[Cite as Grange Ins. Co. v. Farmers Ins. Co.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Grange Insurance Company Court of Appeals No. L-22-1059

Appellee Trial Court No. CI0202001216

v.

Jaylah Nichole Cleveland, et al.

Defendant. DECISION AND JUDGMENT

[Farmers Insurance of Columbus Inc. Decided: December 2, 2022 -Appellant]

*****

Raymond H. Pittman, III, for appellee.

Craig S. Cobb, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellant, Farmers Insurance of Columbus, Inc. (“Farmers”), appeals the

March 26, 2021 judgment of the Lucas County Court of Common Pleas which, in a

declaratory judgment action, granted summary judgment in favor of appellee, Grange Insurance Company (“Grange”), on Farmers’ counterclaim and partial summary

judgment as to Grange’s insured, Jaylah Cleveland. Because we agree that Cleveland

was excluded from coverage under the Grange policy, we affirm.

I. Facts and Procedural Background

{¶ 2} At approximately 8:00 a.m. on the morning of October 27, 2018, defendant

Jaylah Cleveland arrived at her employment at a Starbucks coffeehouse on Central

Avenue in Sylvania Township, Ohio.1 Cleveland drove to the Starbucks in a 2003 Ford

Focus which was owned by her grandmother, defendant Jeanette Stills, and was insured

by Grange.

{¶ 3} Upon arrival, Cleveland was acting strangely and admitted to “smoking

weed”; the Starbucks manager informed her that she could not work her shift and she was

asked to leave. Cleveland then left the Starbucks store, backed up her vehicle and

proceeded to drive it through the front window of the store. As Cleveland was driving

through the window, she struck and injured store patron Heather Stachowiak, insured by

Farmers. Cleveland then put her vehicle in reverse and exited the Starbucks. She nearly

struck patron Kelly Cody, insured by Allstate Insurance Company, who sustained injuries

when jumping out of the way to avoid being hit. As Cleveland pulled out into oncoming

traffic she struck a motor vehicle operated by James Valiton and insured by Liberty

1 Cleveland generally worked at the Maumee, Ohio location but on that day was assigned to the Sylvania Township location.

2. Mutual Insurance Company. Cleveland fled the scene. A short distance away, Cleveland

struck a second vehicle owned by Rebecca McCollum and insured by State Farm

Insurance Company. The accident disabled Cleveland’s vehicle. She was then

transported to the hospital and was subsequently placed under arrest.

{¶ 4} On January 21, 2020, Grange filed a complaint for declaratory judgment

against the potential claimants/insureds involved in the accidents and their insurers.

Grange requested a declaration by the court that it had no duty to defend, indemnify, or

provide liability coverage to Cleveland or vehicle owner Stills against the claimants and

their insurers. Grange claimed that coverage under the policy was precluded under the

intentional act and criminal act exclusions.

{¶ 5} An amended complaint was filed on May 12, 2020, adding Farmers as a

defendant and adding the argument that the policy exclusion relating to controlled

substances applied to preclude coverage. Cross-claims were filed by the parties asserting

subrogation rights under the Grange policy.

{¶ 6} On January 21, 2021, Grange moved for partial summary judgment on all

the potential claims against Cleveland.2 Grange relied on the policy exclusions for

criminal conduct and use of a controlled substance. Specifically, Grange argued that it

did not have a duty to defend Cleveland because she admitted in her deposition that she

2 During the course of the proceedings Jeanette Stills, the vehicle owner and insured under the policy, was dismissed from the action.

3. was high from smoking marijuana at the time of the accidents and that, had she not been

high, they would not have happened. Grange further relied on Cleveland’s subsequent

criminal convictions, following no contest pleas, for aggravated vehicular assault,

vehicular assault, vandalism, and failure to stop after an accident on a nonpublic road.

On January 25, 2021, Grange filed a motion for summary judgment as to Farmers’

counterclaim raising essentially the same arguments. Farmers opposed the motions on

February 18, 2021.

{¶ 7} On March 26, 2021, the trial court granted the motions. The court held:

The court finds that the Grange policy contained two pertinent

exclusions to coverage. First, the Grange policy excluded those insureds

committing a criminal act. In addition, the policy provides an exclusion to

coverage if the insured is under the influence of an illegal substance.

Defendant Cleveland, despite being an insured under her grandmother’s

policy, was under the influence of marijuana and committing criminal acts

on the day of the accidents. Due to Defendant Cleveland’s actions, she is

excluded from coverage under the Grange policy.

