The Defendant was backing his truck from his driveway onto a public highway at the time of the accident. At the same time, Plaintiff was lawfully operating a motorcycle along the public highway. The two vehicles collided and Plaintiff was seriously injured. Plaintiff alleged that Defendant’s vision was obscured by vegetation on Defendant’s property that prevented him from seeing Plaintiff on his motorcycle. Defendant asked his homeowner’s insurance carrier to provide him with a defense and coverage. The homeowner’s insurance company refused and asked the Trial Court to deny coverage and a defense to the Defendant. (By the way, there was a motor vehicle liability policy available to the Defendant.)

The homeowner’s insurance policy issued to the Defendant contained the following exclusion from Personal Liability Coverage and Medical Payments to Others Coverage:

Under Personal Liability Coverage and Medical Payments to Others Coverage, we do not cover:

1. Bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading or negligent entrustment of:
   . . .

(b) Motor vehicles, all other motorized land conveyances, and trailers, owned or operated by or rented or loaned to an insured person.”

The Trial Court concluded that Plaintiff’s claim fell within the homeowner’s policy exclusion for operating a motor vehicle. The Trial Court further concluded that even if the vegetation on Defendant’s property contributed to the accident, the exclusion operated to prevent both coverage and a duty to defend. The Trial Court had no difficulty with applying the language of the exclusion. The Trial Court found the language in the exclusion “clear and unambiguous” and correctly concluded that it must give the words used in the exclusion “their plain and ordinary meaning.” The Trial Court cited Cincinnati Indemn. Co. v. Martin (1999), 85 Ohio St.3d, 604, in support of its conclusions.

The Trial Court’s decision implicitly adopted the concurrent cause rule adopted by the Second District Court of Appeals in Lehrner v. Safeco Ins./Am. States Ins. Co, 2007 Ohio 795. In Lehrner, a pizza truck driver suffered a seizure, lost control of his motor vehicle, and struck Ann and Leon Lehrner who were pedestrians. The commercial general liability policy issued to the owners of the pizza delivery truck contained an exclusion for injuries arising from a motor vehicle accident. There were also claims for negligent supervision, hiring and retention of the driver whose likelihood of suffering seizures was apparently known by the owners of the pizza business. Thus, like the case at bar, there was coverage that would have applied but for the exclusion. (As an aside, It should be noted that Defendant would have had coverage for negligently maintaining vegetation on his property if a UPS driver had backed from his driveway and had his vision blocked by vegetation so that he could not see approaching vehicles. The exclusion applied only when the Defendant was operating a motor vehicle.)

The Lehrner court found the language of the commercial general liability policy to be unambiguous and saw no reason to construe the policy language against the insurance company. The language creating the exclusion is strikingly similar to the case at bar: “We do not pay for bodily injury or property damage that arises out of the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of … an auto.” While the Court did rely on Black’s Law Dictionary for a definition of what “arises out of” means, it certainly didn’t need to do so. For purposes of the motion, it is conceded that the accident arose out of the Defendant’s operation of a motor vehicle.

Plaintiff also pointed to the fact that the homeowner’s insurance policy did not contain in the exclusion, concurrent cause language such as was contained in the policy in Lehrner, supra. That language buttressed the Lehrner court’s conclusion, but the Court stated it would have reached the same decision without the concurrent cause language contained in the exclusion in the commercial general liability policy. The Lehrner court cited the case of U.S. Fid. & Guar. Co. V. St Elizabeth Med. Ctr. (1998), 129 Ohio App.3d 45, wherein a surgeon committed malpractice while performing surgery. Patients who sued the hospital alleged that the hospital was negligent in credentialing the surgeon. The general liability policy issued to the hospital excluded coverage for injuries arising out of the rendering of surgical procedures. In holding that the language of the policy excluded coverage for the patients’ injuries under both the surgery exclusion and the claims for negligent credentialing, the Second District Court of Appeals in U.S. Fid. & Guar. Co, supra, stated as follows:

“It is often the case that the ‘activity which was occurring at the time of the loss’ (e.g., treating patients) is excluded from coverage under the insurance policy in question, while the ‘related but antecedent or concurrent activity that arguably contributed to the loss’ (e.g., hiring, supervision, etc.) is not excluded. In such cases, courts will allow recovery under the policy where the preliminary or concurrent act of planning, supervising, etc. is ‘independent’ of the excluded cause. * * * Conversely, courts will disallow recovery where the preliminary or concurrent act contributing to the loss is not independent of the excluded cause. * * * The preliminary or concurrent act contributing to the loss is independent of the excluded cause only where the act (1) can provide the basis for a cause of action in and of itself and (2) does not require the occurrence of the excluded risk to make it actionable. Id. at 51-52 (citations omitted).”

The Court went on to find that the negligent credentialing claims required the performance of surgery to become actionable. It held:

“While it is clear that a claim of negligent credentialing provides a basis for a cause of action in and of itself, * * * it is equally clear that no plaintiff can maintain a cause of action for negligent credentialing without demonstrating that his or her injuries were caused by some physician on the hospital’s staff who rendered or failed to render medical services to the plaintiff. Thus, losses caused by negligent credentialing are not independent losses caused by the rendering or failure to render medical or surgical service or treatment. As a result, the claims brought against SEMC are excluded from the policies’ coverage.” Id. at 52-53

The vegetation on the Defendant’s property was not an independent cause of Plaintiff’s injury. The offending vegetation required the excluded risk (Defendant’s operation of a motor vehicle) to make it actionable. Therefore, the Trial Court properly ruled that Defendant had no coverage for the alleged negligence in maintaining the vegetation on his property.

The Plaintiff also argued also argued that there is a split in authority among some states on allowing insurance coverage when concurrent causes are at issue. As noted by the Court in Lehrner, supra, the position it adopted is considered the majority rule. The Plaintiff argued the Trial Court to adopt the minority rule. The Lehrner court had the same opportunity and rejected it. The claimants in that case had argued that the policy was ambiguous at best and should be construed to provide coverage:

“They also cited several cases from other states to support their position. Based on the reasoning set forth in our analysis of the * policy, we are unpersuaded that it is ambiguous. For the reasons articulated above, we also disagree that (the pizza delivery driver’s) negligent operation of an automobile can be separated from the (pizza shop owner’s) negligent hiring, supervision, and retention for purposes of determining coverage under the * policy. With regard to the out-of-state cases cited by (the claimants), they demonstrate only a split of opinion nationally. * * *, cases from other jurisdictions exist that support the conclusion we have reached herein. In a reply brief, (one of the insurance companies) admits that the cases it cites represent the minority view. For purposes of resolving the issue before us, however, we need to look no further than our own holding in U.S. Fid. & Guar. Co., which we find to be dispositive * * * .” *

While the Second District Court of Appeals’ decisions in Lehrner, supra, and U.S. Guar. Co., supra, were not binding on the Trial Court, they do represent sound authority and adopt the majority rule on the issue presented.

The causes of action in the Complaint alleging negligence in the condition of the premises constitute alleged negligent conduct that is inextricably intertwined with the operation and use of a motor vehicle by Defendant. The unambiguous language of the homeowner’s policy states that the insurance company does not provide coverage for bodily injury and damages arising from the operation of a motor vehicle.

The Trial Court properly found that the exclusion in the Homeowner’s Policy is not ambiguous, the alleged premises negligence required the excluded use of the automobile to make it actionable, and the alleged premises negligence was so inextricably intertwined with the use of the motor vehicle to make the exclusion applicable.