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Date: 08-16-2020

Case Style:


Case Number: 109056



Plaintiff's Attorney:

Defendant's Attorney:

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Janice Casey (“Casey”), individually and as a legal representative of
Joseph C. Casey, deceased (“Decedent”), appeals the granting of two summary
judgment motions in favor of two defendants in this case: Derrek and Joy Supple
(“Supples”) and State Farm Mutual Automobile Insurance Company (“State Farm”).
After careful consideration of the record and the arguments, we affirm the granting
of both motions.
Facts of the Complaint
This wrongful death and survivorship action arose out of a motor
vehicle accident that occurred on June 5, 2015, in Avon, Ohio. Casey alleges in her
complaint that the Decedent was catastrophically injured in the accident.
The Decedent was employed by Heights Driving School, Inc.,
(“Heights”). On the day of the accident, he was seated in the passenger seat of a
Heights’ vehicle, a 2005 Kia Optima, (“the Kia”), observing and instructing a teenage
student driver. The Kia was struck by another vehicle in Avon, Ohio, at the
intersection of Detroit and Jaycox Roads. This other vehicle was being driven by the
sixteen-year-old defendant, K.M., who had failed to stop at a red light.
At the time of the accident, K.M. was working for the Supples as a
babysitter. June 5, 2015, was to be her first and only day. K.M. spoke to Joy Supple,
(“Joy”), in May 2015 about the Supples’ need for a babysitter. Joy communicated
that K.M. would need a driver’s license to babysit. K.M. notified the Supples that
she had a driver’s license. She also told the Supples that she had another job working
at Marc’s in North Ridgeville; she was only available to work around her job at
Marc’s. Joy was comfortable with that arrangement and the two reached a tentative
agreement that K.M. would receive $60.00 per day for babysitting.
On June 1, 2015, Joy sent K.M. an email that included a proposed
schedule for the month of June, which included the schedule for the Supples’ other
babysitter. Sometime before June 5, K.M. met the Supples’ daughters, ages 8 and
On the morning of June 5, 2015, K.M. arrived at the Supples’ home to
begin babysitting. In addition to the two children, a friend of the daughters had
stayed overnight, and Joy asked K.M. to watch that child as well. K.M. informed Joy
that she had a shift at Marc’s in the afternoon and would need to leave early; Joy
asked that K.M. drop off the children’s friend, and then drive her two daughters to
Joy’s office before proceeding to Marc’s. K.M. agreed.
On the afternoon of June 5, 2015, the Decedent was scheduled to give
driving instructions to M.M., a sixteen-year-old student. M.M. was picked up by
another student for his lesson — the Decedent was seated in the passenger seat of
the Kia that was equipped with an extra set of emergency brakes for the instructor.
M.M. drove to the other student’s home, dropped him off, and continued his lesson
with the Decedent. After two hours, M.M. drove eastbound on Detroit Avenue to
pick up the next student.
K.M. had been following the directions of the three children to drive
the friend home. She drove into the Jaycox and Detroit road intersection without
stopping for a red light signal, colliding with the Kia that M.M. and the Decedent
were operating.
The Decedent suffered multiple injuries, including broken ribs, a
cracked sternum, a fractured pelvis, and many contusions. He was hospitalized for
several months and passed away twenty months after the collision.
Procedural History and Summary of the Arguments
Heights had a motor vehicle insurance policy issued by Erie
Insurance Company (“Erie”). The Caseys also had personal and umbrella auto
coverage from State Farm, which included underinsured motorists (“UIM”)
On May 15, 2017, Casey filed a complaint in the Cuyahoga County
Court of Common Pleas against four defendants: Erie, State Farm, K.M., and the
Supples. Casey raised separate claims for negligence against K.M. (Claim One), joint
and derivative liability against the Supples (Claim Two), Underinsured Motorist
(“UIM”) coverage against Erie (Claim Three), breach of contract and bad faith
against Erie (Claim Four), and UIM coverage against State Farm (Claim Five).
Answers were submitted denying liability to a certain extent and
interposing various cross-claims. Those cross-claims are not at issue in this appeal
and so we will not address them.
Claim Two and the Supples’ Motion for Summary Judgment
On March 26, 2018, the Supples filed a motion for summary
judgment arguing that there are no genuine issues of material fact with respect to
the issue of vicarious liability. Claim Two also alleged that K.M. was “acting in
furtherance of a joint enterprise or venture with Defendants Derrek and Joy
Supple.” The Supples’ response has continually been that this element of Claim Two
is properly considered as an element of the vicarious liability claim given that the
Supples were allegedly employing K.M.