This appeal followed.

II. Assignments of Error

I. Whether the trial court erred in granting summary judgment

because the policy language in exclusion 10 used by Grange along with

4. Cleveland’s deposition testimony creates issues of fact which preclude

summary judgment.

II. Whether the trial court erred in granting summary judgment

because of an ambiguity in the policy language excluding coverage for

“bodily injury or property damage arising out of the use, sale, manufacture,

delivery, transfer or possession by any person” of a controlled substance,

including marijuana.

III. Discussion

{¶ 8} We note that in reviewing the motions for summary judgment, this court

must apply the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts.,

,

(9th Dist. 1989). Summary judgment will be

granted when there remains no genuine issue as to any material fact and, when construing

the evidence most strongly in favor of the nonmoving party, reasonable minds can only

conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

Further, we review de novo all the evidence and arguments presented in the parties

motions for summary judgment and their oppositions.

{¶ 9} At issue is whether Cleveland’s status as an insured under the Grange policy

entitled her to coverage for the damages caused by the accidents. “In Ohio, insurance

contracts are construed as any other written contract.” Andray v. Elling, 6th Dist. Lucas

No. L-04-1150,

, citing Hybud Equip. Corp. v. Sphere Drake Ins.

5. Co., Ltd.,

,

(1992). If the language of the policy,

read as a whole, is clear and unambiguous there are no issues of fact and interpretation is

a matter of law. Sauer v. Crews,

,

,

.

{¶ 10} Additionally, under Ohio law,

“an exclusion in an insurance policy will be interpreted as applying

only to that which is clearly intended to be excluded.” (Emphasis sic.)

Hybud Equip. Corp. [at] 665. * * *. Furthermore, “[i]f provisions are

susceptible of more than one interpretation, they ‘will be construed strictly

against the insurer and liberally in favor of the insured.’” Sharonville [v.

Am. Emp. Ins. Co.,

,

,

]

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

,

(1988), syllabus.

Id. at ¶ 11.

{¶ 11} Two exclusions were examined as the bases to award Grange summary

judgment. The relevant personal auto policy language provides:

Part A-Liability Coverage

Insuring Agreement

6. A. [I]f you pay the premium when due, we will pay compensatory

damages for bodily injury or property damage for which any insured

becomes legally responsible because of an auto accident. * * *

B. 1. “Insured” as used in this Part A- Liability Coverage means:

a. You, a family member * * *”

b. Any person, other than the person defined in B.1.a. of this

definition, who is using your covered auto * * * within the scope of your

consent * * *.

Exclusions

A. We do not provide any coverage under this Part A-Liability

Coverage for any insured:

***

10. For bodily injury or property damage caused by, or reasonably

expected to result from, a criminal act or omission of an insured. This

exclusion (A.10.) applies regardless of whether that insured is actually

charged with, or convicted of, a crime. For the purposes of this exclusion

(A.10.), criminal acts or omissions do not include traffic violations.

***

16. For bodily injury or property damage arising out of the use, sale,

manufacture, delivery, transfer or possession by any person of a Controlled

7. Substance(s) as defined by the Federal Food and Drug Law at

and 812. Controlled Substances include but are not limited to

cocaine, LSD, marijuana and all narcotic drugs. However, this exclusion

does not apply to the legitimate use of prescription drugs by a person

following the lawful orders of a licensed health care professional.

A. Criminal act exclusion

{¶ 12} Farmers’ first assignment of error argues that the court erred in finding that

the criminal act exclusion in section No. 10 of the policy applied to exclude coverage.

Farmers asserts that because the exclusion language requires the damages to be

“reasonably expected to result” and, because Cleveland did not intend to cause damage,

issues of fact remain as to whether the exclusion applies. Grange counters that it is

undisputed that Cleveland committed criminal acts which caused injury, triggering the

exclusion.

{¶ 13} Farmers correctly states that an insured’s no contest plea may not be used

in a civil proceeding as proof of liability. Elevators Mut. Ins. Co. v. J. Patrick

O’Flaherty’s, Inc.,

,

,

, syllabus.

However, the facts underlying the convictions are admissible. Id. at ¶ 20. It is

undisputed that appellant was under the influence of marijuana when she caused injuries

and property damages. In her deposition, Cleveland states:

Q: * * *. Were you high when you showed up at the Starbucks?

8. A: Yes.

Q: I’m assuming that all of the stuff that’s reflected in the crash

report, that you wouldn’t have done all that if you hadn’t been high. Is that

fair to say?

