[Cite as Schmucker v. Kurzenberger,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

DONNY SCHMUCKER, et al. C.A. No. 10CA0045

Appellants

v. APPEAL FROM JUDGMENT ENTERED IN THE EDWARD KURZENBERGER, et al. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellees CASE No. 09-CV-0052

DECISION AND JOURNAL ENTRY

Dated: August 1, 2011

WHITMORE, Judge.

{¶1} Plaintiff-Appellants, Donny Schmucker and Cheryl Schmucker, co-administrators

of the estate of Jessica Schmucker (collectively “the Schmuckers”) appeal from the decision of

the Wayne County Court of Common Pleas, granting summary judgment in favor of Defendant-

Appellees, Edward Kurzenberger, Carolyn Clarke (formerly Carolyn Kurzenberger), Nina

Kurzenberger (collectively “the Kurzenbergers”), and Wayne Mutual Insurance Company

(“Wayne Mutual”). This Court reverses.

I

{¶2} Shortly after 5:00 p.m. on June 22, 2008, Edward, his daughter, Nina, and her

friend, Jessica, were riding in Edward’s Jeep Wrangler on their way to get something to eat when

Nina cautioned her father that he was driving left of center. As he drifted further toward the

center line on the road, Nina, who was sitting in the front passenger’s seat, grabbed the steering

wheel and jerked it to the right. When Edward attempted to compensate for Nina’s actions, he 2

lost control of the vehicle and it veered to the left, across the oncoming lane of traffic and into

the ditch beside the road. Before landing, the Jeep rolled several times, causing the hard top and

back seat to detach from the vehicle. Jessica, who was sitting in the back seat at the time, was

ejected from the vehicle and died as a result of the accident.

{¶3} The Schmuckers filed a wrongful death and personal injury action against the

Kurzenbergers. The Kurzenbergers filed various cross-claims, all of which were ultimately

resolved by way of an agreed entry. The Schmuckers later amended their complaint to add

Wayne Mutual as a party and sought a declaratory judgment regarding insurance coverage for

Nina’s alleged negligence. Wayne Mutual insures Gerard Clarke, Nina’s stepfather and the

husband of Nina’s mother, Carolyn. Wayne Mutual filed a counterclaim also seeking

declaratory judgment as to its coverage obligations.

{¶4} Both the Schmuckers and Wayne Mutual filed motions for summary judgment.

The Schmuckers filed a memorandum in opposition to Wayne Mutual’s motion for summary

judgment and Wayne Mutual replied. On August 10, 2010, the trial court granted Wayne

Mutual’s motion for summary judgment and denied the Schmuckers’. The Schmuckers have

timely appealed, asserting two assignments of error for our review, which have been rearranged

for purposes of analysis.

II

Assignment of Error Number Two

“THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING WAYNE MUTUAL’S MOTION FOR SUMMARY JUDGMENT.”

{¶5} In their second assignment of error, the Schmuckers assert that the trial court

erred in granting Wayne Mutual’s motion for summary judgment. Specifically, they argue that 3

Nina was not “operating” the vehicle such that the terms of the policy would exclude coverage

for her actions. We agree.

{¶6} An appellate court reviews an award of summary judgment de novo. Grafton v.

Ohio Edison Co. (1996),

. It applies the same standard as the trial court,

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983),

. Summary judgment is proper under Civ.R. 56(C) if:

“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in the favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977),

.

The party moving for summary judgment bears the initial burden of informing the trial court of

the basis for the motion and pointing to parts of the record that show the absence of a genuine

issue of material fact. Dresher v. Burt (1996),

. Specifically, the

moving party must support its motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C).

Once this burden is satisfied, the non-moving party bears the burden

of offering specific facts to show a genuine issue for trial.

; Civ.R. 56(E).