The Supples argued in their motion that K.M. was an independent
contractor and that there were no genuine issues of material fact as to that point.
Their brief references both the deposition of K.M. and Joy, and while the depositions
are not completely synchronized, they match on the essential points. Namely, that
the Supples do not run a childcare business, that K.M. was only babysitting for extra
money, and that any babysitting would have to fit with K.M.’s schedule working at
Marc’s grocery store. K.M. was also never paid for her work on June 5, and has never
asked the Supples to pay her.
On April 25, 2018, Casey responded to their motion for summary
judgment. Casey argued that there was a factual question of whether the Supples
owed a duty to the Decedent, and that reasonable minds could infer that the Supples
were jointly liable for the accident. Her argument is that Joy “directed an
inexperienced teenage driver to transport three young children to an unfamiliar
destination” and that it was foreseeable that “the teenage driver would be seriously
distracted while taking directions from potentially rambunctious juveniles.”
Casey further argued that because of the extent of instruction given to
K.M. by the Supples there were genuine issues of material fact as to whether she was
an employee or an independent contractor. Casey pointed out that Joy had told
K.M. what the three children could eat, had told her the rules for the house and the
pool, and had asked her to drive the friend home and then her two children to her
office before K.M. went to work at Marc’s.
On May 3, 2018, the Supples responded to Casey’s brief in opposition.
In their response they argued that Casey was conflating two forms of liability:
respondeat superior and joint tortfeasor liability. They argued that respondeat
superior liability occurs when an employee engages in negligent behavior and
liability falls on the employer solely as a result of the employer-employee
relationship. They argued that this theory was incompatible with a joint tortfeasor
theory that would require the Supples to have endorsed K.M.’s behavior in order to
accomplish a negligent act.
On June 8, 2018, the trial court granted the motion for summary
judgment. The court found that K.M. was an independent contractor and that the
Supples were not involved in a joint childcare venture with K.M.
State Farm’s motion for summary judgment
On March 26, 2018, State Farm filed a motion for summary
judgment. In that motion State Farm acknowledged that the facts of the accident
and the injuries incurred are not the focus of State Farm’s Summary Judgment
request— rather the motion pertained solely to insurance coverage.
At the time of the accident, the Decedent had two insurance policies
with State Farm: a personal automobile insurance policy and an umbrella policy.
State Farm argues that neither policy covered the decedent’s accident and that there
are no genuine issues of material fact that would call that argument into question.
According to the deposition of Casey, the Decedent had been
employed as a Heights instructor for several years. He worked often, sometimes five
or six days a week. According to Casey, the Decedent used the same vehicle every
day, the Kia.
The Decedent never used his personal vehicle while educating
students because he was required to operate a car with a passenger braking system.
While his personal vehicle was covered under his personal insurance with State
Farm, Heights had insurance coverage through Erie.
State Farm argued that the Decedent was not covered by his personal
insurance contract because of a “regular use” exception in the contract. The terms
of the contract state that the personal insurance policy does not cover damages
resulting from injuries that occur “while any insured is operating or occupying a
motor vehicle owned by, furnished to, or available for the regular use of you or any
resident relative if that motor vehicle is not your car, a newly acquired car, or a
temporary substitute car.”
The Kia is not the car listed in the Decedent’s personal policy. State
Farm argues that the Kia was both furnished to and available for the regular use of
the Decedent and therefore there is no coverage.
State Farm also argued that the umbrella policy does not cover the
Decedent because the umbrella policy is only activated if the underlying coverage is
also active.
Erie also filed a motion for summary judgment on March 26, 2018.
In that motion, Erie did not dispute that the Decedent qualified as insured under the
contract with Heights Driving School.
Erie did argue, however, that the Decedent was also covered under
State Farm’s policy and that State Farm should bear one-third of any underinsured
motorist coverage amounts owed. On April 25, 2018, Erie submitted a brief in
opposition to State Farm’s motion for summary judgment. Casey adopted these
arguments in response to State Farm on April 25, 2018.
Erie, and subsequently Casey, argues that either the Kia was not
available for the “regular use” of the Decedent or, alternatively, there are genuine
issues of material fact as to whether it was available for “regular use.” Erie argued
that the student drivers were using the vehicle at the time of the accident and that
determining “regular use” is a very fact specific inquiry.
