Corey Hines, a minor, and Gina Hines ("Hines") appealed the judgment of
the Court of Common Pleas of Auglaize County, Ohio, granting summary
judgment in favor of Allstate Insurance Company on Hines's
uninsured/underinsured motorist claim.
Facts of the Case
The suit was filed following a drag race in Auglaize County. On May 14,
2010, a group of young men, including Hines, gathered at the house of Nick
Forbess. At some point, the group traveled together to a nearby gas station.
After getting gas, they decided to head toward Washington Pike where they
could race their cars.
Branden Camper and Forbess drove the cars involved in the race. Hines was
a passenger in Camper's car, which lacked an operative safety belt for the
front passenger side. To procure a working safety belt, Hines decided to sit
in the backseat, where he buckled in. After the race commenced, Camper lost
control of his automobile. It veered off the road and flipped upside down in
a nearby field. Hines suffered several injuries, including lacerations and
back and neck injuries.
At the time of the accident, Camper's parents had an automobile insurance
policy with Allstate (the "Policy") that covered the car that Camper was
driving. The Policy contained an uninsured/underinsured motorist provision.
This provision was subject to a number of exclusions, including the
following:
Allstate will not pay any damages an insured person or an
additional insured person is legally entitled to recover because of bodily
injury:
6. arising out of the participation in any prearranged,
organized, or spontaneous:
a. racing contest;
b. speed contest; or
c. use of an auto at a track or course designed or used
for racing or high performance driving.... (Docket No. 52, Policy, p. 13)
After the accident, Hines sought recovery from Allstate under the
uninsured/underinsured provision of the Policy. Allstate refused to pay
Hines's claim, citing the applicability of the speed contest exclusion.
After the case was at issue, Allstate filed a motion for summary
judgment. Allstate asserted the applicability of the speed contest exclusion
and Hines's purported assumption of the risk of injury. Attached to the
motion were several of Hines's written admissions and a copy of his police
statement regarding the accident. The written admissions reflect that Hines
admitted he was "aware prior to this accident that it was the intention of
[Camper] and [Forbess] to race their automobiles." Meanwhile, the police
statement shows that, when the responding officer asked whether his
intention was to race when he reached the road, Hines responded in the
affirmative.
Trial Court Decision
The trial court granted Allstate's motion for summary judgment, finding
that Hines was a participant in the drag race that led to the accident and
that he was consequently excluded from the uninsured/underinsured coverage
under the Policy.
The appellate court found that the issues revolve around the meaning of
"participation" in the Policy. "Participation" is not a defined term in the
Policy. But this fact, standing alone, does not render the term ambiguous.
The mere absence of a definition in an insurance contract does not make the
meaning of the term ambiguous. Participation is neither a term of art nor a
word that is amenable to multiple interpretations. Rather, it is a common
word and the appellate court can consequently construe it without resorting
to any of the above construction rules benefitting insureds. The appellate
court used the ordinary and commonly understood definition of
"participation," which is the "act or state of participating: as a: the
action or state of partaking of something ... [or] b: the association with
others in a relationship or an enterprise … " while citing to
Webster's Third New International Dictionary
1646 (2002).
Under this definition, the evidence in the record manifestly showed that
Hines was participating in the common scheme to drag race. Before the race,
he spent time with Forbess and Camper at Forbess's home. Hines then traveled
with the group to a gas station and admitted that, during this time, the
group formed the drag racing idea. Further, he willingly got into Camper's
automobile intending to be part of a drag race. This all shows the existence
of a joint enterprise in which Hines was a willing participant.
Hines claimed that there was a triable issue as to whether he was a
participant under the policy because he did not drive a car during the drag
race. Under its common and ordinary meaning, participation encompasses more
conduct than driving. Here, by forming the plan to drag race and then
willingly getting into an automobile that he knew would be involved in the
race, Hines was a participant.
In light of Hines's failure to present additional evidence besides the
fact that he was not the driver, Hines was unable to show the existence of a
triable issue of fact regarding his status as a participant in the drag
race. Consequently, the trial court properly granted summary judgment to
Allstate on the basis of the Policy's exclusion for participation in car
races.
Analysis
The only surprise in this case is that the litigants bothered to take the
case to the appellate court. It could not be more obvious on the facts
elicited at the time of the motion for summary judgment that Mr. Hines
participated in the drag race. He knew of the danger since he decided to sit
in a backseat where there was an operable seatbelt rather than the front
seat where he would have a better view of the race, or he would probably
have been killed in the accident.
To bring suit with such a clear and unambiguous policy exclusion on such
facts defines the Yiddish term "Chutzpah."
© 2013 Barry Zalma, Esq., CFE