{¶7} “An insurance policy is a contract.” Westfield Ins. Co. v. Galatis,

,

, at ¶9. “When confronted with an issue of contractual interpretation, the

role of a court is to give effect to the intent of the parties to the agreement [by] *** look[ing] to

the plain and ordinary meaning of the language used *** unless another meaning is clearly

apparent from the contents of the policy.” Id. at ¶11. In circumstances where an insurance

policy contains terms that are “susceptible [to] more than one interpretation, they ‘will be

construed strictly against the insurer and liberally in favor of the insured.’” Sharonville v. Am. 4

Employers Ins. Co.,

,

, at ¶6, quoting King v. Nationwide Ins.

Co. (1988),

, syllabus. Additionally, an insurance policy exclusion “will be

interpreted as applying only to that which is clearly intended to be excluded.” (Emphasis in

original.) Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd. (1992),

.

{¶8} Initially, we note that the trial court made two legal conclusions in its entry: first,

that Nina is a “covered person” under the terms of Wayne Mutual’s insurance policy and,

second, that one of Wayne Mutual’s exclusions applies, which in turn precludes it from having to

provide Nina with liability coverage for her actions. In arriving at its first conclusion, the trial

court looked to the provision of Wayne Mutual’s policy that provides coverage for a “family

member for the *** use of any motor vehicle.” The court then relied upon a past decision from

this Court in which we interpreted the term “use” for the purposes of an insurance contract as

“the privilege or benefit of using something.” McCall v. State Farm Mut. Auto. Ins. Co., 9th

Dist. No. 23601,

, quoting Webster’s New Collegiate Dictionary (1980)

1378. Thus, the trial court concluded that Nina was a “covered person” under the terms of

Wayne Mutual’s policy because she was “in use of the *** Jeep at the time of the accident[.]” In

other words, Wayne Mutual did not prevail on the issue of coverage. Hence, the Schmuckers

agree with the trial court’s conclusion that Nina is covered by Wayne Mutual’s policy and do not

challenge that portion of the judgment. Instead, the Schmuckers’ sole challenge on appeal stems

from the trial court’s second conclusion, that an exclusion in Wayne Mutual’s policy precludes

coverage for Nina’s actions. Accordingly, we confine our review to a determination of whether

the trial court erred in deciding that issue.

{¶9} In its motion for summary judgment, Wayne Mutual set forth several exclusions

that it argues would bar coverage in this situation. One of the exclusions to coverage relied upon 5

by Wayne Mutual in its motion provides that it “do[es] not provide Liability Coverage for any

covered person *** who operates any motor vehicle and is 14 years of age or older and does not

possess a valid operator license or learner permit.” Wayne Mutual points to Edward’s deposition

testimony confirming that Nina did not have a valid license or learner’s permit at the time and

the undisputed fact that Nina was fourteen years old when the accident occurred. Wayne Mutual

acknowledges that the term “operate” is not defined in its policy and offers a definition from an

unspecified edition of Black’s Law Dictionary, which allegedly defines the term to mean “to

perform a function, or operation, or produce an effect,” though the Ninth Edition of Black’s Law

Dictionary contains no such term or definition. Wayne Mutual further states that “[c]learly

Nina’s status as a passenger does not make her an operator of the vehicle” but notes that “if the

Court construes Nina’s act of grabbing the steering wheel as ‘operation’ of the vehicle,” that its

policy would preclude coverage for her actions under the previously quoted exclusion.

{¶10} In response, the Schmuckers argue that Wayne Mutual’s assertions throughout its

counterclaim and motion for summary judgment evidence the fact that it views Edward as the

party who was operating the vehicle and considers Nina only a passenger, not the operator of the

vehicle. Specifically, they point to Wayne Mutual’s counterclaim in which it specifically names

Edward as “the operator of the *** Jeep *** involved in the subject accident[.]” The

Schmuckers further note that in Wayne Mutual’s summary judgment motion, it definitively

states, based on Edward’s deposition testimony, that “Nina was not operating the vehicle at the

time of the accident.” We note that Wayne Mutual also asserts that it is “only logical” that, as

the driver of the Jeep, “Edward *** was the operator of the vehicle at the time of the accident.”