On June 8, 2018, the trial court granted State Farm’s motion for
summary judgment and denied Erie’s motion for summary judgment as moot.
Disposition of the case
On August 8, 2018, counsel notified the trial court that all remaining
claims had been settled with the remaining two defendants, K.M. and Erie. The case
was to be dismissed with prejudice pending Probate Court approval.
On September 18, 2019, by stipulation of the parties, the case was
dismissed with prejudice.
On September 27, 2019, Casey filed a notice of appeal seeking further
review of the August 8, 2018 and September 18, 2019 Journal Entries as well as “all
other adverse and appealable rulings in this action.”
She has presented two assignments of error, both concerning the
granting of summary judgment.
Assignments of Error I
The trial court erred as a matter of law, by granting summary judgment
in favor of Defendants-Appellees Derrek and Joy Supple.
Assignment of Error II
The trial court erred as a matter of law, by granting summary judgment
in favor of Defendant-Appellee, State Farm Mutual Automobile
Insurance Company.
Summary judgment
Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court’s
decision and independently review the record to determine whether summary
judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136,
912 N.E.2d 637, ¶ 12 (8th Dist.).
Under Civ.R. 56(C), summary judgment is proper when the moving
party establishes that “(1) no genuine issue of any material fact remains, (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 construing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse
to the party against whom the motion for summary judgment is made.” State ex rel.
Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d
832, ¶ 9, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d
267 (1977).
The party moving for summary judgment bears the burden of
showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-
70, 696 N.E.2d 201 (1998). Once the moving party satisfies its burden, the
nonmoving party “may not rest upon the mere allegations or denials of the party’s
pleadings, but the party’s response, by affidavit or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial.” Civ.R.
56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996).
Doubts must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).
With these principles in mind, we proceed to consider whether the
trial court’s grant of summary judgment was appropriate and find that it was.
The Supples’ motion for summary judgment
In their motion for summary judgment the Supples argued that K.M.
is an independent contractor and that there are no genuine issues of material fact
that suggest otherwise. Further, the Supples argued that Casey failed to adequately
allege a joint tortfeasor claim, and, even if she had, they cannot be joint tortfeasors
both as a matter of fact and of law.
Independent Contractor
The well-settled test used to determine whether an employed person
is an independent contractor or an employee is as follows:
The principal test applied to determine the character of the
arrangement is that if the employer reserves the right to control the
manner or means of doing the work, the relation created is that of
master and servant, while if the manner or means of doing the work or
job is left to one who is responsible to the employer only for the result,
an independent contractor relationship is thereby created.
Bobik v. Indus. Comm., 146 Ohio St. 187, 191, 64 N.E.2d 829 (1946), quoting Gillum
v. Indus. Comm., 141 Ohio St. 373, 48 N.E.2d 234 (1943), paragraph two of the
In analyzing whether a person is an independent contractor or an
employee, the court should consider, but is not limited to, the following factors:
(1) Whether the one employed is engaged in a distinct occupation or
business; (2) whether the worker or the employer supplies the place
and requisite instrumentalities; (3) whether the work is done by a
specialist requiring a particular skill; (4) the method of payment
whether by the time or by the job; (5) the length of time for which the
person is employed; (6) whether the work is a part of the regular
business of the employer; (7) whether the employer or the employed
controls the detail and quality of the work; and (8) the terms of any
pertinent agreements or contracts between the parties.
Lenart v. Doversberger, 8th Dist. Cuyahoga Nos. 65372 and 65373, 1994 Ohio App.
LEXIS 2063 (May 12, 1994).
Further, we have found that all indicia of an employment relationship
in a given case must be assessed together as a whole. Vajda v. St. Paul Mercury Ins.
Co., 8th Dist. Cuyahoga No. 80917, 2003-Ohio-160, citing Harman v.
Schnurmacher, 84 Ohio App.3d 207, 211, 616 N.E.2d 591 (11th Dist.1992).
In this case, it is clear that K.M. is correctly classified as an
independent contractor. While we are not bound to the decision of the trial court in
any way, we find its analysis as to K.M.’s status enlightening. The court stated in its
First, a teenage babysitter is not engaged in a distinct occupation or
business. [K.M.] testified she was babysitting for extra money. It was
not her occupation or business. Second, while a babysitter is entrusted
with someone’s children, it can hardly be said to be work requiring
special skill. There was no testimony of any training or certification.
Third, [K.M.] provided an important instrumentality, her automobile,
to perform the duties for which she was hired, specifically transporting
the children to and from activities as well as Mrs. Supple’s job. Fourth,
this was [K.M.’s] first time babysitting for this family. She never
babysat for them again. Next, it is undisputed that [K.M.] was never
paid for the one time she babysat for the Supples. The final factor,
whether the work is part of a regular business, clearly points to [K.M.]
being an independent contractor. It is neither a regular business for
[K.M.] or the Supples.
Added to the above facts is an equally critical piece of evidence — K.M.
informed the Supples that she could only babysit for them when she was not
scheduled to work at Marc’s. In fact, the day of the accident, K.M. told Joy that she
would have to cut the babysitting short so that she could go work at Marc’s. K.M.
was in complete control of her babysitting schedule.
Casey does not dispute this narrative, but instead tries to amplify a
few facts. Casey argues that because Joy told K.M. what the children should eat, the
house and pool rules, and then asked her to drive the children to Joy’s office before
leaving for her job, the Supples were in control. To support this proposition, Casey
relies on a fragment from a 1955 Ohio Supreme Court case. In explaining what “right
to control” meant the Ohio Supreme Court stated if the erstwhile employer “is
interested merely in the ultimate result to be accomplished, the relationship is that
of employer and independent contractor.” Councell v. Douglas, 163 Ohio St. 292,
126 N.E.2d 597 (1955), paragraph one of the syllabus. Casey argues that because
Joy provided some minimal instruction rather than just leaving her children with
K.M. without saying anything, then the Supples were not interested merely in “the
ultimate result.”
Councell does not make “the ultimate result” the ultimate test for
determining whether a person is an independent contractor; the language is merely
descriptive. We have decades of cases that explain that numerous factors are used
to determine whether an independent contractor is under the control of someone.
Casey does not offer any cases that support her conclusion that a
babysitter is an employee or any cases that would suggest minimal instruction —
weighed together with “all indicia of an employment” — creates a genuine issue of
material fact in this case.
Ultimately, K.M. was working for extra money, money she never
received, all the while prioritizing her job at Marc’s. This was a typical babysitting
job; K.M. was an independent contractor.
Joint tortfeasor
Casey’s claim against the Supples clearly included an allegation that
the Supples were vicariously liable under the doctrine of respondeat superior.
However, there are also elements of a more nebulous claim — that K.M. was “acting
in furtherance of a joint enterprise or venture” with the Supples. In its motion for
summary judgment as well as its reply to Casey’s opposition, the Supples argue that
this is an unsubstantiated allegation of joint tortfeasor liability that Casey
improperly conflates with respondeat superior. The trial court appears to have
taken a similar view in assessing whether there was any joint or several liability,
focusing on respondeat superior and finding that the Supples and K.M. were not
involved in any joint childcare venture. In conducting our de novo review of the
evidence, we agree that the elements of joint tortfeasor liability are not present and
that Casey presented no evidence to suggest a genuine issue of material fact.
We have defined a joint tortfeasor as:
one who actively participates, cooperates in, requests, aids, encourages,
ratifies, or adopts a wrongdoer’s actions in pursuance of a common
plan or design to commit a tortious act.
Clevecon, Inc. v. Northeast Ohio Regional Sewer Dist., 90 Ohio App.3d 215, 223,
628 N.E.2d 143 (8th Dist.1993), citing Prosser, Law of Torts (4th Ed.1978) 292,
Section 46.
Casey argues that active negligence, in this case driving through a
stoplight, can create joint liability. But, in order for joint liability to apply here, K.M.
and the Supples would need to have encouraged K.M. to negligently drive through a
stop light. That theory of liability simply does not flow from the facts that Casey
provides this court.
Instead, Casey suggests that the Supples “facilitated” K.M.’s
negligence by asking her to drive their children in the first place. That is, quite
simply, not what a joint tortfeasor is. K.M. was a licensed Ohio driver operating her
own vehicle; she did not form a plan with the Supples to drive through a red light or
even to negligently drive. In suggesting the Supples were liable for her negligence,
Casey asks this court to stretch the definition of joint tortfeasor well past its breaking
The Supples’ motion for summary judgment was properly granted.
There are no genuine issues of material fact and the Supples are entitled to judgment
as a matter of law. The first assignment of error is overruled.
State Farm
State Farm argues that the Decedent’s policy includes an exclusion
that means he is not entitled to personal UIM coverage and, because there is no
underlying coverage, he is also not entitled to coverage under the Casey’s umbrella
policy. State Farm argues that there are no genuine issues of material fact and that
it is entitled to judgment as a matter of law. We agree.
The Casey’s personal Auto Policy through State Farm contained the
following provision:
* * *
* * *

The overriding purpose of the regular use exclusion is to protect
insurance companies from insured individuals purchasing coverage on one vehicle
and then using that coverage for protection while continually driving non-owned
vehicles for which no premium was paid. Ohio Cas. Ins. Co. v. Travelers Indemn.,
42 Ohio St. 2d 94, 97, 326 N.E.2d 263 (1975). Ohio law acknowledges “that insureds
often drive non-owned vehicles on trips where driving chores are shared, or around
town for short trips in a friend’s or relative’s car. Hence, the construction placed
upon the term ‘regular use’ in family policies is quite favorable to the insured.” Id.
The Ohio Supreme Court accordingly defined “regular use” as
frequent, steady, constant, or systematic use of the vehicle. Sanderson v. Ohio
Edison Co., 69 Ohio St.3d 582, 589, 635 N.E.2d 19 (1994). In this case there is some
question over whether the Decedent always used this particular Kia. However, that
is not a question we need to answer. “[I]t is well settled that an automobile will be
excluded under such policy provisions although it is only one of a group of
automobiles from which an automobile is regularly furnished to the named insured
by his employer.” Kenney v. Emp.’s Liab. Assur. Corp., Ltd., 5 Ohio St.2d 131, 134,
214 N.E.2d 219 (1965).
In attempting to prove no genuine issue of material fact, State Farm
draws heavily from the deposition of Janice Casey herself. Casey stated that her
husband worked five to six days a week, putting in many hours. She said that he had
been with Heights Driving School for several years, perhaps more than five. The
Decedent never used his personal vehicle to instruct students, instead exclusively
using a Heights’ vehicle with a dual braking system. She further testified that the
vehicle, the Kia, was kept at the Caseys’ house, and that the Decedent usually used
that same Kia to instruct students. M.M., the student-driver at the time of the
accident, testified that he had used the Kia, or a similar vehicle, for each of his four
State Farm argues that this constitutes “regular use” and we agree. In
contrast, Casey does not provide any evidence that the Decedent did not have
regular use of the vehicle, instead suggesting that the Decedent was merely a
passenger, that there is no evidence that the Caseys used the vehicle for personal
use, and that we do not have enough evidence that he used the car frequently.
We note initially that the policy explicitly excludes occupants of the
vehicle as well as operators, so whether the Decedent was operating the car is
immaterial. Furthermore, this court has previously stated that the “fact that [the
insured] did not have unlimited use of the vehicle for both work-related and
personal purposes is irrelevant” to the determination of whether a vehicle was
available for the insured’s regular use. Pickering v. Nationwide Mut. Ins. Co., 8th
Dist. Cuyahoga No. 82512, 2003-Ohio-4076, ¶ 22.
Casey relies on several cases to bolster his argument that the
Decedent’s use of the vehicle does not constitute regular use, including two from this
district that she alleges involve far more proof of use. See Pickering, 2003-Ohio4076 (UPS mail truck was used five days a week for two years); Liggins v. White,
8th Dist. Cuyahoga No. 96167, 2011-Ohio-4417 (field technician drove the same
AT&T work van for two years). Neither of these cases offers “more proof”; according
to the evidence provided by both parties, the Decedent operated and occupied the
same or a similar vehicle for several years, five to six days a week. And, even if we
found that other cases displayed more frequent “regular use,” that does not diminish
the frequency in this case.
There are no genuine issues of material fact and State Farm is entitled
to judgment as a matter of law. The motion for summary judgment was properly
Failure of preservation
State Farm also argued that Casey failed to preserve her arguments
for appeal. In reply to State Farm’s motion for summary judgment, Casey did file a
response. However, that response adopted “by reference the reasons and argument
to be submitted by Defendant Erie Insurance in response to the Motion.”
Having already concluded that State Farm’s motion for summary
judgment was properly granted we decline to rule on this alternative theory.

Outcome: Accordingly, we affirm the decisions of the trial court.

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