A. Yeah, I would have never done that.

Q. Right. You would have never drove your car through the front of

the Starbucks window if you weren’t high; is that correct?

A. Yes, that’s correct.

Q. Is it fair to say that you wouldn’t have left the scene of an

accident if you weren’t high? Is that fair to say?

A. Yeah.

Q. And is it fair to say that you would not have committed any

vehicular assault of any people if you weren’t high? Is that fair to say?

A. Yes.

{¶ 14} Cleveland admitted that she cannot dispute any accounts of the events

made by Starbucks employees or witnesses. She further admitted that she had only

smoked marijuana on four prior occasions and that on one of those occasions she had

blacked out in a manner similar to her status during the events in question.

{¶ 15} As set forth above, the policy exclusion is not limited to intended criminal

acts. Relevant to Farmers’ insured, Cleveland was charged with aggravated vehicular

9. assault, R.C. 2903.08(A)(1)(a), which prohibits an individual, while operating a motor

vehicle while under the influence of drugs or alcohol, from causing serious physical harm

to another. Aggravated vehicular assault is a strict liability offense. State v.

Hohenberger,

,

,

(6th Dist.), ¶ 44.

Cleveland was also charged with vehicular assault, R.C. 2903.08(A)(2)(b), recklessly

causing serious physical harm while operating a motor vehicle. R.C. 2901.22(C), defines

recklessly as follows:

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that

the person’s conduct is likely to cause a certain result or is likely to be of a

certain nature. A person is reckless with respect to circumstances when,

with heedless indifference to the consequences, the person disregards a

substantial and unjustifiable risk that such circumstances are likely to exist.

{¶ 16} The undisputed facts surrounding the events demonstrate that Cleveland

committed aggravated vehicular assault and, acting recklessly, committed vehicular

assault. Cleveland admitted in her deposition to having a prior adverse reaction—

blacking out— after smoking marijuana. Accordingly, she knowingly disregarded the

risks associated with her smoking marijuana and driving a motor vehicle. Reasonable

minds could only conclude, therefore, that injuries and property damage were reasonably

expected to result from her reckless, criminal act. See Steinke v. Allstate Ins. Co., 86

10. Ohio App.3d 798, 803,

(3d Dist. 1993); Owner Operators Indep.

Drivers Risk Retention Group v. Stafford, 3d Dist. Marion No. 9-07-46,

, examining Steinke. Because the insurance policy excludes injuries “caused by,

or reasonably expected to result from, a criminal act or omission of an insured” Grange

has no duty to defend or indemnify Cleveland and was entitled to summary judgment in

its favor on this basis.

B. Marijuana use exclusion

{¶ 17} Farmers’ second assignment of error argues that the court’s second basis

for granting summary judgment to Grange, that the marijuana use exclusion applied to

preclude liability coverage, was in error. Farmers first claims that the exclusion is

ambiguous because it does not link marijuana usage to the operation of a motor vehicle.

{¶ 18} As set forth above, the relevant language clearly excludes coverage for

“bodily injury or property damage” arising out of the use of marijuana. Reading the

policy as a whole we note that the exclusions section specifically references “Part A-

Liability Coverage” which states that the policy provides coverage for damages “for

which any insured becomes legally responsible because of an auto accident.” Further, an

insured is defined as a family member or person using the covered auto with permission.

{¶ 19} It is undisputed that Cleveland was an insured under the policy at all

relevant times. Thus, the coverage exclusion No. 16 applies because Cleveland admitted

that the accidents directly resulted from her use of marijuana.

11. {¶ 20} Farmers further argues that it violates public policy to exclude coverage for

marijuana use when auto insurance policies are prevented from doing so for alcohol use.

Farmers cites no cases directly in support of this argument. Although many states have

eased their regulations regarding the distribution and use of marijuana, it remains a

controlled substance under federal law. Further, Ohio has legalized marijuana for

medical us only, see R.C. Chapter 3796. Thus, there are clear reasons to treat marijuana

use differently than alcohol use. Accordingly, we find that appellant’s second assignment

of error is not well-taken.

IV. Conclusion

{¶ 21} Based on the foregoing, we affirm the March 26, 2021 judgment of the

Lucas County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered to

pay the costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

12. Grange Insurance Company v. Jaylah Nichole Cleveland [Farmers Insurance of Columbus, Inc.-Appellant] L-22-1059

Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

13.