Consequently, the Schmuckers argue that Wayne Mutual does not interpret its own policy in

such a manner that would support the conclusion that Nina’s actions demonstrate she was 6

operating the vehicle at the time of the accident. In its reply memorandum, Wayne Mutual

continues to “maintain[] that Nina was not the operator of the vehicle, and therefore coverage

does not apply” but further states that “should the court determine that Nina was operating the

vehicle, the exclusion applies to preclude coverage for her actions.”

{¶11} To interpret the undefined term in the policy, we must look to the plain and

ordinary meaning of the word “operate.” See, e.g.,

; Galatis at ¶11. The

dictionary provides several definitions, one of which is “to cause to function[.]” Merriam-

Webster’s Collegiate Dictionary (11th Ed. 2004) 869. In Doe v. Marlington Local School Dist.

Bd. of Edn.,

,

, the Supreme Court had cause to look at the

meaning of the term “operation” as that word is used in the phrase “operation of a motor vehicle”

and found in the statutory immunity section of the Revised Code.

. There, the Court

similarly stated that “‘operate’ is ‘[t]o control or direct the functioning of.’” Id. at ¶20, quoting

Webster’s II New College Dictionary (3d Ed. 2005) 786. Under either definition, for Nina to be

considered an “operator” and therefore excluded from coverage under the terms of Wayne

Mutual’s policy, she would have had to have been in control of, or in a position to direct the

functioning of, the vehicle at the time of the accident. Based on our review of the deposition

testimony, there is no evidence that this was the case, nor would we construe a temporary reach

for the steering wheel as evidence that Nina was “operating” the vehicle under the plain meaning

of that term. Causing a vehicle to function requires more than simply directing its steering and

would necessarily include control over the vehicle’s ability to start, stop, and adjust its speed, as

only the vehicle’s driver could do.

{¶12} We acknowledge, however, that other courts have considered a passenger who

grabs the steering wheel to be “operating” a vehicle for the purposes of a conviction under R.C. 7

4511.19, Ohio’s statute prohibiting operation of a vehicle while under the influence of alcohol or

drugs. See State v. Wallace, 1st Dist. Nos. C-050530 & C-050531,

;

State v. Schultz, 8th Dist. No. 90412,

. See, also, Columbus v.

Freeman, 10th Dist. No. 08AP-519,

(affirming convictions under the

terms of the Columbus City Code for operation of a motor vehicle while under suspension and

reckless operation where a passenger grabbed the steering wheel and caused the vehicle to

swerve and wreck). We are unpersuaded by those decisions, however, as they hinge on the

statutory definition of “operate” as set forth in the traffic code section of the Revised Code; a

definition that those same courts acknowledge is the result of a legislative enactment largely

designed to combat alcohol-related offenses. See Wallace at ¶12-14 (noting that the definitions

of “operate” and “operation” as found in R.C. 4511.01 were not designed to “limit operating

offenses to drivers[,]” but were the result of deliberate effort of “the General Assembly[ to]

expan[d] *** the definition of ‘operate’ to include anyone who causes movement of a vehicle

*** [and] discourage persons from putting themselves in the position in which they can

potentially cause the movement of a motor vehicle while intoxicated,” as well as to allow for

multiple prosecutions where the combined actions of impaired occupants cause the movement of

a vehicle) (internal quotations and citations omitted); Schultz at fn.6 (citing to Wallace and

noting that the General Assembly’s definition of “operate” is “still broad enough to encompass

an impaired passenger who grabs the steering wheel of a moving vehicle”).

{¶13} In its decision, the trial court relied on a related provision in the same section of

the Revised Code’s traffic statute to define the term “operator.” In doing so, it then concluded

that “[u]nder this definition, Nina [was] considered an operator of the vehicle.” Thus, the trial

court did not apply the “plain and ordinary” meaning of the term, but instead, relied upon a 8

statutory definition of the term, a definition that is recognized as being specifically designed to

include a broader range of activities than simply controlling or directing the function of the

vehicle. See Wallace at ¶12-14; Schultz at fn.6; Freeman at ¶17. Moreover, our interpretation of

the term “operate” appears to be consistent with the manner in which Wayne Mutual interprets

that term as well, given its repeated and express statements that Edward was “in control” of the

vehicle at the time of the accident, not Nina. Because there is no indication that Wayne Mutual’s

policy “clearly intended [Nina’s actions] to be excluded,” summary judgment based on the

application of the foregoing exclusion was inappropriate. (Emphasis in original.) Hybud Equip.

Corp.,

. Furthermore, “[i]f an exclusionary clause will reasonably admit of

an interpretation that would preserve coverage for the insured, then as a matter of law, a court is

bound to adopt the construction that favors coverage.” Burgess v. Erie Ins. Group, 10th Dist.

06AP-896,

, quoting Watkins v. Brown (1994),

.

{¶14} As indicated, Wayne Mutual argued in its summary judgment motion that there

are several different provisions in its policy that would exclude coverage for Nina’s actions.

Wayne Mutual reiterates the applicability of those same exclusions in its brief to this Court. The

trial court’s decision, however, only addressed one of the exclusions and gave no indication that

it considered the other grounds asserted by Wayne Mutual in its summary judgment motion.

That is, there is no evidence that the trial court considered whether the provisions excluding

coverage for intentional acts, unpermitted use, or regular use by another family member were

reviewed by the trial court. Were this Court to consider Wayne Mutual’s supplemental

arguments in support of excluding coverage, we would in effect, be sitting as the trial court,

rather than conducting a de novo review of the trial court’s decision. Murphy v. Reynoldsburg

(1992),

(noting that Civ.R. 56 “mandates that the trial court make the 9

initial determination whether to award summary judgment; the trial court’s function cannot be

replaced by an ‘independent’ review of an appellate court”). Moreover, this Court has recently

reiterated its unwillingness to “consider alternate grounds in support of a motion for summary

judgment” for the first time on appeal where the trial court has not engaged in a review of the

issue in the first instance. Allstate Ins. Co. v. Smeltzer, 9th Dist. No. 25136,

, quoting Guappone v. Enviro-Cote, Inc., 9th Dist. No. 24718,

, at ¶12. See,

also, B.F. Goodrich Co. v. Commercial Union Ins., 9th Dist. No. 20936,

, at

¶38-44. While “[i]t is understandable that the trial court did not pass upon the alternative

grounds urged by [Wayne Mutual] in support of [its] motion for summary judgment because of

its belief that [Wayne Mutual] was entitled to summary judgment based upon the grounds that it

did consider[,]” we conclude that “it would be inappropriate for this [C]ourt to consider the

evidence presented by [the parties] and pass upon [the alternative] grounds without the trial

court first doing so.” Orvets v. Natl. City Bank, Northeast (1999),

.

Accord Roark v. Medmarc Cas. Ins. Co., 9th Dist. No. 07CA009146,

(reversing the trial court’s decision on summary judgment but declining to address defenses to

insurance coverage on appeal where the trial court had not yet done so); Lang v. Holly Hill

Motel, Inc., 4th Dist. No. 05CA6,

(reversing the trial court’s decision

on summary judgment and remanding for further consideration of the open and obvious doctrine

which was not previously considered by the trial court). Because the trial court did not consider

the alternative grounds for summary judgment as asserted by Wayne Mutual and we decline to

do so in the first instance, we must remand this matter to the trial court for further review.

Smeltzer at ¶15;

; B.F. Goodrich Co. at ¶44. 10

{¶15} Additionally, we note that in response to the Schmuckers’ foregoing assignment

of error, Wayne Mutual attempts to argue that it should not be required to provide coverage for

Nina because she was not a “user” of the vehicle, thereby eliminating the applicability of any

coverage exclusions. As previously stated, Wayne Mutual did not prevail on the issue of

insurance coverage. Consequently, we decline to address this argument, as Wayne Mutual is

asking this Court to modify the judgment of the trial court to conclude that Nina is not covered

under its policy – a determination that is materially different as a matter of law from the trial

court’s conclusion that Nina is covered by the policy, but excluded from coverage based on the

nature of her actions.

