee.

Business Automobile Insurance Policy No. BAO 54439084 (the Policy), with a coverage period of March 15, 2010, to March 15, 2011, provides uninsured motorist coverage with limits of $1 million per accident. The Policy covers all sums that “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 a covered ‘auto.’ (Policy, Section IILiability Coverage, A., ECF No. 28–5 at 25.) C. Lee is an insured under the Policy, as is [a]nyone else while using with [C. Lee's] permission a covered ‘auto’ [C. Lee] own[s].” ( Id. A. 1.a & b(1).) This definition of an insured excludes anyone, other than C. Lee employees, partners, members, or a “lessee or borrower or any of their ‘employees,’ while moving property to or from a covered ‘auto.’ ( Id. A. 1.b(4).) The C. Lee dump truck that Teslow was driving on March 16, 2010, when Jenkins was killed was a covered auto under the Policy.

Under the terms of the Uninsured Motorist Coverage Endorsement (the UIM Endorsement) to the Policy, Ohio Casualty agreed to “pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle” if such damage results from [b]odily injury sustained by the insured and caused by an accident, with an uninsured motor vehicle.” (Endorsement 1, ECF No. 28–6 at 13 (quotation marks omitted).) According to the UIM Endorsement, an “insured” includes anyone “occupying” a covered auto. Occupying is defined as “in, upon, getting in, on, out or off.” (Endorsement 1 & 3, ECF No. 28–6 at 13 & 15.)

The Commercial Umbrella Policy that Ohio Casualty issued to C. Lee for the period March 15, 2009, to March 15, 2010, provided excess coverage for the business automobile Policy. The Umbrella Policy excludes coverage for any obligation of the insured under any uninsured or underinsured motorist law. (Umbrella Policy, Section IV. D, ECF No. 18–3).

A. Standard of Review

The Federal Rules of Civil Procedure state that a court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The motion should be granted so long as no rational fact finder could return a verdict in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). With cross motions, the court must construe all facts in a light most favorable to the party against whom the motion under consideration is made. See Allen v. City of Chi., 351 F.3d 306, 311 (7th Cir.2003).

In deciding what insurance coverage, if any, the Plaintiff is entitled to, the Court must apply Indiana law for contract interpretation. Allstate Ins. Co. v. Keca, 368 F.3d 793, 796 (7th Cir.2004) (“A federal court sitting in diversity has the obligation to apply the law of the state as it believes the highest court of the state would apply it if presented with the issue.”); State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir.2001) ( “When the state Supreme Court has not decided the issue, the rulings of the state intermediate appellate courts must be accorded great weight, unless there are persuasive indications that the state's highest court would decide the case differently.”). An insurance contract “is subject to the same rules of interpretation as are other contracts.” Morris v. Econ. Fire & Cas. Co., 848 N.E.2d 663, 666 (Ind.2006) (citing USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 537–38 (Ind.1997)). As with other contracts, the interpretation of an insurance contract is a question of law. Briles v. Wausau Ins. Companies, 858 N.E.2d 208, 213 (Ind.App.2006); see also Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., 865 N.E.2d 571, 574 (Ind.2007). Accordingly, questions as to the interpretation of an insurance policy are “particularly well-suited for summary judgment.” Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App.2011) (citing Adkins v. Vigilant Ins. Co., 927 N.E.2d 385, 389 (Ind.Ct.App.2010)).

In reviewing policy terms, the court construes them “from the perspective of an ordinary policyholder of average...

To continue reading

Request your trial
5 cases
  • City of Greenville v. Syngenta Crop Prot., Inc.
    • United States
    • U.S. District Court — Southern District of Illinois
    • November 23, 2011
  • Loomis v. ACE Am. Ins. Co.
    • United States
    • U.S. District Court — Northern District of New York
    • February 5, 2021
    ... ... Grange Mut ... Cas ... Co ., 964 N.E.2d 796, 804-05 (Ind. 2012). In addition to looking to the general purpose of the ... Ohio Cas ... Insu ... Co ., No. 04-cv-1920, 2007 WL 1021825, at *15, 2007 U.S. Dist. LEXIS 24370, at ... ...
  • GEICO Cas. Co. v. Mangai
    • United States
    • U.S. District Court — Northern District of Indiana
    • August 4, 2020
    ... ... Allstate Ins. Co. v. Keca , 368 F.3d 793, 796 (7th Cir. 2004). An insurance contract "is subject to the same ... GEICO argues that the facts of the present case mirror the facts in the case of Ohio Cas. Ins. Co. v. Herring-Jenkins , 830 F.Supp.2d 566 (N.D. Ind. 2011).In Herring-Jenkins , Jenkins ... ...
  • Lightning Rod Mut. Ins. Co. v. Cole
    • United States
    • U.S. District Court — Northern District of Indiana
    • September 21, 2012
    ... ... Background The underlying facts of this case are undisputed and are as follows: LRM is an Ohio insurance company duly licensed to transact business in the Indiana. On May 11, 2008, LRM issued ... 2006) (holding that merely being a passenger in a car does not constitute use); see also Ohio Cas. Ins. Co. v. Herring-Jenkins, 830 F.Supp.2d 566, 579 (N.D.Ind.,2011). Thus, the question before ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 3
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...Plus Insurance Agency, L.L.C., 676 F. Supp.2d 657 (N.D. Ohio 2009). Seventh Circuit: Ohio Casualty Insurance Co. v. Herring-Jenkins, 830 F. Supp.2d 566 (N.D. Ind. 2011); Kimmel v. Western Reserve Life Assurance Company of Ohio, 678 F. Supp.2d 783 (N.D. Ind. 2010). Eighth Circuit: TAMKO Buil......
  • CHAPTER 3 The Insurance Contract
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...Plus Insurance Agency, L.L.C., 676 F. Supp.2d 657 (N.D. Ohio 2009). Seventh Circuit: Ohio Casualty Insurance Co. v. Herring-Jenkins, 830 F. Supp.2d 566 (N.D. Ind. 2011); Kimmel v. Western Reserve Life Assurance Company of Ohio, 678 F. Supp.2d 783 (N.D. Ind. 2010). Eighth Circuit: TAMKO Buil......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT