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Artisan & Truckers Casualty Co. v. JMK Transportation LLC

Court of Appeals of Ohio, Twelfth District

August 19, 2013

ARTISAN AND TRUCKERS CASUALTY COMPANY, Plaintiff-Appellee,
v.
JMK TRANSPORTATION, LLC, et al., Defendants-Appellants.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2011 CVH 1096

J. Timothy Riker, for plaintiff-appellee, Artisan and Truckers Casualty Company

JMK Transportation, appellee, pro se.

A&K Barkley Cab Co., appellee, pro se.

Adrienne Missy Barkley, appellee, pro se.

Marion Tidwell, appellee, pro se.

Elizabeth Mason, for appellees, Michael McKibben, Brent Anstaett and Clermont County Commissioners.

Kevin C. Connell, Fifth Third Centre, for appellee, Erie Insurance Company.

Howard D. Cade III, for defendant-appellant, Betty Barger.

OPINION

HENDRICKSON, P.J.

(¶ 1} Defendant-appellant, Betty Barger, appeals a decision of the Clermont County Court of Common Pleas granting declaratory judgment in favor of plaintiff-appellee, Artisan & Truckers Casualty Company (Artisan). For the reasons stated below, we affirm the decision of the trial court.

(¶ 2} On May 28, 2010, Barger was involved in an automobile accident that involved her car, another vehicle, and a 2001 Ford Crown Victoria, Vin # 151221 (Crown Victoria). The Crown Victoria was operated by Marion Tidwell, who worked for JMK Transportation (JMK). On the day of the accident, Tidwell was picking up the Crown Victoria from a garage where it was getting repaired so that the vehicle could be used in JMK's business. Minutes after picking up the vehicle, a collision occurred where Barger suffered serious injuries.

(¶ 3} At the time of the collision, JMK had an automobile insurance policy with Artisan. The Crown Victoria was not listed in the declarations page of the policy. Subsequently, Artisan filed a complaint for declaratory judgment to determine its obligations under the insurance policy. On September 20, 2012, a trial was held which established the following facts.

(¶ 4} JMK is a Medicaid transportation company owned by Adrienne Barkley. In November 2008, Barkley incorporated JMK. Prior to the establishment of JMK, Barkley was the sole shareholder of A&K Barkley Cab Co., Inc. (A&K). A&K was a general purpose cab company which had operated for several years. In 2007 and 2008, Barkley was looking to sell the assets of A&K and start a smaller transportation company. During this time, A&K purchased the Crown Victoria. The Crown Victoria's title and registration listed A&K as the owner.

(¶ 5} A&K ceased operations and sold most of its assets to another party in July 2008. The asset sale included A&Ks goodwill and 30 of A&Ks vehicles. A 2001 Crown Victoria was not included in the sale. After the asset sale, Barkley transferred A&K's leftover vehicles, including the Crown Victoria, from its lot in Queen City to a new lot located in Miamitown. Some of the transferred vehicles were driven for JMK's business while others were used for spare parts. Through most of the time JMK was operating its business, the Crown Victoria suffered from mechanical failure and was left at the Miamitown car lot. The titles of the leftover vehicles, including the Crown Victoria, remained in A&K's name even though many of the vehicles were being used in JMK's business.

(¶ 6} In 2008, JMK purchased automobile insurance through National Indemnity. The Crown Victoria was listed as a covered vehicle under this policy. However, in 2009 JMK bought insurance through Artisan and the Crown Victoria was not included under this new policy. Additionally in 2009, Barkley as proprietor of JMK, filed a tax return claiming several vehicles for tax deduction purposes. The vehicles were not listed ...


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