{¶16} App.R. 3(C)(1) requires that a party “who intends to defend a judgment *** and

who also seeks to change the judgment *** shall file a notice of cross appeal within the time

allowed by App.R. 4.” Wayne Mutual did not file a cross-appeal in this case. “It is well

established that a party seeking to defend the trial court’s judgment, yet asking to modify its

terms, must do so via filing a notice of cross-appeal.” Ware v. King, 3d Dist. No. 9-09-34, 2010-

Ohio-1637, at ¶19 (concluding that summary judgment was inappropriate on one of plaintiff’s

claims and citing App.R. 3(C)(1) when declining to address a statute of limitations argument

offered as an alternative in support of the judgment). See, also, Colonial Life & Acc. v. Leitch,

9th Dist. No. 24263,

(concluding there was a genuine issue of

material fact as to insurance beneficiary coverage and rejecting the appellee’s attempt to raise a

cross-assignment of error because it sought to alter the terms of the trial court’s judgment in her

favor and could only be properly addressed by this Court through a cross-appeal); Harper v. Dog

Town, Inc., 7th Dist. No. 08-NO-348,

(dismissing the appellees’

conditional assignments of error because the alleged errors sought to change the trial court’s 11

judgment and were not offered in defense of it). Thus, Wayne Mutual was required to file a

cross-appeal if it wanted to defend its judgment on appeal by asking this Court to modify the trial

court’s ruling on the issue of coverage.

See, also, Glidden Co. v. Lumbermens Mut. Cas.

Co.,

,

, at ¶29-37 (discussing the difference between a

party’s attempt to defend its judgment from a lower court and an attempt to modify the judgment

on appeal). Because Wayne Mutual did not do so, this Court will not consider its argument

related to the issue of coverage. Ware at ¶19; Leitch at ¶19.

{¶17} For the foregoing reasons, the Schmuckers’ second assignment of error is

sustained, and the matter is remanded to the trial court for further proceedings consistent with

this opinion.

Assignment of Error Number One

“THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TO GRANT PLAINTIFF/APPELLANTS’ MOTION FOR SUMMARY JUDGMENT.”

{¶18} A review of the Schmuckers’ first assignment of error would require us to

consider the other exclusions not yet addressed by the trial court, which we will not do in the

first instance, as previously stated. Accordingly, their first assignment of error is overruled.

III

{¶19} The Schmuckers’ second assignment of error is sustained and their first

assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas is

reversed and the cause is remanded for further proceedings consistent with the foregoing

opinion.

Judgment reversed, and cause remanded. 12

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellees.

BETH WHITMORE FOR THE COURT

BELFANCE, P. J. CONCURS IN JUDGMENT ONLY

DICKINSON, J. CONCURS, SAYING:

{¶20} The lead opinion, speaking only for its author, has wrongly concluded that

because Wayne Mutual did not file a cross-appeal challenging the trial court’s determination that

Nina was a “covered person” under the policy, that issue is not before this Court. Wayne Mutual

has presented this argument as an alternative ground for upholding the trial court’s declaratory

judgment in its favor, not as an attack on that declaratory judgment. The lead opinion has

confused the judgment in Wayne Mutual’s favor with the grounds supporting that judgment. 13

{¶21} Cross-appeals are required only if “[a] person who intends to defend a judgment

or order against an appeal taken by an appellant . . . also seeks to change the judgment or

order[.]” App. R. 3(C)(1). Under Rule 3(C)(2) of the Rules of Appellate Procedure, cross

appeals are not required if “[a] person who intends to defend a judgment or order appealed by an

appellant on a ground other than that relied on by the trial court . . . does not seek to change the

judgment or order[.]” The trial court’s “judgment” in this case was a declaration that Wayne

Mutual was not required to provide coverage for Nina’s alleged negligence. Whether Nina was

not a covered person or whether she was a covered person but her alleged negligence fell within

an exclusion from coverage are alternative potential grounds in support of that “judgment.”

According to the Ohio Supreme Court, “without filing a cross-appeal, an appellee can ‘urge in

support of a decree any matter appearing in the record, although his argument may involve an

attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored

by it.’” Kaplysh v. Takieddine,

(1998) (quoting United States v. Am. Ry.

Express Co.,

(1924)).

{¶22} In this case, Wayne Mutual is not seeking to enlarge its own rights or lessen those

of the Schmuckers. Wayne Mutual’s arguments are intended to defend the trial court’s judgment

on a ground other than that relied on by the trial court. Wayne Mutual has not attacked the trial

court’s declaratory judgment in its favor. It has not sought to modify that declaratory judgment

in any way. Wayne Mutual agrees with the trial court that the policy did not provide coverage

for Nina’s alleged negligence, but has argued that the trial court’s judgment is correct for an

alternative reason. Rather than relying exclusively on the applicability of the exclusion, as the

trial court did, Wayne Mutual has argued in the alternative that the trial court’s judgment was

correct because Nina was not a “user” of the motor vehicle. Because a cross-appeal was not 14

required in this situation, this Court cannot reverse the trial court’s judgment in Wayne Mutual’s

favor without first considering this alternative argument. See, e.g., State v. Gaines, 12th Dist.

Nos. CA2010-07-010, CA2010-O7-011,

, at ¶28-29; Schaaf v. Schaaf, 9th Dist.

No. 05CA0060-M,

(“It is well established in Ohio that ‘a reviewing

court is not authorized to reverse a correct judgment merely because erroneous reasons were

assigned as the basis thereof.’”) (quoting State ex rel. Carter v. Schotten,

(1994)).

{¶23} Wayne Mutual has argued that Nina was not a “covered person” under the policy

because she was not a “user” of the vehicle. Under the policy, Wayne Mutual was obligated to

“pay damage for bodily injury or property damage for which any covered person becomes

legally responsible because of a motor vehicle accident[.]” The policy defines a “[c]overed

person” as “any family member for the ownership, maintenance or use of any motor vehicle[.]”

Wayne Mutual has conceded that Nina is a “family member” under the policy, but has argued

that she did not “use” the motor vehicle. It is undisputed that she did not own or maintain the

vehicle. The policy does not define the word “use.”

{¶24} Relying on a decision of this Court, the trial court determined that “use” should be

defined as “the privilege or benefit of using something.” McCall v. State Farm Mut. Auto. Ins.

Co., 9th Dist. No. 23601,

(quoting Webster’s New Collegiate Dictionary

(1980) 1378). The trial court interpreted this Court’s decision in McCall as giving the word

“use” a broad definition “to include all proper uses of an automobile.” The trial court correctly

determined that Nina was “us[ing]” the vehicle at the time of the crash. See, e.g., Brown v.

Kennedy,

(1943) (holding that, despite fact that boyfriend was driving the

vehicle while daughter of insured was riding as passenger, daughter was “using” the vehicle for 15

the purpose of transportation between home and school at the time of the crash); Grange Mut.

Cas. Co. v. Rosko,

,

, at ¶26-27 (agreeing with out-of-state

precedent holding that passengers were “using” a vehicle for purposes of liability coverage in

various factual scenarios). Having determined that Grange Mutual’s argument fails, I concur in

the remainder of the lead opinion.

APPEARANCES:

TIMOTHY B. PETTORINI, and SARAH B. GORDON, Attorneys at Law, for Appellants.

EDWARD A. DARK, Attorney at Law, for Appellees.

FRANK G. MAZGAJ, and GREGG PEUGEOT, Attorneys at Law, for Appellees.

JOHN E. JOHNSON, JR. Attorney at Law, for Appellees